IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00068-COA JOSEPH JUSTICE A/K/A JOSEPH EDWARD JUSTICE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/16/2014 TRIAL JUDGE: HON. GERALD W . CHATHAM SR. COURT FROM W HICH 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, W ITH 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 f ondling his nine-y ear-old stepson, N.J. 1 Justice appeals, arguing t hat t he tender-y ears hearsay exception was erroneously a pplied and that the

1 D u e t o th e n atu re o f th is case an d th e ag e o f th e v ictim , w e su b stitu te in itials f o r th e v ictim ’s n am e.verdict was not supported by the weight of the evidence. Finding n o error, this Court af f irm s. FACTS ¶2. On the night of October 1 4 , 2012, Elizabeth Just i ce, N.J.’s m other, walked into her son’s r oom and turned on the light. She f ound her husband, Joseph Justice, kneeling beside
N.J

. ’ s b e d

. S h e f

o und her son in bed with his pants and underwear down to his ankles.
E l i zabeth called t he police, a nd Justice was taken to t he Southaven Police Departm ent f or questioning. ¶3. Justice told police, and claim s to this day , that he w as m asturbating in N.J.’s room in order t o hide f

r o m his wif

e. He told of

f icers t hat Eliz a b e t h would f ind him in the other

room s of the house. ¶4. On Oct o b e r 18, 2012, N.J. was interviewed at the Fam ily C risis Services C enter by Meredith Rawl, an expert in the f i eld of f orensic interviews and child sexual abuse. During the i n t erview, N.J. told R awl t hat Justice w as on his knees in a chair by the bed, touching N.J.’s penis and looking at a cell p hone. N.J. also told Rawl that Justice had d one this bef ore and told N.J. on previous occasions to not tell a ny one because he would g o to jail. A couple of m onths l ater, N.J. began seeing psy chologist Dr. W ay ne Lancaster

. N.J. had regular sessions with Dr. Lancaster f or s ix m onths to address f eelings of d epression and conf usion. Videos f rom Rawl’s interview and one of D r . L ancaster’s sessions were adm i tted during trial. ¶5. At trial, J ustice was convicted on one of t h r e e counts of f ondling. The judge later sentenced him to f

if teen y ears in the custody of the Mississippi Departm ent of Corrections, with f ive y ears to serve and ten y e ars on post-release supervision.

2ANALYSIS

I. W hether the tender-years hearsay exception was properly applied. ¶6. Justice contends that hearsay testim ony f rom Rawl and Dr. Lancaster of w hat N.J. told

t h e m w as im

properly adm itted because the court d id not conduct a hearing with i n t h e guidelines of Mississippi Rule of Evidence 803(25). W e review the adm ission of evidence f or abuse of

discretion. W

ebb v. State , 113 So. 3d 592, 597 (¶13) (Miss. Ct. App. 2012). ¶7. W h ile notice w as given of a hearing under Rule 803(25), t he tender-y ears e xception
to the hearsay rule, the court a ctually conducted a com pete n c y h e aring pursuant to Mississippi Rule of Evidence 601. During the hearing, N.J., Rawl, and Dr

. L ancaster testif i ed, and th e court f

ound that N.J. m et the test f or com p etency but d id not address the tender-y ears exception. ¶8. Justice did not object during this pretrial hearing. A t trial, he di d n o t object to the adm ission of testim ony f rom Rawl or Dr. Lancaster. “Failure t o tim ely object to alleged hearsay e v idence acts as a bar preventing the aggrieved party f rom raising the issue on appeal.” Grayson v. State , 850 So. 2d 196, 1 98 (¶5) ( Miss. Ct. A pp. 2 0 0 3 )

. T h i s r u le likewise applies when a def endant f ails to object to hearsay at trial and subsequently claim s that the trial court abused i t s d i s c r etion in not conducting a R ule 803(25) tender-y ears h e a r i n g . Green v
. State , 89 So. 3d 543, 553 (¶24) (Miss. 2012). Theref ore, Justice i s procedurally b ar r e d f

r o m arguing that the testim ony f rom Rawl and Dr. Lancaster was erroneously

adm itted.
II. W hether the verdict was against the weight of the evidence.

3¶9. Justice next argues th a t t h e verdict was against the overwhelm ing weight of the

evidence. He contends that N .J. is unreliable because h e g ave c onf licting versions of events and he took “his m o ther’s f e ars and ma de them r eal.” In reviewing whether a jury verdict was against the weight of the evidence, [ t]his Court m

ust accept as true the e vidence w hich supports t he verdict and will reverse only when co n v i n c e d t hat the circuit court has abused its discretion in f

ailing to grant a new trial. Only in those cases where the verdict is so co n t r a r y t o t h e o verwhelm i ng weight o f the evidence that to allow i t to stand would sanction an unconscionable injustice will this C ourt disturb it on appeal. As such, if the v erdict is against the overwhel mi n g 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 m atter, we acknowledge the “long-standing rule that t he credibility of

a w itness is a q

u estion f or the jury .” Jordan v. State , 80 So. 3d 817, 8 31 (¶63) (Miss. Ct

. App. 2010). N.J. t estif

ied at trial about what happened that night. Videos of interviews between N.J. a nd R awl and N.J. and Dr. Lancaster were also play ed f or the jury

. Rawl and
Dr. Lancaster both testif

ied that they f

ound N .J. to be credible. Elizabeth also t estif ied about what she saw when she walked into N.J.’s room t hat night. Furtherm ore, DNA e vidence was presented about a s t a i n o n N

. J

. ’s bed sheets, where Justice was f ound to be the sole contributor. ¶11. Notably , the jury f ound Ju s t i c e n o t guilty of another count o f f o ndling, w here less evidence was provided to them regarding that specif ic instance. B ased on this evi d e n ce present e d a t t r i a l , the verdict was not against the o verwhelm ing weight of the e vidence. Theref ore, this issue is without m erit.

4¶12. THE JUDG M E N T O F THE CIRCUIT COURT OF DESOTO COUNTY OF

CONVICTION OF FONDLING AND S ENTENCE OF FIFTEEN Y EARS IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF CORRECTIONS, W I TH 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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