           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                   NO. 2018-KA-00369-COA

JEROME MACK AUSTIN JR. A/K/A JEROME                                           APPELLANT
MACK AUSTIN A/K/A JEROME M. AUSTIN JR.

v.

STATE OF MISSISSIPPI                                                            APPELLEE

DATE OF JUDGMENT:                             02/07/2018
TRIAL JUDGE:                                  HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                    JACKSON COUNTY CIRCUIT COURT
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
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  AFFIRMED - 06/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., GREENLEE AND C. WILSON, JJ.

       CARLTON, P.J., FOR THE COURT:

¶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)


       1
           An alias is used to protect the victim’s identity.
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.

           STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

¶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



                                               2
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



                                              3
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



                                               4
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



                                              5
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

       2
         The record reflects that the State’s witness, Jason Smith, a criminal investigator with
the district attorney’s office, nineteenth circuit district, testified that he could not obtain
Austin’s medical records to confirm this data because the applicable state law provided that
this information was not subject to subpoena and was privileged.

                                               6
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



                                               7
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.

                                         DISCUSSION

       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 (¶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 questioned. There are therefore no

Confrontation Clause issues in this case as delineated in Crawford v. Washington, 541 U.S.

36, 68 (2004).3

¶18.   The tender-years hearsay exception is set forth in Rule 803(25) of the Mississippi

Rules of Evidence, as follows:

       Tender Years Exception. A statement by a child of tender years describing
       any act of sexual contact with or by another is admissible if:

              (A) the court—after a hearing outside the jury’s
              presence—determines that the statement’s time, content, and
              circumstances provide substantial indicia of reliability; and

              (B) the child either:

                     (i) testifies; or

       3
        In Crawford v Washington, the U.S. Supreme Court set forth guidelines for the
admission of a prior testimonial statement of a witness who does not testify at trial.
Crawford v. Washington, 541 U.S. 36, 68 (2004).

                                              8
                      (ii) is unavailable as a witness, and other evidence
                      corroborates the act.

In determining whether an out-of-court statement by the declarant is admissible under this

exception, “the court must determine (1) that the declarant is a child of tender years and (2)

that the time, content, and circumstances of the statement provide substantial indicia of

reliability.” Veasley v. State, 735 So. 2d 432, 436 (¶14) (Miss. 1999). “[T]here is a rebuttable

presumption that a child under the age of twelve is of tender years.” Id. at 436 (¶16).

¶19.   Where the declarant is twelve years old or older, however, there is no such

presumption. Id. at 437 (¶16). In this case Amy was twelve years old when she made the

statements about Austin’s molestation to her mother and Erin Malak.                Under these

circumstances “the trial court must make a . . . determination as to whether the [declarant]

is of tender years. This determination should be made on the record and based on a factual

finding as to the victim’s mental and emotional age.” Id. If the trial court finds that the

declarant is of tender years, the trial court “must still proceed to determine whether [the

victim’s] statements had substantial indicia of reliability.” Id.

¶20.   In this case, the trial court held a tender-years hearing outside the presence of the jury

on February 2, 2018. The State presented one witness at the hearing, Amy’s mother Tuesday.

Tuesday testified that she read Amy’s diary where she had written about being sexually

abused. Tuesday called her friend’s house where Amy was spending the night and told them

to meet her at the hospital. Tuesday testified that Amy told her that her dad molested her and

that Amy was crying and seemed scared. Tuesday testified that Amy was twelve years old



                                               9
when she disclosed the abuse. During her testimony, Tuesday explained that Amy had

problems wetting the bed and that she wore pull-ups until she was around sixteen. Tuesday

also testified about the custody dispute with Darlene over Amy and that every time she spoke

with her, Amy told her she wanted to live with her in Wisconsin and not in Mississippi.

¶21.   After Tuesday finished testifying, the trial court heard counsel’s argument. The trial

judge told the parties that she would issue a ruling later that afternoon. No ruling was made

on the record at the hearing. On February 5, 2018, the trial court entered its order granting

the State’s motion. In that order the trial court held:

       T.A.,[4] the victim in this case, was twelve years old at the time the alleged
       sexual abuse was disclosed to her mother, Tuesday Austin. . . . At the tender
       years hearing . . . Ms. Austin testified as to the content and circumstances of
       T.A.’s disclosure. After considering her testimony, and having reviewed the
       forensic interview, the Court finds the time, content, and circumstances of
       T.A.’s statements provide a substantial indicia of reliability such that they are
       admissible hearsay statements pursuant to M.R.E. 803(25).

