7/1/97
                            IN THE COURT OF APPEALS


                                    OF THE


                              STATE OF MISSISSIPPI


                               NO. 95-KA-00367 COA

HERMAN VEASLEY A/K/A HERMAN

VEASLEY, JR., A/K/A "JUNE" APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE


           THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND


                MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOHN LESLIE HATCHER

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: STEPHEN ALAN BRANDON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEWITT ALLRED III

DISTRICT ATTORNEY: LAURENCE Y. MELLEN

NATURE OF THE CASE: CRIMINAL (FELONY)

TRIAL COURT DISPOSITION: CTS I, II, III, IV, V RAPE: EACH COUNT SENTENCED TO
LIFE; CT I SENTENCE TO RUN CONSECUTIVE TO ANY AND ALL SENTENCES
PREVIOUSLY IMPOSED; CTS II, III, IV, V CONSECUTIVE TO AND SHALL COMMENCE
AT THE TERMINATION OF CT I

MOTION FOR REHEARING FILED:7/15/97

CERTIORARI FILED: 9/24/97

BEFORE McMILLIN, P.J., DIAZ, AND SOUTHWICK, JJ.

McMILLIN, P.J., FOR THE COURT:
Herman Veasley stands convicted by a Coahoma County Circuit Court jury of five counts of rape of
his stepdaughter, who was thirteen years of age at the time of the alleged offenses. He appeals to this
Court claiming four errors of law that would require his convictions to be reversed.


                                                   I.


                                           Hearsay Evidence

The evidence for the State consisted of testimony from a social worker, the sheriff, the stepdaughter,
and a medical doctor. The only evidence directly implicating Veasley in the crime came from the
testimony of the stepdaughter. However, both the social worker and the sheriff were permitted to
testify to out-of-court statements made to them by the stepdaughter about the sexual abuse. These
statements tended to corroborate the victim's in-court testimony. The social worker was also
permitted to relate statements made to her by the stepdaughter concerning incidents of physical abuse
of the child's mother by the defendant.

Veasley had filed a motion in limine to prevent the introduction of all aspects of this testimony,
claiming it to be inadmissible hearsay. He further alleged that the evidence of spousal abuse was
inadmissible as being in violation of Mississippi Rule of Evidence 404(b). This rule prevents
introduction of evidence of other bad acts for the purpose of proving the character of the defendant
in order to show that, as to the charged crime, he was merely acting in conformity with that
character. See M.R.E. 404(b).

As to the hearsay objection, the trial court ruled the evidence admissible under Rule 803(25), an
exception to the hearsay rule that permits, in certain circumstances, the admission of out-of-court
statements made by "a child of tender years describing any act of sexual contact performed with or on
the child. . . ." M.R.E. 803(25). The court also determined evidence of spousal abuse to be admissible
as tending to corroborate the victim's explanation for why she did not report prior incidents of sexual
abuse by her stepfather. It was anticipated that she was going to testify that the defendant had
threatened her and her mother with physical harm if she reported the abuse. The State contended her
explanation for her silence was made more credible by her knowledge of the defendant's capacity for
violent behavior.


                                                   A.


                                 Mississippi Rule of Evidence 803(25)

We conclude that the trial court erred as a matter of law in ruling on the admissibility of the victim's
out-of-court statements. Rule 803(25) was adopted after the Mississippi Legislature sought to speak
on the subject by enacting the Evidence of Child Sexual Abuse Act. See Miss. Code Ann. 13-1-401,
et. seq. In that enactment, the Legislature purported to legislate the admissibility of certain out-of-
court statements by a child under the age of twelve. See Miss. Code Ann 13-1-403(1) (1972). The
Mississippi Supreme Court, in the case of Hall v. State, 539 So. 2d 1338, 1345 (Miss. 1989), found
it beyond the province of the Legislature to prescribe rules of evidence in judicial proceedings and
ignored the statute. The court proceeded to find reversible error in the introduction of evidence that
would, arguably, have been admissible under 13-1-403(1). Hall v. State, 539 So. 2d at 1348.

The text of the subsequently adopted Rule 803(25) is not identical to section 13-1-403(1), but it is
evident that it was designed to address essentially the same issue, i.e., whether there are situations in
sex offense cases involving younger children where it is appropriate to override traditional strictures
on the admissibility of hearsay testimony. Perhaps the most evident distinction between the two
attempts to address the same issue is that the judicially-ignored statutory enactment set a definite age
for its applicability -- "a child under the age of twelve" -- whereas the rule speaks only of a "child of
tender years." See Miss. Code Ann. 13-1-403(1)(1972); M.R.E. 803(25). The rule itself does not
attempt to define with any chronological exactitude what constitutes a "child of tender years." The
comment to the rule addresses the question but provides no definite answer. It suggests that "[m]any
jurisdictions limit their analogous exceptions to declarants under the age of fourteen years." M.R.E.
803(25) cmt. However, it must be noted that this idea is specifically rejected as the rule in
Mississippi. The comment goes on to indicate that "the exception should not be necessarily limited to
a specific chronological age." M.R.E. 803(25) cmt. Certainly, the ensuing discussion in the comment
concerns considerations of a declarant older than fourteen being mentally still "a child of tender
years;" however, the unspoken reverse of that proposition must be equally true, and there may be
persons under the age of fourteen that possess the requisite mental maturity to fall outside the class
of "children of tender years." See M.R.E. 803(25) cmt.

