COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/06/2011. TRIAL JUDGE: HON. JANNIE M. LEWIS. TRIAL COURT DISPOSITION: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION.
FOR APPELLANT: GEORGE T. HOLMES, BRIAN K. HERRINGTON, MOLLIE M. MCMILLIN.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA H. TEDDER.
JAMES, J. LEE, C.J., BARNES AND CARLTON, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND BARNES, J. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ISHEE AND FAIR, JJ.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] A jury in the Yazoo County Circuit Court convicted Tommie Lee Jones of sexual battery of a child under the age of fourteen years. On appeal, Jones assigns the following errors: (1) the jury was improperly given instruction S-1, which failed to include an essential element of sexual battery - that Jones was twenty-four months or more older than the child, (2) the trial court erred in giving jury instruction 3, which constructively amended the indictment and allowed the jury to convict Jones based on a broader definition of sexual battery than the crime alleged in the indictment, and (3) the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
[¶2] One night in early 2009, on some date between March 16 and April 17, eight-year-old Sarah  had just stepped out of the shower at her grandmother's house in Yazoo City, Mississippi. Before Sarah could put on her clothes, her eighteen-year-old cousin, Ann, entered the bathroom and instructed Sarah to go into Ann's bedroom. Sarah complied, and went into Ann's room without clothing. Shortly after, Ann and her boyfriend, Tommie Lee Jones, entered Ann's room. Ann told Sarah to lie back on the bed. Sarah complied. At that point, according to Sarah, Jones walked over to the bed and began performing oral sex on her. Sarah tried to push Jones off of her, but was unsuccessful. Sarah testified that Jones continued to perform oral sex on her for a " pretty long time." Once Jones finally released her, Sarah went into her own bedroom and closed the door.
[¶3] On a later date, at some time prior to April 17, 2009, Sarah was sitting on the living-room couch and watching television at her grandmother's house. Ann walked into the living room and told Sarah to get off of the couch. Jones then walked into the living room, lay on the couch, and pulled down his pants. At that point, according to Sarah, Jones made her perform oral sex on him.
[¶4] On April 17, 2009, Sarah was taken by her mother, Lynn, to St. Dominic Hospital in Jackson, Mississippi, to be examined by an emergency-room physician. Sarah had been experiencing pain and burning sensations in her genital area. Dr. James Aron examined Sarah and found that she had contracted trichomonas, which is a sexually transmitted disease. Dr. Aron treated Sarah with Flagyl, an antibacterial medication used to treat vaginal infections. Finding it unusual that an eight-year-old girl had trichomonas, Dr. Aron contacted the Mississippi Department of Human Services (DHS) to report the matter. DHS then notified the Yazoo City Police Department.
[¶5] On April 18, 2009, Detective Larry Davis interviewed Sarah at the Yazoo City
police station. During the interview, Sarah told Detective Davis about the incidents with Jones. After interviewing Sarah and Lynn, Detective Davis contacted the Family Resource Center in Tupelo, Mississippi, to schedule a child forensic examination for Sarah. On May 4, 2009, Sarah was examined by forensic interviewer Nakima Agnew. During the interview, Sarah told Agnew that Jones " licked [her] private area" and made her " suck his thing." Sarah also demonstrated the acts using anatomical ...