IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-KA-00334-SCT

THOMAS DAVID BAILEY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/22/1997

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: NICHOLAS McLEOD HAAS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT S. FLYNN

DISTRICT ATTORNEY: CONO A. CARANNA, II

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 1/14/99

MOTION FOR REHEARING FILED: 1/27/99

MANDATE ISSUED: 4/1/99

BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. Thomas David Bailey ("Bailey") was indicted for three counts of felony child abuse by the Grand Jury of

the Circuit Court of Hancock County on May 12, 1997. The State proceeded to trial on Count I only

which stated that:

Thomas David Bailey in Hancock County, Mississippi, on or about October 10, 1996, did willfully,

unlawfully, feloniously and intentionally, torture Korey Jarrach, a child the age of four years at the time

in question, by using his fingers, hands and/or a wooden spoon to strike, pull and beat the body, more

particularly the penis of said Korey Jarrach...

The jury returned a verdict of not guilty of felony child abuse, but guilty of the lesser included offense,

misdemeanor child abuse. Bailey was subsequently sentenced to serve a term of one (1) year in the custody

of the Sheriff of Hancock County and was fined $1000.

¶2. From the denial of his Motion for JNOV or new trial, Bailey appeals his conviction and sentence and
assigns as error the following for this Court's review:

I. THE TRIAL COURT ERRED BY FAILING TO VOIR DIRE FIVE-YEAR OLD

KOREY JARRACK TO DETERMINE COMPETENCY.

II. THE TRIAL COURT ERRED BY EXCLUDING THE PUBLIC FROM THE

COURTROOM FOR THE TESTIMONY OF KOREY JARRACK.

III. THE TRIAL COURT ERRED BY ALLOWING THE INTRODUCTION OF

INADMISSIBLE HEARSAY EVIDENCE.

IV. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION

TO DISMISS, MOTIONS FOR DIRECTED VERDICT AND MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT.

V. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE.

STATEMENT OF THE FACTS

¶3. On October 10, 1996 Renette Hill left her two children, Korey and Justin, with their regular babysitter,

Emelda Miles, whom the children referred to as "Miss Sissy". Hill then went to the Hancock Medical

Center for outpatient surgery. At the request of Hill, Miles dropped the children off at Bailey's home around

6:00 p.m. where they were to spend the night. According to Hill, she and Bailey were friends and her

children had stayed with Bailey and his son, Matt on two or three occasions.

¶4. The next morning, Hill arrived to pick the children up around 7:00 a.m. Bailey told Hill that Korey had a

bruise on his cheek from falling in the bathtub the night before. Hill then drove the children to school.

¶5. The regular babysitter, Miles, picked Korey and Justin up from school around 2:30 p.m. Korey was

unhappy when he was picked up and was complaining that he did not want to go to school anymore.

Korey told Miles that someone had pulled on his "weenie" and that it was hurting. Miles assured Korey that

she would look at it when they got home. Upon arrival at Miles' home, Miles pulled Korey's pants down to

see what was wrong with him. According to Miles, Korey was in pain and was "hollering because he

couldn't stand for the pants or anything, you know, to touch him". Miles and her husband noticed that

Korey's penis was bruised and swollen.

¶6. Miles then telephoned Hill at work and asked her if she should take Korey to the hospital. Hill inquired

as to whether it could wait until she got home from work. Miles told Hill that she would call her back. Miles'

husband did not think that they should wait to take Korey to the hospital, so Miles, her husband, Korey and

Justin headed to the hospital. Once Hill arrived at the hospital, the Mileses left.

¶7. Korey, five years old at the time of trial, testified after the trial court excluded the public from the

courtroom. Korey stated that he took a bath at Bailey's home on the night of October 10th. He fell getting

out of the bathtub and hurt his cheek and back. Korey testified that later that night he wet his pants, and that

Bailey whipped him with a wooden spoon on his "weenie" and underneath his "weenie" on his "nuts". Korey

stated that he learned the word "nuts" from Bailey. Korey also testified that on that same night, Bailey hung

him on a hook in the living room and put him in the clothes dryer. Korey stated that October 10th was the
only time that he had stayed at Bailey's home.

