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Austin v. State

Court of Appeals of Mississippi

June 25, 2019


          DATE OF JUDGMENT: 02/07/2018






          CARLTON, P.J.

         ¶1. A Jackson County jury found Jerome Mack Austin Jr. guilty of two counts of sexual battery against his daughter, Amy, [1] who was twelve years old when the acts occurred. Austin was sentenced to thirty years on each count to be served consecutively. After denial of his post-trial motions, Austin appealed and asserted that the trial court erred in admitting Amy's out-of-court statements under the tender-years exception to the hearsay rule, and that the trial court erred in denying Austin's motion for a judgment notwithstanding the verdict (JNOV) because there was insufficient evidence to support a sexual battery conviction under Count I of the indictment, which charged Austin with committing sexual battery by "inserting his penis into [the victim's] vagina." Finding only harmless error with respect to the trial court's tender-years hearsay ruling and finding no error in the trial court's denial of Austin's JNOV motion we affirm.


         ¶2. Austin was indicted on two counts of sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) on April 16, 2013. In relevant part, Count I charged that between November 1, 2010 and May 31, 2011, Austin committed sexual battery on Amy, "who was at the time in question under fourteen . . . years of age, by engaging in the act of sexual penetration, to-wit: inserting his penis into her vagina . . . ." Count II charged that Austin committed sexual battery on Amy "by engaging in the act of sexual penetration, to-wit: inserting his fingers into her vagina. . . ." After a two-day trial, Austin was convicted by a unanimous jury on both counts and was sentenced to a total of sixty years in the custody of the Mississippi Department of Corrections (MDOC).

         ¶3. Prior to trial, a tender-years hearing was conducted on the State's motion in limine seeking a determination whether out-of-court statements made by Amy to her mother, Tuesday Austin, and to social worker Erin Malak in the course of a forensic interview, were admissible hearsay statements pursuant to Rule 803(25) of the Mississippi Rules of Evidence. The trial court granted the State's motion by order entered February 5, 2018. To avoid repetition, the details of the tender-years hearing and the trial court's order will be discussed below in connection with Austin's first assignment of error concerning the court's ruling on this issue.

         ¶4. Trial began on February 6, 2018. Amy's mother, Tuesday, was the State's first witness. She testified that she and the defendant were married in 1998, and separated after two years. Amy was born in October 1998. Tuesday testified that she moved to LaCrosse, Wisconsin in 2003, and Amy lived with her for a time, and then from the time Amy was six years old, she lived with her grandmother, Darlene (Austin's mother) in Gautier, Mississippi. Tuesday continued to live in Wisconsin with Amy's two younger sisters. At some point, a custody battle developed and ultimately Darlene was granted full custody of Amy. Amy would visit Tuesday on holidays and during the summer.

         ¶5. Tuesday testified that in June 2011, when Amy was visiting her in Wisconsin, Tuesday read in Amy's diary that she was being molested. Tuesday asked Amy if she was molested and Amy told Tuesday that Austin had been molesting her since she was eight years old. Amy was examined at the hospital that same day and testing revealed that she had contracted chlamydia. Tuesday contacted social services and the police.

         ¶6. Amy was the State's next witness. She testified that her father started sleeping in another bed in her room when he would stay at her grandmother Darlene's home. She testified that one night, when she was twelve, she woke up because Austin was putting "pressure" on her vagina with his penis. She said it hurt. She testified, "I knew it wasn't in me but it was just pressing against me, jumbled up." When asked what her father was doing with his penis, Amy said he was "more like trying to penetrate but it's just pushing against it. It's not really getting anywhere." She testified that his penis was uncovered and his skin was touching her skin. She wore pull-ups at the time for bed-wetting issues, and she testified that her pull-ups were off but that her nightgown was still on. Amy told Austin that she had to use the bathroom, and he told her, "Pee on me." Amy testified that she said no and then got up to go to the bathroom. In the bathroom, she testified that she realized her vagina "was kind of swollen and it kind of hurt to pee." She slept in the hallway that night.

         ¶7. Amy also testified that there were times where she would wake up to Austin "fingering" her. She testified he used a blue glove with Olay lotion on it. She said it felt like "razors in [her] vagina" because he had long fingernails. Amy testified that when she would wake up, he would stop and get in his bed and that one time he ran out of the room. She eventually started sleeping rolled up in her sheet so that she would wake up if he tugged on the blanket. Amy testified that she made it a habit to become a light sleeper.

         ¶8. Amy testified that these incidents happened in 2011 right before she left Gautier to visit her mother. She said she never told anyone because "at first [she] wasn't even sure if it was wrong[, and she] didn't even know what was really going on." She also testified that she did not think anyone would believe her if she told on him. Amy testified that she remembers telling someone that she told her friend, Eullysia, about the sexual abuse because she was nervous and she did not want people to keep questioning her about whom she had told.

