BEFORE DAN LEE, PRESIDING JUSTICE, PRATHER AND GRIFFIN, JJ.
The grand jury of Lee County indicted Harold White on February 6, 1985, for the crime of rape of a child under the age of 12 pursuant to Miss. Code Ann. 97-3-65 (1) (1972 & Supp. 1986) (The statute subsequently has been amended as to the age of the victim, but the amendment has no effect on the present case.) On November 19, 1985, the jury found White guilty but was unable to fix the penalty. On November 22, 1985, Circuit Court Judge Thomas J. Gardner III sentenced White to a term of 31 years imprisonment. Motion for j.n.o.v. or a new trial was overruled on December 7, 1985. From this conviction and sentence White appeals assigning the following errors:
I. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION IN LIMINE TO PREVENT THE INTRODUCTION OF TESTIMONY REGARDING OTHER ALLEGED INCIDENTS OF SEXUAL ACTIVITY BETWEEN APPELLANT AND ALLEGED VICTIM.
II. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S REQUEST FOR DECLARAL OF A MISTRIAL UPON THE PREJUDICIAL REMARKS OF THE PROSECUTING ATTORNEY.
III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW TO INTRODUCTION OF TESTIMONY REGARDING THE SEXUAL ACTIVITY OF THE ALLEGED VICTIM'S MOTHER.
On the morning of November 7, 1984, Sharon White found 15 pairs of her 11-year-old daughter's panties in a plastic laundry bag hidden under her mattress. The panties were stained with a bad discharge. Her daughter had previously been treated for discharge during that summer, and it had cleared up. When she talked to her daughter about the stained underwear, her daughter said she had been sexually active, most recently on October 30, 1984. She told her mother that the incident had taken place in their home at 7:30 a.m. on the morning of October 30 while her mother was at school, and that her father had forced her to have sex with him.
When Sharon White found out about the incident, she packed up the children, went by the pawn shop to hock her jewelry, then drove to Gulfport to stay with her family. The next morning
she obtained a protective order. On November 9, she drove back to Tupelo and filed charges in Lee County against her husband. On advice of the district attorney she took her daughter to a local gynecologist. Her daughter was terrified and would not cooperate, so she took her to the child's regular pediatrician. He prescribed Triconol for treatment of trichomonas. Mrs. White then returned to the Coast with her daughter.
Mrs. White had earlier been treated for the same disease, trichomonas, and treatment was also prescribed for her husband, the defendant in early October of 1984. He denied having a problem, but when Mrs. White returned later in November to pick up her things, he had apparently taken the medication because the bottle was empty.
D. M., the victim, testified that on October 29, 1984, she was home with her father, brother and sister. She asked her father if she could go to a basketball game, to which he replied that she could go, but she had to" give him a piece. "She went to the game. The next morning she was sick and stayed home from school. Her father said she still had to" give him a piece "after the brother and sister left for school, whereupon he took her to the living room and raped her. He told her if she told anyone he would beat her, kill her mother, and he would get put in jail. He then got dressed and left for work. D. M. also testified that White had forced her to perform these acts two to three times a week for about six months, always at home when her mother was gone. She finally told her mother when her mother confronted her about the panties.
Dr. Martin Herman, a pediatrician in Tupelo with extensive training in dealing with battered children, testified that he examined D. M. on November 9. His examination revealed sexual activity and a trichomonas infection, inflammation of the vaginal area, no hymen, and that her vaginal area looked like that of a married woman. D. M.'s behavior on that examination was that of anxiety, upset and a cowed posture. She was also uncommunicative. He testified that this was typical behavior of an abused child. He also testified that trichomonas is transmitted sexually in most all cases, although it could be transmitted on towels, toilet seats, infected clothing, if transmitted quickly and at body temperature. Apparently the parasite dies quickly.
Dr. Joe Pryor, a gynecologist, was tendered as an expert witness. He had examined Sharon White, D. M.'s mother, in September of 1984 and treated her for trichomonas. He says the disease fits in the category of venereal disease. In his experience he has never seen the disease transmitted in a non-sexually active person. He, too, said the disease can be
transmitted through infected clothing, but not usually. He prescribed antibiotics for Sharon and her husband. He did not examine the husband, but sexual consorts automatically receive the treatment, too. Sharon told Dr. Pryor that her only sexual contact was with her husband. He had ...