¶8. Justin, Korey's seven year old brother, also testified at trial. He remembered going to Bailey's home on

October 10th. Justin testified that he also received a spanking from Bailey that night with a wooden spoon.

Justin did not see Korey get a spanking, but he heard Korey screaming, "Ouch" approximately five times.

Justin did not remember Bailey hanging Korey on a hook or putting him in the dryer on October 10th.

¶9. Dr. Carolyn Gerald was the emergency room physician who examined Korey on October 11th. She

testified that when Korey came in to the hospital he was crying and very upset. She discovered bruising on

his face, buttocks, inner thighs, penis and other genitalia. Dr. Gerald testified that the injuries would have

been painful, and that they had probably occurred within the last 12 to 24 hours. At first Korey explained

that he had fallen in the bathtub, but Dr. Gerald did not think the bruises were consistent with that type of

fall. Korey then told Dr. Gerald that Bailey had hit him with a wooden spoon. Dr. Gerald stated that

Korey's injuries were consistent with being struck by a wooden spoon. Dr. Gerald was worried that Korey

might get an infection and prescribed an antibiotic to prevent one.

¶10. Bailey testified in his own defense. He confirmed that on October 10th, Miles dropped Korey and

Justin off at his home around 6:00 p.m. Korey, Justin, and Bailey's son, Matt, had a snack between 7:00

and 7:30, and then Bailey told them to take their baths. Korey took his bath first. As Bailey made his way

back to his son's bedroom to check on Justin and Matt, he saw that Korey was starting to get out of the

bathtub. He saw Korey put his foot on the ledge, and advised Korey to be careful not to slip. At about that

same time, Korey slipped, fell and screamed. Bailey got Korey out of the bathtub, dried him off, took him

to the kitchen and put some ice on his eyes. Bailey noticed a bruise on Korey's cheek, but did not notice

any other bruising. Bailey testified that he did not specifically look at Korey's pubic area or buttocks to

determine if there was any other bruising.

¶11. Later that night, Korey and Matt were lying on a blanket in the living room watching television when

they fell asleep. On cross-examination, Bailey testified that Korey wet his pants twice that night. Bailey

denied spanking Korey with the wooden spoon on October 10th, although he admitted that he had done so

once before. Bailey testified that he uses the wooden spoon "as a form of discipline as a school would use a

paddle or a parent would use a belt or any other thing..." Bailey also denied that he hung Korey on a hook

or placed him in the clothes dryer.

¶12. The defense presented two character witnesses on Bailey's behalf and then rested. The State then

finally rested.

¶13. The jury returned a verdict of not guilty of felony child abuse, but guilty of the lesser included offense

of misdemeanor child abuse. Thereafter, Bailey was sentenced to serve a term of one (1) year in the

custody of the Sheriff of Hancock County and fined $1000.

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED BY FAILING TO VOIR DIRE FIVE-YEAR OLD

KOREY JARRACK TO DETERMINE COMPETENCY.

¶14. Bailey contends that the trial court erred by refusing to voir dire Korey on his competency before

allowing him to testify. The defense objected before Korey testified and asked the court to "qualify this
witness to whether he knows what the truth is". The trial court overruled the objection citing Rule 601 of the

Mississippi Rules of Evidence, which provides that every person is competent to be a witness unless the

person falls within one of the exceptions to the rule, which in this case do not apply. Miss. R. Evid. 601.

¶15. Bailey's primary contention is that Korey's testimony was at times inconsistent with Hill's and Justin's.

He also asserts that Korey had trouble remembering events as well as difficulty understanding and

answering questions intelligently.

¶16. Bailey, citing Bandy v. State, 495 So. 2d 486, 492 (Miss. 1986), argues that where the testimony of

a child of tender years is offered as evidence in a trial, the child must first be examined by the trial judge to

show that the child has a comprehension of past events and a moral appreciation of the truth.

