Thomas Tubbs v. State of Mississippi, 185 So. 3d 363

Thomas Tubbs was tried a second time in Warren County for molestation of his then-3-year-old great-niece T.J.; a jury convicted him and the trial court sentenced him to 15 years.
On the night in question, T.J. told her mother D.J. “Thomas licked me,” later pointed to her vagina, and repeated to her grandmother L.J. that Tubbs had touched her.
Buccal swabs were taken from Tubbs and T.J.’s underpants were collected; forensic testing produced a full Y-chromosome profile from inside the panties that matched Tubbs’s swab.
Tubbs gave two recorded statements claiming innocuous explanations (spanking or an accidental flip); the State admitted a prior rape conviction for limited-purpose impeachment.
At a hearing outside the jury’s presence the trial court admitted L.J.’s testimony under the tender-years hearsay exception and found the child witness T.J. competent to testify; Tubbs objected to admission of exhibits based on an asserted chain-of-custody gap.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of L.J.’s tender-years testimony (hearsay exception)	Statement had substantial indicia of reliability and met M.R.E. 803(25) requirements	Trial court failed to explicitly say “substantial indicia of reliability”; statements were inconsistent ("licked" v. "touched")	Affirmed — court found the hearing and findings showed sufficient indicia of reliability; inconsistency did not defeat admissibility
Competency of child witness T.J.	T.J. displayed ability to perceive, remember, answer intelligently, and understand truthfulness	Tubbs argued insufficient proof she could perceive/remember event and lacked preliminary showing of personal knowledge	Affirmed — trial court did not abuse discretion; T.J. demonstrated competency and personal knowledge; credibility issues for the jury
Chain of custody for DNA and clothing evidence	State maintained custody; presumption of regularity supports admitting evidence	Tubbs argued break because one handler (Elledge) did not testify and suggested possible contamination/planting	Affirmed — no evidence of probable tampering; gaps go to weight, not admissibility; defendant failed to show substitution

Ellis v. State, 934 So. 2d 1000 (Miss. 2006) (presumption of regularity for public officers and gaps in chain go to weight not admissibility)
Mohr v. State, 584 So. 2d 426 (Miss. 1991) (trial court discretion in determining competency of child witnesses)
Smith v. State, 925 So. 2d 825 (Miss. 2006) (tender-years exception: time, content, circumstances must provide substantial indicia of reliability)
Rochell v. State, 748 So. 2d 103 (Miss. 1999) (deference to trial judge’s observations of child witness demeanor)
Deeds v. State, 27 So. 3d 1135 (Miss. 2009) (gaps in chain of custody typically affect evidentiary weight)
House v. State, 445 So. 2d 815 (Miss. 1984) (factors for child competency: perceive/remember, answer intelligently, understand truthfulness)
Nix v. State, 276 So. 2d 652 (Miss. 1973) (burden on defendant to show probable tampering with evidence)