William Curt Earnest, IV v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00780-COA
WILLIAM CURT EARNEST, IV A/K/A CURT EARNEST
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
04/06/2000
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
JAMES D. SHANNON
LAURA HOGAN TEDDER
ELISE BERRY MUNN
KELLEY MITCHELL BERRY
OFFICE OF THE ATTORNEY GENERAL
BY: GLENN WATTS
JERRY L. RUSHING
CRIMINAL - FELONY
TOUCHING, HANDLING, ETC. CHILD FOR LUSTFUL
PURPOSE: SENTENCED INTO THE CUSTODY OF THE
MDOC FOR AND DURING A SPACE OF 15 YEARS. TO
SERVE THE FIRST 12 YEARS DAY FOR DAY. THE
REMAINING 3 YEARS WILL BE SUSPENDED FOR 5
YEARS PROBATION. PAY COURT COST, $5000 FINE,
AND $5000 TO THE CRIME VICTIM'S COMPENSATION
FUND.
REVERSED AND REMANDED-1/8/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
2/5/2002
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1. William Earnest was convicted in the Circuit Court of Lincoln County of touching and handling a child
for lustful purposes. Feeling aggrieved of the conviction, he perfected this appeal and has assigned eight
issues for review which are (1) whether the trial court erred in admitting testimony of T. H., Dennis Hall, and
Dr. Anne Henderson, (2) whether the trial court erred in admitting hearsay testimony of appellant's son
K.C., (3) whether the trial court erred in admitting testimony regarding the truthfulness and credibility of the
victim, (4) whether the trial court erred in admitting T.H.'s closed circuit television testimony, (5) whether
the trial court erred in excluding testimony of a sex offender profile, (6) whether appellant's rights under the
Mississippi and United States Constitutions were violated by the harsh sentence imposed in this cause, (7)
whether the venire was tainted by the exclusion of Lincoln County School District employees, and (8)
whether he was denied a fair trial. We find reversible error as to issues one, two and eight.
FACTS
¶2. William Earnest is married with two children Kevin and Curtis. Kevin is the younger of the two boys
and has a playmate, J.L. Kevin was around four or five years old at this time and J.L. was six years old.
This case arose from an interaction between Earnest and J.L. on or about May 23, 1999. Because that
interaction is the subject of litigation, some facts are disputed.
¶3. The undisputed facts follow. On or about May 22, 1999, J.L. arrived at Earnest's home with Earnest's
son, Kevin. At that time, Earnest's wife was gone to pick up their older son. J.L. brought additional clothing
in order to play on a "slip and slide" water game with Kevin. Earnest helped J.L. put his swimsuit on. Later,
J.L. came into the house to use the bathroom. After J.L. used the bathroom, Earnest helped him wipe his
"hiney." J.L. went back outside with Kevin and continued to play on the "slip and slide." J.L. went home
later that day.
¶4. Around noon the following day, J.L.'s mother, P.L., informed Earnest's wife that J.L. had told P.L. and
P.L.'s mother, L.L., that Earnest had touched him inappropriately the preceding day, as well as other times
before. Later that same day, Earnest called J.L.'s mother to discuss the allegations. During the phone
conversation, Earnest requested that J.L. not come back because he had been subjected to allegations like
these before.(1)
¶5. The following week, J.L.'s mother took him to the Brookhaven Police Department where criminal
charges were filed. While at the police department, J.L. met with Mary Magee, a licensed social worker,
from the Department of Human Services. Ms. Magee referred him to Dr. Lisa Yazdani at the Child
Advocacy Center.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶6. Issues one through four relate to the admission of testimony which Earnest claims was admitted in
violation of various evidentiary rules; issue five addresses testimony which, according to Earnest, was
improperly excluded under our evidentiary rules. Because of the interrelatedness of the questions raised by
these issues, we will address them together in light of established law that the admissibility of evidence rests
within the discretion of the trial court. Baine v. State, 606 So.2d 1076, 1078 (Miss. 1992). A reversal of
the trial court's decision on the admission of evidence will be appropriate only when an abuse of discretion
results in prejudice to the accused; a substantial right of the accused must be affected. Parker v. State,
606 So. 2d 1132, 1137-38 (Miss. 1992).
1. Testimony of Taylor Hall, Dennis Hall, and Ann Henderson, Ph.D.
¶7. Earnest objected to the substance of Taylor Hall's testimony as well as the method utilized in the giving
of her testimony. She was allowed to testify by closed circuit television. Objection also was made to the
testimony of Dennis Hall, Taylor's father, and Ann Henderson, Ph.D., a counseling psychologist, who
counseled Taylor. For the reasons that follow, we conclude that Taylor's testimony was improperly
admitted. We also conclude that the testimony Taylor's father, Dennis, and her counselor, Dr. Henderson,
should not have been admitted since their testimony stemmed from and was integrally related to Taylor's.
