COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/15/2011. TRIAL JUDGE: HON.W. ASHLEY HINES. TRIAL COURT CONVICTED OF COUNT I, FONDLING, AND SENTENCED TO FIFTEEN YEARS; COUNT II, SEXUAL BATTERY, AND SENTENCED TO THIRTY YEARS; COUNT III, FONDLING, AND SENTENCED TO FIFTEEN YEARS; AND COUNT IV, FONDLING, AND SENTENCED TO FIFTEEN YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JUSTIN TAYLOR COOK.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.
BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Jonathan Mosby was convicted by a jury in the Washington County Circuit Court on one count of sexual battery and three counts of child fondling. Mosby was sentenced to thirty years for sexual battery and to fifteen years for each count of fondling, with all sentences to run consecutively. Mosby now appeals. Finding Mosby's assignments of error to be without merit, we affirm the judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶2. On April 4, 2006, I.B., an eleven-year-old minor child, reported to her
teacher that she had been touched sexually by Mosby, a family friend. School officials contacted the Greenville Police Department and I.B.'s mother, Laura Brown. Lieutenant Misty Litton led the investigation for the Greenville Police Department. Litton arranged for I.B. and her three siblings to undergo forensic interviews at a family-crisis center in Oxford, Mississippi. During the interview, I.B.'s brother, S.B., also reported improper sexual contact with Mosby.
¶3. Mosby was arrested on April 14, 2006, and charged with one count of child fondling. After Mosby's arrest, S.B. told the police that another child, D.W., had confided to him that he had been inappropriately touched by Mosby. The police interviewed D.W., and he reported being touched sexually by Mosby on several occasions in 2005. On June 14, 2010, Mosby was indicted on one count of sexual battery and three counts of fondling.
¶4. A jury trial was held on April 12-14, 2011, in the Circuit Court of Washington County. At trial, Brown testified that Mosby was a childhood friend and was like a brother to her. She testified that Mosby would often take her children to eat at restaurants, and the children would often spend the night at Mosby's house. I.B. testified that, on a night in February 2006, Mosby entered the room where I.B. slept, carried her into his bedroom, and sexually assaulted her by fondling her breast and penetrating her vagina with his fingers.
¶5. S.B. also testified at trial. He stated that the last time that he stayed at Mosby's house, Mosby climbed on top of him and rubbed Mosby's penis against S.B.'s penis. D.W. testified about several incidents of inappropriate sexual contact that occurred in 2005, when he spent time at Mosby's house. D.W. also testified to a conversation he had with Mosby in July 2009, during which Mosby asked D.W. to lie about being touched.
¶6. The jury found Mosby guilty on all four counts named in the indictment. Mosby was sentenced to thirty years for sexual battery and to fifteen years on each count of fondling, with all sentences to run consecutively. Mosby filed a post-trial motion for a judgment notwithstanding the verdict (JNOV), a new trial, reconsideration of the sentence, and reasonable bail pending an appeal. This motion was denied. Mosby now appeals raising the following issues: (1) whether the trial court erred in overruling his motion for a JNOV; (2) whether the jury instructions were invalid; (3) whether the trial court misapplied Mississippi's tender-years exception to the hearsay rule; and (4) whether his convictions for the sexual battery and fondling of I.B. violated his double-jeopardy rights. Finding no error, we affirm.
I. Whether the trial court erred in overruling Mosby's motion for a JNOV.
¶7. Mosby asserts that the trial court erred in overruling his motion for a JNOV as to the fondling charges in Count III and Count IV, arguing that the State failed to prove the date on which the instances of fondling occurred. Thus, Mosby is challenging the legal sufficiency of the evidence.
¶8. A motion for a JNOV implicates the legal sufficiency of the evidence. Arbuckle v. State, 894 So.2d 619, 622 (¶ 16) (Miss. Ct. App. 2004) (citing Bullins v. State, 868 So.2d 1045, 1048 (¶ 12) (Miss. Ct. App.
2004)). The Mississippi Supreme Court has held that " [w]hen reviewing a case for the sufficiency of the evidence, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Parker v. State, 962 So.2d 25, 26 (¶ 8) (Miss. 2007) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). Additionally, " the evidence must show 'beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.'" Id. The evidence will be deemed to have been sufficient if, keeping in mind the reasonable-doubt standard, " reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]" Id.
¶9. Count III charged Mosby with fondling D.W. between the first day of September 2005 and the thirty-first day of January 2006. D.W. testified to several instances of inappropriate touching that occurred in 2005 when he spent time at Mosby's house. D.W. testified that on one occasion, Mosby fondled his penis while D.W. was attempting to apply lotion to a rash on his thigh. On another occasion, while D.W. was asleep in Mosby's bed, Mosby rolled on top of him, " humped" him, and placed his penis on D.W.'s buttocks area. D.W. testified that one night, while he was asleep in Mosby's bed, he awoke to find Mosby attempting to remove D.W.'s penis ...