                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-KA-00099-SCT

RONALD HOOD

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          12/19/2007
TRIAL JUDGE:                               HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                 YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    TRENT L. WALKER
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: W. GLENN WATTS
DISTRICT ATTORNEY:                         JAMES H. POWELL, III
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 07/30/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Ronald Hood was convicted by a jury in the Circuit Court of Yazoo County of the

crime of exploitation of children under Mississippi Code Sections 97-5-31 and 97-5-33(5)

(Rev. 2006). Hood was sentenced by the trial court as a habitual offender to twenty years

in the custody of the Mississippi Department of Corrections without the possibility of parole.

In today’s appeal, Hood alleges certain errors committed in the trial court, none of which we

find to have merit. We thus affirm the judgment of conviction and sentence of the Circuit

Court of Yazoo County.
                  FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On March 13, 2006, Melissa Hood, the defendant’s wife, found a videotape with no

title or other identifying information located in a box of her husband’s belongings within an

extra bedroom at their home. She decided to view the tape on her VCR to determine its

contents. Melissa testified that when she witnessed the videotape she became sick to her

stomach. The videotape depicted nude male children, and Melissa believed the children to

be between the ages of five and seven years old. She showed the tape to her sister, who

attempted to rip it up and threw it in the garbage.1 Melissa’s sister also confronted the

defendant, Ronald Hood, about the contents of the tape. According to Melissa, Hood’s

response to why he had the tape was, “I’ve got it because I started the stuff.” He also made

the statement that, “if he had to, he would go back to California where it was legal so he

could do it again.” Melissa and her sister directed Hood to leave the home.

¶3.    Melissa further testified that, prior to their marriage, Hood admitted to possessing this

type of videotapes and showed her a videotape of naked male children’s exposed genitals.

Melissa was shocked and told Hood, “if you’re going to marry me, if you’re going to live in

my house, you’ve got to get rid of this stuff. I can’t take this.” He stated that he would get

rid of it and would not bring it into her house.

¶4.    After again discovering similar material subsequent to her marriage to Hood, Melissa

contacted Detective Larry Davis. Davis received the tape from Melissa, and he testified that



       1
           The tape later was retrieved from the garbage and “fixed.”

                                               2
it contained images of “young boys in their nudity, running around.” According to Davis,

the boys appeared to be between the ages of ten and sixteen years old. Davis obtained a

search warrant for a storage unit belonging to Hood. In the storage unit, law enforcement

authorities discovered two small camcorder tapes and approximately one hundred VCR

tapes.2

¶5.       On July 10, 2006, Ronald Hood was indicted for “exploitation of children” in

violation of Mississippi Code Sections 97-5-31 and 97-5-33(5) (Rev. 2006). The indictment

was amended to reflect Hood’s status as a habitual offender. Subsequently, Hood was tried

before a jury for exploitation of children in the Circuit Court of Yazoo County, Judge Jannie

M. Lewis presiding. In addition to the videotape that Melissa turned over to Davis, one of

the small camcorder tapes retrieved during the execution of the search warrant also was

entered into evidence. On December 11, 2007, Hood was found guilty by the jury and

sentenced by the trial court as a habitual offender to serve twenty years in the custody of the

Mississippi Department of Corrections, without the possibility of parole. From this verdict

and sentence, Hood appeals to this Court.

                                       DISCUSSION

¶6.       Hood presents four issues for this Court’s consideration: (1) whether the marital

privilege caused Melissa Hood to be incompetent to testify; (2) whether the males in the



          2
       Interestingly, law enforcement officials conducted a random check of some of the
approximately one hundred VCR tapes, and a majority of these tapes were of the Little
League World Series.

                                              3
video were engaged in “sexually explicit conduct;” (3) whether the statutes in question are

unconstitutionally vague; and (4) whether the prosecution made improper arguments which

tended to inflame the passions and prejudices of the jury against the defendant.

¶7.    The standard of review for admission of evidence is abuse of discretion. Debrow v.

State, 972 So. 2d 550, 552 (Miss. 2007). However, when a question of law is raised, the

applicable standard of review is de novo. Id. “[O]ur constitutional scheme contemplates the

power of judicial review of legislative enactments; however, that power may be exercised

affirmatively only where the legislation under review be found ‘in palpable conflict with

some plain provision of the . . . constitution.’” State v. Roderick, 704 So. 2d 49, 52 (Miss.