¶17. The State asserts that the rule in Bandy was the rule prior to the adoption of the Mississippi Rules of

Evidence in January, 1986 and that under Rule 601 no such showing was required. It cites Ryan v. State,

525 So. 2d 799 ( Miss. 1988) to support its position. In Ryan, the appellant argued that the trial court had

erred in allowing a six year old to testify. This Court held that:

Under the new Mississippi Rules of Evidence, 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 [subornation] 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...

Ryan, 525 So. 2d at 801 (emphasis added).

¶18. Bailey cites this Court's decision in Brent v. State, 632 So. 2d 936 (Miss. 1994) for the proposition

that "'[b]efore allowing a child witness to testify, the trial judge should determine 'that the child has ability to

perceive and remember events, to understand and answer questions intelligently and to comprehend and

accept the importance of truthfulness.''" Brent, 632 So. 2d at 942 (quoting Mohr v. State, 584 So. 2d

426, 431 (Miss. 1991) (citing House v. State, 445 So. 2d 815, 827 (Miss. 1984))).

¶19. The State asserts that the determination required in Brent does not require a separate voir dire. In the

case sub judice, although the trial judge did not separately voir dire Korey, Korey was asked several

preliminary questions by the State which we find sufficient for the trial court to conclude that Korey was a

competent witness under the Brent standard. Korey testified in part as follows:

Q: ...All you have to do is tell the truth. Can you do that?

A: (No response.)

Q: Korey?
A: What?

Q: Can you tell the truth?

A: Uh-huh (affirmative).

Q: You will? Let me ask you this.

...

Q: Come on, buddy. If I told you that it was cold and rainy outside, would that be a lie or would that be the

truth?

A: A lie.

Q: A lie? And why is that?

A: Because it's not.

Q: Okay. What's it like outside?

A: Huh?

Q: What's it like outside? Is it cold and rainy?

A: Huh-uh (negative).

Q: What is it?

A: It's sunny.

Q: Sunny. And what kind of pants are you wearing?

A: Jeans.

Q: Jeans? Are they long or short?

A: Short.

...

¶20. We hold that the trial court did not err in refusing to separately voir dire Korey as to his competency

prior to his testimony. Under Miss. R. Evid. 601, Korey was a competent witness. Furthermore, although

the trial judge in Brent did conduct voir dire of the young witness before she testified, Brent does not

explicitly require a separate voir dire to make the competency determination. Korey was preliminarily

asked questions by the State which did not concern substantive matters and by which the trial judge could

determine that the Brent standard had been met. The competency of a witness is to be determined by the

trial court, in its discretion. Bowen v. State, 607 So. 2d 1159, 1160 (Miss. 1992). This issue is meritless.

II. THE TRIAL COURT ERRED BY EXCLUDING THE PUBLIC FROM THE

COURTROOM FOR THE TESTIMONY OF KOREY JARRACK.
¶21. Prior to empaneling the jury and again before Korey's testimony, the trial court ruled that he would

close the courtroom to spectators. The trial court cleared the courtroom of everyone except the parties,

attorneys, deputies, and jurors. Bailey objected, albeit generally.

¶22. Bailey now argues that his federal and state constitutional rights to a public trial have been violated.

The Mississippi Constitution, Article 3, Section 26 provides in part, that:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both,

to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to

have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or

information, a speedy and public trial by an impartial jury of the county where the offense was

committed; and he shall not be compelled to give evidence against himself; but in prosecutions for

rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude

from the courtroom all persons except such as are necessary in the conduct of the trial...

Miss. Const. art. 3, § 26.

¶23. The Sixth Amendment to the United States Constitution provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const. amend. VI.

¶24. Generally, a defendant has a constitutional right to a public trial. However, that right is not absolute, but

instead must be balanced against other interests essential to the administration of justice. Waller v.

