VARNADO v. STATE (2025)

¶1. A Pike County Circuit Court jury convicted Robert Varnado of seven counts of sexual battery against Amy and Jane,¹ the two daughters of Varnado's long-time live-in girlfriend. The trial court sentenced Varnado to consecutive terms totaling 100 years to serve in the custody of the Mississippi Department of Corrections (MDOC). Thereafter, Varnado filed a motion for a new trial or judgment notwithstanding the verdict (JNOV), which was denied. Varnado then filed a notice of appeal, and he presents three issues for our review. First, he argues that the trial court erred by allowing the State to admit inadmissible hearsay. Second, he claims that the trial court erred by allowing the State to use leading questions during direct examination. Third, he argues that the trial court erred by denying his post-trial motion.

¶2. For the reasons addressed below, we affirm Varnado's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶3. On April 30, 2020, Amy's younger brother reported to the Pike County Sheriff's Department that Varnado had been sexually abusing his older sister Amy and his younger sister Jane, who lived with cognitive challenges. The following day, Amy's mother, the brother, and Jane returned to the sheriff's department to file a formal complaint against Varnado. They also provided Detective Javonda Shanks with audio recordings Jane made that purportedly documented instances of Varnado's sexual battery. Shortly after receiving these recordings, Detective Shanks and the sheriff's department set up surveillance around Varnado's workplace, and after witnessing Varnado run a stop sign, Varnado was arrested. Sheriff's deputies searched Varnado's vehicle and discovered a cellphone that contained “photographs of [Amy and Jane] ․ without any clothes” and “videos of [Amy and Jane] with a pink vibrator sex toy being inserted into their vagina[s].” A search warrant was then executed on Varnado's home several days later, and the same “pink toy” from the videos was discovered in Varnado's nightstand. Shanks also testified that multiple incriminating videos were recovered from Varnado's cellphone, including one in which “[Amy] was standing at the edge of the bed with her nightgown pulled up[,] ․ not wearing panties[,] and dancing or gyrating,” and “Varnado tells her to keep going.” Shanks stated, “[T]he maximum age [Amy] could have been [in the video] is seventeen.”

¶4. On March 8, 2021, a Pike County grand jury indicted Varnado for seven counts of sexual battery.² Seven counts of the indictment alleged that Varnado had willfully, unlawfully, and feloniously engaged in the sexual battery of Amy and Jane in violation of Mississippi Code Annotated section 97-3-95 (Rev. 2020).³ Counts I, V, and VI alleged sexual battery of a child less than fourteen years of age pursuant to section 97-3-95(1)(d). Counts III and VII charged sexual battery of a child under eighteen years of age when in a position of trust or authority pursuant to section 97-3-95(2). Count II was for sexual battery of a child at least fourteen years old but less than sixteen years of age under section 97-3-95(1)(c). Count IV also charged the crime of sexual battery under section 97-3-95. Varnado pled not guilty, and the case proceeded to a jury trial in December 2022.

¶5. Before trial, the State moved under Mississippi Rule of Evidence 803(25) (the “tender years” exception) to allow the jury to view a recording of an interview with Jane at the Child Advocacy Center (CAC). Cycily Denman, a forensic interviewer at the CAC, interviewed Jane in May 2020, shortly after the abuse was initially reported to the sheriff's department. During her interview with Denman, Jane described the course and scope of Varnado's sexual abuse and explained that Varnado had been abusing her since the third grade.⁴ The court held a pretrial hearing on the recording's admissibility, and Denman and Jane's therapist Brandie Khon, a specialist in education and psychometry, testified about Jane's mental capacity.

¶6. During the hearing, Denman was questioned at length about her professional assessment of Jane and whether she saw “any apparent motive on the part of Jane to fabricate” the abuse by Varnado. For example, when asked if Jane's statements about the abuse—in terms of time, content, and circumstance—provided substantial indicia of reliability, Denman stated that she assessed Jane for coaching, and Jane “did not appear to have been coached.” Denman also noted that Jane's responses appeared credible. Moreover, Denman stated that the “disclosure was consistent with a child who has been sexually abused.”

