     IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2015-KA-01343-COA

FRANK THOMAS FRIDAY A/K/A FRANK                      APPELLANT
FRIDAY

v.

STATE OF MISSISSIPPI                                  APPELLEE

DATE OF JUDGMENT:              08/18/2015
TRIAL JUDGE:                   HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:     DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        OFFICE OF STATE PUBLIC DEFENDER
                               BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:             JOHN W. CHAMPION
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT III, SEXUAL
                               BATTERY, AND SENTENCED TO
                               TWENTY YEARS, WITH FIVE YEARS
                               SUSPENDED; COUNTS IV AND V,
                               FONDLING, AND SENTENCED TO TEN
                               YEARS FOR EACH COUNT, TO RUN
                               CONCURRENTLY TO THE SENTENCE IN
                               COUNT III; COUNT VI, SEXUAL
                               BATTERY, AND SENTENCED TO
                               TWENTY YEARS, WITH FIVE YEARS
                               SUSPENDED, TO RUN CONCURRENTLY
                               TO THE SENTENCE IN COUNT III; AND
                               COUNT VII, SEXUAL BATTERY, AND
                               SENTENCED TO TWENTY YEARS, WITH
                               FIVE YEARS SUSPENDED, TO RUN
                               CONSECUTIVELY TO THE SENTENCE IN
                               COUNT III, ALL IN THE CUSTODY OF
                               THE MISSISSIPPI DEPARTMENT OF
                               CORRECTIONS, FOLLOWED BY FIVE
                               YEARS OF REPORTING POSTRELEASE
                                            SUPERVISION AND FIVE YEARS OF
                                            NONREPORTING POSTRELEASE
                                            SUPERVISION
DISPOSITION:                                AFFIRMED - 02/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

       BARNES, J., FOR THE COURT:

¶1.    A DeSoto County jury found Frank Friday guilty of three counts of sexual battery and

two counts of fondling of Betty,1 who, at the time of the crime, was his twelve-year-old

stepdaughter. The trial judge sentenced Friday to twenty years with five years suspended

for Count III (sexual battery), ten years for Count IV (fondling), ten years for Count V

(fondling), twenty years with five suspended for Count VI (sexual battery), and twenty years

with five suspended for Count VII (sexual battery) in the custody of the Mississippi

Department of Corrections, followed by five years of reporting postrelease supervision and

five years of nonreporting postrelease supervision. Counts IV, V, and VI were ordered to

be served concurrently to the sentence in Count III, with Count VII to be served

consecutively to the sentence in Count III. Friday now appeals, arguing the trial court erred

in refusing to grant funds for an independent DNA examination, and in failing to conduct

a tender-years hearing. Finding only harmless error, we affirm.

               STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On January 9, 2014, Detective Tim Stark of the Horn Lake Police Department



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            The names of the victim and the victim’s family have been changed to protect her
identity.

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received a telephone call from the school resource officer at Horn Lake Middle School.

Detective Stark learned from a Mississippi Department of Human Services (DHS) social

worker at the school that two students, then-fourteen-year-old Abby and twelve-year-old

Betty, had reported being sexually abused by their stepfather, Friday. Detective Stark

arranged for Betty to go to the Memphis Rape Crisis Center for a sexual-assault

examination; he also interviewed the children’s mother, Karen, about the allegations.

¶3.    Betty’s sexual-assault kit was logged and stored at the police station until it could be

delivered to the crime lab. A search warrant was obtained for Friday’s DNA and compared

to the vaginal swabs from Betty’s sexual-assault kit. The kit contained seminal fluid found

in Betty’s vagina, which matched Friday’s cheek-swab DNA by a “statistic of one in greater

than ten billion.” Both Abby and Betty had forensic interviews at Healing Hearts Child

Advocacy Center in Southaven, Mississippi, which Detective Stark observed. Ultimately,

Friday was arrested, and a seven-count indictment ensued.2

¶4.    At trial, both Abby and Betty testified. Abby, the older sister, testified that Friday

moved in with the family after he and her mother had been dating several months. Abby

testified that Friday “messed with” her younger sister, Betty. Once Abby had sneaked into

Karen and Friday’s bedroom to “pop out and scare” him. She hid behind the bed with the

lights off. Abby then saw Betty go into the bedroom with Friday and saw Betty’s clothes

drop to the floor. Friday and Betty got into bed, and Abby heard the bed squeaking.

¶5.    Eventually, Abby got “fed up with it” and “couldn’t take any more”; so, one morning

       2
         Counts I and II were charges for the fondling of Abby. Ultimately, the jury
acquitted Friday of Count I, and Count II was dismissed for insufficient evidence.

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before school she told her mother that Friday was “touching” her and Betty. Her mother

looked “really sad and hurt.” Abby testified the abuse had been going on for perhaps a

couple of years; the last time was a few days before she told her mother. Betty was not in

the room when Abby told their mother. At school that day, Abby was noticeably upset; so

the school counselor asked what was wrong. Abby told her of Friday’s sexual abuse, which

triggered a DHS investigation and Detective Stark’s involvement.

