                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2009-KA-01052-SCT

CURTIS LERNARD SEA

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           04/20/2009
TRIAL JUDGE:                                HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED:                  YALOBUSHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     OFFICE OF INDIGENT APPEALS
                                            BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                          JOHN W. CHAMPION
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED -12/09/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRAVES, P.J., DICKINSON AND CHANDLER, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    A Yalobusha County jury found Curtis Sea not guilty on three counts of statutory rape

and one count of sexual battery, but guilty on five counts of sexual battery. Without filing

a pretrial motion or obtaining a ruling on the issue, Sea’s counsel introduced evidence of his

own client’s two prior criminal convictions – both of which had occurred approximately

twenty-five years prior to trial. Evidence of a party’s prior criminal conduct, the confinement

for which ended more than ten years earlier, is not admissible to impeach credibility, unless

the trial court makes certain findings (which were not even requested in this case).

Additionally, Sea’s counsel sat silent as the State introduced into evidence four videotapes
of damaging forensic interviews of the four victims.1 Sea now claims his trial counsel was

ineffective. We agree.

              BACKGROUND FACTS AND PROCEDURAL HISTORY

¶2.    During 2006 and 2007, Lashawn Joyner and her four daughters, D.D., B.J., T.J., and

A.W,2 lived with D.D.’s father, David Delaney, under less than wholesome circumstances.

Delaney admitted at trial that he produced pornographic movies for a living, some of which

were viewed by at least two of the children. When Lashawn was at work or school, she

would often leave the girls with her aunt, Ollie May Joyner, who lived with Curtis Sea.

¶3.    One day, upon finding the kids “kind of on top of each other,” Lashawn asked what

was going on. When B.J. replied, “[w]e are doing nasty stuff,” which she said Sea had

shown them how to do, Lashawn contacted the authorities. The girls were taken to Baptist

Memorial Hospital in Oxford where a physician examined the girls, but found “no tearing

or any signs of abuse.” The girls were then taken to Oxford Family Crisis Services, where

forensic interviews of each child were videotaped. During the interviews – comprised almost

entirely of leading and suggestive questions – the children made numerous incriminating

statements about Sea.

¶4.    The Yalobusha County grand jury handed down a nine-count indictment charging Sea

with statutory rape and sexual battery. At trial, before the prosecutor called the children to

testify, the trial judge individually questioned each child in chambers to determine whether


       1
         Sea’s counsel did object later when the State requested to play the videotapes for the jury.
By then, however, they already had been admitted into evidence, without objection.
       2
         The children were ages four, five, seven, and nine, respectively. We use initials for the
children’s names to protect their identities.

                                                 2
they understood the taking of an oath and the obligation to be truthful. Then the children

were called to testify, providing a “yes, sir” or “no, sir” answer to virtually every question.

They admitted knowing that their mother’s boyfriend, Darryl, made movies of naked people.

A.W. testified that she had seen the movies, and that they were about people having sex.

Also, the girls acknowledged getting into trouble for taking their clothes off while playing

with a friend.

¶5.    Police Officer A. J. Hernandez, having interviewed the girls at the hospital, testified

over a defense objection 3 that the girls had indicated they had been molested. Hernandez also

testified that he had been present when Family Crisis Services in Oxford had conducted

videotaped interviews of the girls; he identified the four videotapes, the prosecutor offered

them into evidence, and the court admitted them without objection.

¶6.    After the prosecutor asked several more questions, he requested permission to play

the videotapes for the jury. Sea’s counsel stated on the record, “Your Honor, for the record,

I realize this has been discussed in chambers to some extent, for the record, the defense




       3
                 Q:         And did the girls, when you talked to them there in
                            the hospital, indicate to you that they had been
                            molested?
                 DEFENSE: Your Honor, I am going to object to that’s [sic]
                            hearsay.
                 THE COURT: What was your question again?
                 STATE:     I said did they indicate to you that they had been
                            molested?
                 THE COURT: To that extent, I’ll permit it to come in.

                                               3
objects to the admissibility to the tapes as inadmissible hearsay.” 4 The court overruled the

objection, and the tapes were played for the jury.

¶7.    After the State rested, the defense began its case-in-chief by calling Sea and asking

him questions about his prior criminal conduct. Sea admitted that, in 1984, he had pleaded

guilty to molesting a child under thirteen years of age.              When confronted on cross-

examination with documents indicating he had pleaded guilty in 1988 to an indictment for

molesting another child under the age of thirteen, he at first denied it, but then testified, “If

I did, I forgot about it. I’m not denying nothing. I just said I forgot about it.” To this

exchange concerning a second twenty-five-year-old conviction, Sea’s counsel offered no

objection.

¶8.    The jury acquitted Sea on three statutory-rape charges and one county of sexual

battery, but found him guilty of five counts of sexual battery. The trial court sentenced him

to serve twenty-five years for each count, to run concurrently. Sea obtained new counsel and

now appeals, raising the following three issues: (1) Whether the tender-years exception to

the hearsay rule was properly applied; (2) whether the verdict was contrary to the

overwhelming weight of the evidence; and (3) whether Sea’s trial counsel was ineffective.

                                            ANALYSIS

       I.      The videotapes

¶9.    Sea claims the trial court committed reversible error by allowing the prosecutor to

play the videotapes for the jury. But because his counsel failed to make a contemporaneous


       4
         If counsel’s statement – “been discussed in chambers to some extent” – means a hearing
on the admissibility of the videotapes took place, the record includes no transcript of it, so it is of
no value on appeal.

                                                  4
objection when the tapes were introduced, he waived any objection to their content,5 and this

issue — although instructive on the issue of his counsel’s effectiveness — has no merit.

       II.       Overwhelming weight of the evidence

¶10.   Sea next argues that his convictions were against the overwhelming weight of the

evidence, and that the trial judge should have granted a new trial. But we have stated clearly

that we “will only disturb a verdict when it is so contrary to the overwhelming weight of the

evidence that to allow it to stand would sanction an unconscionable injustice.” 6 We also

have said that

       the power to grant a new trial should be invoked only in exceptional cases in
       which the evidence preponderates heavily against the verdict. However, the
       evidence should be weighed in the light most favorable to the verdict.7

¶11.   In this case, the convictions are amply supported by the testimony of all four of the

children and the incriminating content of the videotapes. Thus, this issue has no merit.

       III.      Ineffective assistance of counsel

¶12.   Sea next claims his counsel was ineffective, a claim we must analyze under the

guidelines in Strickland v. Washington.8 An appellant must demonstrate that the lawyer’s




       5
        Smith v. State, 797 So. 2d 854, 856 (Miss. 2001) (“It is axiomatic that a litigant is required
to make a timely objection. . . . [I]f no contemporaneous objection is made, the error, if any, is
waived.”).
       6
           Bush v. State, 895 So. 2d 836, 844 (Miss. 2005).
       7
           Id. (footnote and internal citations and quotations omitted).
       8
        Johnson v. State, 29 So. 3d 738, 745 (Miss. 2009) (referring to Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); citing Payton v. State, 708 So. 2d 559, 560
(Miss. 1998)).

