359 So.3d 249
Miss. Ct. App.2023Background
- On July 28, 2015, Officer Nathan Ryan observed Tubwell driving a single-cab truck with a child seated on his lap and other unrestrained children in the vehicle; no child safety seats were used.
- Officer followed Tubwell from an access road in front of a Walmart onto Southcrest Parkway and initiated a traffic stop on Southcrest Parkway.
- Officer Ryan, based on firsthand observation, parenting experience, and nearly two decades as an officer, estimated the lap child was under seven years old, under 4 feet 9 inches, and under 65 pounds.
- Tubwell was cited under Mississippi Code §63-7-301(1)(b) (booster-seat requirement for children at least 4 but under 7 who are under specified height/weight).
- Municipal court convicted Tubwell; the county court (after a trial de novo) and the DeSoto County Circuit Court affirmed; Tubwell appealed challenging sufficiency of the evidence on two grounds.
Issues
| Issue | Tubwell's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the violation occurred on a public roadway, street, or highway | The initial observation occurred on a Walmart access road that Tubwell says is not a public roadway | Officer Ryan testified the violation continued onto Southcrest Parkway where he stopped Tubwell | Evidence sufficient — officer’s testimony that the violation continued onto Southcrest Parkway supported the statutory element |
| Whether the child met the statute’s age/size requirement (at least 4 but less than 7; under 4'9" or under 65 lbs) | Officer’s estimation was insufficient to prove the child was between ages 4 and 7 (and met height/weight criteria) | Officer Ryan’s uncontradicted firsthand testimony about the child’s apparent age/size based on observation and experience was adequate | Evidence sufficient — uncontradicted officer testimony met the minimum evidentiary threshold; conviction affirmed |
Key Cases Cited
- Bradford v. State, 337 So. 3d 277 (Miss. Ct. App. 2022) (articulates the sufficiency-of-evidence standard on appeal)
- Sims v. State, 329 So. 3d 528 (Miss. Ct. App. 2021) (applies de novo review to challenges to evidentiary sufficiency)
- Nix v. State, 126 So. 3d 40 (Miss. 2013) (holding that a victim’s age may be proved by witness testimony)
- Watson v. State, 100 So. 3d 1034 (Miss. Ct. App. 2012) (supports that testimony can establish victim age)