Campbell v. State, 2013 Miss. LEXIS 394

Background

Victim ("Lauren"), age 16, was placed in the Campbells’ home from Millcreek while the Campbells pursued foster licensure; Campbells exercised day-to-day control (curfew, visitors, vacations, bedroom, phone rules).
Lauren later returned to Millcreek; shortly after, David Campbell visited and staff observed intimate conduct prompting an investigation.
Lauren and a friend testified that David Campbell engaged in prolonged sexual activity with Lauren (kissing, touching, intercourse) while she lived with the Campbells. Lauren had referred to Campbell as her foster father and he messaged her calling her his daughter.
Campbell was indicted for fondling a minor by a person in a position of trust/authority under Miss. Code § 97-5-23(2) and for sexual battery; jury convicted on fondling, acquitted on sexual battery.
The Court of Appeals reversed, finding insufficient proof that Campbell occupied a position of trust/authority; the Mississippi Supreme Court granted certiorari and reinstated the conviction, holding evidence supported that Campbell was a de facto foster parent and otherwise satisfied elements.

Issues

Issue	State's Argument	Campbell's Argument	Held
Whether Campbell occupied a position of trust/authority over Lauren under § 97-5-23(2)	Evidence showed Campbells had physical custody, treated Lauren as their child, and Campbell acted as de facto foster parent	No proof of legal foster-parent/licensed status; at most a visitor	Court: Position of trust may be shown by totality of circumstances; de facto foster-parent status supported by evidence — held for State
Whether the State sufficiently identified Campbell as the perpetrator	Investigator testimony, Lauren’s and others’ testimony, and MySpace evidence tied the conduct to David Campbell	Alleged lack of direct identification tying defendant to the perpetrator	Identification was a jury question; evidence was sufficient — held for State
Whether the State proved Campbell was over 18 when offense occurred	Witness testimony (Lauren) established Campbell’s age (she believed him to be 42)	Testimony of belief is insufficient to establish age as an affirmative fact	Prior precedent permits this proof; evidence sufficient — held for State
Whether jury instruction No. 9 (including "passionately kissed") and weight of evidence warranted a new trial	The instruction was supported by evidence that kissing with licentious intent can support fondling; weight of evidence supported verdict	Instruction gave undue prominence and invited speculation; verdict rested on inconsistent witness testimony	Failure to preserve specific instruction objection; instruction review barred and without merit; verdict not against overwhelming weight — held for State

Key Cases Cited

McClain v. State, 625 So.2d 774 (Miss. 1993) (standard for directed verdict/JNOV and viewing evidence in light most favorable to State)
Crenshaw v. State, 520 So.2d 131 (Miss. 1988) (testimony expressing belief as to defendant's age can be competent evidence)
Mamon v. State, 724 So.2d 878 (Miss. 1998) (identification evidence is primarily for the jury)
Horton v. State, 919 So.2d 44 (Miss. 2005) (new-trial review; verdicts disturbed only when against overwhelming weight of evidence)
Bush v. State, 895 So.2d 836 (Miss. 2005) (standard that jury instructions are reviewed for abuse of discretion)
Montana v. State, 822 So.2d 954 (Miss. 2002) (jury instruction/read-as-a-whole principles)
Bailey v. State, 78 So.3d 308 (Miss. 2012) (preservation rules and standards for instruction issues on appeal)
Newell v. State, 49 So.3d 66 (Miss. 2010) (instruction and preservation authority cited)
Rubenstein v. State, 941 So.2d 735 (Miss. 2006) (jury instruction and appellate review principles)
Morgan v. State, 741 So.2d 246 (Miss. 1999) (requirement to make specific objection to preserve an instruction issue)
Smith v. Smith, 97 So.3d 43 (Miss. 2012) (definition and scope of in loco parentis for family-law context)