The opinion of the court was delivered by: Waller, Justice
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 9/13/95
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: WALTHALL COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL-FELONY
DISPOSITION: AFFIRMED - 12/10/98
¶1. Woodie C. Lambert was first indicted by the Walthall County Grand Jury in 1991 for sexual battery and touching a child for lustful purpose. Lambert was convicted in 1991 on two counts of touching a child for lustful purpose but his convictions were reversed and remanded by this Court because of the failure of the circuit court to grant a continuance. See Lambert v. State, 654 So.2d 17 (Miss. 1995). On remand Lambert was convicted in September 1995 on one count of touching a child for lustful purpose and was sentenced to ten years in the custody of M.D.O.C., with two years suspended and five years probation. Lambert appealed his conviction and sentence to this Court, which assigned the appeal to the Court of Appeals. The Court of Appeals reversed Lambert's conviction and sentence due to admission of evidence of improper conduct with young girls besides that for which he was on trial. We granted the petition for writ of certiorari filed by State of Mississippi, and find that the decision of the Court of Appeals as to reversal of Lambert's conviction was correct.
¶2. On August 10, 1990, Woodie Lambert's daughters, June and Joan Lambert, had their friends, M.D. and D.R., spend the night at Lambert's house. M.D. was nine years old at the time. The versions of the witnesses vary, but at some time around 9:00 p.m. that night, while Woodie Lambert was hanging clothes on a clothes line, the girls began smoking cigarettes and M.D. approached Woodie about getting some cigarettes. According to M.D. at that time Woodie requested a kiss, then tried to kiss M.D., then put his hands on M.D.'s buttocks. D.R. testified that she witnessed this. M.D. then got away from Woodie and told the other girls what had happened. Joan Lambert didn't believe M.D., so M.D. went back to Woodie. M.D. stated that this time Woodie again attempted to kiss her and put his hands inside her shirt, and then put one hand inside her pants against her buttocks. M.D. also testified that later that night she and June were sleeping on a water bed with Woodie, and when M.D. woke up Woodie was sleeping next to her with his hands on her buttocks.
¶3. According to Woodie Lambert he first caught all four girls smoking that night and gave them all cigarettes in an attempt to make them sick. Woodie stated that later, when he was hanging up clothes on a clothes line, M.D. approached him, gave him a hug, and asked him for cigarettes. When Woodie refused M.D. stated that she would give him five real kisses for cigarettes, and when Woodie asked what real kisses were, M.D. stated "you know, with my tongue." Woodie told her he didn't want to hear that and told her to go back into the house. Woodie stated that he slept on a couch that night because all the girls were on his water bed. Woodie Lambert was convicted of one count of touching M.D. for lustful purpose.
¶4. The Court of Appeals identified the dispositive issue in this case as admission of alleged prior acts of sexual misconduct with young girls other than M.D. A review of the briefs and record appears to show the following testimony at issue: (1) D.R. was called as a rebuttal witness for the State. She testified that on some unspecified day after August 10, 1990, she went back to the Lambert house. While there Woodie Lambert gave D.R. and his two daughters wine coolers. Later they were all on the water bed, and when D.R. woke up Woodie's hands were in her shorts. She went back to sleep and when she awoke, her hand was in Woodie's pants. She denied putting it there. (2) Jane Lambert, Woodie Lambert's oldest daughter, testified for the defense that M.D. came back to Lambert's house to spend the night on several occasions after August 10, 1990; that M.D. didn't appear disturbed or upset on the night in question; that M.D. had a chance to go home and she refused; that M.D. said that she had lied about what happened at the clothes line because Woodie wouldn't give her cigarettes. On cross-examination Jane was asked if she ever made the statement that Woodie had molested her and that she was afraid of him, and she said that she had, but that she had lied. (3) J.D., sister of M.D., was called as a rebuttal witness for the State. She testified that she had spent the night with Joan Lambert in the summer of 1990, and there was a hole in the bathroom door and she heard Woodie Lambert outside the door while the girls were taking a shower. She said that later the same evening, Woodie Lambert put his arms around her and put his hands on her buttocks.
¶5. The Court of Appeals found that this Court's holding in Mitchell v. State, 539 So.2d 1366 (Miss. 1989), compelled reversal. In Mitchell evidence of other sexual offenses besides the one charged was admitted. This Court found this to be inadmissible ...