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Graham v. State

Court of Appeals of Mississippi

October 2, 2018

JAMES C. GRAHAM APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/02/2017

          COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. DAL WILLIAMSON TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. Early one morning, thirteen-year-old Betty[1] told her school bus driver that her father, James Graham, had sexually abused her the night before. Betty said Graham entered the bathroom while she was showering and, later that night, came in to her bedroom and forced her to perform oral sex on him. According to Betty, she threw up beside her bed afterwards.

         ¶2. Graham was prosecuted for one count each of sexual battery and gratification of lust. At trial, both Graham and his wife testified Graham left their bedroom only twice that night, once to use the bathroom and once to get a drink from the refrigerator. Graham denied ever going into Betty's bedroom. Graham's wife testified she knew of his movements the entire night because they had stayed up all night doing drugs.

         ¶3. The jury found Graham not guilty of sexual battery, but it convicted him of gratification of lust. Graham was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, without eligibility for parole.

         ¶4. On appeal, Graham claims the circuit court erred in two respects. First, he claims the trial court erred in admitting four separate statements made by Betty after the incident without holding a hearing to determine whether she was of tender years. See M.R.E. 803(25). Second, Graham claims he received ineffective assistance of counsel at trial.

         DISCUSSION

         1. Tender-Years Hearing

         ¶5. The standard of review for the admission or exclusion of hearsay evidence is abuse of discretion. White v. State, 48 So.3d 454, 456 (¶9) (Miss. 2010). Reversible error may only be found where the trial court's abuse of discretion has affected a substantial right of a defendant and where the defendant raised an objection or made an offer of proof at trial. Lynch v. State, 877 So.2d 1254, 1281 (¶86) (Miss. 2004).

         ¶6. Graham made no objection to the statements at trial. Still, on appeal, he contends the trial court was required to hold a hearing and determine that Betty was of tender years and that the time, content, and circumstances of her statements provided substantial indicia of reliability before it could admit her out-of-court statements. For this argument, Graham relies on Nunnery v. State, 126 So.3d 105 (Miss. Ct. App. 2013), where this Court held that the trial court committed error-albeit harmless error-in failing to conduct a tender-years hearing. Id. at 109 (ΒΆΒΆ12-13). We observed that Nunnery had filed a motion in limine to exclude the out-of-court statements, but she also "failed to raise [the issue] at the pretrial motions hearing and failed to object on that basis during ...


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