¶7. Denman also provided the trial court with valuable insight into Jane's cognitive abilities. According to Denman, Jane “appeared to be significantly intellectually delayed” and possessed an IQ “significantly below average,” and because of these things, Jane qualified as a “vulnerable adult.” Moreover, Denman noted that Jane had also been previously diagnosed with autism spectrum disorder. When asked about Jane's responses during their interview, Denman stated that she had to “rephrase some questioning lower than what I would an eighteen year old in a way that [Jane] could understand and in a way that [Jane] could communicate.”

¶8. After Denman finished her testimony, Khon testified that she had performed psychometric testing on Jane by administering an “RIAS” IQ test in August 2022. Jane scored a 44 on her overall IQ, with a verbal IQ score of 52, and a nonverbal IQ score of 48. Khon said these IQ scores were “extremely below average,” as the average IQ tends to be in the range of 90 to 109. According to Khon, Jane's IQ score “[was] demonstrative of extreme intellectual deficits,” and people with IQs similar to Jane's have “difficulties with abstract language, verbal memory, nonverbal recall, identifying places, [and] people” and “struggle with any sort of abstract thought or questions.”

¶9. When asked to “place an age [that Jane] functions at for the Court,” Khon stated that Jane would fall between the ages of “ten and twelve” even though Jane's chronological age was nineteen at the time the psychometric evaluation was performed. Khon also made it clear that Jane's IQ score and functional abilities were unlikely to fluctuate as Jane aged, saying, “[The] scores don't usually change.”

¶10. Following this testimony, the trial court held that at the time of her interview with Denman, “[Jane] was in fact psychologically a child of tender years.” The court also found that Jane's statement appeared to be reliable and that the CAC interview met the tender years exception to the general rule to exclude hearsay.

¶11. When Jane was called to testify at trial, she stated that Varnado began sexually abusing her around the time she entered the third grade. When asked, “[W]hat happened to you in the third grade,” Jane replied, “I was raped,” explaining that Varnado “had put his worm in me.” Following Jane's testimony, the jury was shown the recording of her interview with Denman.

¶12. Amy's testimony mirrored Jane's statements in many respects. Amy testified that by age ten, Varnado began making sexual advances and inappropriately touching her. Amy testified that Varnado began “touching and feeling” her by the fifth grade, that it “was pretty continuous,” and that “it didn't ever stop until ․ the penetration happened around a young age.” Amy continued, saying that Varnado began penetrating her with the tip of his penis around age eleven, and by age twelve, Varnado had taken her virginity. According to Amy, after he took her virginity, Varnado continued to sexually abuse her on a regular basis, and “the only break [she] got was when [she] was on [her] period.” Amy expounded on this point by noting that from age twelve until Varnado's arrest in May 2020, there was never a time “he abstained from having sex with [her]” unless “he [was] angry ․ but that would only last for like two days.” When the defense asked why she did not report Varnado's behavior as a child, Amy explained, “I didn't tell anyone because when he first started doing weird things, like touching and stuff, he said he would kill anybody if I told. Like my mama, he shot at her before. So that ․ scared me even more.”

¶13. As Amy's testimony continued, it came to light that Amy had given birth to a child fathered by Varnado after Amy reached adulthood. When asked whether she thought the child was conceived “as a consensual act,” Amy replied “no.” She went on to explain that she did not find the conception nor any of the sex she had with Varnado consensual even after reaching age eighteen because “[she] never wanted to engage into nothing with someone that was my mother's boyfriend.” According to Amy, the abuse had become so engrained in her that even after reaching age eighteen, she continued to have sex with Varnado because “that's what [she] did.”

¶14. The jury convicted Varnado of all seven counts of sexual battery, and he was sentenced to consecutive terms totaling 120 years in MDOC's custody, with two ten-year terms suspended and 100 years to serve.

ANALYSIS

¶15. On appeal, Varnado raises three issues. First, Varnado argues that the trial court erred by admitting Jane's forensic interview under Mississippi Rule of Evidence 803(25) because the trial court did not make a proper finding of tender years or adequately consider the declarant's reliability. Second, Varnado alleges that the trial court erred by allowing the State to repeatedly ask Jane leading questions during the prosecution's case in chief. Finally, Varnado argues that the trial court erred by denying his motion for a new trial or JNOV with respect to Count IV of the indictment. Finding no reversible error, we affirm.

