           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2015-KA-00068-COA

JOSEPH JUSTICE A/K/A JOSEPH EDWARD                                            APPELLANT
JUSTICE

v.

STATE OF MISSISSIPPI                                                            APPELLEE

DATE OF JUDGMENT:                           12/16/2014
TRIAL JUDGE:                                HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOHN R. HENRY JR.
DISTRICT ATTORNEY:                          JOHN W. CHAMPION
NATURE OF THE CASE:                         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                    CONVICTED OF FONDLING AND
                                            SENTENCED TO FIFTEEN YEARS IN THE
                                            CUSTODY OF THE MISSISSIPPI
                                            DEPARTMENT OF CORRECTIONS, WITH
                                            FIVE YEARS TO SERVE AND TEN YEARS
                                            OF POST-RELEASE SUPERVISION, AND
                                            TO REGISTER AS A SEX OFFENDER
DISPOSITION:                                AFFIRMED: 05/17/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Joseph Justice was convicted of fondling his nine-year-old stepson, N.J.1 Justice

appeals, arguing that the tender-years hearsay exception was erroneously applied and that the


       1
        Due to the nature of this case and the age of the victim, we substitute initials for the
victim’s name.
verdict was not supported by the weight of the evidence. Finding no error, this Court affirms.

                                           FACTS

¶2.    On the night of October 14, 2012, Elizabeth Justice, N.J.’s mother, walked into her

son’s room and turned on the light. She found her husband, Joseph Justice, kneeling beside

N.J.’s bed. She found her son in bed with his pants and underwear down to his ankles.

Elizabeth called the police, and Justice was taken to the Southaven Police Department for

questioning.

¶3.    Justice told police, and claims to this day, that he was masturbating in N.J.’s room in

order to hide from his wife. He told officers that Elizabeth would find him in the other

rooms of the house.

¶4.    On October 18, 2012, N.J. was interviewed at the Family Crisis Services Center by

Meredith Rawl, an expert in the field of forensic interviews and child sexual abuse. During

the interview, N.J. told Rawl that Justice was on his knees in a chair by the bed, touching

N.J.’s penis and looking at a cell phone. N.J. also told Rawl that Justice had done this before

and told N.J. on previous occasions to not tell anyone because he would go to jail. A couple

of months later, N.J. began seeing psychologist Dr. Wayne Lancaster. N.J. had regular

sessions with Dr. Lancaster for six months to address feelings of depression and confusion.

Videos from Rawl’s interview and one of Dr. Lancaster’s sessions were admitted during trial.

¶5.    At trial, Justice was convicted on one of three counts of fondling. The judge later

sentenced him to fifteen years in the custody of the Mississippi Department of Corrections,

with five years to serve and ten years on post-release supervision.



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                                        ANALYSIS

       I.     Whether the tender-years hearsay exception was properly applied.

¶6.    Justice contends that hearsay testimony from Rawl and Dr. Lancaster of what N.J. told

them was improperly admitted because the court did not conduct a hearing within the

guidelines of Mississippi Rule of Evidence 803(25). We review the admission of evidence

for abuse of discretion. Webb v. State, 113 So. 3d 592, 597 (¶13) (Miss. Ct. App. 2012).

¶7.    While notice was given of a hearing under Rule 803(25), the tender-years exception

to the hearsay rule, the court actually conducted a competency hearing pursuant to

Mississippi Rule of Evidence 601. During the hearing, N.J., Rawl, and Dr. Lancaster

testified, and the court found that N.J. met the test for competency but did not address the

tender-years exception.

¶8.    Justice did not object during this pretrial hearing. At trial, he did not object to the

admission of testimony from Rawl or Dr. Lancaster. “Failure to timely object to alleged

hearsay evidence acts as a bar preventing the aggrieved party from raising the issue on

appeal.” Grayson v. State, 850 So. 2d 196, 198 (¶5) (Miss. Ct. App. 2003). This rule

likewise applies when a defendant fails to object to hearsay at trial and subsequently claims

that the trial court abused its discretion in not conducting a Rule 803(25) tender-years

hearing. Green v. State, 89 So. 3d 543, 553 (¶24) (Miss. 2012). Therefore, Justice is

procedurally barred from arguing that the testimony from Rawl and Dr. Lancaster was

erroneously admitted.

       II.    Whether the verdict was against the weight of the evidence.



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¶9.    Justice next argues that the verdict was against the overwhelming weight of the

evidence. He contends that N.J. is unreliable because he gave conflicting versions of events

and he took “his mother’s fears and made them real.” In reviewing whether a jury verdict

was against the weight of the evidence,

       [t]his Court must accept as true the evidence which supports the verdict and
       will reverse only when convinced that the circuit court has abused its
       discretion in failing to grant a new trial. Only in those cases where the verdict
       is so contrary to the overwhelming weight of the evidence that to allow it to
       stand would sanction an unconscionable injustice will this Court disturb it on
       appeal. As such, if the verdict is against the overwhelming weight of the
       evidence, then a new trial is proper.

Jones v. State, 164 So. 3d 1009, 1016 (¶19) (Miss. Ct. App. 2013).

¶10.    As an initial matter, we acknowledge the “long-standing rule that the credibility of

a witness is a question for the jury.” Jordan v. State, 80 So. 3d 817, 831 (¶63) (Miss. Ct.

App. 2010). N.J. testified at trial about what happened that night. Videos of interviews

between N.J. and Rawl and N.J. and Dr. Lancaster were also played for the jury. Rawl and

Dr. Lancaster both testified that they found N.J. to be credible. Elizabeth also testified about

what she saw when she walked into N.J.’s room that night. Furthermore, DNA evidence was

presented about a stain on N.J.’s bed sheets, where Justice was found to be the sole

contributor.

¶11.   Notably, the jury found Justice not guilty of another count of fondling, where less

evidence was provided to them regarding that specific instance. Based on this evidence

presented at trial, the verdict was not against the overwhelming weight of the evidence.

Therefore, this issue is without merit.



                                               4
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF FONDLING AND SENTENCE OF FIFTEEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
FIVE YEARS TO SERVE AND TEN YEARS OF POST-RELEASE SUPERVISION,
AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO DESOTO COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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