BEFORE ROY NOBLE LEE, P.J., DAN LEE AND PRATHER, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
On February 4, 1985, Jordan J. Bandy was convicted in the Circuit Court of Harrison County of a violation of Miss. Code Ann. 97-5-23 (Laws, 1980, ch. 387, current version at Supp. 1985), (also known as the" Fondling Statute. ")
After the jury's verdict was returned, the court held a hearing to determine whether Bandy should be sentenced as a recidivist, under Miss. Code Ann. 99-19-83 (Supp. 1985). The trial judge reviewed Bandy's two prior convictions: 1) an Iowa conviction of assault with intent to commit sodomy, for which Bandy received a five (5) year sentence; and 2) a Texas conviction of indecency with a child, for which Bandy received a 10 year sentence. Finding that Bandy had served over two (2) years in Iowa, and six (6) years in Texas, and that the assault charge was one of violence, per se, the court sentenced Bandy to life imprisonment without the possibility of parole.
Bandy has assigned the following six errors to the trial court:
1. The punishment was not founded upon a proper indictment for enhancement.
2. The proof of prior convictions for enhancement did not sustain the charge.
3. Mississippi Code Annotated 99-19-83 (Supp. 1981) is prohibited by the Eighth Amendment.
4. The jury was not fully instructed.
5. The State failed to prove beyond a reasonable doubt all the elements of the crime.
6. The verdict is contrary to the law and the evidence.
On January 8, 1984, five year old L.H. was playing Atari with her father in the game room of the Harbor Square Apartments in Gulfport, Mississippi, just before noon. Upon finishing their game, they raced upstairs to their apartment - L.H.'s father taking the elevator, and L.H. taking the stairs. Her father reached their second-floor apartment first, and told her mother that L.H. would be up shortly. In the meantime, the apartment manager, James Bandy (no relation to the defendant) arrived at the child's apartment to borrow a diaper for his nephew. L.H.'s mother went to the back of the apartment to fetch a diaper, and, when she went back to the door of their apartment, looked out in the hallway for L. H., who had not yet arrived. She spotted L.H. at the end of the hallway, about sixty (60) feet away, at the door of the defendant's apartment.
Jordan Bandy had his arm around the child's arm and waist. Her mother watched him give her daughter some money, then he lifted her dress and put his hand inside her panties - in the back, then in the front. According to the child Bandy rubbed her vaginal area. When she realized what was happening, her mother called a visiting neighbor, to the door. After she saw Bandy's hand in her daughter's panties, her mother screamed for her and went running down the hall toward Bandy. James Bandy, the apartment manager, grabbed L.H.'s mother and told her to call the police. L.H. broke away from Jordan Bandy and ran to her mother.
Officers Charles Rogers and Dale Titler of the Gulfport Police Department arrested Bandy at a convenience store near the apartments a short time after the incident. Bandy had a beer in his hand when he was arrested, and the officers testified that they could smell alcohol on his breath. According to Officer Rogers, Bandy made a statement in the police car on the way to the station. He admitted, according to the statement," that he had kissed [L. H.] twice, once being on the mouth. He has also placed his hands on her vagina and her legs and her buttocks. . . . "
At the police station, Bandy signed a waiver of rights and made another statement, which was taped. Apparently, the taping got off to a false start after the policemen discovered that the tape was not functioning; one of the officers left the room for a few seconds and got another tape and another tape recorder. Both the taped statement and testimony regarding the oral statement were admitted at trial, over the defendant's objection. Bandy's objections were based on his alleged intoxication at the time he made the statements. (Bandy, a sixty-year-old disbarred attorney, is an admitted alcoholic and drug user.) However, the admission of the statements was not assigned as error on appeal.
The indictment against Bandy, charged him with:
[U]nlawfully, willfully and feloniously, and for the purpose of satisfying his lust and indulging his depraved licentious sexual desires, when he. . .was above the age of eighteen (18) years, handle, touch and rub with his hands and kiss with his lips the body of [L. H.), a child who was then under the age of fourteen (14) years.
after he, the said Jordan J. Bandy, had previously been convicted of the crime and felony of Assault with Intent to Commit a Felony, to-wit: Sodomy, said conviction having been in the District Court of Woodbury County, Iowa, being Cause No. 34461, and whereat on the 30th day of October, 1968, the Defendant pled guilty and was sentenced to serve
five (5) years in the State Penitentiary at Ft. Madison, Iowa, and did serve at least one year of said sentence; and
after he, the said Jordan J. Bandy, had previously been convicted of the crime and felony of Indency with a Child, said conviction
having been in the 29th Judicial District Court of Palo Pinto County, Texas, being Cause No. 7403, and whereat on the 28th day of June, 1977 the Defendant was adjudged to be guilty and was sentenced to serve not less than two (2) years and no more than ten (10) years in the Texas State Penitentiary and did serve at least one (1) year Page 2111 of said sentence.
At trial, the court allowed testimony from the victim, who was then six years old. Before allowing her to testify, the judge required a preliminary examination of her competence and understanding. L. H. testified as to her age, birthday (she could not remember the year of her birth), to her understanding about time and her understanding that she must not lie during her testimony. After questioning from the prosecution, the defense, and the court, the judge pronounced that" I don't have any doubt about her ability to testify. "
At the beginning of her direct examination, defense counsel objected to L. H. testifying as to her age, saying that the best evidence was her birth certificate. The objection was overruled. L.H.'s testimony essentially recounted the facts stated above: that she was five years old at the time of the incident; that she was returning from an Atari game with her father when the" old man "grabbed her in the hallway and gave her a fifty-cent piece; and that the man put his hand in her underpants and rubbed her" private; "that he kissed her three times on the cheek; and that her mother then discovered her and began screaming.
L.H.'s mother also testified to the events. An objection on the basis of hearsay was made to her testimony that L.H. was born on March 8, 1978; however, that objection was overruled. The neighbor and James Bandy corroborated L.H.'s and her mother's testimony.
The defendant offered no evidence on his behalf. After the State rested, he moved for a directed verdict on grounds that the state had not proved beyond a reasonable doubt that the victim was under the age of fourteen, or that Bandy was over the age of eighteen. The court overruled the motion, stating:
(A)s to this defendant and his age I have three elements. One, he told the officer his age, which was over 18. Two, he stated himself in his confession that he was 59. And three, and although I have never seen a case which brings this point forward a jury in viewing testimony views people. Not only the people on the stand but the person being charged. Even if there was no testimony in this case by the defendant himself or by some other party that he was over the age of 18. I would be almost remiss I think in letting the case go to the jury
simply by virtue of the appearance of the defendant in court that he is over 18. . . . But setting that aside, I still have his own admission of age. . . . and as to the child, I have the child's own statement of her age and I have the statement by her mother as to her age. Now if her mother, if the natural mother of a child does not know how old her child is and cannot testify to the fact, then I cannot think of anything that would be, in fact, admitted as evidence in Court.
The defendant also asked for an instruction on the weight to be accorded to L. H.'s testimony, as a child of tender years. The requested ...