¶6.    Betty also testified at trial. She explained that her mother worked nights at a casino;

so she and Abby were often alone with Friday. Betty testified that the night before Abby

told their mother, Friday had instructed Betty to take off her clothes and lie on the bed. As

Betty put it, Friday touched her in places that would normally be covered with a bikini. He

then put “his front” “in [her] front.” Betty stated she was thirteen at the time, and she felt

“really bad” and guilty after it happened.

¶7.    Betty relayed to the jury another incident where “just about the same thing that

happened in the bedroom” happened on the couch when she and Friday were watching

television. Friday had put Betty’s hand on his “private part.” Friday had also kissed Betty,

put his private part in her mouth, and put his mouth on her private area.

¶8.    Abby admitted to recanting her allegations to several people, including her mother,

Detective Stark, and the DHS social worker. However, she explained that she recanted

because her mother was so upset. Abby told her mother that she heard voices in her head

that told her to accuse Friday of sexual abuse. As a result, Abby was admitted to an inpatient

behavioral health center for treatment. On redirect, however, Abby explained that she did



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not really hear these voices. Abby also claimed that Friday had touched her private areas.

¶9.    Betty also admitted to recanting her allegations because her mother was hurt by the

accusations. However, she also explained that her testimony about Friday’s sexual abuse

was true, as were her initial reports to law enforcement, DHS, and the rape crisis center.

¶10.   Karen, the girls’ mother, testified that Abby told her one morning that Friday had

been “touching her and her sister while [she] was at work.” Initially, she did not believe her

children. When Karen confronted Friday, he stated that her daughter must have “ejaculated

him and inserted herself with his semen.”

¶11.   Friday testified in his own defense. He denied ever touching Betty or Abby

inappropriately. He did not know what happened, but admitted the State “possibly could”

have his DNA because he has always slept naked, and has nocturnal emissions; so “it was

available.”

                                        ANALYSIS

       1.     Independent DNA Examination

¶12.   Friday argues that the trial court deprived him of a fair trial by refusing to grant

funding to obtain his own DNA examination and/or expert, who he claims would provide

independent verification of the validity of the Mississippi Crime Laboratory’s DNA test

results.

¶13.   “Whether an indigent defendant must be provided expert funding is decided on a

case-by-case basis,” and reviewed for an abuse of discretion. Barksdale v. State, 176 So.

3d 108, 112 (¶18) (Miss. Ct. App. 2015) (citing Lowe v. State, 127 So. 3d 178, 183 (¶20)



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(Miss. 2013)). The State “must take steps to assure that the [indigent] defendant has a fair

opportunity to present his defense[, and a] trial court must provide expert assistance to an

indigent defendant when denial of such assistance would render the trial fundamentally

unfair. This does not mean that an expert must be supplied any time an indigent defendant

requests one.” Id. (internal citations and quotation marks omitted). “[A] defendant must

demonstrate a substantial need in order to justify the trial court expending public funds for

an expert to assist the defense.” Lowe, 127 So. 3d at 181 (¶14) (quoting Richardson v. State,

767 So. 2d 195, 198 (¶10) (Miss. 2000)). Factors a reviewing court should consider when

determining whether a defendant was denied a fair trial as a result of the trial court’s denial

of funds for an expert include: “whether and to what degree the defendant had access to the

State’s experts, whether the defendant had the opportunity to cross-examine those experts,

and lack of prejudice or incompetence of the State’s experts.” Townsend v. State, 847 So.

2d 825, 829 (¶13) (Miss. 2003) (citing Fisher v. City of Eupora, 587 So. 2d 878, 883 (Miss.

1991)).

¶14.   In a pretrial motion, the defense requested funds for independent testing of the DNA

evidence, stating evidence remained that could still be tested and “verification of this DNA

evidence [was] essential for the Defendant to prepare his defense and to discover potentially

exculpatory evidence.” At the motions hearing, the only reason given for Friday’s request

was his insistence he was innocent. The State responded that it had no argument for or

against it, explaining that testimony from both victims would be elicited at trial, as well as

the DNA evidence, which was “the strongest, most damning piece of evidence against this



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defendant.”3 The trial judge denied the motion over a week later, after researching the issue.

¶15.   In an analogous case, Ellis v. State, 989 So. 2d 958, 964 (¶15) (Miss. Ct. App. 2008),

the trial court granted the defendant’s motion to conduct an independent DNA test for his

trial for sexual battery and statutory rape, but denied his request for funds to hire an

independent DNA expert. We affirmed, finding the court did not abuse its discretion in

denying the request for funds, since the defendant could not prove that funding his own

expert “would have significantly aided his defense.” Id. at 965 (¶¶19-20). Likewise, Friday

has failed to present any specific reason given why this request would have significantly

aided his defense.