¶22.   The record reflects that Amy was twelve years old at the time she made her statements

to her mother and underwent her forensic interview, so the tender-years presumption does

not apply. The trial court, therefore, was required to make a finding, on the record, regarding

whether Amy was of tender years. The trial court’s order contains no “factual finding[s] as

to the victim’s mental and emotional age,” Veasley, 735 So. 2d at 437 (¶16), nor were any

such findings made on the record at the tender-years hearing. We find that the trial court

erred in failing to make a tender-years determination. As we address below, however, we

find that this error was harmless.



       4
           The victim is referred to as Amy in this opinion and the parties’ appellate briefs.

                                               10
¶23.   Austin also asserts that the trial court’s reliability determination was insufficient

because Amy did not testify at the hearing. According to Austin, this prevented the court

from hearing the “complete story” surrounding the “the time, content, and circumstances”

of Amy’s out-of-court statements. We disagree. To determine if there is substantial indicia

of reliability, the advisory committee’s note to Rule 803(25) urges consideration of twelve

factors.5 M.R.E. 803(25) advisory committee note. “[E]ach factor need not be discussed

separately by the trial judge, so long as the record supports a finding that the victim’s

statements bore indicia of reliability.” Case v. State, 187 So. 3d 177, 182-83 (¶17) (Miss. Ct.

App. 2015) (internal quotation mark omitted).

¶24.   In this case, Amy’s mother, Tuesday, testified at the hearing regarding Amy’s

statements, and defense counsel thoroughly cross-examined her on the circumstances that

Austin claims indicate that Amy’s statements were unreliable. In particular, defense counsel

questioned Tuesday about the custody dispute over Amy and about how Amy wanted to live

with her in Wisconsin and not in Mississippi. In addition to hearing Tuesday’s testimony,

       5
           The Rule 803(25) advisory committee note provides as follows:

       Some factors that the court should examine to determine if there is sufficient
       indicia of reliability are (1) whether there is an apparent motive on declarant’s
       part to lie; (2) the general character of the declarant; (3) whether more than
       one person heard the statements; (4) whether the statements were made
       spontaneously; (5) the timing of the declarations; (6) the relationship between
       the declarant and the witness; (7) the possibility of the declarant’s faulty
       recollection is remote; (8) certainty that the statements were made; (9) the
       credibility of the person testifying about the statements; (10) the age or
       maturity of the declarant; (11) whether suggestive techniques were used in
       eliciting the statement; and (12) whether the declarant’s age, knowledge, and
       experience make it unlikely that the declarant fabricated.


                                              11
the trial court also reviewed the video of Amy’s forensic interview in making its reliability

determination. We find that despite Amy not testifying at the hearing, the trial court had

sufficient evidence of the time, content, and circumstances of her out-of-court statements to

support its finding of reliability, and we find no abuse of discretion in the court’s

determination on this issue, particularly because Amy testified at trial and was subject to

cross-examination.

¶25.   We recognize that even though we find no error in the trial court’s reliability

determination, this does not cure the court’s error in failing to first make an on-the-record

finding as to Amy’s mental and emotional age. We find, however, that in the context of this

case, this was harmless error and does not warrant reversal because Amy testified at trial and

there was other evidence supporting a finding of guilt against Austin.

¶26.   Friday v. State is instructive here. In Friday, this Court found error when the trial

court failed to make a finding on the record whether the child (who was twelve at the time

of the statements at issue) was of tender years. Friday, 217 So. 3d at 764-65 (¶20). We

found, however, that this error was harmless and did not warrant reversal because “[t]he

weight of the evidence of guilt outweighed any harm done by allowing admission of hearsay

statements by [the victim’s mother and the forensic interviewer].” Id. at 765 (¶¶21-22); see

also Nunnery v. State, 126 So. 3d 105, 109 (¶13) (Miss. Ct. App. 2013) (finding harmless

error where trial court failed to conduct a tender-years hearing where the weight of the

evidence against the defendant was sufficient to outweigh any harm done by allowing

admission of the challenged evidence).



                                             12
¶27.   We find that this test is met here. As to Count I, Amy testified at trial, recounting her

abuse and her testing positive for chlamydia. Additionally, other witnesses testified and

evidence was submitted supporting a conviction on Count I without Amy’s out-of-court

statements.6 We also find that there was sufficient evidence to convict Austin on Count II

without Amy’s out-of-court statements. Amy testified at trial that she would wake up in her

bedroom at her grandmother Darlene’s home to Austin “fingering” her; she said Austin had

long fingernails and that it felt like “razors in [her] vagina.” She also testified at trial that

Austin used a blue glove with Olay lotion on it. Thibodeaux testified that she found blue

surgical gloves and Olay lotion at Darlene’s home.