                                                   5
“performance was deficient, and that . . . the deficiency prejudiced” the appellant.9 Further,

we carefully review the context of counsel’s actions and, where reasonable under the

circumstances, we presume that the “decisions were sound trial strategy.” 10

       Prior Convictions

¶13.   In discovery, Sea’s counsel asked the State to produce Sea’s criminal record “if

proposed to be used to impeach . . . .” The State’s response disclosed a prolific criminal

background, including a conviction for sexual battery in 1984, for which Sea was ordered to

serve eighteen months, and another conviction for sexual battery in 1989, for which he was

ordered to serve eight months. The latter offense, according to the indictment, involved a

minor child under the age of thirteen. After receiving this information, Sea’s counsel did not

file a motion to exclude the prior convictions, and the trial judge did not conduct a hearing

on their admissibility.

¶14.   After the State rested its case-in-chief, Sea’s counsel called him to testify, and then

announced: “I’m going to ask you about a couple of prior convictions that you have.” He

then proceeded to ask Sea about his 1984 and 1988 convictions, including details of the

crimes. The prosecutor’s cross-examination of Sea on these prior crimes – one of which had

occurred twenty-five years earlier, and the other, twenty-one years earlier – consumed

sixteen pages of transcript.




       9
           Id. (citing Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985)).
       10
            Id. (citing Leatherwood, 473 So. 2d at 968-69).

                                                 6
¶15.   When a criminal defendant chooses to testify, his prior criminal convictions may —

under limited circumstances — be introduced for impeachment purposes. However, under

our rules of evidence,

       [e]vidence of a conviction . . . is not admissible if a period of more than ten
       years has elapsed since the date of the conviction or of the release of the
       witness from the confinement imposed for the conviction, whichever is the
       later date unless the court determines in the interests of justice that the
       probative value of the conviction supported by the specific facts and
       circumstances substantially outweighs its prejudicial effect.

¶16.   The balancing test under this rule is much more difficult than the traditional balancing

test under Rule 403. Under Rule 609(b), it is not enough for the prosecutor to show that the

probative value of the prior conviction outweighs its prejudicial effect; the trial judge must

determine the probative value substantially outweighs the prejudicial effect of the prior

conviction.

¶17.   These prior convictions – and their attendant periods of incarceration – greatly

exceeded the rule’s ten-year threshold, requiring the trial judge to conduct the Rule 609

balancing test. The convictions were not admissible unless the court found that the prejudice

created by the convictions was substantially outweighed by their probative value. But Sea’s

counsel filed no motion for exclusion of the convictions, so the trial court made no such

finding.

¶18.   The State does not deny that Sea’s counsel was ineffective for introducing the

convictions, but rather responds that Sea has failed to demonstrate he was prejudiced. We

disagree.




                                              7
¶19.   This is not a case of overwhelming physical evidence; there was no physical evidence

of sexual abuse. To the contrary, the physician’s examination of the children revealed no

evidence of sexual abuse. The case was essentially Sea’s word versus the testimony of his

accusers. And while there were four accusers, their trial testimony came almost entirely from

the mouth of the prosecutor, with the children responding “yes, sir” or “no, sir.” A cursory

reading of the excerpts of the children’s testimony in the dissenting opinion may suggest

otherwise, but a closer look confirms that this is true. Paragraphs 26 and 27 of the dissent

contain trial testimony, and the only answers are “yes” and “no.” Paragraph 28 is from the

videotapes. Paragraph 29 is trial testimony, and there the child obediently answers “yes, sir”

and “no, sir” exclusively. Paragraph 30 is from the videotapes. Paragraphs 31 and 32

reproduce trial testimony, and once again — with one exception (“Move up and down.”) —

every answer is either “yes” or “no.” Paragraph 33 is from the videos. So these “extensive

excerpts from their testimony” 11 confirm that, had the jury not seen the videotapes, the only

evidence against Sea would have been, essentially, from the mouth of the prosecutor.

¶20.   Under these circumstances, evidence of Sea’s prior convictions for sexual battery –

one involving a child under thirteen years of age – was incendiary. This Court has stated

“[e]vidence which is incompetent and inflammatory in character carries with it a presumption

of prejudice.” 12

       The Videotapes


       11
            Dissenting opinion at n.18.
       12
         Gallion v. State, 469 So. 2d 1247, 1249-50 (Miss. 1985); see also Jones v. State, 702 So.
2d 419, 422 (Miss. 1997) (“the admission of the fourteen-year-old heroin distribution convictions
was manifestly prejudicial”).

                                                8
¶21.   Additionally, we note that Sea’s counsel failed to object to the introduction of the

videotaped interviews of the four victims. The tapes were rife with hearsay statements from

both the victims and the interviewers.          Not only did Sea’s counsel fail to object

contemporaneously to the admission of the videotapes, but he failed to request a hearing as

required by our rules of evidence.13

¶22.   Sea also complains that his trial counsel erred by failing to seek an instruction for

gratification of lust as a lesser-included offense of sexual battery. However, Sea’s theory of

the case was that he never had any sexually inappropriate contact with the children. We have

said that “trial counsel's decision to not request a jury instruction falls under the category of

trial tactics, which are not subject to review.” 14 This assignment of error has no merit.

                                        CONCLUSION

¶23.   Because Sea’s counsel was ineffective, we reverse the judgment of the Circuit Court

of Yalobusha County and remand the case for a new trial.

¶24.   REVERSED AND REMANDED.

     CARLSON AND GRAVES, P.JJ., KITCHENS AND CHANDLER, JJ.,
CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J., LAMAR AND PIERCE, JJ.

       RANDOLPH, JUSTICE, DISSENTING:

¶25.   A further elaboration of the facts presented is necessary before analysis of the legal

issues can be fully explored. Forty-three-year-old Curtis Lernard Sea was indicted on nine


       13
            Miss. R. Evid. 803(25).
       14
          Neal v. State, 15 So. 3d 388, 406 (Miss. 2009) (quoting Smiley v. State, 815 So. 2d 1140,
1148 (Miss. 2002)). See also Long v. State, 934 So. 2d 313, 318 (Miss. Ct. App. 2006) (“[T]his was
a proper trial strategy, either all or nothing — guilty or acquittal.”).

                                                9
counts of sexual battery 15 and statutory rape 16 against four sisters (D.D., B.J., T.J., and A.W.),

three to eight years old at the time of the crimes.

¶26.   A.W., eight years old at the time of the incident and ten years old at trial, testified 17

on direct examination, as follows:

       Q. When you were over at your Aunt Ollie’s house, did Curtis do anything
       bad to you?
       A. Yes.[18 ]
       Q. And what did he do?
       A. Touch.
       Q. And where did he touch you?
       A. My middle parts.
       Q. You call your middle parts, do you call that your privates?
       A. Yes.
       Q. Do you know where a boy’s privates are?
       A. Yes.
       Q. Did he try to do anything with his privates to your privates?
       A. Yes.
       Q. And what did he do?
       A. Move up and down.
       Q. Did he put his privates inside you?