1997) (quoting In re T.L.C., 566 So. 2d 691, 696 (Miss. 1990); Hart v. State, 87 Miss. 171,

176, 39 So. 523, 524 (1905)). In determining whether a lawyer made improper arguments

which require reversal, the test is “‘whether the natural and probable effect of the improper

argument . . . create[s] an unjust prejudice against the [opposing party] result[ing] in a

decision influenced by the prejudice so created.’” Eckman v. Moore, 876 So. 2d 975, 986

(Miss. 2004) (quoting Davis v. State, 530 So. 2d 694, 701-02 (Miss. 1988)).

¶8.    Having already stated the issues which Hood presents for today’s consideration, we

now restate the issues for the sake of clarity in discussion.

       I.     WHETHER THE MARITAL PRIVILEGE RENDERED
              MELISSA HOOD’S TESTIMONY INADMISSIBLE.

¶9.    Hood argues that the testimony of his wife, Melissa, “should have been stricken as

incompetent or subject to the marital privilege set out in M.R.E. 504.” Even though Hood


                                              4
injects spousal “incompetence” into his discussion of this issue, he does not cite the spousal

competency statute, Mississippi Code Section 13-1-5 (Rev. 2002).3 Instead, Hood focuses

his argument on the husband-wife privilege found in Mississippi Rule of Evidence 504,4 and

the general rule of competency found in Mississippi Rule of Evidence 601.

¶10.   Rule 504(b) states that “[i]n any proceeding, civil or criminal, a person has a privilege

to prevent that person’s spouse, or former spouse, from testifying as to any confidential

communication between that person and that person’s spouse.” Miss. R. Evid. 504(b).

However, we find that an exception applies in today’s case because “[t]here is no privilege

under this rule . . . in a proceeding in which one spouse is charged with a crime against (1)

the person of any minor child . . . .” Miss. R. Evid. 504(d). On the other hand, Hood asserts


       3

       Husbands and wives may be introduced by each other as witnesses in all cases,
       civil or criminal, and shall be competent witnesses in their own behalf, as
       against each other, in all controversies between them. Either spouse is a
       competent witness and may be compelled to testify against the other in any
       criminal prosecution of either husband or wife for a criminal act against any
       child, for contributing to the neglect or delinquency of a child, or desertion or
       nonsupport of children under the age of sixteen (16) years, or abandonment of
       children. But in all other instances where either of them is a party litigant the
       other shall not be competent as a witness and shall not be required to answer
       interrogatories or to make discovery of any matters involved in any such other
       instances without the consent of both.

Miss. Code Ann. § 13-1-5 (Rev. 2002).

       4
        “There are two areas of law which govern if and when one spouse may testify against
the other, spousal competency and marital privilege. M.C.A. § 13-1-5 governs matters of
spousal competency. On the other hand, marital privilege protects certain communications
made during the marriage.” Miss. R. Evid. 504 cmt.

                                               5
that Rule 504 is in conflict with Mississippi Rule of Evidence 601, the general rule of

competency. Rule 601 states:

       Every person is competent to be a witness except as restricted by the
       following:

       (a) In all circumstances where one spouse is a party litigant the other spouse
       shall not be competent as a witness without the consent of both, except as
       provided in Rule 601(a)(1) or Rule 601(a)(2):
       ...
               (2) Either spouse is a competent witness and may be compelled to
       testify against the other in any criminal prosecution of either husband or wife
       for a criminal act against any child . . . .

Miss. R. Evid. 601(a).

¶11.   In Fisher v. State, 690 So. 2d 268, 272 (Miss. 1996), this Court noted the difference

between the marital privilege and spousal incompetency, stating: “Rule 601(a)(2) abolishes

spousal incompetence to testify in certain circumstances. The non-offender spouse may be

called to testify, but the other spouse may still invoke the privilege regarding confidential

communications that do not fall into an exception set out in 504(d).” Fisher, 690 So. 2d at

272 (citing Dycus v. State, 396 So. 2d 23, 28 (Miss. 1981)). Conflict does not exist between

these rules, and in today’s case, spousal incompetence was not applicable because Hood was

being prosecuted for “a criminal act against any child.” See Miss. R. Evid. 601(a)(2). Also,

Hood was unable to invoke the privilege regarding confidential communication because of

the “crime against the person of any minor child” exception in Rule 504(d). See Miss. R.

