BEFORE WALKER, BOWLING AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
The defendant, Jimmy Hicks, Sr., was convicted in the Circuit Court, First Judicial District of Hinds County, of the crime of sexual battery (MCA 97-3-95 (1972) (Supp. 1983)), with his twelve year old natural daughter, Remona Hicks, and sentenced to twenty years in the Mississippi Department of Corrections. Hicks appeals and assigns:
(1) That the trial court erred by allowing prosecutrix, Remona Hicks, to testify about incidences of sexual battery between her and her father which occurred prior to the act alleged in the indictment; and
(2) That Mississippi Code Annotated section 97-3-95 (1972) (Supp. 1983) is unconstitutional in that it is overreaching, overbroad, and places an unfair burden on the defendant, denying him due process of law.
The defendant was charged in the indictment with unlawfully committing a sexual penetration of Remona Hicks on November 9, 1981, in violation of Mississippi Code Annotated section 97-3-95 (1972) (Supp. 1983), which statute is as follows:
A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person; or
(c) A child under the age of twelve (12) years.
Section 97-3-97 defines sexual penetration as:
(a) "Sexual penetration" includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body.
Remona Hicks, a twelve year old female, was at home with her father, twelve year old sister, and six year old brother on the night of November 9, 1981, while her mother was at work. On that night Jimmy Hicks had sexual intercourse with his daughter, but without her consent. The first time that he had intercourse with her was in September, 1981. Also, on three other occasions between that time and November 9, he had sexual intercourse with her. The only incident for which Hicks was indicted was the one that occurred on November 9. The prosecutrix was qualified as to her knowledge of what "sexual intercourse" meant and she ...