       15
          Mississippi Code Section 97-3-95(1)(d) provides that “[a] person is guilty of sexual battery
if he or she engages in sexual penetration with: . . . (d) A child under the age of fourteen (14) years
of age, if the person is twenty-four (24) or more months older than the child.” Miss. Code Ann. §
97-3-95(1)(d) (Rev. 2006).
       16
            See Miss. Code Ann. § 97-3-65(1)(b) (Rev. 2006).
       17
         Prior to the testimony of each child, the circuit judge took her into his chambers and
“ask[ed] . . . a few questions to kind of make a general ruling in regard to whether they understand
what they are doing and so forth . . . .”
       18
         The Majority contends that the “yes”/”no” answers at trial (and during the videotaped
interviews) indicate “leading and suggestive questions . . . .” (Maj. Op. at ¶ 3-4, 19). However, this
contention is dispelled by a viewing of the videotape, and a reading of its transcript and the trial
testimony, in their entirety, and taking into account each witness is a child of tender years. As such,
extensive excerpts from their testimony are provided. The test is not whether the question can be
answered “yes” or “no,” but whether the inquiry suggests a desired response. For example, “are you
familiar with the works of William Faulkner?” This question can be answered “yes” or “no” without
suggesting the desired response.

                                                  10
       A. Yes.
       Q. Do you know what a finger is?
       A. Yes.
       Q. Did he try to do anything with his finger to your privates?
       A. Yes.
       Q. And what did he do?
       A. He move it around.
       Q. Did he put his finger in your privates?
       A. Yes.
       Q. Did you want him to do this?
       A. No.
       Q. Did your momma tell you . . . to make up a story about Curtis and say that
       he did it?
       A. No.
       Q. Do you remember the day that your momma saw y’all in the room in
       Oxford and got mad at you?
       A. Yes.
       Q. Did you . . . tell her that y’all were doing the nasty?
       A. Yes.
       Q. Who taught you to do the nasty?
       A. Him.
       Q. You mean Curtis?
       A. Yes.
       Q. And do you remember going to the hospital?
       A. Yes.
       Q. And do you also remember after you left the hospital going and talking to
       a lady in a room that had some dolls?
       A. Yes.
       Q. And did you tell her the truth?
       A. Yes.

¶27.   A.W. testified on cross-examination, as follows:

       Q. And I think, . . . did you say that Curtis tried to put his finger in your
       privates, is that what you said?
       A. Yes.
       Q. And that upset you; is that right?
       A. Yes.
       Q. Okay. Had Marcus ever tried to put his finger in your privates?
       A. No.

¶28.   A.W.’s videotaped interview provided, as follows:



                                            11
Q. . . . What do you know about coming here today and talking to me?
A. That you’re going to check me out.
Q. What do you mean by checking out?
A. Because a man did something to us.
Q. . . . Who did something to y’all?
A. My auntie’s boyfriend.
Q. Who’s that?
A. Curtis.
...
Q. . . . What did Curtis do?
A. He sticked his finger up in my stuff while I was asleep.
Q. . . . If you were asleep, how did you know he did that?
A. Because I had woke up and told him to get off of me.
...
Q. . . . Point to me what you call stuff.
A. Right there.
...
Q. . . . Is Curtis a grown-up or a kid?
A. A grown-up.
Q. . . . What is his last name?
A. Curtis Sea.
...
Q. . . . [D]id Curtis put his finger in your stuff one time or more than one time?
A. More than one time.
...
Q. . . . What room were you in?
A. The living room.
...
Q. . . . [W]hen you say he came up there, where was he?
A. He was by me.
Q. . . . Was he sitting by you, laying by you, standing by you?
A. On his knee.
...
Q. . . . [Y]ou woke up and what was he doing when you woke up?
A. He was touching me and feeling me in my private.
Q. And when you say up in your private, . . . was it underneath your clothes,
on top of your clothes, or some other way?
A. Underneath.
...
Q. Did he touch you on top of your panties or underneath.
A. Underneath.
...
Q. . . . [W]hat did your stuff feel like?


                                       12
A. It was hurting.
Q. . . . What was his hand doing to you – or his finger doing to your stuff?
A. It was just moving.
Q. Was he moving it, was he staying still or something else?
A. Moving it.
...
Q. Did his mouth touch you on your skin or on your clothes?
A. Skin.
Q. . . . And what did his mouth do?
A. He just stick his tongue.
...
Q. Have you ever seen his stuff?
A. (Affirmative response.)
Q. How did you see it?
A. Because my sisters always did.
Q. What would your sisters always do?
A. They would get on top of his stuff.
...
Q. Did Curtis put his mouth on your stuff one time or more than one time?
A. One time.
Q. . . . And did he put his finger in your stuff one time or more than one time?
A. One time.
...
Q. Where were you when he put his stuff in your stuff or touched you with his
stuff?
A. On the couch.
...
Q. . . . You were on the couch and then what happened?
A. He had stuck his thing out.
...
Q. . . . So you were laying on the couch and you say he stuck his thing out and
then what happened?
A. He got on top of me.
Q. . . . And how were your clothes?
A. My clothes were up.
...
Q. Did his thing touch your skin or your clothes?
A. My skin.
Q. . . . And how did that happen?
A. He took my pants down.
...
Q. How did [Auntie Ollie Mae] not know?
A. Because he would always close the door.


                                      13
       ...
       Q. . . . Where were his clothes?
       A. His clothes [were] off.
       ...
       Q. . . . What was his body doing?
       A. He just got on top of me.
       ...
       Q. . . . What did your stuff feel like?
       A. It was hurting.
       ...
       Q. What was he doing right before he said he was going to get off of you?
       A. He was moving on me.
       ...
       Q. . . . [D]id you ever see Curtis doing anything to himself, touching himself
       anywhere?
       A. (Affirmative response.)
       Q. What did you see him do?
       A. He was . . . messing with his thing.
       Q. What was he doing?
       A. He was shaking it up and down.
       Q. Shaking it up and down. Was that on his skin or with his clothes?
       A. With his hand.
       ...
       Q. . . . What happened when he put you on top of him?
       A. He took his thing out and put it in my butt.
       ...
       A. He pulled my pants down.
       ...
       A. He had layed me down.
       ...
       A. He just pulled his thing out and put it in my butt.

¶29.   T.J., six years old at the time of the incident and eight years old at trial, testified on

direct examination, as follows:

       Q. . . . Do you know where your privates are?
       A. Yes, sir.
       Q. Do you know where a boy’s privates are?
       A. Yes, sir.
       Q. Okay. Did he . . . try to touch his privates to your privates?
       A. Yes, sir.
       Q. And do you know . . . what a finger is?


                                              14
       A. No, sir.
       Q. Am I holding up a finger? Okay. Did he try to do something with his
       finger to your privates? You have to say yes or no. It’s okay. Don’t be
       scared. Did he try to do something with his finger to your privates?
       A. Yes, sir.
       Q. Okay. Did you want him to do that?
       A. No, sir.

On cross-examination, T.J. denied that her eight-year-old cousin, Marcus, had ever tried to

touch her privates.

