Melvin Patrick Mason v. State of Mississippi , 203 So. 3d 732 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-00931-COA
MELVIN PATRICK MASON A/K/A MELVIN P. APPELLANT
MASON A/K/A MELVIN MASON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/14/2015
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF FOUR COUNTS OF
TOUCHING A CHILD FOR LUSTFUL
PURPOSES AND SENTENCED ON EACH
COUNT AS A HABITUAL OFFENDER TO
LIFE IMPRISONMENT IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH THE SENTENCES
IN COUNTS IV AND V TO RUN
CONCURRENTLY WITH ONE ANOTHER,
AND WITH THE SENTENCES IN COUNTS
IX AND X TO RUN CONCURRENTLY
WITH ONE ANOTHER AND
CONSECUTIVELY TO THE SENTENCES IN
COUNTS IV AND V
DISPOSITION: AFFIRMED - 11/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶1. On March 21, 2012, the Hancock County Sheriff’s Office received information about
a reported child molestation. The report alleged that Melvin Patrick Mason had molested his
two nieces, M.C. and R.C.1 A Hancock County grand jury subsequently indicted Mason for
three counts of sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev.
2006) and ten counts of touching a child for lustful purposes under Mississippi Code
Annotated section 97-5-23(1) (Rev. 2006). A jury later found Mason guilty of four counts
of touching a child for lustful purposes as charged in Counts IV, V, IX, and X of his
indictment. The circuit court sentenced Mason as a habitual offender to four life sentences,
with the sentences in Counts IV and V to run concurrently with one another, and with the
sentences in Counts IX and X to run concurrently with one another and consecutively to the
sentences in Counts IV and V.
¶2. On appeal from his convictions and sentences, Mason asserts the following issues:
(1) whether the circuit court abused its discretion by admitting M.C.’s and R.C.’s hearsay
statements under the tender-years exception; and (2) whether cumulative error deprived
Mason of his right to a fundamentally fair and impartial trial. Finding no error, we affirm
Mason’s convictions and sentences.
FACTS
1
In the interest of privacy, we substitute initials for the names of the two minor girls
involved in the case.
2
¶3. When M.C. and R.C. were still very young, their father was killed. In August 2011,
the girls and their mother moved into the same house as their father’s brother, Mason. The
girls and their mother were later forced to move out of the home. Afterwards, in March
2012, M.C. and R.C. were staying at the home of their friend Abby2 when M.C. stated that
Mason had raped both her and her younger sister, R.C. On March 21, 2012, Abby’s mother
reported M.C.’s allegation to the police. A grand jury later indicted Mason for three counts
of sexual battery and ten counts of touching a child for lustful purposes.
¶4. After the grand jury issued the multicount indictment against Mason, the circuit court
scheduled Mason’s trial for May 11, 2015. Prior to trial, the circuit court granted the State’s
motion to amend Mason’s indictment to reflect his status as a habitual offender under
Mississippi Code Annotated section 99-19-83 (Rev. 2007). The State also made a pretrial
motion to admit into evidence under the tender-years exception M.C.’s and R.C.’s pretrial
statements about the alleged molestation. See M.R.E. 803(25). The State asked the circuit
court to allow the State to examine three witnesses during the pretrial hearing to whom the
girls described the sexual abuse. The State then asked that the circuit court recess the motion
and wait until hearing M.C.’s and R.C.’s testimony on the first day of trial before
determining whether to admit the pretrial statements.
¶5. After the circuit court agreed to the State’s request, the State called Abby as its first
witness during the pretrial hearing. Abby testified that her mother had been lifelong friends
2
In the interest of privacy, the Court has substituted “Abby” for the minor’s real
name.
3
with M.C. and R.C.’s mother. Abby further testified that M.C. and R.C. had sometimes lived
with her family, that she saw and spoke to the two girls regularly, and that the two girls
considered Abby a cousin. Abby stated that, when she was fifteen, she was in her bedroom
talking to M.C., who was twelve at the time. While M.C. was coloring on the bedroom floor,
Abby said that M.C. disclosed that her uncle, Mason, had raped her and her sister, R.C.
Abby testified that she immediately told her mother what M.C. had said.
¶6. The State next called Captain John Luther with the Hancock County Sheriff’s Office.
