Smith v. State
| Docket Number: | 2003-KA-00550-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-30-2006 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery & Touching child for lustful purposes - Sufficiency of evidence - Videotape - Expert witness - Credibility of victims - M.R.E. 103(a)(1) - M.R.E. 104(e) - M.R.E. 801(d)(1)(B) - M.R.E. 803(25) Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Concur in Part, Concur in Result 1: Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-26-2003 Appealed from: Pike County Circuit Court Judge: Mike Smith Disposition: Appellant was convicted of sexual battery and touching and handling a child for lustful purposes and sentenced to thirty (30) years imprisonment on Count I and twenty (20) years imprisonment on Count II, to run consecutively. District Attorney: Dee Bates Case Number: 02-178-KB |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kimble Peter Smith |
THOMAS P. WELCH, JR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOSE BENJAMIN SIMO |
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| Topic: | Sexual battery & Touching child for lustful purposes - Sufficiency of evidence - Videotape - Expert witness - Credibility of victims - M.R.E. 103(a)(1) - M.R.E. 104(e) - M.R.E. 801(d)(1)(B) - M.R.E. 803(25) |
| Summary of the Facts: | Kimble Smith was convicted on Count I of sexual battery and Count II of touching and handling a child for lustful purposes. He was sentenced to thirty years imprisonment on Count I and twenty years imprisonment on Count II, to run consecutively. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Smith argues that only the two victims could prove that he perpetrated any wrongs, and their testimony was inconsistent. Moreover, he argues there was no physical evidence supporting their testimony. The school principal and a police officer found the girls statements to be consistent and credible. Expert witnesses from the Southwest Mississippi Children’s Advocacy Center also found the girls statements to be consistent and credible. A rational trier of fact could find the testimony of Joan and Karen, which was corroborated by their prior statements to the elementary school principal, an investigating officer, and experts in the field of child sexual abuse, all of whom interviewed the girls, was sufficient to establish beyond a reasonable doubt that the accused committed the acts charged and that the essential elements of each count were established beyond a reasonable doubt. Issue 2: Videotape A videotape of an interview with one of the victims was shown to the jury. In that videotape, she was asked whether she had any knowledge of Smith committing similar offenses with other children. In a discussion outside the jury’s presence, it was agreed among the parties that this portion of the videotape would be edited out before the videotape was viewed by the jury. At trial, however, the videotape was played and the question was heard by the jury. However, the tape was stopped before the victim’s answer was heard. Smith argues he was prejudiced by the unsubstantiated prior bad act question and, therefore, his motion for mistrial should have been granted. The incident at issue amounted to an inadvertent mistake in failing to properly edit the tape, combined with the video equipment malfunctioning. The trial judge, in exercising his discretion, found that alone was insufficient to justify granting the defendant’s motion for mistrial. The trial judge properly exercised his discretion, and such discretion ought to be granted deference. Issue 3: Expert witnesses Smith argues that while the court would never permit the defense to enter a polygraph result showing that Smith was telling the truth, that is what the State is allowed to do via the expert opinions of two expert witnesses in the field of forensic interviewing. M.R.E. 103(a)(1) states that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. Smith neither objected to the two witnesses being offered as experts in the field of forensic interviewing in child sexual abuse cases, nor objected to their opinions regarding the consistency and credibility of the victim’s statements. Therefore, these arguments are not preserved for appeal. Notwithstanding the procedural bar, M.R.E. 104(e) states that Rule 104 does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. The girls testified at trial, and Smith suggested that their testimony was of recent fabrication and accordingly inconsistent with prior statements. Because the girls testified, the statements are not hearsay by M.R.E. 801(d)(1)(B). In addition, the trial court found with respect to the statements made by the girls to the principal and the police officer that there is sufficient indicia of reliability to qualify them for admission under M.R.E. 803(25). The testimony of the two expert witnesses pertained to the credibility of the interviews with the girls rather than the girls’ veracity. Evidence that the interviews were credible, i.e. capable of being believed, was properly admitted. On the other hand, comments about a witness’ veracity, i.e. truthfulness, will generally be inadmissible, because of its dubious competency. |
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