¶30.   T.J.’s videotaped interview provided, as follows:

       Q. . . . Who’s Curtis?
       A. The man who lives in my Auntie Ollie Mae’s house.
       Q. I want to know if Curtis lives in your house with you or does he live
       somewhere else?
       A. He lives somewhere else.
       ...
       Q. . . . And who’s Curtis?
       A. Um, Auntie Ollie Mae’s husband.
       ...
       Q. . . . Well, what about your Aunt Ollie Mae and . . . Curtis. What about
       them?
       A. Curtis was in the living room and my auntie was in the bedroom.
       Q. Uh-huh.
       A. And then we stayed in auntie’s room and he woke us up.
       Q. Uh-huh.
       A. And then he said come with me and so we did and then we stayed on the
       couch where we slept.
       Q. . . . Who is this a picture of? Is it a picture of a boy or a girl?
       A. A girl.
       ...
       Q. . . . [W]hat do you call this on a girl? What is this called?
       A. The head.
       Q. . . . And right there?
       A. [T.J., in her own words, identifies “lips,” “arms,” “breasts,” “naval,”
       “fingers,” “private,” “leg,” “toes,” “back,” “booty,” and “legs”]
       Q. . . . Now let’s name the picture of the boy. What do you call this?
       A. Head.
       Q. . . . And right here?



                                            15
A. . . . [T.J., in her own words, identifies “eyes,” “mouth,” “titties,” “naval,”
“hand,” “arm,” “dick,” “leg,” “feet,” “back,” and “booty”]
Q. . . . Is it okay to touch your breasts?
A. (Negative response.)
...
Q. Is it okay for someone to touch your privates?
A. No.
...
Q. What about your booty?
A. No.
...
Q. . . . What about a boy’s titties?
A. (Negative response.)
...
Q. Remember I need your answers out loud. What about their dick?
A. No.
Q. What about their legs?
A. Yes.
Q. . . . What about their back?
A. Yeah.
...
Q. . . . What about their booty?
A. No.
...
Q. . . . Has anyone touched your private or hurt your private?
A. No.
...
Q. . . . What would you do? Could you tell somebody? Who could you tell?
A. My momma.
Q. . . . Have you ever told your momma that someone had touched you? You
told your momma that someone has touched you? Who did you tell your
momma that touched you?
A. Curtis.
...
Q. . . . So, you told your momma that Curtis did something? What did you tell
her Curtis did.
A. He had touched my privates.
Q. . . . What did he touch your private with? Okay. You are holding up your
finger.
...
Q. . . . Is he a grown-up or a kid?
A. He’s big.
Q. . . . [H]as Curtis touched your private one time or more than one time?


                                       16
A. One time.
...
Q. . . . So who all was there?
A. My sisters.
Q. . . . Where was your aunt?
A. She was in the bed.
Q. . . . Did your sisters see Curtis touch you?
A. Uh-huh.
Q. How did they see?
A. They opened their eyes.
...
Q. So tell me what Curtis did to your privates because I wasn’t there and I
don’t know what happened. Tell me.
A. He stuck his finger in it.
...
Q. . . . So were your jeans on or pulled down or off or something else?
A. Pulled up.
Q. . . . So how did Curtis stick his finger in your privates? Tell me how he did
that.
...
A. He went like this. (Indicated.)
...
A. It was on top of my clothes.
...
Q. Did Curtis make you touch him anywhere on his body?
A. (Negative response.)
...
Q. . . . Did you see Curtis touch anybody else?
A. He touched my sister.
Q. What sisters did he touch?
A. [A.W.] and [D.D.].
...
Q. . . . And what happened when they pulled their clothes off?
A. They got on top of him.
Q. How were his clothes when they got on top of him?
A. They was down.
Q. . . . And did you see any part of his body when his clothes were down?
A. I saw his dick.
Q. . . . What did his dick look like?
A. Black.
...
Q. And were they moving or staying still or something else?
A. They were moving.


                                      17
       ...
       Q. What did you tell you[r] mom Curtis did?
       A. He . . . stick his finger up in my private.
       ...
       Q. . . . So when did you tell your mom?
       A. The other day.
       ...
       Q. . . . And what happened after you told her?
       A. She . . . called the police.
       ...
       Q. . . . Did your auntie see [A.W.] or [D.D.] naked on top of Curtis?
       A. (Affirmative response.)
       Q. What did she say when she saw them?
       A. She said get off of him.
       ...
       Q. How did their clothes get back on?
       A. Because my aunt said get your clothes back on.
       ...
       Q. . . . Did he ever do anything to [B.J.]?
       A. (Negative response.)

(Emphasis added.)

¶31.   B.J., four years old at the time of the incident and six years old at trial, testified on

direct examination, as follows:

       Q. What did Curtis do to you? Or let me ask you this. Do you know where
       your privates are?
       A. Yes, sir.
       Q. And do you know where a boy’s privates are?
       A. Yes, sir.
       Q. Did Curtis do anything with his privates to your privates?
       A. Yes, sir.
       Q. And what did he do?
       A. Move up and down.
       Q. Okay. Did he try to put his privates in your privates?
       A. Yes, sir.
       Q. And did he do anything with your booty, your bottom?
       A. Yes, sir.
       Q. And did you want Curtis to do that?
       A. No, sir.
       ...


                                              18
       Q. Did your momma ask you to tell these people that Curtis did this to you or
       . . . did he do it?
       A. He did it.

¶32.   B.J. testified on cross-examination, as follows:

       Q. Curtis didn’t touch you, did he?
       A. Yes, sir.
       ...
       Q. You don’t know how he touched you? Curtis’s private parts never touched
       your private parts, did they?
       A. Yes, sir.
       Q. But you don’t know how they did, do you?
       A. No, sir.

¶33.   B.J.’s videotaped interview provided, as follows:

       Q. . . . What do you call those on a girl?
       A. Titties.
       ...
       Q. . . . And that?
       A. Private.
       ...
       Q. . . . What do you call this on a boy?
       A. Nasty stuff.
       ...
       Q. . . . And right there?
       A. Booty.
       ...
       Q. . . . Is it okay for somebody to touch your privates?
       ...
       A. No.
       ...
       Q. What about your booty?
       A. No.
       ...
       Q. Is it okay to touch a boy’s nasty stuff?
       A. No.
       ...
       Q. Is it okay to touch a boy’s booty?
       A. No.
       ...
       Q. . . . Has anybody ever touched you in those places?


                                             19
A. (Affirmative response.)
Q. Who did?
A. Curtis.
Q. Who is Curtis?
A. My [a]untie’s boyfriend.
...
Q. . . . What did Curtis do?
A. He stick his private up in my private.
...
A. He was doing nasty stuff with my sisters and me.
...
Q. And he did nasty stuff with all of you?
A. Uh-huh.
...
Q. . . . What happened in the living room? Tell me everything that happened.
A. He put his pants down and said come here and then he did it.
Q. . . . Did you see Curtis’s private?
A. Yeah.
Q. What did it look like?
A. Brown.
...
Q. . . . [T]ell me who did Curtis do nasty stuff to first?
A. My sisters.
Q. Which ones?
A. [T.J.] and [A.W.].
...
A. He . . . told me to suck it.
Q. Tried to get you to suck what?
A. His private.
...
Q. . . . How did your private feel[?]
A. Hurt.
...
Q. So if you were on the couch and then what happened? What did Curtis do?
A. He stuffed his hand in my private.
...
Q. What did his hand do to your private?
A. It . . . didn’t feel good.
...
Q. . . . [W]hat did he do to your sisters?
A. He put his hand in my sisters’ private.
...
Q. . . . Did Curtis put his privates into your booty?