However, we need not discuss their testimony nor address the issues raised regarding their testimony since
our holding regarding Taylor's testimony renders moot the objection to their testimony. It is sufficient to say
that their testimony consisted of what Taylor told them about the incident.
¶8. Taylor, at the time of trial, was eight and one half years old; she was in the third grade. She testified that
she lived five houses down the street from Earnest. She testified that one day in 1998, while she was riding
with her daddy in his truck, she told him that Earnest had touched her on her private part. She stood up
and, by pointing, demonstrated to the jury the part of her body that Earnest touched. She testified that the
touching occurred in Earnest's house in the kitchen while Earnest's two sons, Kevin and Curtis, were in the
living room playing a video game. Earnest's wife was not at home at the time. Taylor could not remember
how long it was from the touching to the time she told her father, neither could she remember how many
times Earnest touched her. She was asked if Earnest touched her just one time, and she shook her head
negatively.
¶9. Earnest argues that the admission of Taylor's testimony violated Rules 404(b) and 403 of the
Mississippi Rules of Evidence because the testimony concerned another crime or act for which he was not
on trial. Earnest further argues that even if the testimony was admissible under one of the exceptions
permitted by the rule, it still should have been strained out via the Rule 403 filter through which all Rule
404(b) evidence must pass. On the other hand, the State says that Taylor's, her father's and Dr.
Henderson's testimony was properly admitted pursuant to M.R.E. 404((b) modus operandi and 803(3),
(25).
¶10. The trial court, agreeing with the State, made the following ruling:
THE COURT: All right. Well, it will first be relevant under 401. There is similarity. The age of the
child, happened at the same house, happened in the same room. The modus operandi is similar
enough. There is no problem with the time because of the child's age. Are you submitting his testimony
under 404(b) at this time and also under 803 (25)?(2)
MR. RUSHING: Yes, Your Honor, under 404(b) as the modus operandi, plus, Your Honor, intent,
because the statements made during the cross-examination have been to the effect that he has touched
the child, but the defense's allegation is that it was not for lustful purposes. So it goes not only to the
modus operandi, with the similarities of the two acts with the children, but also as to the intent of his
touching these children.
THE COURT: Well -MR. RUSHING: Lack of mistake.
THE COURT: Also motive.
MR. RUSHING: Yes, sir.
THE COURT: Which would put it under 404 (b). And again, I think the jury is entitled to hear the
whole story, the whole situation. So we find that under 404(3), that this witness's testimony's
probative value on the issues of motive, opportunity, the house, in the kitchen, and intent is
substantially outweighed by any danger of unfair prejudice. That will be under 404(b). Under 803(25)
, the witness 803(3) and (2), the state of mind of the six year old witness. And 803(2), I think would
allow it to be admitted as to 803 (25) here has been no occasion of improper motive. Been nothing to
indicate the character of the child was bad. I understand that she did go ahead and tell her mother.
****
THE COURT: She told her father and her mother. Under four, the child's statement was
spontaneous. It doesn't appear to be a time problem. Relationship between the child and her father
would be appropriate for the child to make such a statement to her father. There has been nothing to
show that the child had a faulty recollection. There is no doubt about the statements having been
made. There is nothing to show that the father -- that there is any problem with his credibility. The
statement being spontaneous, there was no suggestive question or leading question, et cetera, made to
get the statement out of the child. It's unlikely that a six year old child would fabricate such a
statement. So, we will allow, in addition to 404 (b), to 803(2) and 803(3) and 803(25).
¶11. Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." M.R.E. 404(b). Rule 403 provides that "[a]lthouth relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence."
¶12. Earnest cites Lambert v. State, 724 So. 2d 392 (Miss. 1998), and Mitchell v. State, 539 So. 2d
1366 (Miss. 1989), in support of his position that the testimony of Taylor, her father, Dennis, and
Henderson should have been excluded and that the failure of the trial judge to exclude it constitutes
reversible error. We agree. In fact, Lambert and Mitchell appear to be on all fours with our case.
¶13. In Mitchell, our supreme court rejected the admission of a defendant's prior sexual misbehavior with
other children to show the "system of criminal action and lustful disposition of the defendant toward
children." Mitchell, 539 So. 2d at 1372. Furthermore, it concluded that under Rule 404(b), "evidence of
other sexual relations [should be limited] to those between the defendant and the particular victim." Id. The
court in Mitchell noted that to do otherwise would be "inconsistent with the notion that a defendant is on
trial for a specific crime and not for generally being a bad person." Id.
