                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 94-KA-01215-SCT
ALVIN WILLIAMS
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                               07/01/94
TRIAL JUDGE:                                    HON. JAMES E. THOMAS
COURT FROM WHICH APPEALED:                      HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         CECIL GERALD WOODS, JR.
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL

                                                BY: WAYNE SNUGGS
DISTRICT ATTORNEY:                              CONO CARANNA
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    AFFIRMED - 9/4/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 9/25/97




     BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

     BANKS, JUSTICE, FOR THE COURT:




Alvin Williams was convicted for the rape and sexual battery of an eight-year-old female child. We
affirm his conviction after examining the basis of this appeal and finding no reason to reverse the trial
court.

                                                   I.

Alvin Williams was charged with one count of capital rape and one count of sexual battery of his then
eight-year-old step-granddaughter Jessica Washington. The alleged rape and battery occurred on
February 27, 1992, while Jessica's grandmother left the child with the appellant to attend a church
activity. The next day at school Jessica participated in a program called "Good Touch, Bad Touch,"
where she reported the alleged incident of sexual wrongdoing to authorities with the Department of
Human Services.

The child was examined at the Memorial Hospital in Gulfport on or about February 29, 1992. No
tears or lacerations were found to the child's private parts. On March 2 and 3, 1992, Jessica was
again examined by Dr. J. Donald Matherne who conducted an evaluation which showed that the child
suffered from mild retardation. Dr. Matherne determined that Jessica had knowledge of sexual
activity inconsistent with a child her age and recommended counseling.

On August 27, 1993, a multi-count indictment was filed in the Circuit Court of Harrison County by a
grand jury charging Williams with the alleged crimes. At trial, Jessica testified that the appellant
touched her vagina and made her perform fellatio. A jury trial was held and Williams was convicted
of capital rape and sexual battery and sentenced to life imprisonment in count I and thirty years in
count II to be served consecutively in the custody of the Mississippi Department of Corrections.
Appellant filed a motion for JNOV, and, in the alternative, a motion for a new trial;, however, both
were overruled on November 18, 1994. The appellant now appeals to this Court.

                                                   II.

Williams contends that he should not have been convicted because the victim's testimony should have
received strong scrutiny, and the testimony offered by the victim lacked the corroboration required by
statutory law.

According to Miss. Code Ann. § 97-3-65 (Rev. 1994), "[i]n all cases where the child is under the age
of fourteen (14) years it will not be necessary to prove penetration of the child's private parts where it
is shown the private parts of the child have been lacerated or torn in the attempt to have carnal
knowledge of the child." Williams argues that this section suggests that where no evidence of
lacerations or tears are present penetration must be proven. Williams further argues the record shows
that Dr. Ward, an emergency physician at Gulfport Memorial Hospital, found no lacerations or tears
to the private parts of the victim.

The State suggests that Williams' reading of the record is incomplete. Dr. Hershline, a Board certified
pediatrician, and Dr. Ward both testified as to evidence which showed attempts to have carnal
knowledge of the child. While both doctors testified that no tears or lacerations were present near the
victim's private part, each indicated that the area was very red. Also, Dr. Hershline offered an
explanation for the absence of tears or lacerations to the victim's vaginal area." After repeated
penetration, there is some scarring that has probably occurred and the actual opening of the vagina
starts to allow the penetration without significant tears and/or damage. . . ."

The State argues that there is evidence to support the assertion that the victim was penetrated. First,
the victim's vaginal opening was found to be ten millimeters which the evidence suggests is abnormal.
Also, doctors examining the victim found that the hymen was thinned or attenuated which was not
normal for a child the victim's age. Couple this evidence with the victim's testimony and the evidence
of penetration is sufficient. The child told the treating physician that Williams put his penis in her
mouth, anus and vagina. In sum, this evidence supports a finding that the victim was indeed
penetrated.

                                                   III.
The appellant disputes whether fellatio is sexual penetration sufficient to comply with the meaning of
sexual penetration as defined by Miss. Code Ann. § 97-3-97 (1994). Miller v. State, 636 So. 2d 391
(Miss. 1994), clearly holds that fellatio is an act sufficient to constitute sexual battery. Williams
claims that the legislature has not defined fellatio. Therefore, the trial court erred in finding Jessica's
testimony that the appellant made her "suck his dick" was legally sufficient to support the conviction
of sexual battery.