I. Hearsay Testimony under Mississippi Rule of Evidence 803(25)

¶16. On appeal, Varnado argues that the trial court abused its discretion by admitting evidence which was “clearly inadmissible” under the Mississippi Rules of Evidence. Specifically, Varnado claims that Jane's statements made during her forensic interview with Denman were hearsay and should not have been admitted because the requirements of Rule 803(25), the tender years exception, were not met. In pertinent part, Varnado argued that Jane should not have been considered a child of tender years, as there is a rebuttable presumption that a child under the age of twelve is of tender years, but no such presumption exists when a child is older than twelve. In support of this argument, Varnado notes that Jane was seventeen at the time her statements to Denman were made, and she was nineteen when Khon performed her psychometric evaluation; therefore, Varnado argues it should have been presumed that Jane was not of tender years. However, the trial court did not presume Jane was of tender years; rather, as required by law, the court made an on-the-record determination based on factual findings as to Jane's mental and emotional age.

¶17. It is well settled that this Court employs a limited standard of review of evidentiary issues, and we “will only overturn a trial court's ruling on the admissibility of evidence if it is shown that the trial court abused its discretion.” Davis v. State, 360 So. 3d 265, 268 (¶19) (Miss. Ct. App. 2022). Additionally, “[a]s long as the trial court remains within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference.” Magee v. State, 300 So. 3d 1088, 1090 (¶9) (Miss. Ct. App. 2020). “[A] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence, and this Court will not reverse the trial court's ruling unless the judge abuses this discretion so as to be prejudicial to the accused.” Davis, 360 So. 3d at 268 (¶19).

¶18. Rule 803(25) states that “[a] statement by a child of tender years describing any act of sexual contact with or by another is admissible 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).

¶19. This Court has had occasion to analyze Rule 803(25) many times, and we have consistently held that although a rebuttable presumption exists “for a child under twelve years of age to be considered a child of tender years, ․ victims over twelve years of age must be analyzed on a case-by-case basis.” Magee, 300 So. 3d at 1090 (¶11). Our Supreme Court explained the type of “analysis” to perform on a “case-by-case basis” is “based on a factual finding as to the victim's mental and emotional age.” Veasley. State, 735 So. 2d 432, 437 (¶16) (Miss. 1999). But trial courts “[are] not required to make point-by-point findings on the twelve reliability factors where there is sufficient evidence that the child's statements possess substantial indicia of reliability.” Magee, 300 So. 3d at 1091 (¶14) (internal quotation marks omitted).

¶20. Moreover, twelve factors are listed in the Advisory Committee Note to Rule 803(25), which provide courts with guidance in determining the reliability of tender-years hearsay testimony. These reliability factors include:

(1) whether there is an apparent motive on declarant's part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant's faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant's age, knowledge, and experience make it unlikely that the declarant fabricated.

MRE 803(25) adv. comm. note.

¶21. In addition to the twelve factors above, the committee note to 803(25) also states that “[a] finding that there is a substantial indicia of reliability should be made on the record.” Id.

¶22. In the instant case, the trial court reviewed all twelve reliability factors and found: (1) Jane had no apparent motive to lie; (2) Jane appeared “comfortable during the interview” with Denman; (3) Denman and possibly Khon heard the statements; (4) Jane's statements were made spontaneously “according to Denman”; (5) Jane's statements were made when she was seventeen and concerned “alleged acts of abuse that occurred both before [Jane] was fourteen, between the times of fourteen to sixteen, and after [Jane] was seventeen”; (6) the relationship between Jane and Denman appeared “to be no more than that of a forensic interviewer and a potential witness,” whereas Jane's relationship to Khon appeared to be that of “psychometric tester or a therapist and a potential witness”; (7) the faulty recollection factor did not apply; (8) the statements were in fact made; (9) “there was no issue of credibility with regard to either” Denman or Khon; (10) while Jane's chronological age was seventeen, her psychological age appeared to be between “ten and twelve or perhaps up to fourteen”; (11) there did not appear to be any suggestive techniques used; and (12) nothing indicated that Jane's statements were fabricated.