¶28.   We find that the weight of the evidence of guilt against Austin on both counts

outweighed any harm done by allowing admission of the hearsay statements by Tuesday and

Malak. This is particularly true in this case because the trial court did make an adequate

reliability determination with respect to Amy’s out-of-court statements, and only failed to

make the requisite tender-years determination. Accordingly, we find that the trial court’s

admission of these statements without a tender-years determination was harmless error.

       II.    Sufficiency of the Evidence Supporting Count I

¶29.   Austin asserts that the trial court erred in denying his JNOV motion because there was

insufficient evidence to support a sexual battery conviction under Count I of the indictment.

For the reasons detailed below, we find that this assertion is without merit. In conjunction



       6
        In his second assignment of error, Austin challenges the sufficiency of the evidence
supporting his conviction on Count I. In order to avoid repetition, we address, in detail, the
testimony and evidence supporting his conviction on Count I in the following section.

                                               13
with our “harmless error” determination relating to Amy’s out-of-court statements about her

abuse relating to Count I, we do not consider these hearsay statements in our sufficiency-of-

the-evidence determination below.

¶30.   A JNOV motion challenges the legal sufficiency of the evidence. Jenkins v. State, 101

So. 3d 161, 165 (¶12) (Miss. Ct. App. 2012). “When addressing the legal sufficiency of

evidence, we consider all evidence in a light most favorable to the State.” Id. (other

quotation mark omitted). In this regard, “[t]he critical inquiry is whether the evidence shows

beyond a reasonable doubt that the accused committed the act charged, and that he did so

under such circumstances that every element of the offense existed.” McBride v. State, 61

So. 3d 174, 183 (¶29) (Miss. Ct. App. 2010) (internal quotation mark omitted).

¶31.   Austin was indicted for sexual battery under section 97-3-95(1)(d), which provides

that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with . . .

[a] child under the age of fourteen . . . years of age, if the person is twenty-four . . . or more

months older than the child.” Count I of Austin’s indictment provides that he “did . . .

commit [s]exual [b]attery . . . by engaging in the act of sexual penetration, to wit: inserting

his penis into [Amy’s] vagina[.]” Austin argues that there is no proof that he penetrated

Amy’s vagina with his penis. We disagree.

¶32.   Under Mississippi law, for sexual battery purposes, sexual penetration is “any

penetration of the genital or anal openings of another person’s body by any part of a person’s

body, and insertion of any object into the genital or anal openings of another person’s body.”

Norman v. State, 725 So. 2d 247, 250 (¶9) (Miss. Ct. App. 1998) (quoting Miss. Code Ann.



                                               14
§ 97-3-97(a) (Rev. 2014)). Particularly relevant here is the principle that “sexual penetration

is a term of art, and its legal definition does not require that the defendant’s penis be inside

the victim in the colloquial sense. Instead, sexual penetration requires only penetration of

the labia, the fleshy folds of skin surrounding the entrance to the vagina, and that penetration

need only be slight.” Walker v. State, 262 So. 3d 560, 565 (¶12) (Miss. Ct. App. 2018); see

Johnson v. State, 626 So. 2d 631, 633 (Miss. 1993) (finding that “slight penetration to the

vulva or labia” sufficient to establish penetration on a sexual battery charge); Moton v. State,

999 So. 2d 1287, 1293 (¶20) (Miss. Ct. App. 2009) (“Penetration, however slight, is

sufficient to establish the penetration element of sexual battery.”).

¶33.   With these principles in mind, we review Amy’s testimony at trial describing what

occurred, as follows:

       Q.     What made you wake up?
       A.     It was pressure on my vagina when I woke up. And I—I saw him. And
              he— he stopped. And that was what woke me up.
       Q.     All right. So you said you felt pressure on your vagina. Did you have
              clothes on or off?
       A.     My pull-up was off. But I believe my nightgown was still on.
       Q.     Okay. And what was causing the pressure on your vagina?
       A.     His penis.
       Q.     And was his penis covered or uncovered or something else?
       A.     It was uncovered.
       Q.     How did it feel, [Amy]?
       A.     It felt more like just, like, pressure on it. I knew it wasn’t in me but it
              was just pressing against me, jumbled up.
       Q.     Did it hurt.
       A.     Yeah.
       Q.     What was he doing with his penis while it was causing pressure on your
              vagina?
       A.     It was just—it’s more like trying to penetrate but it’s just pushing
              against it. It’s not really getting anywhere. It was just kind of like just
              putting your fist in your hand, like that.

