Derouen v. State
| Docket Number: | 2007-KA-01005-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-20-2008 Opinion Author: Graves, J. for Part I; Carlson, J. for Part II. Holding: Affirmed |
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| Additional Case Information: |
Topic: Fondling - Tender years exception - M.R.E. 803(25) - Sufficiency of evidence - Admission of prior incidents - M.R.E. 404(b) - M.R.E. 403 Judge(s) Concurring: Part l: Waller and Diaz, P.JJ., Carlson, Dickinson, Randolph and Lamar, JJ; Smith, C.J., Concurs in Part in Part I.; Part II: Carlson, J., Smith, C.J., Waller, P.J., Dickinson, Randolph and Lamar, JJ. Dissenting Author : Graves, J. dissents with Part II , with separate written opinion. Dissent Joined By : Diaz, P.J., and Easley, J. joins Graves' dissent in Part II. Concur in Part, Concur in Result 1: Easley, J. for Part I. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-02-2007 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: Counts l and ll: Convictions of touching a child for lustful purposes while in a position of trust or authority and sentences of fifteen (15) years in the custody of the Mississippi Department of Corrections, with eight (8) years to serve and balance of sentences to be on post-release supervision. Sentences in Counts l and ll shall run concurrently. District Attorney: Anthony N. Lawrence, III Case Number: 2005-10,217(1) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | SHANNON TROY DEROUEN a/k/a TROY DEROUEN |
BRENDA JACKSON PATTERSON;
GLENN S. SWARTZFAGER |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND | ||
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 - Tender years exception - M.R.E. 803(25) - Sufficiency of evidence - Admission of prior incidents - M.R.E. 404(b) - M.R.E. 403 |
| Summary of the Facts: | Shannon Derouen was convicted of two counts of fondling and was sentenced to two, fifteen-year sentences, with eight years to serve and the remainder on post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Tender years exception Derouen argues that the testimony of the social workers and the forensic interviewer should not have been admitted prior to a factual determination that the alleged victim was a child of tender years and that the hearsay statements of the alleged victim provided substantial indicia of reliability. The victim was under the age of twelve. Therefore, a presumption of tender years existed, and the trial court did not have to make such a determination under M.R.E. 803(25). In addition, the issue is procedurally barred because Derouen failed to raise any such objection as to either these witnesses. Issue 2: Sufficiency of evidence Derouen argues that it was merely the victim’s word against his and that there was no physical or eyewitness evidence of fondling. The testimony of a single uncorroborated witness is sufficient to sustain a conviction even though there may be more than one person testifying to the contrary. In this case, the victim’s testimony was corroborated by her prior statements to three people. In addition, Derouen’s nephew witnessed Derouen under the covers on the couch with the victim and then witnessed the victim in the bathroom crying immediately thereafter. Moreover, there is typically no physical evidence of fondling. The evidence is not such that a reasonable jury could only find Derouen not guilty. Issue 3: Admission of prior incidents On cross-appeal, the State requests that the Court overrule Mitchell v. State, 539 So. 2d 1366 (Miss. 1989). The trial judge in today’s case, in reliance upon Mitchell, refused to allow the State to call two witnesses during the trial to testify to prior incidents of Derouen’s sexual abuse against other children. The holding in Mitchell, reaffirmed in Lambert v. State, 724 So. 2d 392 (Miss. 1998), does irreversible harm to the most innocent and defenseless in society – our young children. As it stands now, the status of the law in Mississippi is that evidence of a defendant’s sexual abuse of other minor victims is per se inadmissible under M.R.E. 404(b), thereby eliminating the balancing test required under M.R.E. 403. This is totally contrary to the rules of evidence and well-established case law. Therefore, Mitchell and its progeny are overruled as these cases relate to the per se exclusion of evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial. Stated differently, such evidence, if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury, should not be considered per se error. |
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