¶14. In Lambert Woodie Lambert was put on trial for touching a child, M.D., for lustful purpose. Lambert,
724 So. 2d at 392. During his trial, the trial court allowed testimony of "alleged prior acts of sexual
misconduct with young girls other than M.D." Id. This Court, relying upon Mitchell, reversed Lambert's
conviction. Id. The Mississippi Supreme Court granted certiorari and affirmed this Court's interpretation of
the holding in Mitchell. In so doing, the Lambert court said:
The Court of Appeals found that Mitchell holds that any time evidence of a sexual offense other than
the one charged, which involves a victim other than the victim of the charged offense, is admitted, then
that admission of evidence of the offense is per se reversible, even if the evidence at issue comes
under one of the exceptions under M.R.E. 404(b). This interpretation is what the State questions in its
petition. The State argues that Mitchell should not be applied so mechanically, and that the evidence
here did fit one (or all) of the exceptions under 404(b). While we agree that there could be a case
where similar evidence could be admissible, the Court of Appeals was correct in reversing Lambert's
conviction.
While the argument could be made that the evidence in question fits one of the 404(b) exceptions, the
evidence which was admitted is extremely prejudicial under M.R.E. 403. Admission of such evidence
would amount to the exception that negates the rule.
Id. at 394 (¶¶6-7).
¶15. Based on the authorities cited, we hold that the trial court committed reversible error by allowing the
testimony of Taylor Hall, her father, Dennis Hall and Ann Henderson, Ph.D. Taylor's testimony was
inadmissible under Rule 404(b), and her father's and counselor's testimony was inadmissible under Rule
803(3) (25). Now, having disposed of the Rule 404(b) issue, we feel the need to comment on an additional
part of the trial court's ruling. In making his ruling that testimony relating to the Taylor Hall incident was
admissible, the trial court stated, "And again, I think the jury is entitled to hear the whole story, the whole
situation." It is not clear as to which "whole story" the trial judge was making reference. If he was referring
to the Taylor Hall incident as being an integral part of the charge for which Earnest was on trial, we reject
this view of the case. While "proof of another crime is admissible where the offense charged and that
offered to be proved are so connected as to constitute one transaction" (Baine v. State, 604 So. 2d 258,
261 (Miss. 1992) (quoting Darby v. State, 538 So. 2d 1168, 1173 (Miss. 1989)), that is not the case
here. The alleged molestation of Taylor Hall occurred more than a year prior to the alleged fondling in this
case, and there is no evidence or accusation that Earnest also committed an act against J.L at that time.
2. Statements Allegedly Made by Kevin Earnest
¶16. During trial, J.L.'s grandmother testified to statements she allegedly overheard spoken by Earnest's
son, Kevin. The statement at issue is Kevin's alleged statement to J.L. that "he [his father Earnest] only does
it to you and me." The lower court allowed this testimony under Rule 404(b), modus operandi, Rule 803(2)
, excited utterance, Rule 808(3) present sense impression and Rule 803(25), tender years exceptions to the
hearsay rule.
¶17. Earnest argues that the testimony of J.L.'s grandmother concerning the statement allegedly made by
Kevin to J.L. was not Rule 803(2) excited utterance exception because disappointment of a child in Kevin's
position hardly qualifies as a startling event necessary to sustain an excited condition. Earnest also argues
that Rule 803(25) does not apply to this testimony because it lacks the substantial indicia of reliability
required by the rule. Earnest notes that there was nothing in the testimony to indicate that Kevin had
personal knowledge of anything that allegedly happened to J.L; J.L. testified that when the indicted offense
occurred, Kevin was playing Nintendo. Also, Earnest notes that Rule 803(25) requires that the child be
either unavailable or testify at the proceeding. The Court found Kevin was not unavailable; yet Kevin was
not called to testify by either party. Finally, Earnest asserts that if this testimony was not necessary to add
credence to J.L's account of what happened to J.L., then we have to assume it was admitted to show that
Earnest committed a similar offense on his son. This, says Earnest, would be an impermissible use of
character testimony under Rule 404(b).
¶18. The State, on the other hand, contends that Kevin's statement was properly admitted as an excited
utterance because the children were good friends and the statement was made when Kevin was excited
about the fact that J.L. could not play with him anymore. The State notes that the record reflects a finding
by the trial court of "indicia of reliability" following the court's consideration of the Mississippi Rule of
Evidence 803(25) tender-years exception factors. Kevin did not have a reason to lie, the timing was
appropriate because it was spontaneous, his memory seemed reliable, and no suggestive technique was
used by the grandmother to gain the information. The State also contends that Ford v. State, Watts v.