                                    20
       A. (Affirmative response.)
       Q. He did? How did your booty feel?
       A. Not good.
       ...
       Q. . . . Did anybody tell you not to tell me something?
       A. Um, everybody said don’t tell.
       Q. Who said don’t tell?
       A. Curtis.
       Q. Curtis said don’t tell? What else did Curtis say?
       A. He told me to shut my mouth and I didn’t do it.

¶34.   While the charged abuse occurred prior to December 2006, it was not until January

21, 2007, that an investigation began. That day, Lashawn Joyner, the children’s mother, saw

“the kids were kind of on top of each other” doing “nasty stuff.” 19 When Joyner asked where

they had learned that, the children responded “Curtis.” Joyner then took the children to the

hospital. Water Valley Police Officer A.J. Hernandez was called to the hospital, where three

of the children indicated to him that they had been molested.20 As part of the investigation,

Officer Hernandez then contacted Family Crisis Services in Oxford, Mississippi, where

interviews, conducted by a Department of Human Services social worker, were videotaped.21

¶35.   At trial, the jury was instructed on the sexual battery counts that Sea had “plac[ed] his

finger into the vagina” of three of the minor girls (B.J., T.J., A.W.), “plac[ed] his penis into

the anal opening” of two of the minor girls (D.D., A.W.), and “plac[ed] his tongue into the

vagina” of A.W. The jury found Sea not guilty on the statutory rape counts and the sexual


       19
         The period of time between the charged conduct and the examination of the children
neutralizes the significance of “no tearing or any signs of abuse” as empirical evidence of no
criminal conduct. (Maj. Op. at ¶ 3). Moreover, such evidence is not a prerequisite for conviction.
       20
            According to Hernandez, A.W. was asleep at the time.
       21
        Officer Hernandez and two other social workers watched the interviews from “a separate
room divided by a two-way mirror . . . with audio intercom . . . .”

                                                21
battery count involving D.D. Sea was found guilty on the remaining sexual battery counts

against B.J., T.J., and A.W.

                                          ANALYSIS

¶36.     Not all errors are worthy of reversal. For well over three decades of observing and

trying cases or reviewing trial records, I have yet to discover a perfect trial. The jurists who

have preceded us, recognizing this truth, have set the bar for appellate review at a realistic

height, i.e., we look to determine if a defendant received a fair trial (not a perfect trial),

taking into account the universal truth that to err is human. This leaves the appellate court

to determine whether the defendant received a fair trial in spite of error.22

¶37.     Here, the Majority passes no final judgment on the circuit court’s admission of

videotapes, but rather seizes upon the timing of an on-the-record analysis. The Majority

criticizes the introduction of Sea’s prior guilty pleas to sex offenses against minors based

upon the time restrictions of Mississippi Rule of Evidence 609, as opposed to the exceptions

to Mississippi Rule of Evidence 404(b). The Majority then knits the aforementioned to

formulate its ultimate conclusion of ineffective assistance of counsel, which I shall address

first.

         I.     Prematurity of Ineffective-Assistance-of-Counsel Claim

¶38.     Sea’s ineffective-assistance-of-counsel claim is premature, as we are given clear proof

from the record that the issues in dispute were subject to pretrial discussions, outside the

record. See ¶¶ 47, 49, 59 infra. Thus, a determination at this time is premised upon



         22
        Such errors might include the circuit judge likely not viewing the videotapes outside
the presence of the jury before admission.

                                               22
undocumented assumptions, which should be clarified through an evidentiary hearing. See

Read v. State, 430 So. 2d 832, 841 (Miss. 1983).

¶39.   This Court has stated that:

       (1) Any defendant convicted of a crime may raise the issue of ineffective
       assistance of counsel on direct appeal, even though the matter has not first
       been presented to the trial court. The Court should review the entire record on
       appeal. If, . . . from a review of the record, . . . this Court can say that the
       defendant has been denied the effective assistance of counsel, the Court should
       also adjudge and reverse and remand for a new trial.

       (2) Assuming that the Court is unable to conclude from the record on appeal
       that defendant’s trial counsel was constitutionally defective, the Court should
       then proceed to decide the other issues in the case. Should the case be
       reversed on other grounds, the ineffectiveness issue . . . would become moot.
       On the other hand, if the Court should otherwise affirm, it should do so
       without prejudice to the defendant’s right to raise the ineffective assistance of
       counsel issue via appropriate post-conviction proceedings. If the Court
       otherwise affirms, it may nevertheless reach the merits of the ineffectiveness
       issue where (a) as in paragraph (1) above, the record affirmatively shows
       ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the
       record is adequate[23 ] and the Court determines that findings of fact by a trial
       judge able to consider the demeanor of witnesses, etc. are not needed.

       (3) If, after affirmance as in paragraph (2) above, the defendant wishes to do
       so, he may then file an appropriate post-conviction proceeding raising the
       ineffective assistance of counsel issue. Assuming that his application states a
       claim, prima facie, he will then be entitled to an evidentiary hearing on the
       merits of that issue in the [c]ircuit [c]ourt of the county wherein he was
       originally convicted. Once the issue has been formally adjudicated by the
       [c]ircuit [c]ourt, . . . the defendant will have the right to appeal to this Court as
       in other cases.

Id. at 841-42 (internal citations omitted). See also Colenburg v. State, 735 So. 2d 1099,

1101-02 (Miss. Ct. App. 1999).




       23
            The parties in this case made no such stipulation.

                                                   23
¶40.   The Majority fails to follow Read’s instruction and finds ineffective assistance of

counsel based upon the absence of on-the-record rulings by the circuit court regarding the

videotapes and Sea’s prior sex convictions involving minor girls. A review of the entire

record reflects that the timeliness or lack of such on-the-record rulings is not case-dispositive.

See Read, 430 So. 2d at 841. “The question presented on this appeal is not whether trial

counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty

to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s

performance.” Colenburg, 735 So. 2d at 1102. Contrary to the Majority’s inference

otherwise, the record is clear that there were discussions regarding the videotape and prior-

convictions issues, not contained in the record presented.24 See ¶¶ 47, 49, 59 infra. As such,

the ineffective-assistance-of-counsel issue “substantially raises issues of fact,” which an

appellate court is ill-suited to resolve. Read, 430 So. 2d at 842. Therefore, the proper

course, if we were to affirm the conviction and sentence imposed upon Sea, would be to

affirm “without prejudice to [his] right to raise the ineffective assistance of counsel issue via

appropriate post-conviction proceedings.” Id. at 841. If Sea exercises that right, and

assuming he states a prima facie claim, “he will then be entitled to an evidentiary hearing on

the merits of that issue . . . .” Id. Only then would both the circuit court and this Court be

adequately equipped to proceed on facts, instead of mere possibilities or assumptions, in

considering whether Sea can rebut the “strong . . . presumption that counsel’s conduct falls




       24
        “[T]he appellant has the responsibility to present a trial record sufficient to undergird his
assignments of error.” Edwards v. State, 800 So. 2d 454, 468 (Miss. 2001).

                                                 24
within a broad range of reasonable professional assistance.” Williams v. State, 3 So. 3d 105,

111 (Miss. 2009) (quoting McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990)).