Georgia, 467 U.S. 39, 45 (1984). The Mississippi Constitution explicitly authorizes the exclusion of the

public in certain instances. The United States Constitution does not, but Federal Courts have recognized

certain instances in which exclusion is appropriate. Any exclusion of the public must satisfy both the

Mississippi Constitution and the United States Constitution.

¶25. This Court examined a defendant's right to a public trial in Lee v. State, 529 So. 2d 181 (Miss. 1988)

. In contrast to the case sub judice, Lee was a rape case in which the public was excluded for the victim's

testimony. The trial court also articulated specific reasons for the exclusion of the public. In affirming the

lower court's decision, this Court recognized that the Mississippi Constitution expressly provides for

exclusion in rape cases, but held that the exclusion must not violate the Sixth Amendment to the United

States Constitution. Lee, 529 So. 2d at 182-83. The Court cited numerous federal court decisions in which

federal courts had upheld public exclusion "to the extent necessary to avoid embarrassment or emotional

disturbance to a witness which might result from that witness giving testimony in a particular case." Id. at

183. This Court concluded that the trial judge in Lee had made findings sufficient to exclude the public and

to satisfy the requirements of the Sixth Amendment. Id.

¶26. In the case at hand, the trial judge made the following comments concerning excluding the public for

Korey's testimony:
THE COURT: Okay. Just for those people who are in the audience, once the minor child who is

alleged to be the victim in this case is called as a witness, I'm sure the State is going to make a motion

for me to basically close the courtroom.

MR. BOURGEOIS: Yes, sir.

THE COURT: This is the one exception under the open policy that we have in having open

proceedings in the courtroom, and I will ask you-all to leave the courtroom at that time, other than the

deputies and the necessary parties, the defendant, and the attorneys. Mr. Haas, are you going to have

an objection to that?

MR. HASS: Yes, Your Honor. We do invoke the rule. I don't know if anybody has done it or not.

THE COURT: No.

MR. HASS: But we would object to that, Your Honor.

THE COURT: Okay. Noting that objection, I just want everybody to know what my decision is

going to be. That's the decision I have made in every case involving a sexual claim against a minor...

¶27. Bailey cites this Court's decision in Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163

(Miss. 1987) to support his argument that crimes not expressly enumerated in Article 3, Section 26 cannot

serve as the basis for exclusion of the public. Coleman involved a murder trial in which the trial court

excluded the press and the public from pre-trial proceedings. Mississippi Publishers argued that murder was

not included in the list of crimes for which the trial could be closed. This Court said in dictum that, "[t]hat is

true. It is also irrelevant, since the closure order does not propose to close Pruett's trial." Coleman, 515

So. 2d at 1167.

¶28. In the case sub judice, Bailey argues that felony child abuse is not specifically listed as a crime for

which exclusion of the public is allowed. Furthermore, because the trial court gave no specific reasons for

the exclusion, Bailey argues that his right to a public trial has been violated. As in Coleman, however, the

trial court did not close Bailey's entire trial.

¶29. In Waller v. Georgia, 467 U.S. 39 (1984), the United States Supreme Court established a test for

determining whether a defendant's right to a public trial is outweighed by other considerations. The Court

held that:

Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest

that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest,

the trial court must consider reasonable alternatives to closing the proceeding, and it must make

findings adequate to support the closure.

Waller, 467 U.S. at 48. This Court adopted the Waller test in Gannett River States Publishing Co. v.

Hand, 571 So. 2d 941 (Miss. 1990).

¶30. Bailey argues that because the trial court made no real record in this case, no legitimate analysis can be

made as to the Waller factors. Bailey seeks a reversal of his conviction and sentence.

¶31. The State asserts that although the trial court did not consider the Waller factors on the record, the
record does in fact support the trial court's ruling. In other words, the State argues that an on the record

determination of the factors would have led to the same result. The State points out that Korey was five

years old at the time of trial, and that although this was not a sexual abuse case, the sexual connotations

which might cause embarrassment and fear were certainly present.