Captain Luther testified that, on March 21, 2012, Abby’s mother called to report Mason’s
alleged molestation of M.C. and R.C. Captain Luther learned that the alleged molestation
had occurred at the home where M.C. and R.C. lived with their mother and Mason. Captain
Luther testified that he spoke separately to both M.C. and R.C. M.C. told him that Mason
“had done bad things to her” and that “the bad things had started happening when [Mason]
had first moved [into the same house with her, R.C., and their mother.]” When he
interviewed R.C., Captain Luther said she told him that Mason had moved into the same
house as her family on her birthday on August 14, 2011, and that Mason “started doing things
to her a few days after he had moved in with them . . . .”
¶7. Based on his investigation, Captain Luther determined that the alleged molestation
occurred for about seven months from August 2011 through March 2012. Captain Luther
testified that both girls reported that the molestation occurred in front of each other and that
Mason had also directed them to do things to one another. Captain Luther also determined
4
from his investigation that the last molestation had occurred about two weeks before M.C.’s
conversation with Abby. At the time of the reported offenses, Mason was forty-three, M.C.
was twelve, and R.C. was ten.
¶8. Laura Johnson, a forensic interviewer, next testified during the pretrial hearing.
Johnson stated that she had been trained to question children in a nonleading manner and that
she employed RATAC,3 the accepted protocol for interviewing children, during her
interviews. Johnson testified that she separately interviewed M.C. and R.C. on April 11,
2012. Both interviews were videotaped.
¶9. Although R.C. was the younger of the two sisters, Johnson testified that R.C.
communicated with her on an average to above average level while M.C.’s interaction was
slightly delayed. Johnson stated that, during their interview, R.C. said that Mason touched
her both under and over her clothes. Johnson also testified that R.C. stated that Mason
touched her vagina with his hand and penis and that he touched her breasts and butt with his
hand. In addition, Johnson testified that R.C. said Mason made her touch his penis with her
hand and her mouth. Johnson further testified that, during M.C.’s interview, M.C. told
Johnson that Mason touched her vagina with his hands, penis, and mouth. Moreover,
Johnson testified that M.C. stated that Mason touched her breasts with his hands and mouth
and that he touched her butt with his hand.
¶10. At Mason’s trial, the record reflects that M.C. and R.C. testified consistently to the
3
Johnson stated that RATAC was an acronym for the forensic-interview protocol of
rapport, anatomy, touch inquiry, abuse scenario, and closure.
5
same facts and information that they had given during their pretrial statements to Abby,
Captain Luther, and Johnson. M.C. testified that Mason had touched her both under and over
her clothes. She also testified that Mason touched her breasts with his hands and mouth; that
he touched her vagina with his hands, mouth, and penis; and that he made her touch his penis
with her mouth and hands. In her testimony, M.C. further stated that she also saw Mason
inappropriately touching R.C. and that Mason made her touch R.C. on the breasts with her
hands.
¶11. R.C. testified at trial that Mason also touched her both under and over her clothes.
According to R.C.’s testimony, Mason touched her vagina with his hands, mouth, and penis,
and he touched her breasts with his hands and mouth. R.C. also testified that Mason put his
penis in her mouth and that she saw Mason inappropriately touching M.C. on more than one
occasion.
¶12. During cross-examination of M.C. and R.C., the defense questioned the girls’
truthfulness and attacked their credibility. The defense elicited testimony from both girls that
they had previously been sexually abused by their older sister, Samantha, but that they had
failed to tell anyone. The record shows that M.C. testified that Samantha had shown her
cartoon pornography on the computer and had made M.C. perform oral sex on her. The
record reflects that R.C. testified that Mason and Samantha both showed her pictures and
videos of naked people. R.C. said that she failed to tell anyone about the sexual abuse by
Samantha because she was young and scared. During cross-examination, R.C. admitted to
6
a laundry list of relatives, teachers, and others whom she never told about the abuse by
Samantha. As the record reflects, R.C. further admitted that she did not even report the abuse
to her school counselor even though she was going through counseling at the time.
¶13. During cross-examination, the defense also asked each girl whether she was simply
making up the stories of sexual abuse by Mason. The defense elicited testimony from M.C.
that her family had been kicked out of their house right before M.C. told Abby about
Mason’s abuse. The defense asked M.C. if being evicted from her home prompted her to
make up the stories about Mason. Although M.C. admitted that she did not tell anyone about
the abuse until her family was kicked out of the house, she denied making up any stories.