          II.    Ineffective Assistance of Counsel

¶41.      As this Court spurns our precedent regarding ineffective-assistance-of-counsel claims

on direct appeal, I alternatively address the substantive merits of Sea’s ineffective-assistance-

of-counsel claim.25 As Sea’s substantive claims are without merit, I conclude that we should

affirm.

¶42.      Viewing defense counsel’s “over-all performance” under “the totality of the

circumstances,” I cannot conclude that “the strong . . . presumption that counsel’s conduct

falls within [the] broad range of reasonable professional assistance” has been rebutted. Id.

Perhaps defense counsel’s introduction of Sea’s prior convictions was intended to “take the

sting out” by preventing the jury from believing that Sea “was trying to hide anything[,]” a

regularly employed trial strategy.

¶43.      Moreover, I am unpersuaded that a “reasonable probability” exists that “but for

counsel’s [alleged] unprofessional errors, the result of the proceeding would have been

different.” Ransom v. State, 919 So. 2d 887, 890 (Miss. 2005) (quoting Foster v. State, 687

So. 2d 1124, 1129-30 (Miss. 1996)). The circuit judge stated that if the State had introduced

the prior convictions, they would have been admitted for the purposes allowed under

Mississippi Rule of Evidence 404(b). See Miss. R. Evid. 404(b) (“[e]vidence of other crimes,


          25
          Sea argues ineffective assistance of counsel “due to improper introduction of his prior
convictions by his trial counsel and failure to seek a lesser included offense instruction for
gratification of lust for each of the sexual battery counts.” As the Majority found the lesser-
included-offense-instruction issue to be without merit, I address only the prior-convictions issue.
(Maj. Op. at ¶ 22).

                                                25
wrongs, or acts is not admissible to prove the character of a person in order to show that he

acted in conformity therewith. It may, however, be admissible for other purposes such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”). Additionally, the jury was provided limiting instruction regarding the

prior convictions. See Gore v. State, 37 So. 3d 1178, 1187 (Miss. 2010) (evidence admitted

under Rule 404(b) is to be accompanied by a limiting instruction).

¶44.   Finally, overwhelming, credible evidence was presented to the jury that Sea sexually

abused three of the children. Weighing that evidence, the jury reached a unanimous decision

to convict, while at the same time acquitting Sea on all statutory-rape counts and the sexual-

battery count involving the youngest child, D.D., refuting the contention that the admission

of prior convictions so infected this proceeding as to deny Sea a fair trial.26 For these

reasons, I cannot conclude that Sea has satisfied his burden on the prejudice prong.

¶45.   “There is no constitutional right . . . to errorless counsel.” Ransom, 919 So. 2d at 890

(quoting Foster, 687 So. 2d at 1129-30). This Court has stated that:

       [t]he test to be applied in cases involving alleged ineffectiveness of counsel is
       whether counsel’s over-all performance was (1) deficient and if so, (2)
       whether the deficient performance prejudiced the defense. Strickland v.
       Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The
       burden is on the defendant to demonstrate both prongs. Leatherwood v. State,
       473 So. 2d 964, 968-69 (Miss. 1985).

       ...

       This state recognizes a strong but rebuttable presumption that counsel’s
       conduct falls within a broad range of reasonable professional assistance.
       Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985). Also, this Court bases its

       26
        In fact, should a defendant be acquitted, can it legitimately be argued that he was acquitted
because of ineffective assistance of counsel?

                                                 26
       decisions as to whether counsel’s efforts were effective on the totality of the
       circumstances surrounding each case.

Williams, 3 So. 3d at 111 (quoting McQuarter, 574 So. 2d at 687) (emphasis added).

¶46.   Prior to trial, Sea filed a “Motion for Discovery Under Rule 9.04 of the Uniform

Circuit and County Court Rules” which requested, inter alia, “[c]opies of prior criminal

records of the Defendant . . . .” The State’s response included a host of prior convictions,

including aggravated burglary, forgery, larceny, sale of a controlled substance (cocaine), and

unlawful possession of a controlled substance (cocaine) with the intent to sell and deliver,

along with Sea’s indictment and conviction records for sexual battery involving an underage

female and aggravated sexual battery based upon “feloniously and forcibly hav[ing] sexual

contact with . . . a female less than thirteen (13) year of age.” 27 Sea had pleaded guilty to the

sexual-battery and aggravated-sexual-battery charges, and had served time for each.

¶47.   During voir dire examination, counsel for Sea conditioned the jury pool for the

anticipated admission of prior convictions under Rule 404(b), stating:

       Q. . . . We do expect there will be testimony of some prior bad acts or
       convictions involving [Sea] from years ago. Now, simply because of those
       prior acts, if there is anyone here who believes that simply because of those
       prior acts he must be guilty of what he’s charged with here today, . . . please
       raise your hand . . . .

       ...

       Q. And despite then that there are some prior bad acts and convictions that
       could come in as evidence, if you still have a reasonable doubt in this case
       today, would you all still be able to vote not guilty?



       27
         Correspondence between the district attorney’s office and the Criminal Court of Shelby
County, Tennessee, reflects that evidence of Sea’s prior felony convictions was originally obtained
as “[o]ur office is preparing to prosecute [Sea] as an habitual offender.”

                                                27
(Emphasis added.) At the outset of Sea’s direct examination, defense counsel, seeking to

“take the sting out” of the State’s cross-examination, began, as follows:

         Q. Mr. Sea, I’m going to ask you some questions . . . . I don’t have it right in
         front of me but because . . . it is going to come out when the DA cross-
         examines, I’m going to ask you about a couple prior convictions that you have.

(Emphasis added.) Defense counsel then questioned Sea about the aforementioned guilty

pleas to sex crimes involving children. Sea acknowledged the first guilty plea to sexual

battery, but stated that he was not involved in the later crime of aggravated sexual battery,

although it took place in his apartment.                 During the State’s cross-examination, Sea

acknowledged his guilty pleas and convictions as to both.28

¶48.     The jury also was given a limiting instruction that, “[y]ou have heard testimony that

[Sea] has two prior convictions in Memphis. You are instructed that these convictions may

not be used to determine the innocence or guilt of the defendant in this case. You must

decide this case on the evidence and law.” In reading this instruction, the circuit judge

added:

         [d]o you see what I am saying? He was convicted of these according to the
         records or charged with these sometime prior and you can consider that but
         you can’t consider that as substantive evidence that that conduct makes him
         guilty of this conduct. These charges must be proven on their own.

(Emphasis added.)

¶49.     In closing argument, the State offered that “[y]ou’ve been instructed that you cannot

use the two prior convictions to find innocence or guilt in this case. But what you are

allowed to do is to use them to assess his credibility to whether or not he was, in fact, a



         28
              Sea stated that “I’m not denying nothing, I just . . . forgot about it.”

                                                       28
believable witness.”    Defense counsel objected to the State’s reference to the prior

convictions for impeachment purposes.          Defense counsel added that “[i]t was my

understanding they would be admitted” only “to show that there was no lack of intent or

something along those lines or motive.” (Emphasis added.) The circuit judge responded,

“[t]hat would have been true if the State had introduced them but I think they are subject to

comment now in closing arguments since the defense put them in as to credibility.”