         ¶9. When questioned about living with her grandmother, Amy admitted that she was unhappy living with her grandmother in Mississippi and that she wanted to live in Wisconsin with her sisters-but when asked whether she would "have made all this up just so [she] could go live with [her] sisters," Amy responded, "No." Amy also testified that she never wanted to hurt her grandmother Darlene. On redirect, Amy confirmed that Austin was the only person who had had sexual contact with her at the time she tested positive for chlamydia in June 2011, and that it was not possible for anyone else to have given her chlamydia.

         ¶10. The State's next witness was Erin Malak, a social worker with the La Crosse Health and Human Services in Wisconsin. The trial court accepted her as an expert in the field of forensic interviewing. Malak conducted a forensic interview of Amy on June 20, 2011, and investigated her allegations. The forensic interview was video-recorded and played for the jury at trial.

         ¶11. Amy's demeanor during the interview was reserved and quiet. She and Malak discussed what it meant to tell the truth, and Amy said she understood what that meant. She stated that she was twelve. Amy said that she wanted to be in Wisconsin with her mother and sisters. She said her family members in Gautier, Mississippi were her grandmother Darlene, grandfather Mack, and her cousin Anthony (who was also twelve) and that her father (the defendant) would also stay there. When discussing her family in Gautier, she said her grandfather was "cool," but she did not agree with her grandmother about everything. She also said that she and her cousin Anthony did not get along.

         ¶12. When asked about her relationship with her father, Amy said that she did not like him. She cried when asked about why she does not like her father. Amy said that her father stays in her room when he comes to her grandmother's house. She eventually told Malak that she woke up with her father on top of her without any clothes on, "pressing" his "part," which she then identified as his penis, on her vagina. She said it felt like a lot of pressure and that his penis was touching the outside because it could not get in. She said she told him she had to use the bathroom and that Austin said "pee on me." She also told Malak that Austin used a blue glove and Olay lotion. Amy said Austin put his fingers inside her body and it "felt pointy." Amy said she had never had sexual intercourse with anyone. At the close of the interview, Amy said that everything she had said was the truth. Malak testified that in her expert opinion Amy's disclosure was consistent with a child who had been sexually abused.

         ¶13. Malak also testified that she contacted Austin during her investigation. She said that when she spoke with him in July 2011, Austin told her that he was familiar with chlamydia because he had been treated for it the prior year. On cross-examination, Austin's attorney presented Malak with an email between her and Detective Becky Thibodeaux and asked her about their concerns about some inconsistencies in the statements. Malak testified that she did not recall what her concerns were about.

         ¶14. Another State witness, Becky Thibodeaux, was a detective with the Gautier police department in 2011 and investigated the sexual battery allegations against Austin. She testified that she conducted a telephone interview with Austin on August 3, 2011. He admitted that he had chlamydia in early 2010 and had been treated for it. Austin also told her that he was tested for chlamydia again in June of 2011 and tested negative.[2] Thibodeaux also testified that she inspected Darlene's home on July 7, 2011, and in the kitchen she found a box of blue surgical gloves that Amy had talked about in her forensic interview. Thibodeaux testified that she also found the Olay lotion in the bathroom, which Amy had also talked about in her forensic interview.

         ¶15. The State's witness, Dr. Nestor Delgado, an obstetrician/gynecologist (OB/GYN) in Mississippi, was accepted as an expert in those fields. He testified that he had reviewed Amy's medical records and confirmed that Amy had chlamydia based upon her June 12, 2011 test results. Dr. Delgado testified that "[t]he only way that you can get chlamydia is through some type of sexual contact, be it intercourse, penetration . . . there's got to be some exchange of bodily fluids." Dr. Delgado explained that "[i]t doesn't have to be full penetration [of the penis], just exposure to that vaginal tissue." He also testified that Amy's pain during urination could be explained because sexual intercourse can cause trauma to the urethra because of its proximity. Dr. Delgado testified that Amy's vaginal swelling could be caused by trauma of the labia minora from a lack of lubrication during attempts to penetrate. Dr. Delgado also testified that transmission of chlamydia is "very, very unlikely" through finger penetration; there must be a sexual act.

         ¶16. After the State rested, defense counsel moved for a directed verdict on Count I on the grounds that the State had not proven penetration by Austin's penis into Amy's vagina. The trial court denied the motion, finding that "it was all a jury question." Austin did not testify at trial and the defense did not put on any other witnesses. The jury unanimously found Austin guilty on both counts of sexual battery, and Austin was sentenced to thirty years for each count to be served consecutively. Austin moved for a JNOV or alternatively a new trial on February 7, 2018, which the court denied on March 2, 2018. Austin appealed.


         I. The Tender-Years Exception to the Hearsay Rule

         ¶17. As his first assignment of error, Austin asserts that the trial court erred in admitting Amy's out-of-court statements under the tender-years exception to the hearsay rule. "The standard of review for the admission of hearsay evidence is abuse of discretion." Friday v. State, 217 So.3d 759, 764 (ΒΆ18) (Miss. Ct. App. 2017). In examining this issue, we recognize that the record shows that Amy testified at trial and was subject to cross examination where her motive to lie and veracity were ...

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