Evid. 504(d).




                                             6
¶12.   Hood, however, urges this Court to determine that the aforementioned exception in

Mississippi Rule of Evidence 504(d) cannot apply in today’s case, arguing that exploitation

of children is not a “crime against the person of any minor child,” and only those crimes

specifically listed in Title 97, Chapter 3 of the Mississippi Code are such crimes. Id. This

argument is without merit. In Fisher, this Court recognized that “Miss. R. Evid. 601(a)(2)

indicates an obvious growing concern about sexual and violent abuse against children,” and

as a result, amended Rule 504(d) to “reflect the same.” Fisher, 690 So. 2d at 272. Rule

504(d) was amended to reflect the same intentions as Rule 601(a)(2);5 therefore, prosecution

for “a criminal act against any child” absolves the husband-wife privilege as set out in Rule

504. There is no indication that Rule 504(d) was intended to apply only to the crimes listed

in Title 97, Chapter 3 of the Mississippi Code, as crimes against persons, as Hood contends

to this Court. Exploitation of children is a crime against the persons of minor children;

therefore, the trial judge did not abuse her discretion in admitting Melissa’s testimony.6

¶13.   Furthermore, Mississippi Rule of Evidence 504 has no bearing on Melissa’s

testimony. Melissa testified about a conversation between herself and Hood that occurred

before they were married; a conversation that also involved her sister; and a conversation that




       5
      Rule 601 of the Mississippi Rules of Evidence is essentially the same as Mississippi
Code Section 13-1-5, as amended. See Miss. Code Ann. § 13-1-5 (Rev. 2002).

       6
       It must also be remembered that Melissa had a four-year-old son living in the home
with her and Hood.

                                              7
took place with Detective Davis, none of whom are protected by the marital privilege. All

relevant conversations between Hood and Melissa occurred either before their marriage or

in the presence of third persons. No protected confidential communication is at issue in

today’s case.

¶14.   At trial, Melissa testified as follows regarding the first tape which she discovered prior

to her marriage to Ronald Hood:

       Q:       Okay. All right. Now, I'm going to come back to that in a minute with
                that tape. But prior to that date, prior to March 16th of 2006, had you
                ever seen a tape or tapes like that one before?
       A:       Yes, sir, I did. Uh -- in November, when he was at his sister's trailer,
                out off of Dover Road, I was staying out there with them, helping him
                take care of his elderly sister that's in a wheelchair, we were sitting in
                his room watching TV, and I asked him what was in his, in the doors
                under where his TV was setting, and he told me it was his duffle bags
                and stuff, and that's when we started the conversation. And I'm like,
                "What stuff?" And he said, "There's tapes." I said, "Get one of them
                out and let me see what it is." He did, and when he put it in, I said,
                "Whoa! Hold." I said, "Unh-unh, I can't watch that. That's stomach
                turning." And I turned to him, and I said, "I've got a little one." I said,
                "If you're going to marry me, if you're going to live in my house, you've
                got to get rid of this stuff. I can't take this." And he said, "You don't
                got nothing to worry about. Before" – . . . .

Rule 504 states, “A communication is confidential if it is made privately by any person to

that person’s spouse and is not intended for disclosure to any other person.” Miss. R. Evid.

504(a). Melissa’s testimony about Hood’s statements prior to their marriage, discussing the

video of nude boys, is not covered by the husband-wife privilege, and the statements were

admissible in evidence as statements against interest. Miss. R. Evid. 804(b)(3). The

following exchange also took place at trial, during the State’s direct examination of Melissa:


