The opinion of the court was delivered by: McMILLIN, C.j.
DATE OF JUDGMENT: 08/02/96
TRIAL JUDGE: HON. WARREN ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: FRANK CARLTON
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CHILD FONDLING COUNT II & COUNT III: SENTENCED TO A TERM OF 10 YRS IN THE MDOC AS TO COUNT II; AND 10 YRS IN THE MDOC AS TO COUNT III, CONSECUTIVE TO COUNT II. COURT COSTS $242.50 ASSESSED TO THE DEFENDANT
DISPOSITION: REVERSED AND RENDERED - 10/27/98
MOTION FOR REHEARING FILED: 11/9/98-REVERSED & RENDERED- 3/23/99
¶1. The motion for rehearing filed by the State of Mississippi is denied. The original opinion issued in this case is withdrawn and the following opinion is substituted as the opinion of the Court.
¶2. Frederick Bradford has appealed his conviction on two counts of gratification of lust. We find that the State's evidence was insufficient as a matter of law to sustain the conviction and we reverse and render.
¶3. Bradford was a long-time friend of Temeica Hayes and her family and was a frequent guest in the home. Hayes had five children. Four of those children played some part in the facts of this case. They were eleven, ten, three, and two years old at the time of the events that led to this prosecution. The remaining child was one year old at the time and does not figure in the case. The three-year-old and two-year-old were both female children. In the summer of 1995, Bradford accompanied Hayes, her boyfriend, and all five children on an automobile excursion into Greenville. When they arrived at their destination, Hayes and her boyfriend exited the vehicle, leaving Bradford alone in the car with the children. When Hayes and her friend returned to the car about twenty minutes later, the two older children attempted to convey a message to their mother that something had occurred during her absence. After they had arrived home, Hayes took one of these older children for a walk. During that walk, the child apparently related that Bradford had been behaving inappropriately with her three year old and two year old sisters in the car. Hayes subsequently returned home and discovered the three year old to be crying. When the child was asked the reason for her distress, she reported that Bradford had inserted his tongue in her mouth and had fondled her in the area of her vagina. The two older children's version of events they had observed in the car did not, however, correspond with the incident related by the younger child. Rather, they related a sequence of events where Bradford would, when the two younger girls were looking away, pinch one of them on the buttocks. When the child would turn to confront him, Bradford would playfully suggest that one of the other children was the culprit. The eleven year old also reported seeing Bradford kiss both the younger girls on the jaw, though the other older child did not corroborate this testimony. The ten year old child testified that she only saw these acts of pinching committed on one of her younger sisters.
¶4. Bradford was subsequently indicted on three counts. One was for sexual battery, growing out of the allegations of vaginal fondling, and the remaining two counts for gratification of lust arose out of the episodes of pinching and kissing that occurred in the car. The State's proof on the gratification of lust counts consisted principally of the testimony of the ten and eleven year old children relating what they saw in the car. The proof on the sexual battery count consisted entirely of Hayes's testimony concerning what the three-year-old had told her. The defense presented no evidence.
¶5. The case was submitted to the jury and the jury acquitted Bradford on the sexual battery count, but convicted him on the two counts of gratification of lust.
¶6. In reviewing a challenge to the sufficiency of the evidence, this Court is obligated to view the evidence in the light most favorable to sustaining the conviction. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). We are authorized to set aside a jury's verdict only if we are convinced that, as to one of the essential elements of the crime, the State's proof was so deficient that a reasonable and fair-minded juror could only find the defendant not guilty. Id.
¶7. The statute under which Bradford was charged states that "[a]ny person . . . who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub . . . any child . . . shall be guilty of a high crime . . . ." Miss. Code Ann. § 97-5-23 (Rev. 1994). In this case, there is no legitimate dispute that Bradford was pinching and kissing two young girls of very tender years. Thus, the sole legitimate disputed issue of fact was whether the State presented sufficient proof to support a finding by the jury that Bradford's actions were "for the purpose of gratifying his . . . lust." Miss. Code Ann. § 97-5-23 (Rev. 1994).
¶8. We find no case law that is particularly helpful in determining what evidence is necessary to give rise to an inference that an undisputed act of touching was for the purpose of satisfying the defendant's depraved sexual desires. Nevertheless, we are of the opinion that there must be evidence of some nature that is probative on the issue; otherwise, every demonstration of affection or playful act directed by an adult toward a child would expose the adult to potential criminal charges, ...