In pertinent part, Miss. Code Ann. § 97-3-95 (1994) states that sexual battery is committed when one
engages in sexual penetration with a child under age fourteen (14). Subsection (a) of Miss. Code
Ann. § 97-3-97 includes fellatio as a form of sexual penetration. Id. at 396.(1) Williams' argument is
without merit.

                                                    IV.


Williams asserts that Dr. Matherne's testimony was inadmissible hearsay. Dr. Matherne's testimony
focused on his two evaluations of Jessica. During these evaluations Dr. Matherne obtained a history
from Jessica, and conducted several educational and I.Q. tests. Related information as to Jessica's
demeanor was also recorded during the evaluations. Prior to his testimony in open court, Dr.
Matherne was admonished by the Court to confine his testimony to matters as to Jessica's educational
level, I.Q. and demeanor as not to violate the rules of evidence.

In describing the testing done in conjunction with the evaluation of Jessica, Dr. Matherne explained
that his evaluation focused on finding consistency in the information provided by the child. The
results of the evaluations showed that Jessica was consistent in general conversation, behavior, but
not as to her knowledge of sexual activity. Over Williams' objection which was overruled, Dr.
Matherne explained that:

     Her knowledge of sexuality was not consistent with that of an eight-year-old child. That is one
     of the factors that I look for in terms of what is said, the knowledge of the individual and the
     chronological age of the child. And based upon that questioning and the knowledge of her age,
     it was very apparent to me that her knowledge was inappropriate in terms of her chronological
     age.

Williams argues that the Miss. R.Evid. 801(d)(1)(B) bars the admission of Dr. Matherne's testimony.
Also, Williams cites Tome v. United States, 513 U.S. 150 (1995) where the U.S. Supreme Court
found that it was error to admit evidence under Fed. R. Evid. 801(d)(1)(B) because the prior
consistent statements were made after the alleged motive to fabricate arose. While the holding in
Tome provides an intriguing analysis of 801(d)(1)(B), Williams' reliance on this rule and this
Supreme Court case is misplaced. The State made it clear during the pretrial motions that it relied
upon Miss. R. Evid. 803(4) to admit any testimony of Dr. Matherne if necessary.

Under Miss. R. Evid. 803(4), out-of-court statements that are made for the purpose of medical
diagnosis or treatment are not hearsay.(2) Dr. Matherne testified that the evaluations were done for
diagnosis and treatment purposes. After considering the testimony, Dr. Matherne, diagnosed Jessica
as having adjustment disorder with anxious mood. Based upon the interviews with the child,
outpatient counseling treatment was recommended.
In Johnson v. State, 666 So. 2d 784 (Miss. 1995), Rule 803(4) was used to admit statements uttered
by a child that was subjected to capital rape where the examining doctor relied on the child's
statements during a medical examination for diagnosis purposes to identify the perpetrator. "Where
the child is sexually assaulted by a member of the child's immediate household, an important part of
treatment is the prevention of further sexual abuse as well as the treatment of emotional and
psychological injuries." Id. at 795. (Emphasis Added). While Dr. Matherne did not use any of the
statements made by Jessica during the evaluation to identify Williams as the perpetrator, Dr.
Matherne appears to have relied upon the statements given by the child to conclude that she needed
counseling treatment to deal with the emotional and psychological injuries she possibly had due to her
inappropriate knowledge of sexual activity.(3) Miss. R.Evid. 803(4) would admit statements Dr.
Matherne would have learned from Jessica in the evaluation, however, nothing more than Dr.
Matherne's diagnosis and treatment were stated at the trial. Those statements revealing the child's
knowledge concerning sex were important for the fact that they were made rather than for the truth
of any assertion contained in them. These statements therefore did not fit within the definition of
hearsay.

Also, Williams argues that his Sixth Amendment right under the constitution to confront witnesses
was violated. The record reflects no violation of Williams' right to confront any witness at trial. The
appellant's brief lacks any information substantiating the contention of a Sixth Amendment violation.
Thus, the appellant's claim is without merit.