                                                 8
       Q:    And so then on March 13th, you found this tape?
       A:    Yes, sir.
       Q:    All right. Now, you were telling us that when you found it, the first
             thing you did was take it to your sister?
       A:    No, sir. I left it at my house, and I went to get my sister.
       Q:    Okay.
       A:    Took her back to my house, showed her what it was, and she got
             furious!
       Q:    Okay. What did she do after you showed it to your sister?
       A:    She took it out, she ripped it up, threw it in the garbage can, waited for
             him to come home, and she told him, said, "I've got a four-year-old
             nephew that I'm concerned about."
                     [DEFENSE COUNSEL] Objection, Your Honor, to hearsay.
                     THE COURT: Sustained.
                     [PROSECUTOR]: Don't say what your sister said.
       Q:    So she confronted him about the tape?
       A:    Right.
       Q:    Did Mr. Hood say anything in response to her?
       A:    To be honest with you, I don't recall.
       Q:    You don't recall him saying anything about the tape?
       A:    No, sir. The only thing that he did say is "I've got it because I started
             the stuff."
       Q:    Okay. At that point, what, if anything, was said to Mr. Hood about him
             remaining in the house?
       A:    She told him he had to get out.
                     [DEFENSE COUNSEL]: Objection to hearsay.
                     THE COURT: Sustained.
       Q:    Did Mr. Hood leave?
       A:    Yes, sir.
       Q:    What happened then?
       A:    Me and my sister went down to Mr. Larry Davis's office, and I told him
             what I had found, and I told him that my nephew had got the tape out
             of the garbage, fixed it, put it back together, and he come to my daddy's
             trailer and got it.
       Q:    And did you turn the tape over to Detective Davis?
       A:    Yes, sir, I did.

¶15.   The conversation among Hood, Melissa, and Melissa’s sister was not confidential, due

to the presence of a third party. “[T]he presence of another person, even a family member,


                                             9
is deemed to mean that the communication was not intended to be confidential.” Fanning

v. State, 497 So. 2d 70, 74 (Miss. 1986) (citations omitted). Further, statements Melissa

made to the detective outside her husband’s presence are not privileged. See Shell v. State,

554 So. 2d 887, 894 (Miss. 1989). Rule 504 also does not require the suppression of the

evidence retrieved as a result of Davis’s discussion with Melissa. See Ladner v. State, 584

So. 2d 743, 748 (Miss. 1991).

¶16.   Based on our discussion, we find as a matter of law that Melissa was competent to

testify against her husband, Ronald Hood, and that she was not prevented from testifying

against her husband by the husband-wife privilege set out in Mississippi Rule of Evidence

504. The trial judge thus acted within her discretion in admitting the testimony of Melissa

Hood. Accordingly, this issue is without merit.

       II.    WHETHER THE MALES IN THE VIDEO WERE ENGAGED IN
              “SEXUALLY EXPLICIT CONDUCT.”

¶17.   Hood contends that this case is “fatally defective in that the children involved in the

video at issue in this matter, while photographed in their naked state, are not engaged in

sexually explicit behavior.” Hood was indicted and convicted under Mississippi Code

Sections 97-5-31 and 97-5-33(5), as amended. Section 97-5-33(5) states: “No person shall,

by any means including computer, possess any photograph, drawing, sketch, film, video tape

or other visual depiction of an actual child engaging in sexually explicit conduct.” Miss.

Code Ann. § 97-5-33(5) (Rev. 2006). Section 97-5-31 defines “‘sexually explicit conduct’”

as “actual or simulated: . . . (v) Lascivious exhibition of the genitals or pubic area of any


                                             10
person . . . .” Miss. Code Ann. § 97-5-31 (Rev. 2006). Further, “‘[s]imulated’ means any

depicting of the genitals or rectal areas that gives the appearance of sexual conduct or

incipient sexual conduct.” Id. As this Court has not adopted a test for determining whether

a visual depiction of a child constitutes “lascivious exhibition of the genitals or pubic area,”

we look to other jurisdictions. The United States Court of Appeals for the Fifth Circuit

applies the test of United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d, 813 F.2d

1231 (9th Cir. 1987). United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001). See also

United States v. Carroll, 190 F.3d 290, 297 (5th Cir. 1999). The factors to consider are as

follows:

       1. whether the focal point of the visual depiction is on the child's genitalia or
       pubic area;
       2. whether the setting of the visual depiction is sexually suggestive, i.e. in a
       place or pose generally associated with sexual activity;
       3. whether the child is depicted in an unnatural pose, or in inappropriate attire,
       considering the age of the child;
       4. whether the child is fully or partially clothed, or nude;
       5. whether the visual depiction suggests sexual coyness or a willingness to
       engage in sexual activity;
       6. whether the visual depiction is intended or designed to elicit a sexual
       response in the viewer.