¶23. Our review of the record reveals that the trial court determined Jane's statements to Denman and Khon provided substantial indicia of reliability in terms of time, content, and circumstances. The trial court went through the proper steps and determined that Jane was “psychologically a child of tender years.” In reaching this determination, the judge went through all twelve of Rule 803(25) factors on the record, even though “ ‘point-by-point findings’ are not required.” See Magee, 300 So. 3d at 1091 (¶14).

¶24. Therefore, we cannot conclude that the trial court abused its discretion in allowing Jane's interview with Denman to be admitted under Rule 803(25). The court's ruling that Jane was “psychologically a child of tender years” was made on the record, and the record itself clearly reflects that the trial court “properly considered the reliability” of Jane.

II. Leading Questions

¶25. On appeal, Varnado claims that “this case is fraught with leading questions as to material and prejudicial facts.” He alleges that the leading questions “diluted” the State's burden of proof to his “detriment” and that the trial court committed reversible error by overruling his objections and by allowing the State to repeatedly ask Jane leading questions on direct examination.

¶26. “Generally, [l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” MRE 611(c). The Mississippi Supreme Court has consistently held that “the decision to allow leading questions rests within the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Seales v. State, 138 So. 3d 282, 284 (¶8) (Miss. Ct. App. 2014). Additionally, “the classic example for allowing the use of leading questions is where a child is a witness.” Jones v. State, 606 So. 2d 1051, 1059 (Miss. 1992). And “the use of leading questions is not a ground for reversal unless the trial court abused its discretion, and the decision resulted in substantial injury to the appealing party.” Seales, 138 So. 3d at 284-85 (¶8).

¶27. In the instant case, before any leading questions were asked, the trial judge made an on-the-record determination that Jane was “psychologically a child of tender years.” Moreover, Khon and Denman testified that Jane was “significantly intellectually delayed” and “struggled with abstract thought or questions.” Given their testimony and the determination that Jane constituted a child of tender years, the trial court did not abuse its discretion by allowing the State to ask Jane leading questions.

¶28. Moreover, despite claiming that “this case is fraught with leading questions as to material and prejudicial facts,” Varnado contemporaneously objected at trial only twice, and on appeal, he does not identify any specific leading question that resulted in substantial injury. Varnado's first objection occurred when the State asked Jane, “What did he touch you with?” The trial judge overruled this objection, concluding that it was not a leading question.

¶29. Varnado's second objection to leading occurred after the following exchange with Jane:

Q. Okay. When you were young and he did that to you when you were in the third grade, was it just one time while you were in the third grade or more than one time or what?

A. It was more than once.

Q. Okay. What about when you were in the fourth grade, did he ever do anything to you when you were in the fourth grade?

A. Yes, sir.

Q. Okay. What about when you were in the fifth grade, did he?

A. Yes, sir.

¶30. Varnado objected, and while the court initially sustained the objection, the State asked the court to consider that the committee note under Rule 611(c) suggests the Rule allows other instances of leading questions when a witness has communication difficulties. Upon review of the advisory committee note, the court overruled Varnado's objection and later clarified that the basis “for [its] ruling” was that psychometric testing had been completed on Jane and that Jane was found to be “significantly developmentally delayed.”

¶31. The trial court also relied on the note to Rule 611(c) that “leeway can be given to a witness whose recollection is exhausted and with a witness who has communication difficulties.” The testimonies of Denman and Khon and the court's ruling at the tender years hearing demonstrate Jane had “communication difficulties,” and it was within the court's discretion to afford the State “leeway” when questioning Jane, a witness the court found was “psychologically a child of tender years.”

¶32. We also recognize that for there to be reversible error, the defendant must have suffered substantial injury. See Seales, 138 So. 3d at 284 (¶8). In addition to not identifying which of the State's leading questions he finds objectionable, Varnado also fails to explain how the leading questions caused him substantial injury. In sum, the trial court did not abuse its discretion by allowing the State to ask Jane leading questions on direct examination.