The defense later asked M.C. whether she remembered telling Dr. Donald Matherne, a
psychologist, that she lied sometimes. However, M.C. testified that she did not remember
any meeting with Dr. Matherne.
¶14. Even though M.C. testified that the abuse had been occurring for a while, she stated
that she was scared and did not tell anyone because her family still lived with Mason at the
time. M.C. further testified that, when Mason would rub on her breasts, sometimes her
mother was there but would ignore the behavior. M.C. also admitted that she did not tell
anyone about the abuse even when Mason left the house for a few days. She testified that
Mason had previously threatened and choked her, but she admitted that she had also never
told anyone about those events. According to M.C., when she finally disclosed the abuse to
Abby, she had not wanted Abby to tell anyone else.
7
¶15. During R.C.’s cross-examination, R.C. admitted that she had been upset that her
family got kicked out of their home. The defense asked R.C. if she remembered her mother
talking to her about how she could stay in the house. R.C. admitted that she recalled those
conversations. The defense then asked if R.C. and her mother had come up with the plan to
falsely accuse Mason of sexual assault. However, R.C. denied making up a plan to falsely
accuse Mason to stay in the house.
¶16. Like M.C., R.C. testified during cross-examination that she did not remember seeing
Dr. Matherne. Several times on cross-examination, R.C. denied ever discussing with M.C.
their sexual abuse by Mason. R.C. repeatedly denied discussing the matter with her sister
even though she had told doctors, counselors, therapists, and employees at both the
Mississippi Department of Human Services and the district attorney’s office.
¶17. Following M.C.’s and R.C.’s trial testimony, the State moved to admit the girls’
pretrial statements into evidence under the tender-years exception. In first considering R.C.’s
pretrial statements, the circuit court found R.C.’s statements to be consistent with each other
and not too remote in time from Mason’s alleged conduct. In addition, the circuit court
found that R.C. had no motive to lie. The circuit court then found that a presumption of
tender years applied to R.C., who was under the age of twelve at the time she made her
pretrial statements to Johnson and Captain Luther. Over the defense’s objection, the circuit
court admitted R.C.’s pretrial statements into evidence.
¶18. The circuit court next considered the pretrial statements M.C. made to Abby, Johnson,
8
and Captain Luther. As the circuit court noted, M.C. was about two to three months past her
twelfth birthday when she made the pretrial statements. After considering M.C.’s age, her
maturity, the techniques used to interview her, and other relevant factors, the circuit court
found M.C.’s statements to be credible. As a result, the circuit court also admitted M.C.’s
pretrial statements into evidence over the defense’s objection. As the record shows, prior to
the circuit court’s admission of the pretrial statements, the defense had the opportunity to
attack M.C.’s and R.C.’s truthfulness about their claims of sexual abuse by Mason.
¶19. During the trial, the State also called Dr. Matherne to testify about hearsay statements
M.C. and R.C. made to him. Dr. Matherne, a psychologist, interviewed M.C. and R.C. about
the alleged sexual abuse and then recommended treatment based upon his observations and
conclusions. The circuit court admitted Dr. Matherne’s testimony about the hearsay
statements after finding that the statements were made for medical diagnosis or treatment.
See M.R.E. 803(4). The circuit court also accepted Dr. Matherne as an expert in the field of
clinical psychology.
¶20. Dr. Matherne testified that he separately interviewed and evaluated M.C. and R.C. on
April 5, 2012, to determine whether he could substantiate their allegations of sexual abuse
by Mason. Dr. Matherne showed M.C. and R.C. anatomical drawings of a young girl to
evaluate their claims of abuse. He testified that M.C. pointed to and circled the breasts,
vagina, and butt of the girl on her drawing to indicate that Mason had touched her in those
areas. Dr. Matherne testified that R.C. also pointed to and circled these areas on the girl in
9
her drawing.
¶21. Dr. Matherne stated that he also conducted intellectual and educational tests on each
girl. Based on the test results, Dr. Matherne found that M.C.’s intelligence level was below
average for a twelve-year-old and that she functioned at a first-grade spelling level, a second-
grade reading level, and an upper third-grade level in arithmetic. Dr. Matherne testified that
R.C.’s results indicated that she was of average intelligence with average levels of academic
achievement. After observing the girls, Dr. Matherne concluded in his expert opinion that
both girls displayed characteristics and behavior consistent with sexual abuse and would
benefit from counseling.