Grimes, 244 F.3d at 380 (citations omitted). This list is not exhaustive, and no single factor

is dispositive. Id. See also United States v. Knox, 32 F. 3d 733, 746 (3d Cir. 1994). Also,

the United States Court of Appeals for the Ninth Circuit stated:

       A lascivious exhibition is pornographic, even if not obscene, and is considered
       in the context of “the depictions . . . imposed . . . by the attitude of the viewer
       or photographer.” United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir. 1990).
       Accordingly, “applied to the conduct of children, lasciviousness is not a
       characteristic of the child photographed but of the exhibition which the

                                               11
       photographer sets up for an audience that consists of himself or likeminded
       pedophiles.” United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987).
       This focus results in a definition of lascivious that criminalizes images “so
       presented by the photographer as to arouse or satisfy the sexual cravings of a
       voyeur.” Hill, 459 F.3d at 972 (citation omitted).

United States v. Banks, 556 F.3d 967, 979-80 (9th Cir. 2009).

¶18.   Today, we adopt the above-enumerated Dost factors, which previously were adopted

by the Fifth Circuit in Carroll, 190 F.3d at 297, and reaffirmed by the Fifth Circuit in

Grimes, 244 F.3d at 380. Having done so, and in applying the Dost factors to the record

before this Court in today’s case, we conclude that the jury was justified in its finding that

the images it viewed depicted “sexually explicit conduct.” Also, this conduct can be actual

or simulated lascivious exhibition of the genitals. See Miss. Code Ann. § 97-5-31. One tape

shows numerous close-ups of only the genitals of young boys. The camera zooms in on the

genital area and nothing else for extended periods of time, making that area the only focal

point. The other tape also shows children’s genitals in almost every depiction and from

numerous angles. Sufficient evidence was before the jury for its findings that the videotape

it viewed contained visual depictions of children engaging in sexually explicit conduct, or

lascivious exhibition of genitals. The jury was justified in its finding that the videos were

clearly designed to elicit a sexual response in the viewer. Further, as stated by the prosecutor

during closing arguments:

       Now, in the videos we have just seen, we not only have exhibition of the
       genitals in every shot, in the context of particularly in the second two, all male
       to male, all young males of different ages in poses that are specifically for the
       camera and to display the genital area. And in the last video that was taken,
       there is (sic) shots of every person who is posed in there of not only a photo

                                              12
         from a distance, but close-ups of the genital area, themselves, where nothing
         else can be seen after they go in these close ups, other than the genitals of the
         individuals involved.
         ...

         These photographs certainly are for the purpose of stimulating lustfulness and
         sexual desire or sexual suggestive, which is all lascivious means. So those
         displays, themselves, there’s no other reason to do the close up shots of the
         genitals only, other than for some sexual connotation, and that meets the
         definition of the statute.

The evidence before the jury undoubtedly justified a finding that the male children depicted

in the videotapes were engaged in sexually explicit conduct. As such, this issue is without

merit.

         III.   WHETHER THE STATUTES IN                           QUESTION          ARE
                UNCONSTITUTIONALLY VAGUE.

¶19.     Hood argues that the statutes in question are unconstitutionally vague stating, “they

do not give adequate notice as to what is meant by the term ‘lascivious;’” therefore, he “was

left to determine for himself whether the photos fell within the definition, and whether

possession of the material in question was proscribed.” This Court, however, has been

“consistent in holding that we need not consider matters raised for the first time on appeal,

which practice would have the practical effect of depriving the trial court of the opportunity

to first rule on the issue, so that we can then review such trial court ruling under the

appropriate standard of review.” Alexander v. Daniel, 904 So. 2d 172, 183 (Miss. 2005).

See, e.g., Triplett v. Mayor & Aldermen of Vicksburg, 758 So. 2d 399, 401 (Miss. 2000)

(citing Shaw v. Shaw, 603 So. 2d 287, 292 (Miss. 1992)). See also Patterson v. State, 594



                                                13
So. 2d 606, 609 (Miss. 1992). Thus, Hood’s argument on appeal is procedurally barred due

to his failure to assert it at the trial-court level.

       IV.     WHETHER THE PROSECUTION MADE IMPROPER
               ARGUMENTS WHICH TENDED TO INFLAME THE
               PASSIONS AND PREJUDICES OF THE JURY AGAINST THE
               DEFENDANT.