It is also important to remember that there is a two-step process for evaluating the admissibility of a
young victim's out-of-court statements. The court must first determine that the declarant is, in fact, a
"child of tender years" before it may move to the second step of determining whether "the time,
content, and circumstances of the statement provide substantial indicia of reliability. . . ." M.R.E.
803(25).

While this Court will concede that in situations involving a very young child, there may exist no
legitimate issue of fact as to whether the child is "of tender years" for purposes of this rule, we do not
think in this case that the matter is so forgone a conclusion that the trial court may simply assume the
fact. The victim was thirteen years old when she made the statements implicating her stepfather.
Evidence was developed at trial that, in fact, she had been sexually active with other adults besides
her stepfather in the period prior to the incidents charged in the indictment and, thus, prior to the
time the statements were made. This sexual activity was, by her own testimony, purely consensual,
though she claimed that she had consented because of the encouragement or insistence of her
stepfather.

The trial court, in ruling on the 803(25) issue, seemed to have misapprehended the import of the
comment to the rule regarding chronological age, since he stated, "I don't consider age thirteen to be
a child of tender years," and then immediately thereafter said, "Except to the extent that it is
permitted in 803.25 in which case, according to the cases and so forth, anyone under fourteen is
considered to be, for 803.25 purposes, to fit within that exception." (emphasis supplied).

Thus, the trial court improperly assumed, without any evidence, the answer to an important question
of fact affecting the admissibility of the victim's out-of-court statements -- a question that, on this
record, seems one upon which reasonable fact-finders might differ. The error appears irreparable. The
defense, at the motion in limine hearing, suggested the propriety of the trial court hearing from the
victim in order to make a determination as to her status as a "child of tender years," and the trial
court declined to consider the matter. There is, thus, no pertinent evidence in the record that would
permit a remand for a post-verdict hearing regarding the applicability of the "tender years" exception
to this victim's out-of-court statements.

We, therefore, cannot conclude with the requisite certainty that the unquestionably damaging hearsay
evidence offered by the social worker and the sheriff in this case was properly admitted. Because the
evidence was so central to the issue of guilt in this case, we are convinced that the improper
admission of the evidence requires reversal as affecting a "substantial right of the [defendant]." See
M.R.E. 103(a); see also Gullett v. State, 523 So. 2d 296, 300 (Miss. 1988); Murphy v. State, 453 So.
2d 1290, 1293-94 (Miss. 1984). For these reasons, we find it necessary to reverse and remand this
case for a new trial.

It should be noted that this opinion does not constitute an adjudication that the statements are
inadmissible. That is an issue that must be resolved at retrial, should the State propose to offer the
same or similar evidence. We only conclude today that a necessary prerequisite to the admission of
such statements is an on-the-record finding by the trial court, based upon findings of fact stated into
the record, that this victim was "a child of tender years" within the meaning of Rule 803(25). It is
only upon that foundation that the trial court may properly proceed to the secondary issue of whether
"the time, content, and circumstances of the statement[s] provide substantial indicia of reliability . . .
." M.R.E. 803(25).


                                                   B.


                                Evidence of Spousal Abuse by Veasley

As to the second issue regarding the admissibility of evidence of spousal abuse, we find no error in
permitting the State to present evidence tending to explain the otherwise puzzling question of why
the victim delayed so long in reporting the alleged acts of sexual abuse by her stepfather. Defense
counsel freely admitted his intention to attempt to impeach the victim by examining her on the
subject. In any event, when the State's evidence necessarily raises questions that, if left unanswered,
may make the State's proof seem doubtful, we think the State ought to be permitted to offer evidence
in its case-in-chief that tends to explain and make more credible evidence that would otherwise seem
to be of questionable probative value.

Nevertheless, on retrial it must be remembered that the issue upon which the evidence is admissible is
not directly on the question of whether the defendant is a spousal abuser. Rather, the true issue is
what knowledge the victim had of such abuse that would tend to add strength to her claim that she
failed to report the abuse earlier out of justifiable fear of physical retribution by the defendant. For
that reason, evidence of spousal abuse incidents of which the victim was unaware have no relevance
to the case and would appear inadmissible under Rule 404(b). Likewise, because of the undoubtedly
prejudicial impact of such evidence, the trial court should carefully monitor the quality and quantity
of such evidence to ensure that, at some point, further evidence, though perhaps bearing directly on
the victim's understanding of the propensities of her stepfather for violence, ought to be excluded
because "its probative value [will be] substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or [may be] misleading [to] the jury. . . ." M.R.E. 403.

