Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-KA-00294-COA ALANDO RODGERS A/K/A ALANDO LADALE APPELLANT RODGERS v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/04/2025 TRIAL JUDGE: HON. LEE JACKSON HOWARD V COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD DISTRICT ATTORNEY: SCOTT WINSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/15/2026 MOTION FOR REHEARING FILED: BEFORE CARLTON, P.J., WEDDLE AND LASSITTER ST. PÉ, JJ. CARLTON, P.J., FOR THE COURT: ¶1. Alando Rodgers was convicted in the Oktibbeha County Circuit Court of three counts of sexual battery. On appeal, Rodgers argues that the trial court erred in admitting hearsay testimony under the “tender years” exception. Finding no reversible error, we affirm. FACTS ¶2. The victims’ mother, Justice, was in a relationship with Alando Rodgers for approximately three years. During their relationship, Rodgers lived with Justice and her eight children in an apartment in Starkville, Mississippi. Their relationship ended in late 2020. ¶3. A year after the breakup, three of Justice’s daughters—Amy, Melissa, and Jane1—disclosed to Justice that Rodgers had abused them when he lived with the family. The girls informed Justice that Rodgers had forced them to perform oral sex on him and had shown them pornography. Justice called the police, and officers took statements from Justice and her daughters. Amy, Melissa, and Jane were interviewed at the Child Advocacy Center by forensic interviewer Penny Peralto. The girls were also referred for a forensic medical examination. The medical examination revealed that Melissa had contracted syphilis and that she needed to be treated with antibiotics. Rodgers was eventually charged with three counts of sexual battery. ¶4. Before trial, the State filed a notice of intent to introduce tender-years hearsay testimony concerning the girls’ disclosures to Justice, Peralto, and Dr. Beth Brownlee (the pediatrician who treated Melissa for syphilis) under Mississippi Rule of Evidence 803(25). At the time of their statements, Melissa and Jane were nine and seven years old, respectively, and were presumed to be children of tender years. See infra ¶13. The trial court held a pre-trial tender-years hearing that focused on whether Amy—who was fourteen years old at the time of her statement—also qualified as a child of tender years. Based on the evidence presented, the trial court ruled that Amy was mentally and emotionally a child of tender years and that her statement contained sufficient indicia of reliability to fall within the tender-years hearsay exception. In an order entered after the hearing, the trial court stated that “the children in this case . . . are of tender years” and that the testimony met the requirements for admissibility under Rule 803(25). 1 The Court uses aliases to protect the identities of sexual assault victims. 2 ¶5. At trial, Justice testified about the girls’ statements to her regarding Rodgers’s abuse. The jury also heard testimony from Melissa, Jane, and Amy. All three girls testified that Rodgers showed them pornography and made them perform oral sex on him. ¶6. Melissa testified that she was approximately seven years old when Rodgers first abused her. Melissa testified that the abuse occurred more than once, and she described one incident that occurred in a car and another incident that occurred at home. Melissa explained that she was afraid to disclose the abuse because Rodgers had threatened to “whoop” her with a stick if she told anyone. ¶7. Like Melissa, Jane testified that Rodgers abused her on more than one occasion, and she stated that the abuse occurred in a car and at the apartment. Jane also testified that Rodgers threatened to beat her with a stick if she told anybody about the abuse. ¶8. Dr. Brownlee examined the girls after their statements. Dr. Brownlee testified that Melissa tested positive for syphilis and had to be treated with antibiotics. Health records showed that Rodgers had been treated for syphilis during the time he lived with Justice. ¶9. Amy testified Rodgers sexually abused her “a lot” and that Rodgers threatened to beat her if she told anyone. Amy also described additional abuse by Rodgers, including vaginal penetration that occurred in the girls’ bedroom while everyone else slept. ¶10. Peralto interviewed Melissa, Jane, and Amy at the Child Advocacy Center. Peralto testified regarding the details that each of the girls reported in their interviews, and the State offered Peralto’s interview summaries of the girls into evidence. Peralto determined that each girl’s disclosure was “consistent with that of a child who has been sexually abused.” 