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IN THE COURT OF APPEALS 02/11/97 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01338 COA

JOSEPH GASPER PISARICH A/K/A JOEY PISARICH APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR. COURT FROM WHICH APPEALED: CIRCUIT COURT OF HARRISON COUNTY ATTORNEY FOR APPELLANT: KELLY MCKOIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOLENE M. LOWRY DISTRICT ATTORNEY: MARK WARD NATURE OF THE CASE: CRIMINAL: SEXUAL BATTERY TRIAL COURT DISPOSITION: CONVICTED AND SENTENCED TO 10 YEARS IN THE CUSTODY OF THE MDOC MANDATE ISSUED: 6/10/97

EN BANC: PAYNE, J., FOR THE COURT:

Joseph Pisarich was indicted under a multi-count indictment for capital rape and sexual battery. The court convicted Pisarich of sexual battery and sentenced him to serve ten (10) years in the custody of the Mississippi Department of Corrections. The trial court denied Pisarich's motion for JNOV or, in the alternative, a new trial. We find that Pisarich's issues on appeal have no merit and therefore affirm.

FACTS Joseph Pisarich, a thirty-one year old male, was charged with capital rape and sexual battery. Pisarich was alleged to have committed these crimes upon thirteen-year-old K.W., the sister-in-law of Pisarich's friend, C.W. On May 10, 1992, C.W. invited Pisarich to stay overnight at her home. Both Pisarich and C.W. stated that this was not uncommon as C.W. often had friends sleep over. Pisarich stated that C.W.'s sleep-overs had always been strictly innocent and never involved sex. On this date, K.W. was also staying with C.W. while her parents were out of town. C.W.'s husband was out of town attending a military camp. The parties indicated that on this occasion the three of them (Pisarich, K.W., and C.W.) piled onto the sofa bed to go to sleep. Later in the evening, C.W. left the sofa bed to go to her bedroom to sleep. C.W. left K.W. on the sofa bed with Pisarich. K.W. was wearing a pair of shorts about one inch above her knee, a purple shirt with a bra and panties underneath. Pisarich was wearing a pair of pants, underwear, and no shirt. K.W. stated that Pisarich was lying on the right, and she was lying on the left side of the bed. K.W. stated that Pisarich kept getting closer and closer to her until he was right next to her with his front facing her back. K.W. testified that Pisarich put his hands on her shirt, on her breast, and began massaging her body. Pisarich next put his hand into her panties and placed his finger into her vagina. K.W. stated that she was scared so she just acted like she was sleeping. K.W. stated that Pisarich then pulled down her pants, placed his erect penis against her back, and then placed his penis into her vagina. K.W. testified that only "a little bit" of penetration resulted because she held her legs tightly clamped together. K.W. stated that she did not tell him to stop because she was scared. K.W. testified that Pisarich asked her "Do you want me?" to which she did not reply, and he subsequently rolled over and said "Oh, s___" when he realized he could go no further. The next morning, Pisarich went to work and K.W. went to school. K.W. only told C.W. what happened after C.W. mentioned that she wanted to invite Pisarich to a party she was going to have for her husband. This conversation took place fourteen to fifteen hours after the alleged incident occurred. C.W. testified that K.W. was very upset when she told her about the incident. C.W. stated that she called Pisarich and questioned him about the incident. C.W. stated that Pisarich admitted that

he had "messed" with K.W. and had put his fingers inside of her. C.W. stated that Pisarich told her that he would seek help at the V.A. and begged her not to tell anyone. C.W. stated that Pisarich indicated that he was contemplating suicide. Dr. Ronald Bruni, a pediatrician, testified that he examined K.W. some nine days after the incident. Dr. Bruni stated that K.W. seemed "quite depressed" and that she "very reluctantly" told the doctor her story. The doctor's vaginal examination revealed no tears, the hymen was intact and he saw no signs of acute trauma. The doctor stated, however, that his examination would neither prove nor disprove what she said had happened. After Pisarich's motion for a directed verdict was denied, he took the stand and testified on his own behalf. Pisarich completely denied that anything had happened between him and K.W. and denied having admitted anything to C.W. Pisarich then proceeded to offer testimony of relatives and friends to testify as to his character for truth and veracity. The jury found Pisarich not guilty of capital rape and guilty of sexual battery. The trial court sentenced Pisarich to serve ten years in the custody of the Mississippi Department of Corrections. The court subsequently denied his motion for JNOV/new trial, and he now appeals.

ANALYSIS I. DID THE TRIAL COURT ERR IN FAILING TO GRANT PISARICH'S MOTION TO SUPPRESS THE TESTIMONY OF C.W. CONCERNING A CONVERSATION BETWEEN C.W. AND THE VICTIM, K.W.?

