Office of State Public Defender by Erin E. Pridgen, attorney for appellant.
Office of the Attorney General by Elliott Flaggs, attorney for appellee.
Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
WALLER, Chief Justice.
¶ 1. After a jury trial, Jason Allred was convicted of two counts of sexual battery of a child under fourteen years of age in violation of Mississippi Code Section 97-3-95(1)(d) (Rev.2006). He was sentenced to twenty-five years on each count, to be served concurrently, and he must register as a sex offender upon release. Allred's counsel filed a brief pursuant to this Court's holding in Lindsey v. State, 939 So.2d 743 (Miss.2005). Allred was given additional time to file a pro se brief; however, he did not do so. For the reasons stated below, we affirm the judgment of the Webster County Circuit Court.
FACTS AND PROCEDURAL HISTORY
¶ 2. Jason Allred and Jennifer Allred (Halsdorf) were married and had three children together— two sons and a daughter. The couple separated in March 2009 but were not officially divorced until November 2009. Jason moved to his family's home in Texas and Jennifer began dating Chris Halsdorf. Chris eventually moved in with Jennifer and her children.
¶ 3. After hearing a report of the daughter showing a pornographic movie to a cousin, Chris and Jennifer confronted the daughter, and she told them of inappropriate sexual contact with Jason. This was reported to authorities, and a grand jury indicted Jason on two counts of sexual battery of a child under fourteen years of age, in violation of
Mississippi Code Section 97-3-95(1)(d). Prior to trial and outside the presence of the jury, the trial court conducted a hearing on the State's motion to allow hearsay testimony pursuant to the " tender years exception" under Rule 803(25) of the Mississippi Rules of Evidence. After hearing the statements and the arguments of both parties, and being notified that the daughter would testify, the trial court made on-the-record findings of all twelve factors listed in the rule to determine whether there were sufficient indicia of reliability and found the factors to be satisfied. The trial court also considered whether the statements should be disallowed under Rule 403 and found that any prejudice would not substantially outweigh the probative value of the statements.
¶ 4. At trial, the daughter testified that she was about seven years old when her father began molesting her. She testified that Jason forced her to " put my mouth on his private [sic]" and that he sodomized her " over and over and over like every few weeks or so when mama wasn't around...." The daughter also testified that she had experienced this abuse after Jason moved out in 2009 when she went to visit him in Texas. Jennifer testified that she reached a point where the daughter did not want to stay at their home if Jennifer was not there and, would instead, stay with Jennifer's parents, who lived across the road. Jennifer further testified that, when her daughter returned from her last trip to Texas, she said she never wanted to go back to Texas to see her dad. Chris and Jennifer both testified at trial to the daughter's reports of abuse by Jason.
¶ 5. Jason's aunt, Linda Mitchell, testified in his favor. She testified that she lived in the same community with Jason and, when the family was around her, the daughter was always " hugging on him, you know, just loving her daddy." She testified about a specific instance when Jason would not let his daughter get ice cream and Mitchell stated Jason was being mean. Mitchell testified that after she said Jason was being " a mean old daddy," his daughter replied, " no he is not. My daddy is good. He is a good daddy. He loves me. He takes care of me."
¶ 6. In Lindsey, this Court outlined a procedure that appellate counsel must follow when they determine that there are no appealable issues in the record. Lindsey, ...