James C. Graham v. State of Mississippi
James C. Graham v. State of Mississippi
Opinion
¶ 1. Early one morning, thirteen-year-old Betty 1 told her school bus driver that her father, James Graham, had sexually abused her the night before. Betty said Graham entered the bathroom while she was showering and, later that night, came in to her bedroom and forced her to perform oral sex on him. According to Betty, she threw up beside her bed afterwards.
¶ 2. Graham was prosecuted for one count each of sexual battery and gratification of lust. At trial, both Graham and his wife testified Graham left their bedroom only twice that night, once to use the bathroom and once to get a drink from the refrigerator. Graham denied ever going into Betty's bedroom. Graham's wife testified she knew of his movements the entire night because they had stayed up all night doing drugs.
¶ 3. The jury found Graham not guilty of sexual battery, but it convicted him of gratification of lust. Graham was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, without eligibility for parole.
¶ 4. On appeal, Graham claims the circuit court erred in two respects. First, he claims the trial court erred in admitting four separate statements made by Betty after the incident without holding a hearing to determine whether she was of tender years. See M.R.E. 803(25). Second, Graham claims he received ineffective assistance of counsel at trial.
DISCUSSION
1. Tender-Years Hearing
¶ 5. The standard of review for the admission or exclusion of hearsay evidence is abuse of discretion.
White v. State
,
¶ 6. Graham made no objection to the statements at trial. Still, on appeal, he contends the trial court was required to hold a hearing and determine that Betty was of tender years and that the time, content, and circumstances of her statements provided substantial indicia of reliability before it could admit her out-of-court statements. For this argument, Graham relies on
Nunnery v. State
,
¶ 7. It is not clear what Nunnery did to preserve the issue for appeal, but, at the very least, she filed a motion in limine challenging the evidence.
See
¶ 8. Graham's concerns with the hearsay testimony could be addressed, if at all, for plain error.
See
Keithley v. State
,
¶ 9. Absent a contemporaneous objection, the trial court was not required to hold a tender-years hearing nor make factual findings related to whether the tender-years exception applied, and we cannot find plain error in the unopposed admission of hearsay statements. This issue is without merit.
2. Ineffective Assistance of Counsel
¶ 10. Graham claims he received ineffective assistance of counsel at trial. In support of his claim, Graham argues his attorney was ineffective in not objecting to hearsay testimony and eliciting testimony that Graham may have previously been arrested for rape in the past.
¶ 11. Typically, claims of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal.
Pinter v. State
,
¶ 12. As we explained in the prior issue, Graham's attorney's decision not to object to the victim's various statements appears to have been trial strategy. The same appears to be true for the allegation of prior rape charges; the attorney tried to show that the victim had falsely alleged Graham had been previously charged or arrested for rape. Still, the facts surrounding these issues are not fully apparent from the record, and they are better suited for a motion for post-conviction relief. We deny relief on Graham's ineffective assistance claims on direct appeal without prejudice to file a future motion for post-conviction relief.
¶ 13. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
Because she is a minor, we will refer to the child as "Betty" to protect her identity.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.