State, and Smith v. State support the testimony as a Rule 404(b) exception for the limited purpose of
proving modus operandi. Ford v. State, 555 So. 2d 691 (Miss. 1989); Watts v. State, 635 So. 2d 1364
(Miss. 1994); Smith v. State, 656 So. 2d 95 (Miss. 1995).
¶19. This Court finds favor in Earnest's Rule 404(b) argument. The statement, while referring in part to J.L.,
also refers to Earnest's alleged molestation of a child other than J.L. There is no proof in the record that J.L.
ever told Kevin about the alleged incident between J.L. and Earnest. While the grandmother's testimony
insinuates Kevin's scienter of the incident, she did not testify that she heard J.L. tell Kevin about what
Earnest allegedly did to J.L. The reasons that we have already discussed as the basis for excluding Taylor
Hall's testimony apply with equal force here; therefore, there is no need to discuss this issue any further. We
hold that the trial court committed reversible error in admitting the testimony of J.L.'s grandmother.
3. Testimony of Lisa Yazdani and Mary Magee
¶20. During the trial, Earnest objected to the testimony generally of Mary Magee, a licensed Lincoln
County social worker, and Dr. Lisa Yazdani, a counseling psychologist. He also objected to specific
questions which he believed were designed to ascertain Magee's and Yazdani's opinion as to J.L.'s
credibility and veracity. His objections were overruled, and each was allowed to testify concerning her
interview with J. L., including their general assessment of him. In his appellate brief, Earnest attacks only
that portion of Magee's and Yazdani's testimony which, in his opinion, constitutes a bolstering of J.L.'s
testimony or an opinion as to J.L's credibility and veracity. He does not now contend that allowing their
testimony generally was error. Indeed, it is well that he does not, for the law is well settled that in sexual
abuse cases, the out-of-court statements of the child victim may be admitted under the appropriate subpart
of Rule 803, depending upon the facts and circumstances of the specific case. See, e.g., Baines, 606 So.2d
at 1079-81.
¶21. We have reviewed the questions complained of as well as the answers given. It appears debatable to
us as to whether the questions asked were for the purpose of eliciting an opinion as to J.L.'s credibility and
veracity or were designed to solicit an answer which would bolster his testimony. It also appears that the
answers were not wholly responsive to the questions asked. Therefore, we decline to find the trial judge in
error on this issue. However, since we are reversing and remanding this case on other grounds, we caution
the trial court, as did the Mississippi Supreme Court in Griffith v. State, 584 So. 2d 383, 387 (Miss.
1991), "against allowing direct comments as to [J.L.'s] veracity."
4. Exclusion of the Testimony of Gerald C. O'Brien and Donald Guild
¶22. Earnest offered opinion testimony of Gerald C. O'Brien, Ph.D., a psychologist, and Donald Guild,
M.D., a psychiatrist, concerning their evaluation and assessment of him based on a battery of tests that they
gave him. Earnest argues that Dr. O'Brien's and Dr. Guild's testimony concerning their evaluation and
assessment should have been admitted under Rule 702 of the Mississippi Rules of Evidence.
¶23. Rule 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise." M.R.E. 702.
The admission of testimony is within the sound discretion of the trial court. Roberts v. Grafe Auto
Co., 701 So. 2d 1093, 1098 (Miss. 1997). Unless we conclude that the discretion was arbitrary and
clearly erroneous, the decision will stand. Id. (citing Seal v. Miller, 605 So. 2d 240, 243 (Miss.
1992); Hooten v. State, 492 So. 2d 948, 950-51 (Miss. 1986)).
Under Mississippi Rule of Evidence 702, expert testimony should be admitted only when the trial
court can affirmatively answer a two-fold inquiry. First, the witness must be qualified as an expert
because of the knowledge, skill, experience, training, or education he or she possesses. M.R.E. 702.
See also Watkins v. U-Haul Int'l, Inc, 770 So. 2d 970, 973(Miss. Ct. App. 2000). Second, the
witness's scientific, technical, or other specialized knowledge must assist the trier of fact to understand
or decide a fact in issue. Id. Rule 702 "does not relax the standard that the expert must indeed be
qualified to speak an opinion on a matter within his alleged field of knowledge," nor does it "relax the
requirement that the scientific principle from which the expert's opinion is derived 'must be sufficiently
established to have gained general acceptance in the particular field to which it belongs'" M.R.E. 702
cmt. (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)).