Pisarich contends that the testimony of C.W. concerning a conversation she had with the victim, K.W., fourteen to fifteen hours after the sexual battery occurred is hearsay and does not fall within a recognized hearsay exception. Pisarich argues that C.W.'s testimony should have been declared inadmissible as hearsay under Mississippi Rules of Evidence 802 and 803(1) and (2). The State, however, argues that C.W.'s testimony was clearly admissible as nonhearsay pursuant to Rule 801(d)(1)(B) of the Mississippi Rules of Evidence. The State contends that Pisarich's attorney opened the door during his cross-examination of K.W. by focusing on the alleged inconsistencies between her prior statements to C.W. and her testimony on direct examination. The State argues that this line of questioning was a clear implication by the defense that K.W. had fabricated the sexual attack by Pisarich. In previous decisions, the Mississippi Supreme Court has agreed with the State on the application of Mississippi Rule of Evidence 801(d)(1)(B) as it pertains to corroborative testimony offered to rebut a charge of recent fabrication against the declarant. In Heflin v. State, 643 So. 2d 512, 520 (Miss. 1994), the sister of a rape victim was permitted to testify to what the victim had told her about the rape. The court admitted the sister's testimony as an excited utterance under Mississippi Rule of Evidence 803(2). Id.; see M.R.E. 803(2). The Heflin court, in dicta, went on to state that the testimony of the victim's sister was also admissible under Rule 801(d)(1)(B) as a prior consistent

statement offered to rebut a charge by the defense that the victim had fabricated the rape in an effort to escape the strict discipline imposed by her father, the defendant. Id.; see also Jones v. State, 606 So. 2d 1051, 1059 (Miss. 1992) (testimony of a family friend was admissible as nonhearsay on grounds that the testimony was corroborative of the victim's testimony and rebutted defense counsel's attempt to impeach the victim by implying the incident was a bad dream or that it never happened at all); Hosford v. State, 560 So. 2d 163, 166 (Miss. 1990) (holding that the Mississippi Rules of Evidence allow for the limited rehabilitation of a witness's testimony once that testimony has been subjected to impeachment by cross-examination). However, in light of the United States Supreme Court decision of Tome v. United States, 115 S. Ct. 696, 700 (1995), the Mississippi Supreme Court changed its position regarding the application of Rule 801(d)(1)(B), as discussed in Owens v. State, 666 So. 2d 814, 816-17 (Miss. 1995). In Owens, the court, disavowing the conclusion reached in Heflin regarding the applicability of Rule 801(d)(1)(B), stated: The United States Supreme Court in Tome v. United States, -- U.S. --, 115 S. Ct. 696, 130 L. Ed. 2d 574 (1995), stated that "a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards." Id. at --, 115 S. Ct. at 700. The Court further explained that a prior consistent statement may not be admitted to refute all forms of impeachment or merely to bolster the witness's credibility, but only to rebut an alleged motive. Id. The Court emphasized that the limitation of the rule is instructive to reinforce the significance of the requirement that the consistent statements must have been made before an alleged influence, or motive to fabricate arose. Id. After making a detailed analysis of the rule, the Court concluded that "the language of the Rule, in its concentration on rebutting charges of recent fabrication, improper influence and motive to the exclusion of other forms of impeachment, as well as in its use of wording which follows the language of the common-law cases, suggests that it was intended" to include the requirement that the consistent statements must have been made prior to the arising of the alleged motive to fabricate. Id. at --, 115 S.Ct. at 702. In the present case, the victim, K.W., testified on direct examination that she told C.W. what Pisarich had done to her. Pisarich, on cross-examination of K.W., focused on why K.W. had waited fourteen to fifteen hours before telling anyone of the incident and on alleged inconsistencies between her prior statements to C.W. and her direct examination. On re-direct, the State attempted to clarify what K.W. had told C.W. following the incident. The State then called C.W. as a witness to verify what K.W. had told her regarding the sexual battery and to rebut Pisarich's contention that K.W. was lying about what Pisarich had done. Following the reasoning of the Mississippi Supreme Court in Owens as well as the United States Supreme Court decision in Tome, we must ask whether K. W. had a motive to lie about what Pisarich had done to her prior to telling C.W. what had happened. If K.W. had a motive to lie prior to her conversation with C.W. then C.W's testimony concerning what K.W. had told her is not admissible as nonhearsay under Mississippi Rule of Evidence 801(d)(1)(B). However, if K.W. had no motive to lie or if a motive to lie arose after her conversation with C.W. then Rule 801(d)(1)(B) is applicable, and C.W.'s testimony is admissible. This presents a dilemma as neither the United States Supreme Court nor the Mississippi Supreme Court gives us any guidance as to how we are to determine when a motive to fabricate arises.

