JEROME MACK AUSTIN JR. A/K/A JEROME MACK AUSTIN A/K/A JEROME M. AUSTIN JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/07/2018
JACKSON COUNTY CIRCUIT COURT, HON. KATHY KING JACKSON JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN TAYLOR COOK.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH.
DISTRICT ATTORNEY: ANTHONY LAWRENCE III.
CARLTON, P.J., GREENLEE AND C. WILSON, JJ.
A Jackson County jury found Jerome Mack Austin Jr. guilty of
two counts of sexual battery against his daughter, Amy,
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.
OF FACTS AND COURSE OF PROCEEDINGS
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
The Tender-Years Exception to the Hearsay
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 (¶18) (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