Harper v. State
| Docket Number: | 2010-KA-01979-COA Linked Case(s): 2010-CT-01979-SCT ; 2010-KA-01979-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-27-2012 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery, Fondling & Conspiracy to commit sexual battery - Multi-count indictment - M.R.E. 404(b) - Tender years hearing - M.R.E. 803(25) - Present sense impressions - M.R.E. 803(1) - Co-defendant’s guilty plea - Sufficiency of evidence - Newly discovered evidence Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Russell and Fair, JJ. Judge(s) Concurring Separately: Maxwell, J., specially concurs with separate written opinion, joined by Fair, J.; Ishee, J., joins in part Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-12-2010 Appealed from: DeSoto County Circuit Court Judge: Andrew C. Baker Disposition: CONVICTED OF COUNTS I, III, IV, V, XI, AND XII, SEXUAL BATTERY; COUNTS II AND VIII, FONDLING; COUNT VI, ATTEMPT TO COMMIT SEXUAL BATTERY; COUNT VII, CONSPIRACY TO COMMIT SEXUAL BATTERY; AND SENTENCED TO FIVE YEARS EACH ON COUNTS I, II, IV, V, VI, VII, VIII, AND XII; TWENTY YEARS EACH ON COUNTS III AND XI; WITH THE SENTENCES IN COUNT I, II, IV, V, VI, AND XI TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT III; WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT III; WITH THE SENTENCES IN COUNTS VII AND VIII TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT XII; AND THE SENTENCE IN COUNT XII TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT XI, FOR A TOTAL OF FIFTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: John W. Champion Case Number: CR1994-124-BD |
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| Party Name: | Attorney Name: | |||
| Appellant: | Edward Eugene Harper |
W. DANIEL HINCHCLIFF |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: STEPHANIE BRELAND WOOD |
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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: | Sexual battery, Fondling & Conspiracy to commit sexual battery - Multi-count indictment - M.R.E. 404(b) - Tender years hearing - M.R.E. 803(25) - Present sense impressions - M.R.E. 803(1) - Co-defendant’s guilty plea - Sufficiency of evidence - Newly discovered evidence |
| Summary of the Facts: | Edward Harper was found guilty of six counts of sexual battery, two counts of fondling, and two counts of conspiracy to commit sexual battery. Harper was sentenced to a total of fifty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Multi-count indictment Harper argues the counts in the indictment should have been severed because they involved two distinct victims and the alleged sexual abuse never occurred at the same time. Three elements for the trial court to consider when reviewing a motion to sever are: whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. The issue of whether the evidence might be admissible pursuant to M.R.E. 404(b) is not relevant to the trial court’s consideration of a motion to sever offenses in a multi-count indictment. As to the time period between the occurrences, all acts charged in the indictment occurred between November 1, 1993, and February 13, 1994. The acts occurred on multiple occasions during this time period. Harper’s actions occurred basically over a three-month period in the same location. The trial court did not err in finding the time element not to be a significantly long period justifying severance. While the testimony of the two victims was distinct, the testimony of the other witnesses applied to both victims. The trial court found the crimes were interwoven because the witnesses’ testimony overlapped. Also, although there were two victims, the sexual acts were similar in nature, occurred during the same time period, and occurred at the same location. Thus, the court did not abuse its discretion. Issue 2: Tender years hearing Harper argues that reversible error occurred when witnesses were allowed to testify to multiple hearsay statements made by the victims without a hearing on whether the tender years exception applied under M.R.E. 803(25). There is a rebuttable presumption that children under twelve years of age are within their tender years. At the time of the incidents, the children were eight and three years’ old. Before allowing the hearsay testimony, the trial court must make an on-the-record finding to establish the reliability of the child’s statements. In this case, the trial court failed to hold a hearing outside the presence of the jury to determine the reliability of the hearsay statements of the victims. In order to make a determination of whether that error requires reversal, the Court must decide whether the weight of the evidence against the defendant is sufficient to outweigh the harm done by allowing admission of the evidence. The statements by one of the victims relayed by her mother were present sense impressions, which are excepted from hearsay under M.R.E. 803(1). In addition, there was sufficient evidence to find Harper guilty beyond a reasonable doubt. The same applies to the other victim’s mother’s testimony. The weight of the evidence against Harper was sufficient to outweigh any harm done by allowing the hearsay testimony. Issue 3: Co-defendant’s guilty plea Harper argues plain error occurred when his wife revealed to the jury that she had pleaded guilty. A co-defendant’s guilty plea or conviction is generally inadmissible because such plea of guilty or conviction is no evidence of the guilt of the party being tried. The plain-error doctrine permits the appellate court to review an obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s fundamental, substantive right. Here, the wife’s statement was not plain error. She testified at trial and was available to be cross-examined on her guilty plea. A defendant’s opportunity to question a co-indictee regarding his or her guilty plea weighs against a finding of error regarding the admission of evidence regarding those same guilty pleas. Issue 4: Sufficiency of evidence After Harper was found guilty, a hearing was held on his post-trial motions for a JNOV and new trial. During the hearing, Harper’s counsel told the trial court he had obtained newly-discovered evidence that one of the victims had perjured herself at an unrelated sexual abuse trial in Lafayette County. A motion for a new trial based on newly discovered evidence should be granted where the evidence will probably produce a different result or verdict; the evidence has been discovered since trial and could not have been discovered before trial by the exercise of due diligence; it is material to the issue; and it is not merely cumulative or impeaching. Harper has failed to show that the victim’s testimony in Lafayette County would have likely produced a different result or verdict in his trial. As the trial court pointed out, the victim was three years old when Harper abused her, and the other alleged abuse occurred when she was fifteen. There was no evidence she had a pattern of making false allegations of abuse from the time she was three years old. Further, there was an overwhelming amount of testimony against Harper. |
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