III. Count IV

¶33. Varnado's final argument on appeal is that the trial court erred by denying his post-trial motion for a new trial or JNOV. Specifically, Varnado claims that his conviction under Count IV ⁵ was against the overwhelming weight of the evidence and that the State “failed to prove the required lack of consent” with respect to Court IV, which alleged that Varnado committed sexual battery against Amy when she was no longer a minor.

¶34. In addressing Varnado's arguments with respect to Count IV, this Court notes that Varnado's argument conflates the weight and sufficiency of the evidence. He argues that Amy's testimony was not sufficient to prove a lack of consent as required by statute, but his issue statement and cited caselaw argue that the statement was against the weight of the evidence and that he deserves a new trial. We apply different standards to these two challenges.

¶35. “In reviewing a challenge to the sufficiency of evidence[,] ․ we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime.” Follett v. State, 380 So. 3d 961, 969 (¶28) (Miss. Ct. App. 2024) (emphasis added). “In this regard, the issue is not whether we think the State proved the elements. Rather, we must decide whether a reasonable juror could rationally say that the State did.” Id.

¶36. A challenge to the weight of the evidence addresses the trial judge's denial of a motion for a new trial, which we review for an abuse of discretion. Little v. State, 233 So. 3d 288, 292 (¶21) (Miss. 2017). Thus, “[t]his Court will not grant a new trial unless the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice.” Scates v. State, 388 So. 3d 564, 579 (¶47) (Miss. Ct. App. 2023). Further, we review the evidence in the light most favorable to the jury's verdict. Id. This Court is “particularly mindful that we do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury.” Follett, 380 So. 3d at 973 (¶45) (quoting Little, 233 So. 3d at 289 (¶11)).

¶37. When her testimony, i.e., the evidence, is viewed “in the light most favorable to the State,” it is clear that rational jurors could conclude the State sufficiently proved Amy's lack of consent. It is not for this Court to question whether “we think the State proved the elements” of sexual battery under Count IV. Such a determination is left for a jury, and we find that the evidence presented was sufficient for a jury to find each element of the crime beyond a reasonable doubt. See id. at 970 (¶33).

¶38. To support his argument that his “conviction under Count IV is against the overwhelming weight of the evidence,” Varnado points out that he and Amy discussed the possibility of having a child together after she turned eighteen, and Amy said she “would think about it.” But Amy clarified that she said “[she] would think about it because he kept asking, and when [she] told him no[,] he got angry. So, [she] just said ‘I'll think about it’ so he would leave [her] alone and stop asking.” It was for the jury to determine the credibility of Amy's willingness to have a child with Varnado or to engage in consensual sexual relations with him, and it is not the province of this Court to reweigh evidence or assess witness credibility. Id. at 973 (¶45). This Court does not resolve conflicts of evidence, and if the jury decided to give more weight to Amy's version of the events than Varnado's version, this Court will not disturb that decision. Id. We find that allowing the jury's verdict to stand will not sanction an unconscionable injustice, and the trial court did not abuse its discretion by denying Varnado's motion for a new trial.

¶39. Thus, we affirm the trial court's denial of Varnado's post-trial motion.

CONCLUSION

¶40. The trial court did not abuse its discretion by ruling that Jane was psychologically a child of tender years and allowing the admission of her CAC interview. After making such a determination, the trial court did not abuse its discretion by allowing the State to ask Jane leading questions. Lastly, the trial court did not err by denying Varnado's post-trial motion challenging the sufficiency and weight of the evidence. Accordingly, we affirm Varnado's convictions and sentences.

¶41. AFFIRMED.

FOOTNOTES

1.   The Court uses aliases to protect the identities of sexual assault victims.

2.   Varnado was also indicted and convicted of one count of being a felon in possession of a firearm, and he does not challenge this conviction on appeal.

3.   Counts I–IV related to Amy, and Counts V–VII related to Jane.

4.   Jane repeated the third grade twice.

5.   Count IV charged sexual battery pursuant to section 97-3-95. Varnado does not challenge the weight or sufficiency of the evidence for the other convictions despite the fact all the other counts were also prosecuted under section 97-3-95.

ST. PÉ, J., FOR THE COURT:

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR.