Mosby v. State
134 So. 3d 850
| Miss. Ct. App. | 2014Background
- Mosby was convicted by a jury of one count of sexual battery and three counts of child fondling, with all four sentences consecutive (30 years for sexual battery, 15 years for each fondling).
- I.B., age 11, reported sexual contact by Mosby on April 4, 2006; S.B. also reported improper contact during interviews; D.W. reported conduct in 2005.
- Mosby was arrested April 14, 2006, later indicted June 14, 2010 on 1 sexual battery and 3 fondling counts; trial occurred April 12–14, 2011.
- Trial testimony included I.B.’s account of forcible fondling and penetration, S.B.’s account of touching, and D.W.’s accounts of 2005 incidents; Brown testified to Mosby’s preexisting relationship with the family.
- The jury convicted on all four counts; post-trial motions were denied; the circuit court judgment and sentence were affirmed on appeal.
- The court addressed four issues on appeal: sufficiency of the evidence for fondling, validity of jury instructions, application of the tender-years hearsay exception, and potential double jeopardy between battery and fondling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of fondling evidence | Mosby; State failed to prove exact dates | Mosby; insufficient evidence tying events to indictment dates | No error; sufficient evidence placed acts within charged period |
| Validity of jury instructions without specific dates | Mosby; instructions lacked date reference tying to indictment | Mosby waived objection; instructions correctly stated law | No reversible error; proper as given |
| Tender-years exception applied to S.B. and D.W. | Court misapplied tender-years presumption since victims were reportedly older | Court conducted tender-years hearing; reliability found | Affirmative finding of reliability; issue without merit |
| Double jeopardy—fondling vs. sexual battery | Fondling is lesser included; convictions violate double jeopardy | Evidence shows two distinct acts; no merger | Convictions do not merge; two distinct offenses proven |
Key Cases Cited
- Faulkner v. State, 109 So.3d 142 (Miss.Ct.App.2013) (date not essential element; proof of any date within reasonable limits sufficient)
- Daniels v. State, 742 So.2d 1140 (Miss.1999) (timeframe proof permissible beyond indictment date)
- Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001) (date specificity in instructions contrasted with present case)
- Veasley v. State, 735 So.2d 432 (Miss.1999) (tender-years presumption for under-12 victims; on-record factual determination required)