¶22. Following Dr. Matherne’s testimony, the State called Abby, Captain Luther, and
Johnson to testify. All three witnesses testified consistently with the testimony they provided
during the pretrial hearing. The State then rested.
¶23. During the defense’s case-in-chief, Mason testified on his own behalf. Mason stated
that, while he lived with the girls and their mother, he slept in the same bedroom as the girls’
mother. Mason admitted that he had sex with the girls’ mother a few times, but he stated that
he never pursued any type of actual relationship with her. Mason also denied ever
inappropriately touching M.C. or R.C. or ever exposing his genitals to the girls. According
to Mason’s testimony, he was never even alone with the girls.
¶24. At the conclusion of Mason’s trial, the jury found Mason guilty of four counts of
touching a child for lustful purposes, and the circuit court declared a mistrial as to the
10
remaining charges. The circuit court sentenced Mason as a habitual offender to four life
sentences, with the sentences in Counts IV and V to run concurrently with one another, and
with the sentences in Counts IX and X to run concurrently with one another and
consecutively to the sentences in Counts IV and V. Mason then filed an unsuccessful motion
for a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved by
the circuit court’s judgment, Mason appeals.
DISCUSSION
¶25. Mason argues that the circuit court abused its discretion by admitting M.C.’s and
R.C.’s pretrial statements under the tender-years exception. Mason claims that the circuit
court admitted the hearsay statements without first discussing or fully evaluating the relevant
factors, such as whether the statements possessed substantial indicia of reliability. Mason
further asserts that the hearsay statements prejudiced him by impermissibly bolstering the
credibility of M.C.’s and R.C.’s testimony. Based on the circuit court’s alleged error, Mason
asks this Court to reverse his convictions and sentences and to remand the case for a new
trial.
¶26. We review for abuse of discretion a party’s claim that the circuit court erred by
admitting hearsay. Nunnery v. State, 126 So. 3d 105, 109 (¶9) (Miss. Ct. App. 2013).4
Hearsay encompasses any statement made by the declarant, while not testifying at the current
4
See also Hobgood v. State, 926 So. 2d 847, 853 (¶16) (Miss. 2006) (discussing
hearsay and the standard of review applied to the admission of evidence); Clark v. State, 891
So. 2d 136, 139 (¶11) (Miss. 2004) (recognizing that the appellate courts review the
admission or exclusion of evidence for abuse of discretion).
11
trial or hearing, that a party offers into evidence to prove the truth of the matter asserted.
M.R.E. 801(c).
¶27. Rule 803(25) of the Mississippi Rules of Evidence provides the tender-years exception
to the hearsay rule and states the following:
A statement by a child of tender years describing any act of sexual contact with
or by another is admissible if: (A) the court—after a hearing outside the jury’s
presence—determines that the statement’s time, content, and circumstances
provide substantial indicia of reliability; and (B) the child either: (i) testifies;
or (ii) is unavailable as a witness, and other evidence corroborates the act.
¶28. Our caselaw further provides:
For the trial court to determine if a young declarant’s out-of-court statement
is admissible under the tender-years exception, the court must determine (1)
that the declarant is a child of tender years and (2) that the time, content, and
circumstances of the statement provide substantial indicia of reliability. The
Mississippi Supreme Court [has] found that there is a rebuttable presumption
that a child under the age of twelve is of tender years. When the child
declarant is twelve or older, the presumption does not apply, but the trial court
must make a case-by-case determination as to whether the declarant is of
tender years. This determination should be made on the record and based on
a factual finding as to the declarant’s mental and emotional age.
Nunnery, 126 So. 3d at 109 (¶11) (internal citation omitted).
¶29. The comment to Rule 803(25) provides the following nonexhaustive list of factors for
a circuit court to consider to determine whether a statement possesses sufficient indicia of
reliability:
(1) whether there is an apparent motive on [the] declarant’s part to lie; (2) the
general character of the declarant; (3) whether more than one person heard the
statements; (4) whether the statements were made spontaneously; (5) the
timing of the declarations; (6) the relationship between the declarant and the
witness; (7) the possibility of the declarant’s faulty recollection is remote; (8)
12
certainty that the statements were made; (9) the credibility of the person
testifying about the statements; (10) the age or maturity of the declarant; (11)
whether suggestive techniques were used in eliciting the statement; and (12)
whether the declarant’s age, knowledge, and experience make it unlikely that
the declarant fabricated.
