Kenny Stewart v. State of Mississippi
228 So. 3d 872
| Miss. Ct. App. | 2017Background
- On Aug. 2, 2013, defendant Kenny Stewart baby‑sat his girlfriend Monica Lewis’s 9‑year‑old daughter, M.L.; Lewis later found M.L. in bed with Stewart, who was positioned with his head between M.L.’s legs.
- M.L. testified at trial that Stewart asked her to lie on her back, remove her underwear, and she felt his tongue on and inside her vagina.
- Stewart was indicted on Count I: sexual battery (victim under 14) and Count II: molestation (victim under 16); jury convicted on both counts.
- Sentences: sexual battery — 25 years (20 to serve, 5 suspended) + 5 years post‑release supervision; molestation — 7 years (2 to serve, 5 suspended), ordered consecutively; sex‑offender registration required.
- On appeal Stewart challenged the indictment’s sufficiency and argued Count II should be dismissed as duplicative of Count I (double jeopardy). Trial record included a prior police statement in which M.L. said Stewart grabbed her arm and told her to get in the bed, but the State’s case at trial focused on vaginal touching/penetration by tongue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of indictment to give notice and preserve double‑jeopardy protection | Indictment tracks statutory elements, gives date, location, victim, ages, and statutes; thus adequate | Stewart: indictment lacks specific facts to fairly inform and to preserve double‑jeopardy protection | Affirmed — indictment was sufficient to notify Stewart and permit future double‑jeopardy assertion |
| Whether molestation (Count II) must be dismissed as duplicative of sexual battery (Count I) | State: M.L.’s testimony showed multiple acts sufficient to sustain separate convictions | Stewart: No separate touching apart from penetration; molestation is a lesser‑included offense of sexual battery and merges | Reversed as to Count II — molestation merges into sexual battery because no separate, independent touching was proven |
Key Cases Cited
- Friley v. State, 879 So.2d 1031 (Miss. 2004) (holds that where penetration is achieved by touching a child under 14, molestation can be a lesser‑included offense of sexual battery)
- Clemons v. State, 482 So.2d 1102 (Miss. 1985) (State must prove separate and independent acts to sustain convictions on multiple related charges)
- Mosby v. State, 134 So.3d 850 (Miss. Ct. App. 2014) (distinguishes cases where testimony shows distinct acts of fondling and penetration)
- Faulkner v. State, 109 So.3d 142 (Miss. Ct. App. 2013) (separate convictions permitted where evidence establishes distinct sexual acts)
- Williams v. State, 169 So.3d 932 (Miss. Ct. App. 2014) (indictment sufficiency reviewed de novo; defects may be raised on appeal)