85 So. 3d 913
Miss. Ct. App.2012Background
- Fountain was convicted in Jackson County Circuit Court of four counts of sexual battery against M.G.; sentences were 30 years per count, concurrent, with MDOC custody and no parole or probation, plus $10,000 fines per count.
- M.G. testified she was nine when abuse began and that Fountain showed her explicit material and videotapes of K.U.; she described acts of sexual contact and use of vibrators and condoms.
- K.U. testified Fountain began abusing her in the fifth grade and continued into adulthood; she described pornography, Fountain masturbating, and ongoing abuse.
- Evidence included police search results showing vibrators, nude photos, condoms, and Fountain’s nipple piercing, and medical examinations corroborating some abuse.
- State filed motions in limine to exclude M.G.’s past alleged abuses by others; the defense sought to admit K.U.’s prior acts with Fountain; motions were resolved before trial with limited admissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of K.U.’s prior acts under Rule 404(b) | Fountain challenges Derouen standard; argues prejudice outweighs probative value | Fountain contends evidence is improper to show conformity and inadmissible | Admissible under 404(b) with proper 403 balancing and limiting instruction |
| Exclusion of Chad Gollott’s false-allegation evidence under Rule 412 | Exclusion prejudices Fountain’s defense | State complied with 15-day notice; evidence not newly discovered | Exclusion not reversible; no prejudice shown |
| Plain error in jury instructions | Two instructions flawed; affected fundamental rights | No reversible plain error; instructions read as a whole were correct | No plain-error reversible error; instructions not misstate law or rights |
| Weight/sufficiency of the evidence | Verdict contrary to overwhelming weight; evidence insufficient | Evidence sufficient; credibility choices for jury | Verdict supported; denial of new trial and directed-verdict motions affirmed |
Key Cases Cited
- Derouen v. State, 994 So.2d 748 (Miss.2008) (evidence of other sex offenses admissible with Rule 404(b) and 403 limits with proper instruction)
- Mitchell v. State, 539 So.2d 1366 (Miss.1989) (per se reversible error for such evidence prior to Derouen overruled)
- Lambert v. State, 724 So.2d 392 (Miss.1998) (reaffirmed strict approach to other-crimes evidence before Derouen)
- Gore v. State, 37 So.3d 1178 (Miss.2010) (evidence of prior sexual abuse allowed as similar acts; discusses relevance over time)
- Williams v. State, 54 So.3d 212 (Miss.2011) (discusses Rule 412 violations and prejudice standard)
- Lofton v. State, 818 So.2d 1229 (Miss.Ct.App.2002) (affirmed exclusion of 412(b)(2)(C) evidence for noncompliance with 412(c))
- Levy v. State, 724 So.2d 405 (Miss.Ct.App.1998) (timeliness of Rule 412(c) notice; evidentiary exclusion not reversible error)