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MARY ELIZABETH RYAN v. STATE OF MISSISSIPPI

MAY 04, 1988

MARY ELIZABETH RYAN
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

Mary Elizabeth Ryan, appellant, was convicted in the Circuit Court of Hancock County of the crime of sexual battery in March, 1986, and sentenced to serve a term of six years in the custody of the Mississippi Department of Corrections. From this conviction, Ryan appeals and assigns as error the following:

(1) The Court erred in allowing six year old victim to testify and to leave the courtroom during testimony before the jury.

 (2) The Court erred in allowing Melissa Carver to testify in violation of Miss. Unif. Crim. R. Cir. Ct. Prac. 4.06.

 (3) The Court erred in denying defendant a

 postponement of the trial due to adverse publicity.

 (4) The Court erred in granting State's instruction No. S-1, instead of defendant's instruction No. D-1.

 (5) The Court erred in denying defendant the right to show prior experience and sexual exposure to the witness.

 STATEMENT OF FACTS

 Mary Elizabeth Ryan (hereinafter Mary Beth) was employed by Mrs. Renee Carver to babysit her children. Although the record does not state the defendant's age, the testimony indicates that Mary Beth is a young adult. Mrs. Carver's three children ranged in age from four to ten years of age.

 On February 21, 1985, Mary Beth was scheduled to babysit the Carver children, Garrett and Melissa. In addition to the Carver children, the Gavagnie's children, Bobby and Alicia, were left in her care.

 Approximately two months later, Mrs. Carver and Mrs. Gavagnie were told by their children that Mary Beth had done something to Mrs. Gavagnie's five year old child, Alicia. Mary Beth pulled Alicia into the bathroom and placed her on the counter. Having forced the child into the bathroom, Melissa Carver watched as Mary Beth put some toothpaste on her finger and inserted it into Alicia's vagina. The State's proof was the testimony of the five year old victim and an eye witness, the victim's friend, who was also five years old at the time of the incident. The defendant denied the incident and that she was present in the Carver home on the date in question.

 I.

 DID THE TRIAL COURT ERR IN ALLOWING THE SIX YEAR OLD VICTIM, ALICIA GAVAGNIE, TO TESTIFY?

 Counsel for Mary Beth argues that the trial court abused its discretion in allowing Alicia Gavagnie, a six year old kindergarten student at the time of trial, to testify.

 Counsel for Mary Beth argues that Alicia failed to express intelligent answers, had poor recollection, and did not fully understand the duty to speak the truth.

 Under the new Mississippi Rules of Evidence, *fn1 Rule 601, involving the competency of witnesses, reads as follows,

 "Every person is competent to be a witness except as restricted by Miss. Code 13-1-5 (competency of spouses) and 13-1-11 (persons convicted of perjury or subordination of perjury), or by these rules." With this rule and code section in mind, the trial court conducted a pre-trial competency hearing for Alicia.

 Noting the trial court's pre-rule procedure in examining the child, the trial court made a finding supported by the record that the child had the capacity to understand the questions, frame intelligent answers, and had a moral responsibility and consciousness to speak the truth.

 In addition to the persuasive testimony of Alicia, this Court holds that this argument is settled by the wording of Mississippi Rule of Evidence 601. Under Rule 601, "[e]very person is competent to be a witness." Therein, the trial court did not err in allowing the testimony of Alicia Gavagnie; rather, his action is supported by the record.

 (B)

 Was it prejudicial to the defendant for the witness to leave the courtroom twice in order to rehabilitate her?

 The record shows that Alicia began crying twice during her testimony and was excused to regain her composure. Although counsel for Mary Beth asserts that Alicia's rehabilitation is prejudicial, he fails to cite any authority. Thereto, Mary Beth's counsel fails to make any persuasive argument in connection with this assignment of error. Faced with this type of situation in the past, this Court has held and again holds that it is not required to consider this type of assignment of error. See Burke v. State, ...


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