JAMES C. GRAHAM APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/02/2017
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.
LEE, C.J., FAIR AND WILSON, JJ.
Early one morning, thirteen-year-old Betty 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.
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.
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.
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
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).
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
(¶¶12-13). 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