Before McMILLIN, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 09/20/96
TRIAL JUDGE: HON. JOHN B. TONEY
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: GUILTY OF GRATIFICATION OF LUST: SENTENCED TO SERVE A TERM OF 10 YEARS IN THE CUSTODY OF THE MDOC AND PAY ALL COURT COST, FEES, AND ASSESSMENTS ON OR BEFORE THE 90TH DAY FOLLOWING DEFENDANT'S RELEASE FROM CUSTODY
DISPOSITION: AFFIRMED - 4/6/99
¶1. The State of Mississippi prosecuted the appellant, Anthony D. Jackson, for the offense of gratification of lust. *fn1 The trial jury found Jackson "Guilty as charged," pursuant to which the trial court incurred its final judgment of conviction and later its order of sentence by which it sentenced Jackson "[t]o serve a term of ten (10) years in the custody of the Mississippi Department of Corrections . . . ." After the trial court denied Jackson's motion for a new trial or a judgment notwithstanding the verdict, Jackson perfected an appeal from the trial court's judgment of conviction and order of sentence. Jackson presents for our review and resolution the following four issues, which we quote verbatim from his statement of issues required by Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure:
Issue #1: Whether the trial court erred in allowing the State to introduce irrelevant prejudicial evidence of alleged wrongdoing outside the scope of the indictment?
Issue #2: Whether the evidence adduced at trial supports the charges asserted in the indictment?
Issue #3: Whether the court erred in allowing improper opinion evidence?
Issue #4. Did the trial court err in allowing . . . hearsay testimony under the "Tender Years" Exception?
This Court resolves all four issues adversely to Jackson and affirms the trial court's judgment of conviction and order of sentence.
¶2. During the early evening of Friday, November 10, 1995, Martha Doe and her daughter, Jane Doe, *fn2 were preparing for a "sleep-over" to which they had invited Jane's friends for the purpose of celebrating Jane's eighth birthday, which fell on the following Sunday, November 12. As they were preparing for the advent of Jane's friends, Jane told her mother that "Anthony Jackson had fooled with her." When Martha Doe, Jane's mother, asked Jane, "[W]hat did she mean?", Jane replied "Anthony had stuck his [penis] in her butt." Jane then told her mother that it had happened at Minnie Carter's house, where Jane had been going after school "for a number of years." Minnie Carter was Anthony Jackson's grandmother, and Anthony Jackson lived in his grandmother's house.
¶3. It was not until after she and her husband had gone to bed the following Sunday night that Martha Doe told her husband what their daughter had told her as they prepared for the "sleep-over." Jane's father immediately arose from his bed and went to the police department alone. The next morning, Monday, November 13, 1995 at eight o'clock Mr. and Mrs. Doe took Jane to the police department in the city of Madison where Officers Mike Chapman and Stacy Vaughn took a statement from Jane, which they videotaped. Martha Doe took Jane to a physician at the Children's Medical Group the next day, but that physician referred Mrs. Doe and her daughter Jane to the University Medical Center. On November 17, 1995, Jane told Angela Davis, a teacher at her school, that "there was a man [at Minnie Carter's house] named Anthony and that when she would go over sometimes, almost every time she went over, . . . he would touch her private with his private and that he would squirt some stuff on her and that sometimes it hurt."
¶4. Martha Doe took Jane to Dr. Maude Wright, a child psychiatrist, who counseled Jane on at least two occasions in November and December of 1995 about her encounters with Jackson.
II. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
¶5. In his first issue, Jackson complains that Jane Doe, Jane Doe's brother, whom we identify as "Joe," and Dr. Maude Wright, a child psychiatrist who had twice examined Jane Doe, "all testified to events prior to the indictment period, occurring in 1994." However, Jackson focuses his argument on the testimony of Jane Doe's brother, Joe. Jackson asserts that before the State called its first witness, Martha Doe, his counsel "moved the court to limit the prosecution's evidence to the time period of the indictment, January 1,1995 through May 31, 1995." Jackson writes that "[i]n response, the State implied to the court and the defense that it would so limit the evidence, to which the trial court responded, `All right, I think we're clear on that, then." Jackson interprets the trial court's response as "informing the parties that the motion was granted and [that] the evidence would be limited to the indictment time period." Finally, Jackson invites our attention to the trial court's admonition to the prosecutor before he called the State's first witness, "Again, caution your witnesses."
¶6. Jackson focuses his argument on the testimony of Jane Doe's brother that during the fall and spring of 1995, when her brother was in the seventh grade, he "walked in on" Jackson and Jane Doe while they were in Ms. Minnie Carter's bedroom one day after school. When Joe Doe walked into the bedroom, he "saw [Jane] laying [sic] across the bed, and Anthony [Jackson] was standing in front of her with his pants unzipped." When Joe Doe asked Anthony "what he was doing," Anthony did not respond. Joe Doe then "walked out the room, and [Jane] came behind [him]." While Joe Doe could not remember whether his encounter in Ms. Minnie Carter's bedroom with Jackson and his sister occurred in the fall or the spring of his being in the seventh grade, Joe Doe was definite that the encounter had occurred while he was in the seventh grade.
¶7. Under Jackson's counsel's cross-examination, Joe stated that as of the date of the trial, August 19, 1996, he was in the ninth grade. Jackson's counsel asked, "What grade were you last year?" Joe replied, "Eighth." Jackson's counsel then asked, "So this didn't happen last year, did it?" Jane's brother replied, "No." On re-direct examination, the prosecutor asked Joe Doe, "[W]hen exactly were you in the seventh grade? What school year was it?" Doe replied, "ninety-four/ninety-five."
¶8. The State counters that Jackson's counsel objected only one time throughout the State's direct examination of Joe Doe. When the prosecutor asked Doe, "Did you ever walk in on Anthony and your sister?," Jackson's counsel interjected, "I object to leading." The trial Judge overruled the objection and allowed Joe Doe to answer the question. His answer was "Yes." Thus, the State contends that Jackson has waived his first issue in his appeal because his objection before this Court is not the same as his objection before the trial court. The State cites Smith v. State, 636 So. 2d 1220, 1240 (Miss. 1994), in which the supreme court explained: "The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly reserved on appeal." (citations omitted). Nevertheless, the State relies on the prosecutor's re-direct examination of Joe Doe by which it established that Jane Doe's encounter ...