This observation relates only to direct testimony offered at trial, however. Rule 803(25) very
narrowly restricts out-of-court statements to a statement "describing any act of sexual contact
performed with or on the child by another . . . ." M.R.E. 803(25). This language may be broad
enough to include statements by the victim of threats by the alleged assailant to procure her silence
since such statements could be considered an integral part of the story of the crime, necessary for the
jury to fully understand the proof. See Hurns v. State, 616 So. 2d 313, 321 (Miss. 1993) (quoting
Wheeler v. State, 536 So. 2d 1347, 1352 (Miss. 1988)). However, we do not find the language of the
rule broad enough to encompass statements made by the victim concerning specific events of spousal
abuse related by the victim.

Additionally, the admissibility of evidence of spousal abuse in rebuttal for the sole purpose of
impeaching Veasley's denials that he ever engaged in such activity appears to run afoul of strictures
against the introduction of extrinsic evidence to impeach a witness on a collateral issue.

Therefore, many courts maintain the safeguarding rule that a witness may not be impeached by
producing extrinsic evidence of "collateral" facts to "contradict" the first witness's assertions about
those facts. A matter is "collateral" if the matter itself is not relevant in the litigation to establish a
fact of consequence, i.e., not relevant for a purpose other than mere contradiction of the in-court
testimony of the witness.

1 John W. Strong et al., McCormick on Evidence 45 at 169 (4th ed. 1992).

The sole issue, as we have already observed, regarding incidents of spousal abuse involve those that
can, in some manner, be shown to affect the victim's alleged decision to take her stepfather's threats
of physical harm seriously enough to maintain silence. Any incidents of spousal violence not directly
probative on this issue would be collateral and not the proper subject of extrinsic evidence such as
was introduced by the State in rebuttal.

                                                     II.


                      Admissibility of Evidence of Uncharged Incidents of Abuse

The defendant's claim that evidence of prior incidents of sexual misconduct involving the victim were
not admissible under Rule 404(b) is without merit under the rule of Wilson v. State, 515 So. 2d 1181
(Miss. 1987). In Wilson, the court held that testimony concerning "substantially similar prior sexual
acts with the same person, that is sexual acts of the same general type as those charged in the
indictment" is probative of the issue. Id. at 1182. This evidence is admissible to "show appellant's
lustful, lascivious disposition toward his particular victim, especially where, as here, the victim was
under the age of consent." White v. State, 520 So. 2d 497, 500 (Miss. 1988).


                                                     III.
                                     The Weight of the Evidence

It is unnecessary to address the issue concerning the weight of the evidence since we are reversing for
                                      a new trial on other grounds.

THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS REVERSED AND
 REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF
          THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

BRIDGES, C.J., THOMAS, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, AND
SOUTHWICK, JJ., CONCUR. PAYNE, J., CONCURS IN PART AND DISSENTS IN PART
                    WITH SEPARATE WRITTEN OPINION.


                                            7/1/97
                                  IN THE COURT OF APPEALS


                                               OF THE


                                     STATE OF MISSISSIPPI


                                      NO. 95-KA-00367 COA

                              HERMAN VEASLEY A/K/A HERMAN

                          VEASLEY, JR., A/K/A "JUNE" APPELLANT

                                                  v.

                              STATE OF MISSISSIPPI APPELLEE


               THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND


                      MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

                 PAYNE, J., CONCURRING IN PART, DISSENTING IN PART:

  I agree with the majority on those issues which they affirm. I disagree, however, with the majority's
decision to reverse the trial court on the ground that the judge failed to make an on the record finding
      that the child is a child of tender years. It escapes me as to how the majority can reach such a
    conclusion while at the same time quoting from the record the trial judge's explanation of why he
considers the child to be of tender years. As the majority points out, the judge looked to the rules and
     found that "[m]any jurisdictions limit their analogous exceptions to declarants under the age of
 fourteen." M.R.E. 803(25) cmt. Granted, the comment goes on to state that rule 803(25) should not
    be necessarily limited to a specific chronological age, but it does not state that a judge must jump
   through evidentiary hoops to determine if a child is of tender years. Id. It seems apparent from the
  language of the rule that the portion concerning tender years is a determination which is left to the
discretion of the judge. Rule 803(25) does provide that a judge must conduct a hearing to determine
indicia of reliability, but the rule says nothing about making specific on the record findings to support
                              a conclusion that the child is one of tender years.

In the present case, the judge looked to the comments for guidance and concluded from the language
of the note that a thirteen- year-old child does fit within the tender years age range. I do not see how
  we can fault the judge for this determination as the majority correctly points out that our case law
 gives trial courts very little instruction on what age range the "tender years" actually encompasses. I
 am not sure what more the majority expects the judge to do in making this determination. It would
  seem that any worry that one might have about a trial judge making a mistake in concluding that a
   child is one of tender years would necessarily be evident when the hearing to determine indicia of
reliability was conducted. After all, the factors that are considered in determining indicia of reliability
include such considerations as motive to lie, general character of the declarant, the age or maturity of
 the declarant, and whether the declarant's age, knowledge, and experience make it unlikely that the
                                 declarant fabricated. M.R.E. 803(25) cmt.