¶20.   Hood asserts that the prosecution made comments during opening statements and

closing arguments which had the effect of prejudicing the jury. Hood contends that the

following comments by the State during opening statements were improper: (1) “[T]he

genital areas are exhibited for the purposes of the cameras;” and (2) “[I]n every instance, the

camera drops down to the genital area. So you don’t see the faces of the boys. You don’t

see anything but the genitals being shown. And this goes on for about thirty minutes.” The

record, however, reveals that no objections were made to the State’s opening statements, and

“[a]bsent a contemporaneous objection at the trial level as to a particular issue, that issue is

waived on appeal.” Jones v. State, 856 So. 2d 285, 293 (Miss. 2003) (citing Smith v. State,

724 So. 2d 280 (Miss. 1998); Whigham v. State, 611 So. 2d 988, 995 (Miss. 1992)).

Alternatively, in considering the merits of Hood’s contentions, there was nothing improper

about the prosecutor’s comments. The prosecutor, during opening statements, merely

informed the jury what he believed the evidence would show during the trial. The tapes,

which were later admitted into evidence, revealed that which the prosecutor had stated to the

jury they would reveal.




                                                  14
¶21.   However, Hood further contends that these statements made by the prosecutor, when

considered along with Melissa’s improper inflammatory testimony, constitute error. During

her direct-examination testimony, in describing her sister’s initial reaction to seeing the tape,

Melissa stated: “She took it out, she ripped it up, threw it in the garbage can, waited for him

to come home, and she told him, said, ‘I’ve got a four-year-old nephew that I’m concerned

about.’” Defense counsel made a hearsay objection to this statement, and the Court sustained

the objection, whereupon the prosecutor admonished Melissa “[d]on’t say what your sister

said.” There is no need to address the merits of whether this statement, made by Melissa’s

sister in Hood’s presence, constituted hearsay, because, again, the prosecutor’s comments

made to the jury during opening statements were not contemporaneously objected to, nor can

they in any way be deemed to be improper. Thus, there can be no cumulative error.

¶22.   Hood further contends that the following statements made by the State during closing

arguments were improper: “Will you tear him up when you get back there?” and in referring

to the tapes of the Little League World Series, “that’s his preferred age, and that’s his

preferred gender.” 7 During closing arguments, the prosecutor stated to the jury: “My

question now is will you do what’s right? Will you follow the law? Will you follow the law?

Will you tear him up when you get back there? He needs to be found guilty of what he’s



       7
        http://en.wikipedia.org/wiki/Little_League_World_Series. The Little League World
Series is a baseball tournament held in August of each year in Williamsport, Pennsylvania,
for children age eleven and twelve years old. (Last accessed June 22, 2009.)



                                               15
done.” Hood alleges there is a cumulative prejudicial effect when one considers these

alleged improper statements made by the prosecutor during closing arguments along with

Melissa’s testimony that when she and her sister confronted Hood about the tape, Hood

stated that “if he had to, he would go back to California where it was legal so he could do it

again.” However, Hood objected to neither the prosecutor’s statements during closing

arguments, nor this testimony by Melissa during trial. Nor was there an objection to the

prosecutor’s statements during closing arguments pertaining to the Little League World

Series and the “preferred age/preferred gender” comments. We thus consider this issue

waived. Jones, 856 So. 2d at 293.

                                      CONCLUSION

¶23.   For the reasons stated, the Yazoo County Circuit Court’s judgment of conviction

against Ronald Hood for the crime of exploitation of children and the resulting sentence of

twenty years imprisonment as a habitual offender without the possibility of parole is

affirmed.

¶24. CONVICTION OF EXPLOITATION OF CHILDREN AND SENTENCE OF
TWENTY (20) YEARS, AS A HABITUAL OFFENDER, WITHOUT THE
POSSIBILITY OF PAROLE, IN THE CUSTODY OF THE      MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.

     WALLER, C.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR.
DICKINSON, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. KITCHENS, J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., DICKINSON AND
CHANDLER, JJ.


       KITCHENS, JUSTICE, CONCURRING IN PART AND IN RESULT:

                                             16
¶25.   Although I concur with Parts I, II, and IV of the majority’s opinion, as well as with

today’s judgment, I do not join Part III because I would find that no procedural bar forbids

Hood’s challenge to the constitutionality of the statute under which he stands convicted.