                                              15
       Q.     His skin was touching your skin, correct?
       A.     Yes.
       Q.     Did he say anything to you?
       A.     He didn’t say anything until I told him I had to use the bathroom.
       Q.     Okay. What did he say when you told him you had to go to the
              bathroom?
       A.     He said, Pee on me.
       Q.     Did you say anything to him?
       A.     I told him no, I want to use—I mean, I need to use the bathroom.
       Q.     So how did it end?
       A.     He went back and I got up and went to the bathroom.

Amy further testified at trial that when she went to the bathroom she “realized that I was kind

of swollen and it kind of hurt to pee.”

¶34.   The record reflects that the jury was specifically instructed that “in order to sustain

a conviction for the crime of Sexual Battery, some penetration must be proven beyond a

reasonable doubt. However, it need not be full penetration. Even the slightest penetration is

sufficient to prove the crime of Sexual Battery.” The jury was also instructed that “the

unsupported word of the victim in a Sexual Battery case is sufficient to support a guilty

verdict if you find beyond a reasonable doubt that the testimony is believable and it is not

discredited or contradicted by other credible evidence.”7

¶35.   “The jury is presumed to follow the instructions given by the trial court.” Evans v.

State, 226 So. 3d 1, 32 (¶83) (Miss. 2017). In this case, Austin did not testify on his own

behalf, and the defense put on no other witnesses. Amy’s testimony that Austin was pushing

his penis against her vagina and putting enough pressure on it that it caused her vagina to

       7
         See, e.g., Lindsey v. State, 212 So. 3d 44, 47 (¶14) (Miss. 2017) (“Our case law
clearly holds that the unsupported word of the victim of a sex crime is sufficient to support
a guilty verdict where that testimony is not discredited or contradicted by other credible
evidence.”); Bozeman v. State, 208 So. 3d 1091, 1093 (¶6) (Miss. Ct. App. 2017).

                                              16
swell and caused pain when she urinated was sufficient for the jury to infer that Austin at

least slightly penetrated Amy’s vulva or labia. This is particularly true in this case where

there was also other evidence supporting a finding of penetration presented at trial. Walker,

262 So. 3d at 565 (¶12); see Moton, 999 So. 2d at 1293-94 (¶21).

¶36.   In addition to Amy’s testimony, the record reflects that Amy tested positive for

chlamydia in June 2011. The social worker, Erin Malak, and the investigator, Becky

Thibodeaux, testified that Austin admitted to them that he had chlamydia in 2010. According

to Dr. Delgado, accepted as an expert in the fields of obstetrics and gynecology, chlamydia

is only transmitted through some type of sexual contact where there is an exchange of bodily

fluids, such as intercourse or penetration. He explained that “[i]t doesn’t have to be full

penetration [of the penis], just exposure to that vaginal tissue.” Dr. Delgado also testified

that Amy’s burning during urination could be explained because sexual intercourse can cause

trauma to the urethra because of its proximity; and the vaginal swelling that Amy described

could be caused by trauma of the labia minora from a lack of lubrication during attempts

penetrate. Further, Amy testified that Austin was the only person she had sexual contact with

and that it was not possible for anyone else to have given her chlamydia.

¶37.   Based upon this record, we find that a reasonable jury could find beyond a reasonable

doubt that Austin’s contact with Amy “included some slight penetration of the labia. That is

all that is required to sustain the conviction for sexual battery.” Walker, 262 So. 3d at 565

(¶12). The circumstances in Walker, for example, support this determination. This Court

found in Walker that there was sufficient evidence of penetration based upon the victim’s



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alternative recollection of events that the defendant “had pulled her underwear down, made

her get on top of him, and ‘rubbed his private between her legs,’ although it was ‘outside’

of her body.” Id. The victim also said that the defendant had put his penis ‘on top of her

private.’” Id. Further, “the medical examination corroborated her account, noting redness

of the labia majora.” Id. See also Burrows v. State, 961 So. 2d 701, 706 (¶13) (Miss. 2007)

(finding sufficient proof was presented to prove sexual battery where victim testified that

Burrows “touched her butts with his ‘daddy spot;’” the investigator also testified that the

victim told him that Burrows “touched the inside of her bottom with his ‘daddy spot,’” and

there was evidence that both Burrows and the victim tested positive for chlamydia); Moton,

999 So. 2d at 1293-94 (¶21) (finding sufficient evidence of penetration where two-year-old

child cried when urinating and vagina was red, swollen, and irritated).

¶38.   AFFIRMED.

    BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, McCARTY AND C. WILSON, JJ., CONCUR. LAWRENCE, J., NOT
PARTICIPATING.




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