M.R.E. 803(25) cmt.
¶30. Upon review of this assignment of error, we acknowledge that both M.C. and R.C.
testified at trial and were subjected to cross-examination by the defense.5 As the record
reflects, following M.C.’s and R.C.’s trial testimony, the State renewed its motion to admit
the girls’ pretrial statements into evidence under the tender-years exception. The circuit court
then conducted a hearing outside the jury’s presence.6 During the hearing, the State argued
that the girls’ statements possessed the required indicia of reliability and should be
considered as falling within the tender-years exception to hearsay under Rule 803(25).
¶31. After considering the parties’ arguments and applicable caselaw, the circuit court
rendered on-the-record factual findings that reflected the court found the girls’ testimony
credible and reliable. The circuit court also found that both girls were of tender years when
they made their pretrial statements.7 As a result, the circuit court granted the State’s motion.
5
See Elkins v. State, 918 So. 2d 828, 832 (¶12) (Miss. Ct. App. 2005) (“[T]he
[C]onfrontation [C]lause is violated when a hearsay declarant is available to testify at the
trial, but does not do so, and the defendant lacked an opportunity to cross-examine the
declarant on a prior occasion.” (citation omitted)).
6
See Bishop v. State, 982 So. 2d 371, 375 (¶16) (Miss. 2008) (noting that the trial
judge conducted the required Rule 803(25) hearing outside the presence of the jury).
7
In Elkins, this Court stated:
13
¶32. The circuit court first addressed whether to admit R.C.’s testimony. The circuit court
determined that R.C. was ten years old at the time she made the statements to Johnson and
Captain Luther.8 The circuit court found that R.C. appeared to know the difference between
right and wrong and that she possessed no apparent motive to lie.9 The circuit court also
found that R.C. had no relationship with Johnson or Captain Luther prior to making the
statements.
¶33. In making its factual findings, the circuit court evaluated R.C.’s age, maturity, and
intelligence and considered the interview techniques used to question R.C. Although not all
R.C.’s statements to Johnson and Captain Luther were spontaneous, the circuit court
concluded that no suggestive techniques were used to elicit R.C.’s statements. In addition,
the circuit court determined that R.C.’s statements were factually consistent with each other
and were vivid as to what had occurred. Based on these findings, the circuit court held that
In assessing whether the tender[-]years exception applies, the trial court
should consider the age of the child at the time the statement was made, not
the age of the child at the time of the trial. . . . There is a rebuttable
presumption that a child under the age of twelve is of tender years. When an
alleged sex[-]abuse victim is age twelve or older, the trial court must make a
case-by-case determination of whether the alleged victim was of tender years
based on a factual finding as to the victim’s mental and emotional age.
Elkins, 918 So. 2d at 833 (¶15) (internal citations and quotation marks omitted).
8
See Veasley v. State, 735 So. 2d 432, 436 (¶16) (Miss. 1999) (holding that a
rebuttable presumption exists that a child under twelve years old is of tender years).
9
Mississippi caselaw holds “that a child’s delay in reporting . . . abuse is excusable
if the delay was caused by fear ‘or other equally effective circumstances.’” Elkins, 918 So.
2d at 834 (¶18) (quoting Veasley, 735 So. 2d at 436 (¶11)).
14
R.C.’s pretrial statements possessed sufficient indicia of reliability and that R.C. was of
tender years when she made the statements. As a result, the circuit court admitted R.C.’s
pretrial statements to Johnson and Captain Luther under the tender-years exception to
hearsay.
¶34. In next discussing M.C.’s pretrial statements, the circuit court acknowledged that
M.C. was two to three months past her twelfth birthday when she made the statements. The
circuit court then conducted a balancing test to determine whether M.C. fell within the
tender-years exception of Rule 803(25). See Elkins, 918 So. 2d at 833 (¶15) (“When an
alleged sex[-]abuse victim is age twelve or older, the trial court must make a case-by-case
determination of whether the alleged victim was of tender years ‘based on a factual finding
as to the victim’s mental and emotional age.’” (quoting Veasley, 735 So. 2d at 437 (¶16))).