In the present case, Pisarich implies during his cross-examination of K.W. that she was angry with Pisarich because he told her that a certain man she was interested in was too old for her. If we believe that K.W. was angry with Pisarich then the natural conclusion would be that K.W. maintained a motive to fabricate the allegations against Pisarich prior to the occurrence of the sexual battery and prior to her conversation with C.W. Thus, C.W.'s testimony would be inadmissible per Owens and Tome. K.W., however, denies that she had any reason to be angry with Pisarich prior to the sexual battery. If we believe K.W., then we must conclude that she had no reason to fabricate her allegations against Pisarich. Thus, C.W.'s testimony would be admissible under Rule 801(d)(1)(B). This issue places this Court in the position of having to judge a witness' credibility which is certainly not our function. Therefore, we shall defer to the judgment of the trial judge and find that C.W.'s testimony was properly admitted as nonhearsay under Rule 801(d)(1)(B). However, if we had determined that the trial court erred in admitting C.W.'s testimony, we would have found the admitted testimony to be harmless error. See Owens v. State, 666 So. 2d 814, 817 (Miss. 1995). Here, the jury had before it the testimony of the victim as well as that of C.W. who stated that she had confronted Pisarich about the incident and that he had admitted that K.W.'s allegations were true. Pisarich had the opportunity to cross-examine both K.W. and C.W. as well as offer witnesses in his own behalf. We do not believe that C.W.'s testimony corroborating what K.W. had already stated in open court was prejudicial to Pisarich's case because C.W.'s testimony did not reveal to the jury anything that it had not already heard in previous testimony. Thus, if an error had been committed, the error in admitting the cumulative prior statement would have been harmless. Pisarich further contends that C.W.'s testimony does not fall within the scope of Rule 801(d)(1) because C.W. "made no prior statement under oath according to the record" and "[t]here are no charges against her of fabrication, improper influence or motive which would be involved in the hearsay conversation between her and K.W." We believe that C.W.'s testimony is the type of testimony that Rule 801(d)(1) intended to cover. If we interpret Rule 801(d)(1) in conjunction with the facts of this case, it would read as follows: (d) Statements Which Are Not Hearsay. A statement is not hearsay if:

(1) Prior Statement by Witness. The declarant [K.W.] testifies at the trial or hearing and is subject to cross-examination concerning the statement [that the testifying witness, C. W., is now offering], and the statement [that the testifying witness, C.W. is now offering] is

(A) inconsistent with [the declarant, K.W.'s] testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or

(B) consistent with [the declarant, K.W.'s] testimony and is offered to rebut an express or implied charge against him [the declarant, K.W.] of recent fabrication or improper influence or motive, or

(C) one of identification of a person made after perceiving him . . . M.R.E. 801(d)(1). If the rule is read in the above context, it should be clear that the "made under oath" requirement applies to subsection (A) and not (B). Further, the "charge of fabrication" requirement does not apply to a charge against the testifying witness, C.W., as Pisarich contends, but toward the declarant in this case, K.W. Therefore, C.W.'s testimony falls within the province of Rule 801(d)(1)(B). Our standard of review regarding the admissibility of evidence is abuse of discretion. Doe v. Doe , 644 So. 2d 1199, 1205 (Miss. 1994) (citing Baine v. State, 606 So. 2d 1076, 1078 (Miss. 1992)). We believe that the trial court acted within its discretion in admitting the testimony of C. W., and we affirm on this issue.

II. DID THE TRIAL COURT ERR IN FAILING TO DIRECT A VERDICT OF NOT GUILTY ON THE CHARGE OF CAPITAL RAPE AND DID THIS DENIAL RESULT IN A COMPROMISE VERDICT OF GUILTY ON THE SEXUAL BATTERY CHARGE?

Pisarich contends that the trial court erred in failing to grant a directed verdict of not guilty on the charge of capital rape. He argues that there was no evidence prior to the indictments nor was there any credible evidence produced at trial that would sustain a charge of capital rape. Pisarich contends that the State offered neither evidence of force nor medical testimony to corroborate penetration of the victim by the Defendant. Pisarich argues that the State's case was based wholly on the unsupported testimony of the victim, and the charge should have never been allowed to go to the jury. Pisarich argues further that allowing the capital rape charge to go to the jury "was an effort to muddy the water, confuse the issues and affect a compromise verdict." Pisarich contends that a new trial without the capital rape charge would result in a not guilty verdict on the sexual battery charge. Pisarich's contentions are hopelessly flawed. Whether the trial court erred in failing to grant a directed verdict on the capital rape charge is a moot issue because the jury subsequently ruled in his favor and found him not guilty of capital rape. See Dunn v. Jack Walker's Audio Visual Ctr., 544 So. 2d 829, 830 (Miss. 1989) (holding that an error in failing to grant a directed verdict is harmless when the jury finds for the complaining party anyway). Although it is not necessary for this Court to address the sufficiency of the evidence of the capital rape charge, we will do so in an effort to clarify any misinterpretations of the capital rape statute. As the State correctly argues, section 97-3-65(1) of the Mississippi Code requires no showing of force where the victim is a child under the age of fourteen. As to the issue of penetration, proof of penetration is not required where it is shown that the child's private parts have been torn or lacerated. Miss. Code Ann.

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