Jerome Mack Austin, Jr. v. State of Mississippi

CourtCourt of Appeals of Mississippi
DecidedJune 25, 2019
Docket2018-KA-00369-COA
StatusPublished

This text of Jerome Mack Austin, Jr. v. State of Mississippi (Jerome Mack Austin, Jr. v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerome Mack Austin, Jr. v. State of Mississippi, (Mich. Ct. App. 2019).

Opinion

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.

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