From the testimony provided, the circuit court found that M.C. had received special
education, that she lacked communicative skills, and that her development was delayed.
However, the circuit court also found that M.C. seemed to know the difference between right
and wrong and that she possessed no apparent reason to lie. Based on M.C.’s age,
knowledge, and experience, the circuit court found that M.C. was of tender years.
¶35. Although M.C. possessed a personal relationship with Abby, to whom M.C. first
spontaneously disclosed the abuse, the circuit court determined that M.C. had only a strictly
professional relationship with Johnson, Captain Luther, and Dr. Matherne. The circuit court
found that M.C. had no reason to lie to the forensic interviewer, the police officer, or the
15
psychologist and that she made the statements to these individuals soon after her initial
disclosure of the molestation to Abby. The circuit court further concluded that, although
M.C.’s statements to Johnson, Captain Luther, and Dr. Matherne were not spontaneous, no
suggestive techniques were used to question her. In addition, the circuit court found that
established protocols were used during the interviews. Based on its findings, the circuit court
concluded that M.C.’s statements were credible and that she was of tender years. As a result,
the circuit court admitted M.C.’s pretrial statements into evidence.
¶36. In the recent case Tubbs v. State, 185 So. 3d 363, 365 (¶1) (Miss. 2016), the supreme
court considered the defendant’s argument that “the trial court erred in admitting the child
victim’s testimony as well as a hearsay statement made by the victim to her grandmother.”
Like Mason, Tubbs was indicted, tried, and found guilty of child molestation. Id. The
supreme court found that “the sole issue [was] whether the time, content, and circumstances
of the statement provide[d] substantial indicia of reliability.” Id. at 367 (¶11) (citation
omitted).
¶37. Although Tubbs argued the trial court erred by failing to use the specific words
“substantial indicia of reliability” in making its factual findings about the admissibility of the
child’s hearsay statement, the supreme court disagreed. Id. at 367-68 (¶¶12-13). The
supreme court instead found that “the trial court’s evidentiary hearing contain[ed] more than
sufficient findings on the record.” Id. at 368 (¶13). Thus, even though the trial court failed
to use the specific words “substantial indicia of reliability,” the supreme court found no abuse
16
of discretion by the trial court in allowing the grandmother’s testimony about the child’s
hearsay statement under Rule 803(25)’s tender-years exception. Id.
¶38. Like the Tubbs court, we find no abuse of discretion in the present case from the
circuit court’s decision to admit M.C.’s and R.C.’s pretrial statements under the tender-years
exception. The record reflects that the circuit court rendered sufficient findings on the record
to conclude that the time, content, and circumstances of M.C.’s and R.C.’s pretrial statements
provided substantial indicia of reliability. See id. at 367-68 (¶¶12-13); Nunnery, 126 So. 3d
at 109 (¶11).
¶39. As previously discussed, the comment to Rule 803(25) provides a nonexhaustive list
of factors for a circuit court to consider when determining whether a statement possesses
sufficient indicia of reliability. See also Bishop v. State, 982 So. 2d 371, 376 (¶17) (Miss.
2008) (identifying the nonexhaustive list of factors). Like the trial court in Bishop, the circuit
court in this case provided findings that addressed the nonexhaustive list of factors to
determine whether the girls’ pretrial statements possessed sufficient indicia of reliability.
After reviewing the record, we find substantial evidence to support the circuit court’s
determination that M.C.’s and R.C.’s statements were credible and, thus, possessed sufficient
indicia of reliability. See id. at 378 (¶25).
¶40. The record reflects that M.C.’s spontaneous disclosure to Abby was clearly
nontestimonial. Abby was a childhood friend and was not law enforcement. Nontestimonial
statements do not trigger the protections of the Confrontation Clause. Id. at 375 (¶14).
17
Furthermore, the testimony by Johnson and Captain Luther provided evidence of M.C.’s and
R.C.’s pretrial statements that was consistent with other testimony admitted at trial.
¶41. In addition, the record reflects that the circuit court admitted the girls’ pretrial
statements only after the defense attacked M.C.’s and R.C.’s truthfulness and veracity during
cross-examination. As the record reflects, the defense accused the girls on cross-examination
of planning with their mother to falsely accuse Mason of sexual abuse after they were kicked
out of the home where they were staying. However, the jury retained responsibility for
evaluating M.C.’s and R.C.’s credibility as witnesses and determining whether events
happened as the girls described. See Whitehead v. State, 187 So. 3d 1091, 1097 (¶17) (Miss.