3 ¶11. The jury convicted Rodgers of all three counts of sexual battery, and the trial court sentenced him to serve twenty-five years in the custody of the Mississippi Department of Corrections for Count 1, twenty-five years for Count 2, and forty years for Count 3, with the sentences set to run consecutively. After the denial of his post-trial motions, this appeal followed. DISCUSSION ¶12. Rodgers’s sole issue on appeal is that the trial court erred in admitting hearsay testimony under the tender years exception pursuant to Rule 803(25) without making a finding of reliability as to Jane’s and Melissa’s statements to Justice, Peralto, and Dr. Brownlee. ¶13. Rule 803(25), the tender years exception, permits the admission of “[a] statement by a child of tender years describing any act of sexual contact with or by another” if “(A) the court—after a hearing outside the jury’s presence—determines that the statement’s time, content, and circumstances provide substantial indicia of reliability; and (B) the child either: (i) testifies; or (ii) is unavailable as a witness, and other evidence corroborates the act.” MRE 803(25). When determining whether the tender years exception applies, we look at “the child’s age at the time of the statement, rather than her age at trial[.]” Klauk v. State, 940 So. 2d 954, 956 (¶6) (Miss. Ct. App. 2006). “There is a rebuttable presumption that a child under the age of twelve is of tender years.” Grimes v. State, 1 So. 3d 951, 954 (¶9) (Miss. Ct. App. 2009). ¶14. Once the trial court determines that a declarant is of tender years, the court must then 4 determine whether the child’s statements possess “substantial indicia of reliability.” Id. at 954 (¶10); MRE 803(25). The trial court should make this finding “(1) ‘on the record,’ . . . (2) ‘in a hearing conducted outside the presence of the jury.’” Webb v. State, 113 So. 3d 592, 599 (¶23) (Miss. Ct. App. 2012); MRE 803(25). “To make this on-the-record finding, the trial judge must consider twelve factors, which are listed in Rule 803(25)’s official comment.” Webb, 113 So. 3d at 599 (¶24). We apply an abuse-of-discretion standard when reviewing the trial court’s admission of evidence under the tender years exception. McCammon v. State, 299 So. 3d 873, 893 (¶77) (Miss. Ct. App. 2020). ¶15. At the tender years hearing in the case before us, the State informed the trial court that it intended to focus on the statements by Amy, who was fourteen years old when the disclosure was made. The prosecutor explained that Jane and Melissa were nine and seven when they disclosed Rodgers’s abuse, and he stated: “[M]y reading of Mississippi law [is] that they are, per se, tender years, but if we need to cover them as well or have them testify, we can, Your Honor.” The trial court responded, “I believe . . . you are correct in the statement of Mississippi law that, no, there has never been a specific age that a child falls under the tender years; that there is a rebuttal [sic] presumption that they fall under the tender years exception to 803, subsection 25 if they are . . . 12 years of age.” ¶16. Regarding the statements Amy made to her mother, Peralto, and Dr. Brownlee, the trial court acknowledged that the court needed to determine whether the “circumstances surrounding the statement . . . provide substantial indicia of reliability” before allowing the statements into evidence. The State then presented evidence to show that Amy was a child 5 of tender years at the time she made her statements and that her statements were reliable. Justice testified about Amy’s intellectual limitations and her maturity. Justice also recounted for the trial court how Melissa, Jane, and Amy disclosed the abuse to her. Amy then testified about her statements and the abuse. Peralto also testified and described her interview with Amy. At the end of the hearing, the State requested that Amy be declared of tender years. The trial court then made on-the-record findings about the reliability of Amy’s statements and ultimately ruled that her hearsay statements would be admitted under Rule 803(25) as to Count 1, which named Amy as the victim. ¶17. As for the statements Melissa and Jane made, the record reflects that both girls were under the age of twelve at the time they made their statements; accordingly, the presumption of tender years applies to them. However, “[t]he inquiry . . . does not end there.” Grimes, 1 So. 3d at 954 (¶10). As discussed above, once the court finds that a declarant is of tender years, it “must then determine whether the child’s statements possess ‘substantial indicia of reliability.’” Id. The transcript shows that during the hearing, the trial court failed to make a finding of reliability on the record relative to Melissa’s and Jane’s statements. ¶18. After the hearing, the trial court entered an order allowing the tender years testimony offered by the State. The trial court specifically ruled that “the children in this case, [Melissa, Jane, and Amy], are of tender years[,] . . . [and] the testimony meets the requirements for admissibility under Rule 803(25)[.]” The trial court cited Webb, 113 So. 3d at 598 (¶16), which sets forth the elements of Rule 803(25) and explained that after the trial court finds that the declarant was a