Barnes v. State
| Docket Number: | 2003-KA-00577-COA Linked Case(s): 2003-CT-00577-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-12-2004 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Fondling - Indictment - Competency of child witness - Counselor’s testimony - Jury instructions Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Myers, Chandler, Griffis, Barnes and Ishee, JJ. Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: Denied Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 02-07-2003 Appealed from: Oktibbeha County Circuit Court Judge: Lee J. Howard Disposition: CONVICTION OF COUNT II, FONDLING: SENTENCED TO TEN YEARS IN THE CUSTODY OF THE MDOC AND FIVE YEARS OF POST-RELEASE SUPERVISION Case Number: 2001-0062-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Brooks Barnes |
MICHAEL R. FARROW |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Fondling - Indictment - Competency of child witness - Counselor’s testimony - Jury instructions |
| Summary of the Facts: | Brooks Barnes was convicted of fondling his niece. He was sentenced to ten years, with five years of post-release supervision. Barnes appeals. |
| Summary of Opinion Analysis: | Issue 1: Indictment Barnes argues that the indictment failed to properly advise him of the date of the offense because it alleged that the offense occurred over more than a two-year period. The indictment adequately informed Barnes that he was charged with fondling. Although the indictment stated that the offense occurred between July 8, 1998 and September 2000, it was amended at the conclusion of the State's case to narrow to a three-month window the period of time in which the offense occurred. Further, the victim was very specific as to the dates of the offense. Issue 2: Child witness Barnes argues that the victim was not competent to testify as a witness at trial because of factors such as her age, her answers to questions presented to her during the competency hearing, impeachment of her on cross-examination, and her lack of morals and religious upbringing. Before allowing the child to testify, the judge should determine that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness. Here, the court conducted a hearing outside the presence of the jury to determine whether the child was competent to testify as a witness. She testified that she knew the difference between a lie and the truth and that telling a lie was wrong. She also stated that she knew why she was in court, knew that she would be questioned by attorneys, remembered most of what had occurred, and would be able to say she did not remember if asked a question about a matter in which she had no recollection. Therefore, the court did not abuse its discretion in concluding that the child was competent to testify. Issue 3: Counselor’s testimony Barnes argues that the court erred in allowing an expert in the field of counseling to testify that the child gave statements to him that were consistent with an abused child and that he observed non-physical indications of sexual abuse in the child. A direct opinion offered by a witness in a child sexual abuse case as to the child’s veracity has been held by a majority of courts to be inadmissable. Here, the expert did not offer a direct opinion that the child was telling the truth. With regard to his testimony concerning non-physical indications of sexual abuse in the child, this issue is not preserved for appeal since Barnes failed to object. Issue 4: Jury instructions Barnes argues that the court improperly excluded four jury instructions. If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Considering together all of the instructions granted by the court, the jury was adequately instructed on the elements of the offense and relevant issues without having heard Barnes’s proposed instructions. |
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