¶32. We find the State's argument persuasive. As we recognized in Lee, supra, public exclusion may be

appropriate "to the extent necessary to avoid embarassment or emotional disturbance to a witness which

might result from that witness giving testimony in a particular case." Lee, 529 So. 2d at 183. It certainly was

appropriate in this case which although not a sexual abuse case did require a five-year old to testify to

potentially embarrassing facts. Although the trial judge should have provided a more extensive record of his

reasoning for the closure, we affirm his decision and find his ruling to be barely sufficient.

III. THE TRIAL COURT ERRED BY ALLOWING THE INTRODUCTION OF

INADMISSIBLE HEARSAY EVIDENCE.

¶33. At trial, the court held a hearing outside of the presence of the jury on the issue of whether Dr. Carolyn

Gerald would be allowed to testify that Korey told her Bailey hit him with a wooden spoon. The trial court

ruled that Dr. Gerald could testify as to Korey's statement citing Miss. R. Evid. 803(4), an exception to the

hearsay rule.

¶34. Bailey argues that Dr. Gerald's testimony concerning Korey's identification of Bailey as his perpetrator

was inadmissible hearsay which was used to bolster Korey's testimony.

¶35. Miss. R. Evid. 801(c) defines hearsay as "a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Miss. R. Evid.

803(4) provides that:

The following are not excluded by the hearsay rule, even though the declarant is available as a

witness:

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for

purposes of medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause or external source

thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements

are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the

proffered statements were made under circumstances substantially indicating their trustworthiness. For

purposes of this rule, the term "medical" refers to emotional and mental health as well as physical

health.

¶36. This Court most recently examined this issue in Hennington v. State, 702 So. 2d 403 (Miss. 1997).

In Hennington, which was a sexual battery case, the Court reaffirmed its holding in Eakes v. State, 665

So. 2d 852 (Miss. 1995) and said that:

Today, the Court firmly states its position as a reaffirmation of the holding in Eakes. Therefore, we

hold that hearsay testimony identifying the perpetrator is admissible under Miss. R. Evid. 803(4)

regardless of whether he or she is a member of the child's immediate household. The overriding

question making the inquiry necessary is, "Will the perpetrator have access to the child in the future

that would allow the sexual abuse to continue?" Because the inquiry is necessary for treatment, the
answer is admissible under the Rule.

Hennington, 702 So. 2d at 415.

¶37. Bailey argues first that the present case is not the type of case for which this Court has extended the

803(4) hearsay exception because it is not a sexual abuse case. The State responds that "[i]f the doctor

needs to know the identification of the child abuse perpetrator in order to protect the child from further

injury, it makes no difference whether the injuries are of a sexual or physical nature." The State asserts that

there is no logical reason why 803(4) should not be applicable to physical abuse cases. As the State

correctly points out, the issue is not the nature of the injuries received but the reliability of the statement

made.

¶38. Bailey argues alternatively that he was not in the category of people to whom the exception has been

applied because he was only an infrequent babysitter. The State contends that this question was squarely

answered in Eakes, supra, where the Court stated that:

In Doe, this Court expanded Jones, supra, to allow a finding that the identity of the child's sexual

abuser was pertinent to treatment, therefore reasonably relied upon by the treating physician, although

the perpetrator was not a member of the child's household. Since the alleged perpetrator in Doe was

the child's father, whose visitation rights were at issue, this Court reasoned that prevention of further

abuse was an immediate concern. Doe, 644 So. 2d at 1206. It follows that prevention of further

abuse will always be an immediate concern, whether the perpetrator has daily, weekly, or only

sporadic opportunity to abuse a child.

There is no logical reason to find that a statement identifying the perpetrator is sufficiently pertinent to

treatment and reliable if the perpetrator is someone who has regularly scheduled contact with the child

but not if the perpetrator is, instead, a family friend, an acquaintance, or a stranger.

Eakes, 665 So. 2d at 867.