child of tender years at the time she made the 6 statement, the court must then hold a hearing and determine whether the declarant’s statement “has a substantial indicia of reliability.” ¶19. The transcript reflects that Rodgers did not make a contemporaneous objection to the trial court’s ruling that Melissa’s and Jane’s statements were admissible under the tender years exception. “Failure to timely object to alleged hearsay evidence acts as a bar preventing the aggrieved party from raising the issue on appeal.” Justice v. State, 192 So. 3d 1096, 1098 (¶8) (Miss. Ct. App. 2016). This Court has explained that statements from a child in sexual abuse cases “are no different than any other statements that are allegedly hearsay when it comes to the contemporaneous objection rule . . . .” Graham v. State, 264 So. 3d 819, 821 (¶7) (Miss. Ct. App. 2018). “Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred.” Spiers v. State, 361 So. 3d 643, 662 (¶69) (Miss. 2023). “With regard to hearsay evidence, [however,] . . . there can be no plain error because ‘no legal rule requires a trial judge to exclude hearsay in the absence of an objection,’ and ‘trial judges are not expected to strike or exclude hearsay sua sponte.’” Graham, 264 So. 3d at 821 (¶8) (quoting Shaheed v. State, 205 So. 3d 1105, 1112 (¶21) (Miss. Ct. App. 2016)). Rodgers does not argue plain error on appeal; instead, he utilizes a harmless-error analysis despite his failure to object. ¶20. Procedural bar notwithstanding, we find that although the trial court erred by failing to conduct a separate reliability hearing for Melissa and Jane and make on-the-record findings about the reliability of their statements, the error was harmless. “[B]oth the 7 Mississippi Supreme Court and this [C]ourt have held the failure to conduct a separate reliability hearing and make an on-the-record finding about the reliability of the statements is error—albeit potentially harmless error.” Webb, 113 So. 3d at 599 (¶23); Rogers v. State, 95 So. 3d 623, 629 (¶19) (Miss. 2012) (applying harmless-error analysis when State conceded there was no separate hearing outside the jury’s presence and no reliability finding); Klauk, 940 So. 2d at 956-57 (¶¶6-8) (applying harmless-error analysis to absence of on-the-record finding of statements’ reliability). ¶21. In Klauk, this Court found that the trial court erred in admitting testimony under the tender years exception without first making the required on-the-record factual determination that the child’s statement contained substantial indicia of reliability. Klauk, 940 So. 2d at 956 (¶6). Defense counsel objected to the trial court’s ruling at trial, allowing this Court to conduct a harmless-error analysis. Id. In determining whether the trial court’s error warranted reversal, this Court examined “whether the weight of the evidence against Klauk is sufficient to outweigh the harm done by allowing admission of the evidence.” Id. at 957 (¶7) (quoting Veasley v. State, 735 So. 2d 432, 437 (¶17) (Miss. 1999)). This Court ultimately found that because the weight of the evidence, including the victim’s own testimony of the abuse, was sufficient to result in a conviction, the trial court’s admission of the hearsay statements was harmless. Id. ¶22. In the case before us, all three sisters testified that Rodgers abused them. The sisters were also subject to cross-examination. “Our case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony 8 is not discredited or contradicted by other credible evidence.” Lindsey v. State, 212 So. 3d 44, 47 (¶14) (Miss. 2017). Additionally, Melissa testified that she tested positive for syphilis, and the record reflects that Rodgers was diagnosed with syphilis during the time period when he lived with Justice. Even without the testimony from Justice, Peralto, and Dr. Brownlee regarding Melissa’s and Jane’s statements to them, “we find the jury was still left with more than sufficient evidence to find [Rodgers] guilty beyond a reasonable doubt.” Klauk, 940 So. 2d at 957 (¶8). Accordingly, we find that the trial court’s error in admitting Melissa’s and Jane’s statements without conducting a proper tender-years analysis was harmless. CONCLUSION ¶23. The trial court erred in its application of the requirements for a tender years hearing under Rule 803(25). However, because Rodgers failed to object to the trial court’s admission of Melissa’s and Jane’s statements under the tender years exception, his claim is procedurally barred. Procedural bar notwithstanding, we find that based on the facts of this case, the trial court’s error in failing to conduct a separate reliability hearing and make on-the-record findings about the reliability of Melissa’s and Jane’s statements was harmless. We therefore affirm Rodgers’s convictions and sentences. ¶24. AFFIRMED. BARNES, C.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. WILSON, P.J., AND EMFINGER, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. 9