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Graham v. State

Court of Appeals of Mississippi

September 3, 2013

John T. GRAHAM a/k/a John Graham a/k/a John Thompson Graham, Appellant
v.
STATE of Mississippi, Appellee.

Page 1039

W. Daniel Hinchcliff, George T. Holmes, Jackson, Jerry Campbell, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.

GRIFFIS, P.J.

¶ 1. John T. Graham appeals his conviction of sexual battery of a victim under the age of fourteen, in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Supp.2012). Graham asserts two errors. First, he argues that the prosecutor's arguments were improper and amounted to misconduct. Second, Graham argues that the trial court erred by failing to make a finding as to the competency of the four-year-old witness and that the witness should not have been allowed to testify while she sat with her father. We find no error and affirm.

FACTS[1]

¶ 2. On May 26, 2010, Graham was seventeen years old. Graham's older sister,

Page 1040

Cynthia Graham, regularly babysits the children of Daniel Doe. [2] Graham was often present when the Doe children were in Cynthia's care.

¶ 3. On May 26, 2010, Daniel picked up his four-year-old daughter, Jane, from his mother's house. Jane appeared upset. Daniel asked her what was wrong. Daniel testified that Jane responded that " Johnny T. touched her pee-pee." Daniel did not know anyone called " Johnny T." Daniel's mother told him that " Johnny T." was " [a] guy at the baby-sitter's, I guess related to Cynthia Graham, who was the baby-sitter." Daniel also testified that Jane told him that Johnny T. had " dug into her pee-pee."

¶ 4. Daniel called Jane's mother, who then took Jane for a medical examination. Dr. Lashunte Jones, the examining physician, testified that the medical exam did not reveal any physical evidence of sexual battery. Dr. Jones did not perform invasive testing, because Jane had been to a water park immediately after the incident. Dr. Jones testified that Jane said " touch," not " dug." Dr. Jones specifically testified that she did not remember Jane using the word " dug."

¶ 5. Jane testified while sitting on Daniel's lap. Jane testified that she knew her private parts were her " wee-wee and butt." She testified that her babysitter was " Miss Cynthia" and that " Johnny T." touched her private parts " inside" with his finger. When asked if " Johnny T." was in the courtroom, the record indicated that Jane pointed, but the record does not indicate where she pointed or that she identified Graham. Jane testified that she only told her mother and father.

¶ 6. On cross-examination, Jane testified that " he" dug his finger inside of her and it hurt. She was confused by questions regarding whom she told afterwards. In fact, she claimed she never stayed with her grandmother, even though her grandmother picked her up from daycare. She agreed she had gone to the water park with " J.T." and others.

¶ 7. The case was investigated by Stacy Rollison and Todd Dykes. Rollison went to the hospital where Jane was being examined. She took a recorded statement from Jane, which was played for the jury.

¶ 8. Dykes interviewed Graham, and a recording of the interview was played for the jury. In this interview, Graham stated, " I'm going to tell them that I touched her when I was playing with her like I did all the rest of the kids." Graham denied any contact with Jane but later conceded that there may have been accidental touching.

¶ 9. Cynthia testified for the defense. On May 26, 2010, Cynthia left her brother with the Doe children so that she could pick up a child getting out of school. Cynthia was gone for forty-five minutes. Jane was awake when Cynthia returned. Cynthia took a picture of the Doe children sitting on her couch. Jane had her hands in her ...


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