(Emphasis added.) Thus, the strategy to “take the sting out” was not without risk. In Sea’s

closing argument, defense counsel stated:

       I put those convictions in because I didn’t want you to hear it from the State.
       . . . I didn’t want those convictions to come out of [the prosecutor’s] mouth
       and you to think that [Sea] was trying to hide anything from you. . . . He
       entered pleas of guilty. He accepted responsibility and went on.

(Emphasis added.) Accepting responsibility when guilty, denying when innocent, is also a

strategy employed by some effective defense attorneys.

(A) Deficient Performance

¶50.   As the effectiveness of counsel’s efforts are determined based upon his “over-all

performance” under “the totality of the circumstances[,]” the record reflects not only that

defense counsel successfully represented Sea in receiving an acquittal on all statutory-rape

counts and the sexual-battery count involving D.D., but also that the circuit judge commented

positively on the performance of defense counsel. Williams, 3 So. 3d at 111. Following the

children’s testimony, outside the presence of the jury, Sea contended that defense counsel

had “sold [him] out” by failing to ask the “right questions . . . to the right kid.” The circuit

judge responded that, “I’m not going to let [defense counsel] off your case. He’s a good



                                              29
lawyer and you need a good lawyer.” At the post-trial motion hearing, addressing defense

counsel’s “Motion to Withdraw as Counsel,” the circuit judge noted that “[h]e’s done you

a good job, Mr. Sea. I know you’ve been dissatisfied from the start. You know, he didn’t

put you where you were.[29 ] [Defense counsel] has done everything in his power adequately

and properly to represent you . . . .” (Emphasis added.)

¶51.   Moreover, this Court has stated that “[w]ith respect to the overall performance of the

attorney, ‘counsel’s failure to file certain motions, call certain witnesses, ask certain

questions, or make certain objections fall within the ambit of trial strategy’ and do[es] not

give rise to an ineffective assistance of counsel claim.” Pruitt v. State, 807 So. 2d 1236,

1240 (Miss. 2002) (quoting Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)). Here, defense

counsel’s trial strategy can be seen clearly. He addressed the prior convictions on direct

examination because “it is going to come out when the DA cross-examines” and he did not

want the jury “to think that [Sea] was trying to hide anything from [them].” Two strategic

reasons are apparent: (1) to “take the sting out” and (2) to show that when his client did

commit a crime, he is man enough to “fess up” to his wrongdoing, a tactic regularly

employed by defense counsel representing career criminals such as Sea. See Wright v. Royal

Carpet Servs., 29 So. 3d 109, 118 (Miss. Ct. App. 2010) (Maxwell, J., concurring in part and

in result) (“trial counsel adjusted his trial strategy to take the sting out of what he perceived

to be damning evidence. This is fully permissible in light of the adverse ruling on the motion

in limine.”). This strategy, particularly in light of the circuit judge’s later statement that such




       29
            This point is lost upon the Majority.

                                                    30
convictions would have been admissible to prove intent and/or motive if introduced by the

State, does not rise to the level of ineffective assistance.

¶52.   Furthermore, when this lone purported error is considered within the context of

defense counsel’s “over-all performance,” recognized by the circuit judge as “good,” our

“highly deferential” review does not support a finding of ineffective assistance on the record

before us. Williams, 3 So. 3d at 111; Pruitt, 807 So. 2d at 1239.

(B) Prejudice

¶53.   But even assuming arguendo that the Majority’s critique of defense counsel’s

performance is accurate, reversal requires more.           The prejudice standard requires “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Ransom, 919 So. 2d at 890 (quoting Foster, 687 So.

2d at 1129-30). As such, the prejudice inquiry places an additional burden upon an appellate

court, not unlike a juror’s role of fact-finding, for an appellate court must review all of the

evidence to determine whether the purported error(s) of counsel made any difference in the

result of the proceeding.

¶54.   Here, the circuit judge stated that, if they had been introduced by the State, these prior

convictions would have been admissible to prove intent and/or motive.30 See Miss. R. Evid.

404(b). Furthermore, the circuit court instructed the jury that such prior convictions “may



       30
          The admission of prior convictions for the purposes outlined in Rule 404(b), unlike Rule
609, is not restricted by time limitations. See Miss. R. Evid. 609(b) (ten-year time limit for
impeachment by evidence of prior convictions). Thus, the Majority’s assertion that “[e]vidence of
a party’s prior criminal conduct, the confinement for which ended more than ten years earlier, is not
admissible to impeach credibility, unless the trial court makes certain findings[,]” is misplaced.
(Maj. Op. at ¶ 1).

                                                 31
not be used to determine the innocence or guilt of the defendant in this case.” See Gore, 37

So. 3d at 1187 (reaffirming that the use of such evidence is limited to the exceptions stated

in Rule 404(b)).

¶55.   It is the testimony of the child victims, among “the most innocent and defenseless in

our society[,]” which convinces me that Sea would have been convicted, even in the absence

of the prior convictions. Id. at 1185 (quoting Derouen v. State, 994 So. 2d 748, 756 (Miss.

2008)). A.W., without equivocation, testified that Sea touched her “middle parts[;]” put his

finger “up in [her] stuff” and “move[d] it around[;]” put his mouth on her “stuff” on one

occasion; and “got on top of [her]” and put his privates in her privates and “in [her] butt[,]”

while “[m]ov[ing] up and down.” T.J., without equivocation, testified that Sea “stuck his

finger” in her privates and tried to touch his privates to her privates. She added that Sea had

A.W. take her clothes off and “g[e]t on top of him.” B.J., without equivocation, testified that

Sea put “his private up in my private” and “booty[;]” instructed her to “suck . . . his

private[;]” “[s]tuffed his hand in [her] private[;]” and did “nasty stuff” to T.J. and A.W.

Thereafter, according to B.J., Sea warned her to “shut [her] mouth” about the incidents. An

objective review of this testimony from the “mouths of babes” offered overwhelming

evidence of guilt to the jury that even an elite criminal defense attorney could not

successfully fend off. The Majority acknowledges as much, stating “the convictions are

amply supported by the testimony of all four of the children and the incriminating content

of the videotapes.” (Maj. Op. at ¶ 11). In such circumstances, “I choose . . . not . . . to close

my eyes to the reality of overwhelming evidence of guilt fairly established.” Goff v. State,

14 So. 3d 625, 677 (Miss. 2009) (Randolph, J., specially concurring, joined by Carlson, P.J.,

                                               32
Dickinson, Lamar, and Pierce, JJ.) (citing Milton v. Wainwright, 407 U.S. 371, 377, 92 S.

Ct. 2174, 2178, 33 L. Ed. 2d 1 (1972)). We ought not forget that “justice, though due to the

accused, is due to the accuser also. The concept of fairness must not be strained till it is

narrowed to a filament. We are to keep the balance true.” Payne v. Tennessee, 501 U.S.

808, 827, 111 S. Ct. 2597, 115 L.Ed. 2d 720 (1991) (quoting Snyder v. Massachusetts, 291

U.S. 97, 122, 54 S. Ct. 330, 338, 78 L. Ed. 674 (1934) (overruled on another issue by Malloy

v. Hogan, 378 U.S. 1, 17, 84 S. Ct. 1489, 1498, 12 L. Ed. 2d 653 (1964))). To disregard the

overwhelming evidence in this case would needlessly sway that balance toward Sea,

“plac[ing] a significant burden on society’s interest in prosecuting criminal activity.”

