101 So. 3d 161
Miss. Ct. App.2012Background
- Jenkins convicted on two fondling counts and two sexual battery counts; habitual offender with 90-year sentence; incidents at Sept. 19, 2008 party, Oct. 11, 2008 festival ride, and Feb. 22, 2009 in Bonnie’s room; Bonnie was a minor (16 at the Sept. 2008 event); Count II (Sept. 19, 2008) challenged for penetration; Count I, IV, V convictions upheld, Count II reversed; appeal included JNOV, ineffective assistance, double jeopardy, and new-trial challenges; majority reverses Count II and affirms others; all sentences run consecutively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment gave adequate notice | Jenkins: 'private parts' insufficient notice | State: statute language sufficient; indictment tracks statute | Indictment adequate; no merit to challenge |
| Sufficiency of evidence for sexual battery (Sept. 19, 2008) | No penetration proved | Evidence showed touching under panties; possible penetration | Count II reversed and rendered; no sufficient penetration proved beyond doubt |
| Double jeopardy for fondling and sexual battery | Fondling is lesser-included of sexual battery | Possibility of separate elements; not always mergeable | No double-jeopardy error; Count II reversed, Count I remains valid; separate convictions allowed under facts |
| Ineffective assistance of counsel | Elicited irrelevant prior-conviction testimony | Limiting instruction cured potential prejudice | No reversible deficiency; no prejudice established |
| Motion for a new trial (weight of the evidence) | Bonnie’s allegations were manufactured for revenge; indictment supports credibility issues | Detailed testimony of multiple witnesses; weight supports verdicts | Overwhelming weight of the evidence supports Counts I, IV, V; Count II still reversed |
Key Cases Cited
- Hicks v. State, 40 So.3d 640 (Miss.Ct.App.2010) (notice sufficiency when indictment tracks statute)
- Miller v. State, 18 So.3d 898 (Miss.Ct.App.2009) (demurrer waives indictment defects curable by amendment)
- West v. State, 437 So.2d 1212 (Miss.1983) (penetration required; mere touching not enough)
- Johnson v. State, 626 So.2d 631 (Miss.1993) (penetration includes labial/vulvar intrusion under sexual battery)
- Tapper v. State, 47 So.3d 95 (Miss.2010) (recognizes opportunities for non-merger of offenses in some cases)
- Friley v. State, 879 So.2d 1031 (Miss.2004) (molestation not always lesser-included of sexual battery; context matters)
- Poole v. State, 46 So.3d 290 (Miss.2010) (recognizes fault lines in penetration/penetration-like conduct rules)
- Givens v. State, 730 So.2d 81 (Miss.Ct.App.1998) (fondling vs. sexual battery distinctions often hinge on penetration)