                                                  V.

Williams contends that the indictment charging capital rape and sexual assault did not comply with
the constitutional requirement set out in Article 6, § 169 of the Mississippi Constitution.(4) In
particular, Williams argues that because the indictment in which he was charged did not conclude
with the words "against the peace and dignity of the state", the indictment was defective and the
lower court lacked the authority to sentence him as a habitual offender. In McNeal v. State, 658 So.
2d 1345 (Miss. 1995) this Court held that where an indictment does not conform to Section 169 of
Article Six of the Mississippi Constitution it shall be fatally defective. Id. at 1350.

The State argues that the indictment in the instant case is not defective because Williams failed to
raise his objection at trial. The State relies on the holding in Brandau v. State, 662 So. 2d 1051
(Miss. 1995) which was issued subsequent to McNeal. Brandau stands for the proposition that an
indictment that fails to comply with Article Six of Section 169 of the Mississippi Constitution is
defective, however, any right that surfaces because of this defect is waived if there is a failure to
demur to the indictment in accordance with Miss. Code Ann. § 99-7-21 (1994 Rev.). Williams
argued at trial that the scheme of the indictment offered against him at trial was unconstitutional.
Williams' contention was not based on a failure of the indictment to meeting the requirements of
Section 169 of the Mississippi Constitution. Moreover, the record does not indicate that Section 169
of the Mississippi Constitution was raised as a basis for objection prior to this appeal. Therefore,
Brandau v. State, 662 So. 2d 1051 (Miss. 1995), controls and the appellant's assignment of error is
baseless.

                                                  VI.
The appellant relies on the U.S. Supreme Court holding in Strickland v. Washington, 466 U.S. 668
(1984) to support his final argument that his conviction should be overturned. In Strickland, the
Court defined the standard that must be met in order to reverse a conviction because of ineffective
assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. at 687.

Williams' only point of contention regarding his legal representation is based on defense counsel's
failure to raise the argument that the indictment was defective because it did not comply with Article
Six of Section 169 of the Mississippi Constitution. The record shows that the appellant's trial was
held almost a full year prior to the McNeal decision which held that an indictment was fatally
defective where that portion of the indictment that charged the defendant as a habitual offender was
on a separate page and followed the words "against the peace and dignity of the state." Here, unlike
McNeal, the fact that Williams was charged as an habitual offender was clearly stated on the face of
the indictment. More compelling, however, is the fact that we have held in Brandau that the defect in
question is curable by amendment. It is doubtful therefore, that raising the issue would have been of
great benefit to Williams.

The decision of the Harrison County Circuit Court is therefore affirmed consistent with this opinion.

COUNT I: CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE
IMPRISONMENT AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND
SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED. SENTENCES SHALL RUN
CONSECUTIVELY WITHOUT HOPE OF PAROLE OR PROBATION.


PRATHER AND SULLIVAN, P.JJ., PITTMAN, McRAE, ROBERTS, SMITH AND MILLS,
JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY.




1. Fellatio is a common enough term that it needs no legislative definition. The act of fellatio is
defined by Webster's New Collegiate Dictionary, Edition Nine (1984) as "to suck: oral stimulation of
the penis." To fellate is to "perform fellatio on."

2. Miss. R. Evid. 803(4) states that

     Statements made for purposes of medical diagnosis or treatment and describing medical history,
     or past or present symptoms, pain, or sensations, or the inception or general character of the
     cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment,
     regardless of to whom the statements are made, or when the statements are made, if the court,
     in its discretion, affirmatively finds that the proffered statements were made under
     circumstances substantially indicating their trustworthiness. For purposes of this rule, the term
     "medical" refers to emotional and mental health as well as physical health.


3. The record indicates that Jessica was nervous, anxious and disgusted when questioned about the
information of the sexual subject matter.

4. The section reads as follows:

     The style of all process shall be "The State of Mississippi," and all prosecutions shall be carried
     on in the name and by authority of the "State of Mississippi," and all indictments shall conclude
     "against the peace and dignity of the state."