Ct. App. 2016).
¶42. Regarding attacks upon a witness’s credibility at trial, in Smith v. State, 925 So. 2d
825, 836-37 (¶28) (Miss. 2006), the supreme court acknowledged that statements admissible
under Rule 801(d)(1)(B) of the Mississippi Rules of Evidence are not hearsay by rule. Rule
801(d)(1)(B) permits the admission of prior consistent statements to rebut assertions of
fabrication and improper motive or influence. As acknowledged, the circuit court here only
admitted testimony about M.C.’s and R.C.’s pretrial statements after the defense asserted
during its cross-examination of the girls that they possessed an improper motive for their
allegations against Mason and had fabricated the allegations.
¶43. Upon review, we find no abuse of discretion by the circuit court’s admission of M.C.’s
and R.C.’s pretrial statements into evidence. The record reflects that the defense had the
18
opportunity to cross-examine the girls about whether they fabricated the story of sexual abuse
after they were kicked out of their home. As we have already acknowledged, the admission
of testimony is left to the sound discretion of the circuit court, and we will only find error
where the circuit court abuses that discretion. Bishop, 982 So. 2d at 375 (¶15).10 Moreover,
the girls’ statements to Dr. Matherne, the psychologist, were also admissible under Rule
803(4) of the Mississippi Rules of Evidence. See Penny v. State, 960 So. 2d 533, 539 (¶18)
(Miss. Ct. App. 2006) (finding no abuse of discretion by the admission of a child victim’s
statements to a Department of Human Services counselor where the child was responding
to open-ended questions). We therefore find no merit to Mason’s claim that the admission
of the pretrial statements improperly bolstered M.C.’s and R.C.’s trial testimony.
¶44. We similarly find no merit to Mason’s argument that cumulative error deprived him
of his right to a fair and impartial trial. The appellate court “may reverse a conviction and
sentence based upon the cumulative effect of errors that independently would not require
reversal. However, where there was no reversible error in any part, so there is no reversible
error to the whole.” Genry v. State, 735 So. 2d 186, 201 (¶73) (Miss. 1999) (internal
citations and quotation marks omitted).
¶45. Although Mason’s appellate brief recites a list of alleged errors, which Mason argues
10
See also Smith v. State, 25 So. 3d 264, 273-74 (¶28) (Miss. 2009) (affirming the
circuit court’s erroneous admission of statements because the statements were admissible
under a different evidentiary rule and the right result was therefore reached); Smith, 925 So.
2d at 837 (¶29) (“[W]hether the statements were admitted under [Rule] 801(d)(1)(B) or
803(25) is of no consequence, as the statements are admissible.”).
19
amounted to cumulative error, he fails to fully develop his various allegations or to cite
supporting caselaw for any of his assertions.11 Because Mason fails on appeal to show any
individual errors, we find no cumulative error that would warrant the reversal of his
convictions.
CONCLUSION
¶46. Based upon the foregoing, we find no abuse of discretion by the circuit court’s
admission of M.C.’s and R.C.’s pretrial statements into evidence after the girls testified in
this case. Furthermore, we find no cumulative error that requires the reversal of Mason’s
convictions and sentences. As a result, we affirm the circuit court’s judgment.
¶47. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF
CONVICTION OF FOUR COUNTS OF TOUCHING A CHILD FOR LUSTFUL
PURPOSES AND SENTENCES ON EACH COUNT AS A HABITUAL OFFENDER
OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES IN COUNTS IV
AND V TO RUN CONCURRENTLY WITH ONE ANOTHER, AND WITH THE
SENTENCES IN COUNTS IX AND X TO RUN CONCURRENTLY WITH ONE
ANOTHER AND CONSECUTIVELY TO THE SENTENCES IN COUNTS IV AND
V, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
11
See Miller v. State, 144 So. 3d 199, 203 (¶15) (Miss. Ct. App. 2014) (“It is
well-settled law that[,] if an appellant fails to support [his] allegation of error with argument
or authority, this Court need not consider the issue.” (citation and internal quotation marks
omitted)).
20