¶26.   Generally, an error that does not draw an objection in the trial court is deemed waived.

We have held that this is true even for constitutional challenges; but where the challenge

concerns a fundamental constitutional right, we will not allow a procedural omission to

prevent our considering it. Graves v. State, 969 So. 2d 845, 846-47 (Miss. 2007). See also

Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995).

¶27.   The rights guaranteed under the First Amendment to the U.S. Constitution and Article

3, Section 13, of the Mississippi Constitution are fundamental rights. See, e.g., Gitlow v. New

York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (“[F]reedom of speech and

of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the

due process clause of the Fourteenth Amendment from impairment by the states.”). Likewise,

criminal defendants enjoy a fundamental right to due process. See, e.g., Luckett v. State, 582

So. 2d 428 (Miss. 1991). Because the conviction from which Hood filed this appeal stems

from conduct implicating the First Amendment, see Miller v. California, 413 U.S. 15, 93 S.

Ct. 2607, 37 L. Ed. 2d 419 (1973), and because the vagueness argument he presents is, at its

core, a contention that he has been denied due process, we should analyze this assignment

of error.

¶28.   Despite this disagreement, I maintain my concurrence with the majority’s judgment

in this case because I conclude that the required analysis lends no aid to the appellant. The

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U.S. Supreme Court has settled the point that, although some forms of pornography enjoy

the protection of the First Amendment, see id., child pornography is not among them. New

York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982).

¶29.   Hood contends that the term “lascivious,” as used by Section 97-5-31 of the

Mississippi Code to define the term “sexually explicit conduct” under Section 97-5-33, is

unconstitutionally vague and that his conviction therefore violates the constitutional

guarantee of due process. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct.

2294, 33 L. Ed. 2d 222 (1972). The test for vagueness is whether a statute proscribing or

requiring conduct does so “in terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application . . . .” Connally v. Gen.

Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). For example, in Smith

v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), the high court voided for

vagueness a Massachusetts statute that proscribed “contemptuous[ ]” treatment of the flag

of the United States because the law failed “to draw reasonably clear lines between the kinds

of nonceremonial treatment that are criminal and those that are not.” 8 Id. at 574. On the other

hand, in Grayned, 408 U.S. 104, the justices upheld an Illinois statute that proscribed

disturbance of the peace on school campuses under the expectation that state courts would



       8
        Obviously, the high court greatly abrogated this holding, as it relates to desecrations
of the American flag, by ruling in 1989 that the First Amendment protects communicative
destruction of the banner. Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d
(1989). Nevertheless, the case remains an example relevant to the topic of the vagueness
doctrine.

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limit application of the law to conduct clearly unprotected by the First Amendment. Id. at

111-12. Although the Grayned Court recognized that the ordinance had been crafted by

words of “flexibility and reasonable breadth, rather than meticulous specificity,” id. at 110

(quoting Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969)),

the nation’s highest court found no constitutionally fatal lack of specificity, concluding that

“it is clear what the ordinance as a whole prohibits.” Id.

¶30.   Similarly, it is clear what Section 97-5-33 prohibits, particularly in light of the great

lengths to which the U.S. Supreme Court has gone to identify the boundary between the

realm of material protected by the First Amendment and material properly labeled

constitutionally unprotected child pornography. See, e.g., Ferber, 458 U.S. 747; Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002); United

States v. Williams, 553 U.S. ___, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). As long as the

language of the statute remains sufficiently clear that we are given no indication that this

state’s trial courts will apply their punitive power against constitutionally protected conduct,

we should not apply the vagueness doctrine as Hood urges. Indeed, the record in this case

reveals that Hood mentioned the possibility of relocating to a jurisdiction in which he

believed his conduct would enjoy greater protection. Maj. Op. at ¶2. Therefore, not only can

we say, in accordance with Grayned, that it is clear to us what Section 97-5-33 prohibits;

apparently, it also was clear to Hood himself.




                                              19
¶31.   Therefore, I would find no merit in Hood’s contention that he has been subjected to

punishment under an unconstitutionally vague provision of law. But because I thought it

important to address this issue, I concur in today’s opinion in part and in its correct result.

       GRAVES, P.J., DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.




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