Berghuis v. Thompkins, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010) (citing Davis v.

United States, 512 U.S. 452, 459-61, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); Moran v.

Burbine, 475 U.S. 412, 427, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)).

¶56.   The jury’s exoneration of Sea on some counts reflects considered deliberation, not a

jury consumed by the purportedly “incendiary” proof of the prior convictions suggested by

the Majority. (Maj. Op. at ¶ 20). The jury found that Sea was not guilty on the statutory-

rape counts and the sexual-battery count involving D.D. (Maj. Op. at ¶ 8). The split verdicts

belie the Majority’s insistence upon the “incendiary” effect of these prior convictions. (Maj.

Op. at ¶ 20).

¶57.   Accordingly, Sea has not satisfied his burden of proving that “but for counsel’s

unprofessional errors” there is a “reasonable probability” that “the result of the proceeding

would have been different.” Ransom, 919 So. 2d at 890 (quoting Foster, 687 So. 2d at 1129-

30).

                                             33
        III.    Videotapes

¶58.    The record reveals that defense counsel made a hearsay objection before the

videotapes were played to the jury, renewed his objection after the State had rested, and

presented the issue again post-trial. I find no abuse of discretion by the circuit court in

overruling those objections based upon the “tender-years exception” of Mississippi Rule of

Evidence 803(25). See Miss. R. Evid. 803(25). We all can agree that the circuit judge’s

ruling should have been made prior to displaying the videotapes before the jury, however,

I would conclude that any putative prejudicial effect was cured by granting Sea additional

cross examination of the children.31

¶59.    The Majority’s finding that Sea “waived any objection to [the videotapes’] content,”

is misplaced. (Maj. Op. at ¶ 9). Prior to trial, Sea had filed a “Motion for Discovery Under

Rule 9.04 of the Uniform Circuit and County Court Rules” which sought, inter alia, “a copy

of all written and recorded statements relative to this case of any and all persons whom the

State plans to call as witnesses . . . .” In response, the State identified the videotapes, which

were made “available for inspection at a mutually agreeable date, time and place.” When the

State attempted to play the videotapes for the jury, defense counsel clearly stated, “I realize

this has been discussed in chambers to some extent,[32 ] for the record, the defense objects to


        31
         The effect of the introduction of the videotapes to the jury would have been prejudicial only
had the circuit judge determined that they lacked trustworthiness, such that the jury had viewed
inadmissible evidence.
        32
         This was not the first reference to the videotapes in the record. During voir dire, the district
attorney stated “you will hear from all four of the children and they will testify as best they can
about what happened. You’re also going to hear or see some videotapes.” (Emphasis added.) Also
during voir dire, defense counsel asked the jury pool whether each member could “promise that even
after you have heard all the testimony including video evidence . . . that if you have a reasonable

                                                   34
the admissibility [of] the tapes as inadmissible hearsay.” (Emphasis added.) The circuit

court overruled Sea’s objection, and the videotapes were played to the jury. After the State

had rested, defense counsel “renew[ed] the objection to the tapes on the basis of hearsay[,]”

while also moving for a directed verdict of not guilty on all counts. The circuit court

overruled Sea’s objection and denied Sea’s motion for directed verdict. Finally, in Sea’s

“Motion for Judgment Notwithstanding the Verdict or, Alternatively, Motion for New Trial,”

defense counsel urged the circuit court that “[t]he [c]ourt committed error in allowing the

[j]ury to consider hearsay testimony in the form of videotape recordings of the victims which

were made out-of-court and offered for the truth of the matter asserted.” At that post-trial

motion hearing, the circuit judge stated that this issue was “brought to my attention timely

by counsel for [Sea] in the course of trial . . . .” (Emphasis added.)

¶60.   “When reviewing evidentiary rulings made by the trial court, this Court employs an

abuse of discretion standard.” Brown v. State, 965 So. 2d 1023, 1026 (Miss. 2007)

(emphasis added). Rule 803(25), the “tender-years exception,” provides:

       [a] statement made by a child of tender years describing any act of sexual
       contact performed with or on the child by another is admissible in evidence if:
       (a) the court finds, in a hearing conducted outside the presence of the jury, that
       the time, content, and circumstances of the statement provide substantial
       indicia of reliability; and (b) the child either (1) testifies at the proceedings;
       or (2) is unavailable as a witness . . . .

Miss. R. Evid. 803(25) (emphasis added). The reasoning behind this hearsay exception

recognizes the natural fear, hesitancy, reluctance, and nervousness that many children of

tender years experience in communicating facts, due to the unfamiliar surroundings and


doubt as to [Sea’s] guilt that you will vote not guilty?” (Emphasis added.) The State’s opening
statement provided that “you will get to see” the videotapes “of each child” from “start to finish.”

                                                35
individuals. As related by the State during voir dire examination, “there is the possibility,

and I don’t really know until they sit down, that these children are going to be scared about

having to talk. And they may be a little bit quiet.”

¶61.   There is no dispute that each of the children testified at trial to provide substantive

evidence, to lay a foundation for introduction of the videotapes, or a combination of both.

All can agree the record does not reflect that the circuit court conducted a Rule 803(25)

hearing outside the presence of the jury before the videotapes were played. But at the same

time, we cannot ignore that, when the circuit judge overruled Sea’s renewed objection, he

did perform an on-the-record Rule 803(25) analysis, outside the presence of the jury. Of

even greater import, to ensure that Sea was provided a fair trial, the circuit judge offered him

the opportunity to call each of the four children for additional cross-examination.

Specifically, the circuit judge stated that he:

       could tell by the content and the manner that the questions were asked that
       they were not trying to subject answers or prompt anything. It was an open-
       ended statement and the answers were not suggested by the interviewers.

       ...

       The time and content and the circumstances all tie together with what they
       testified to in court and with what they tell the interviewer. The children
       seemed reliable when I interviewed them in chambers yesterday and they
       seemed reliable when they testified before the jury, and the best I could hear
       from the tapes, they appeared to be reliable at the time of the interview. And
       that’s one of the things that the trial judge is directed to do is look at the
       totality of the facts and circumstances surrounding this type of trial in 803(25)
       . . . to try to determine if there are substantial indicators of reliability . . . , and
       I think it is reliable enough to let this case go to a jury.

       ...




                                                 36
       [I]t was not a large span of time that was spent between the alleged events and
       the interview. The . . . children did seem to have recallability and seemed to
       be able to relate adequately to the interviewer . . . and did a fair job
       understanding the questions and providing the answers that you would expect
       ....

       ...

       [T]his was proper under the 803(25) tender years exception to hearsay rule
       and . . . the children testified under oath, they’ve been available for trial, and
       I will permit recross if the defense wants recross.

(Emphasis added.) The circuit court granted Sea the same opportunity to confront the child

witnesses as if the hearing had been conducted prior to the videotapes being played. In sum,

I cannot conclude that the circuit court’s admission of the videotapes constituted an abuse

of discretion. But even if one concludes that it was error, it was cured and, thus, harmless.

Accordingly, it is not a basis for reversal.

                                       CONCLUSION

¶62.   Based upon the aforementioned analysis, I would affirm Sea’s conviction and

sentence.

       WALLER, C.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.




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