¶16.   Applying the factors above, at trial the defense attorney had the opportunity to cross-

examine Leslia Davis of the Mississippi Crime Laboratory, who was the State’s DNA

expert. None of her testimony called into question the accuracy of the DNA test results,

practices, or procedures. Friday’s counsel did not complain of her incompetence or

prejudice, and there were no accusations of any problem with the crime laboratory’s testing

or any other reason to question its validity. Finally, while the DNA evidence against Friday

was certainly “damning,” there was other strong evidence of guilt as well, such as Betty’s

forensic interview, which was seen by the jury, and the trial testimony of Betty, Abby,

Karen, Detective Stark, two school counselors, and the rape-crisis-center nurse.

Accordingly, we cannot say that the trial court abused its discretion.

       3
        The sexual-assault kit performed on Betty found seminal fluid in her vaginal swab.
The Mississippi Crime Laboratory concluded that the genetic profile taken from Friday’s
cheek swab could not be excluded from the DNA profile taken from the sexual-assault kit
– the probability of it not matching being one in greater than ten billion.

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       2.     Tender-Years-Hearsay-Exception Hearing

¶17.   Friday argues that the trial court erred in failing to conduct a tender-years hearing

under Mississippi Rule of Evidence 803(25), thereby allowing inadmissible hearsay

testimony from Karen and Brittaney Baskin, the forensic interviewer, to be heard by the jury

about Abby’s and Betty’s statements of the sexual abuse.

¶18.   The standard of review for the admission of hearsay evidence is abuse of discretion.

White v. State, 48 So. 3d 454, 456 (¶9) (Miss. 2010). Rule 803(25), known as the tender-

years hearsay exception, states:

       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.

To determine whether 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.” Veasley v. State, 735 So. 2d 432, 436 (¶14) (Miss. 1999). “[T]here

is a rebuttable presumption that a child under the age of twelve is of tender years.” Id. at

(¶16). However, when the child declarant is twelve years old or older, the presumption does

not apply, and “the trial court must make a case-by-case determination as to whether the

[declarant] is of tender years . . . on the record and based on a factual finding as to the

[declarant’s] mental and emotional age.” Id. at 437 (¶16). “The child’s age at the time of

the statement, rather than her age at trial, is the relevant age used to determine if the tender

                                               8
[-]years exception applies.” Klauk v. State, 940 So. 2d 954, 956 (¶6) (Miss. Ct. App. 2006)

(citation omitted).

¶19.   Friday filed a pretrial motion in limine to exclude possible hearsay testimony of

certain witnesses or, alternatively, for a tender-years hearing, if the State sought to admit

such testimony. Yet Baskin was not included in this list of witnesses. At the pretrial

motions hearing, the trial judge stated that he would reserve ruling until when the witness

was called, the testimony was elicited, and a contemporaneous objection was made.

However, during the testimony of Karen and Baskin, the defense did not make any objection

regarding any possible hearsay testimony, nor did the defense request a tender-years hearing

outside of the jury’s presence.

¶20.   At the time of the statements and interviews at issue, Abby was fourteen years old and

Betty was twelve years old; so the tender-years presumption would not apply, and the trial

court should have made a finding on the record as to whether the child was of tender years,

but did not. We find this failure error, but harmless.

¶21.   As the State points out, Nunnery v. State, 126 So. 3d 105 (Miss. Ct. App. 2013), is

instructive here. In Nunnery, this Court found error when the trial court did not conduct a

tender-years hearing, even though the defense failed to raise the issue at the pretrial motions

hearing and failed to object during the pertinent testimony. Id. at 109 (¶12). However,

while it was error for the trial court not to determine if the victim of sexual abuse was of

tender years and if the tender-years exception applied, the error did not warrant reversal. Id.

at (¶13). The error was deemed harmless because “the weight of the evidence against [the



                                              9
defendant was] sufficient to outweigh the harm done by allowing admission of the

evidence.” Id. (quoting Klauk, 940 So. 2d at 957 (¶7)).

¶22.   Here, the harmless-error standard applies as well. At trial, Betty testified to her

sexual abuse in detail – both fondling and sexual battery. Further, Abby testified that she

saw Friday and Betty in his bedroom – Betty’s clothes fell to the ground, and Abby heard

the bed squeaking. Moreover, there was no objection to the admission of Betty’s forensic

interview, and most damning, there was DNA evidence of Friday’s sperm in Betty’s vagina.

The weight of the evidence of guilt outweighed any harm done by allowing admission of

hearsay statements by Karen and Baskin. Accordingly, the admission of the statements

without a tender-years hearing is harmless error.

¶23. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF COUNT III, SEXUAL BATTERY, AND SENTENCE OF
TWENTY YEARS, WITH FIVE YEARS SUSPENDED; COUNTS IV AND V,
FONDLING, AND SENTENCE OF TEN YEARS FOR EACH COUNT, TO RUN
CONCURRENTLY TO THE SENTENCE IN COUNT III; COUNT VI, SEXUAL
BATTERY, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS
SUSPENDED, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT III;
AND COUNT VII, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS,
WITH FIVE YEARS SUSPENDED, TO RUN CONSECUTIVELY TO THE
SENTENCE IN COUNT III, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, FOLLOWED BY FIVE YEARS OF
REPORTING POSTRELEASE SUPERVISION AND FIVE YEARS OF
NONREPORTING POSTRELEASE SUPERVISION, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION.




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