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Barbetta v. State

January 26, 1999

ANDREW SCOTT BARBETTA APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



The opinion of the court was delivered by: Bridges, C.j.

DATE OF JUDGMENT: 09/16/97

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: TOUCHING OF A CHILD FOR LUSTFUL PURPOSES: SENTENCED TO SERVE 15 YRS IN THE MDOC THE COURT SUSPENDS 5 YRS LEAVING 10 YRS TO SERVE IN THE CUSTODY OF MDOC;

AFFIRMED

EN BANC

¶1. Andrew Scott Barbetta was convicted in the Circuit Court of Harrison County on September 16, 1997, of the crime of touching of a child for lustful purposes. Barbetta was sentenced to a term of fifteen years with five years suspended to be served in the custody of the Mississippi Department

of Corrections. Aggrieved, Barbetta appeals the following issues: 1) that the court erred in overruling his motion in limine regarding the testimony of prior conduct between him and the victim; 2) that the court erred in allowing hearsay testimony of the mother made to her by the victim; and 3) that the court erred in allowing the police officer to testify as to his opinion on whether or not it was unusual that the victim waited to report the alleged incident. Finding no merit to the issues raised, we affirm.

FACTS

¶2. On or around March of 1996, fourteen-year-old S.H. and her sister went to their aunt's house to baby-sit. S.H.'s aunt was living with Barbetta at the time, and the two had gone out gambling. When the two returned home, S.H. and her sister were asleep on the couch. Barbetta testified that he and S.H.'s aunt watched T.V. in the room where S.H. and her sister were sleeping, but went to bed about a half hour later and remained there the entire night. However, S.H. testified that Barbetta came back later into the room where she was sleeping and "started messing with her." S.H. testified that Barbetta felt the outside and inside of her shorts with his hands and touched her breasts. A.H., S.H.'s sister, testified that she remembered Barbetta coming into the room and waking her up telling her to move. A.H. stated that she told him no and went back to sleep. A.H. testified that he told her to move a second time, and this time she moved to the floor. A.H. testified that she saw Barbetta lie down by S.H., but that was all she could remember.

¶3. S.H. testified that after she told her mother about the incident, they reported it to Gulfport Police Officer Alfred Sexton. S.H. stated that she felt more comfortable with Sexton since she knew him from Junior Explorers and the DARE Program at her school. Barbetta was later indicted and convicted of the touching of a child for lustful purposes and sentenced to serve a term of fifteen years with five years suspended in the custody of the Mississippi Department of Corrections.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE COURT ERRED IN OVERRULING THE APPELLANT'S MOTION IN LIMINE WHICH ALLOWED TESTIMONY OF PRIOR CONDUCT ...


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