¶39. Although this Court has not previously applied Miss R. Evid. 803(4) to a physical abuse case, it seems

a logical extension to do so now. Furthermore, under Eakes, it is irrelevant that Bailey was only an

occasional babysitter. Korey's statement to Dr. Gerald was admissible as an exception to the hearsay rule.

IV. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION

TO DISMISS, MOTIONS FOR DIRECTED VERDICT AND MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT.

V. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE.

¶40. Bailey argues that the trial court erred in not granting his motion to dismiss, motion for directed verdict

or his motion for J.N.O.V. A motion for directed verdict challenges the legal sufficiency of the evidence

offered to that point of the trial to sustain a guilty verdict. Following the denial of his motion for a directed

verdict, Bailey offered evidence in his own defense. As a result, Bailey has waived his challenge to the

sufficiency of the State's evidence up to that point in time. Stringer v. State, 557 So. 2d 796, 797 (Miss.

1990)(citations omitted).
¶41. However, as this Court stated in Stringer, Bailey "'...has [not] waived his right to challenge the weight

or sufficiency of the evidence to sustain the judgment against him.'" Stringer v. State, 557 So. 2d at 797

(quoting Clements v. Young, 481 So. 2d 263, 268 (Miss. 1985)). Therefore, this Court considers all of

the evidence offered in determining its sufficiency.

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence,

our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the

evidence -- not just that supporting the case for the prosecution-- in the light most consistent with the

verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be

drawn from the evidence. If the facts and inferences so considered point in favor of the accused with

sufficient force that reasonable men could not have found beyond a reasonable doubt that he was

guilty, reversal and discharge are required. On the other hand, if there is in the record substantial

evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of

proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have

reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987)(citing Gavin v. State, 473 So. 2d 952, 956

(Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984)).

¶42. Bailey's contention is that the State's evidence was insufficient to convict him of felony child abuse and

because the trial court did not grant his motion for directed verdict, he was placed in the position of having

to request a lesser-included offense instruction. As was stated before, Bailey waived his right to contest the

trial court's ruling on his motion for directed verdict and can now only contest the jury's verdict against him.

The jury concluded that Bailey was guilty of the lesser included offense of misdemeanor child abuse. Bailey

does not, in his brief, argue that the evidence was legally insufficient to convict him of misdemeanor child

abuse.

¶43. He does, however, argue that the verdict was against the overwhelming weight of the evidence, which

is essentially an argument that the trial court should have granted his motion for a new trial.

¶44. A motion for a new trial is discretionary with the trial judge and this Court will not order a new trial

unless it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow

it to stand would sanction an unconscionable injustice. McNeal v. State, 617 So. 2d 999, 1009 (Miss.

1993); Burrell v. State, 613 So. 2d 1186, 1191 (Miss. 1993); Pierre v. State, 607 So. 2d 43, 54

(Miss. 1992). In determining whether a jury verdict is against the overwhelming weight of the evidence, this

Court must accept as true the evidence which supports the verdict and will reverse only when convinced

that the trial court abused its discretion in failing to grant a new trial. Nicolaou v. State, 612 So. 2d 1080,

1083 (Miss. 1992). Any factual disputes are properly resolved by the jury and do not mandate a new trial.

McNeal, 617 So. 2d at 1009.

¶45. Bailey primarily argues that Korey's testimony was insufficient for a conviction. The jury is the judge of

the weight and credibility of each witness's testimony and is free to accept or reject it. Accepting all

evidence as true that supports the verdict in this case, we hold that the verdict of the jury was not against the

overwhelming weight of the evidence, and the trial court did not err in refusing to grant a new trial.

CONCLUSION
¶46. The trial court committed no reversible error in this case, and therefore the jury verdict is affirmed.

¶47. CONVICTION OF MISDEMEANOR CHILD ABUSE AND SENTENCE OF ONE (1)

YEAR IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND

PAYMENT OF FINE OF $1000.00 AFFIRMED.

PRATHER, C. J., SULLIVAN, P. J., BANKS, McRAE, ROBERTS, SMITH, MILLS AND

WALLER, JJ., CONCUR.