Kansas City So. R.R. Co., Inc. v. Johnson, 798 So. 2d 374 (¶¶28-9)(Miss. 2001).
¶24. In this case, the trial judge determined, without specifically saying so, that the second prong of the rule
was not met, that is, that the information possessed by Drs. O'Brien and Guild would not assist the jury to
decide whether Earnest did in fact commit the charged offense. Specifically, the trial judge determined that
the opinions proffered by Drs. O'Brien and Guild - that Earnest did not fit the profile of a sexual offender were not derived from scientific principles generally accepted in their fields because there is no scientifically
acceptable profile of a sex offender. The record reflects that the doctors even admitted as much,
notwithstanding their testimony that the battery of tests they administered to Earnest are generally accepted
and widely used in the fields of psychology and psychiatry. Based on these facts, we cannot conclude that
the trial judge's decision to not allow the expert testimony was arbitrary and clearly erroneous; therefore,
we affirm him on this issue.
5. Constitutionality of the Sentence
¶25. Earnest contends his sentence of fifteen years with three years suspended violated the Eighth and
Fourteenth Amendments of the U.S. Constitution and Article 3, § 28 of the Mississippi Constitution in that
the sentence was not supported by the evidence. He also asserts that the sentence is excessive for the crime
committed and/or disproportionate in comparison with other sentences in this and other jurisdictions. In
addition, Earnest claims that the trial court wrongfully considered accusations of other crimes of which
Earnest has not been formally accused.
¶26. The State argues that the sentence was not harsh because it met the statutory guidelines provided for
punishment by the legislature. The State notes that no other victims were mentioned by the trial court during
the sentencing hearing nor in the sentencing order.
¶27. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is
within the limits prescribed by statute. Hoops v. State, 681 So. 2d 521, 537 (Miss. 1996) (citing Reynolds
v. State, 585 So. 2d 753, 756 (Miss. 1991)). The Mississippi Supreme Court has recognized that an
appellate court will not overturn a sentence by a lower court unless it is a clear abuse of the judge's
discretion. Wallace v. State, 607 So.2d 1184, 1188 (Miss. 1992). Earnest's sentence was well within
statutory guidelines. He offered no evidence in the court below which would indicate any disproportionality
in his sentence with other sentences in Lincoln County or surrounding jurisdictions. Therefore, we will not
consider this part of his argument. We affirm the trial judge on this issue.
6. Exclusion of Employees of the Brookhaven and Lincoln County School Districts from
the Venire
¶28. Earnest argues that the jury panel was tainted because the employees of the Brookhaven and Lincoln
County School Districts had been singled out. Earnest's argument is based on the fact that each juror
associated with the school district was individually questioned concerning a possible contact by his wife.
¶29. The State argues that Earnest failed to object to the individual voir dire. In addition, the State asserts
that Earnest agreed with the State and trial court to undertake the questioning in order to avoid tainting the
jury. The record clearly reflects that Earnest's counsel agreed to the individual voir dire. An excerpt from the
record shows that Earnest's counsel, Mr. Shannon said, "We'd like to voir dire these people individually if
we could." This statement was made in response to the State's counsel, Mr. Rushing saying, "Out of an
abundance of caution, Judge, we are going to make sure that no one has been talked to on the jury panel."
The record further shows that Earnest's counsel objected only after the individual voir dire and after the
Brookhaven and Lincoln County School District employees had been dismissed. The State cites Baker v.
State, 327 So. 2d 288 (Miss. 1976), for the proposition that this objection was untimely. We agree that the
motion was untimely and affirm the trial court on this issue.
7. Fairness of the Trial
¶30. Earnest asserts that each issue set forth is grounds for reversible error. In the alternative, Earnest
asserts that the cumulative effect of the errors hindered him from having a fundamentally fair trial; he cites
Mitchell v. State, 539 So.2d 1366, 1373 (Miss. 1989).
¶31. We have already found that the trial was reversibly flawed and that a new trial must be held.
Accordingly, we find no need to address this issue beyond what we have already said. This case is reversed
and remanded for a new trial consistent with the holdings of this opinion.
¶32. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS REVERSED
AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN
COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS
AND CHANDLER, JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.
1. The previous allegations of which Earnest referred involved a 1998 complaint filed by the parents
of Taylor Hall charging Earnest with touching and fondling Taylor. These charges were nolle prossed
later that same year.
2. Evidence regarding the alleged incident with Taylor was first admitted through the testimony of her
father, Dennis, whose testimony preceded Taylor's. This explains the discussion regarding Rule 803
as one of the basis for admission of the testimony since Mr. Hall was testifying to what Taylor told
him.
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