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February 20, 1991


From Shelby Criminal, Honorable H. T. Lockard, Judge. Aggravated sexual battery.

F. Lloyd Tatum, Special Judge. Jerry Scott, Judge, Gary R. Wade, Judge, concur.

The opinion of the court was delivered by: Tatum

The Shelby County Grand Jury returned 19 indictments charging the defendant, Frances Lucindy Ballard, with sexual abuse involving 19 different children. Each indictment charged one count of aggravated rape and one count of aggravated sexual battery. The time frames alleged in the indictments were from August 1, 1983 to June 12, 1984. After Disposition of many pre-trial motions and an interlocutory appeal to this court, the defendant was tried from October 27, 1987 through December 4, 1987. Ultimately, only 16 counts, involving 11 of the children, were presented to the jury. The defendant was acquitted of all counts charging aggravated rape and found guilty on a single count of aggravated sexual battery, involving one child, W-- H--, herein after referred to as the "victim." The defendant was sentenced to a term of 5 years in the Shelby County Workhouse.

The defendant has presented 18 issues for our review. In Issues 17 and 18, she questions the sufficiency of the evidence to support the conviction. We first address these two issues.

The defendant allegedly committed the crimes charged in the indictments while she was an employee of the Georgian Hills Day Care Center and while the children involved were under her care and control.

The victim's mother testified that her son attended the Georgian Hills Day Care from 1981 through 1984. The witness was a substitute teacher at the day care from 1981 through 1982 and was a full-time teacher until 1984. The witness was acquainted with the defendant.

The victim was attended by the defendant on Thursdays from 11:30 a.m. until 3:00 or 3:30 p.m. during the Mother's Day Out Program. Subsequently, the defendant attended the 2-year-olds from 7:30 a.m. until Noon. She continued to care for the children in the Mother's Day Out program on Thursdays as well. The defendant was in charge of supervising from 5 to 10 children in the Mother's Day Out Program. The children ranged in age from 1 to 5 years.

In the room where the Mother's Day Out program was conducted, it was very dark. The children were advised to nap during the program. Usually the children napped after 12:00 Noon. Typically, one person supervises 30 children during nap time.

In the fall of 1983, the witness noted that her son was drowsy after school. Subsequently, he began exhibiting a fear of water. Concerned for her son, the witness took him to the Memphis Police Department where she was introduced to Jackie Allen Hammers on June 16, 1984. At an interview of the child by Ms. Hammers the child was initially very shy. Ms. Hammers questioned the victim in regard to whether Frances Ballard had touched him. He would reply by hanging his head and saying "yes." In order to ascertain the area which the defendant violated, a police officer was brought into the room. The victim pointed to the police officer's chest, face, stomach, and penis indicating that the defendant had touched him in these areas. The following colloquy occurred between Ms. Hammers and the victim:

"Whose (sic) your teacher at mother's day out?

: Miss Frances.

[Ms. Hammers]: Do you like Miss Frances?

: Yeah.

[Ms. Hammers]: What did you do at mother's day out?

: Take naps.

[Ms. Hammers]: Did you ever play games?

: [Yes.]

[Ms. Hammers]: What kind of games did you play?

: Surf board. We had a race drawing pictures. I drew a picture of a boy and never got out of line.

[Ms. Hammers]: Are you a helper in daycare?


[yes.]. [Ms. Hammers]: Who do you help:

: Miss Bobbie, Miss Frances .

[Ms. Hammers]: What do you do for Miss Frances as a helper?

: Hugging, loving her.

[Ms. Hammers]: Does Miss Frances ever kiss you?

: Is anybody going to get mad at me? No ones going to get mad at me. Momma going to get mad at me. I don't like to talk about that. Yep, she does kiss me.

[Ms. Hammers]: How does Miss Frances kiss you.

: Like I tell my Mommie, like a man and a woman (kissing mother on mouth).

[Ms. Hammers]: Did Miss Frances ever touch you?

: [Yes.].

[Ms. Hammers]: Where did Miss Frances touch you?

: My foot, my shoulders, my cheeks and my bootie, knees and on my heart and on my stomach, and my legs, my head, on my thighs and right here, and my dingaling.

[Ms. Hammers]: What did Miss Frances touch you with?

: With her hands.

[Ms. Hammers]: Did she ever kiss you on any of these areas?

: Yep. On my mouth, on my cheek, on my head, on my back, on my neck, on my shoulders and my back, and on my bootie, on my ...

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