OF JUDGMENT: 07/29/2016
JUDGE: HON. LINDA F. COLEMAN BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN T. COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA M. AINSWORTH
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
David Lee Herbert appeals his conviction of fondling. He
argues that the victim's statements were erroneously
admitted under the tender-years hearsay exception and he was
entitled to a circumstantial-evidence jury instruction. We
find no error and affirm.
AND PROCEDURAL HISTORY
In December 2012, eight-year-old Amy and her younger brother were
visiting their paternal grandmother, Sue, over Christmas
break. On a Thursday, Amy and her brother spent the night at
her aunt Suzanne's house. Suzanne, Sue's daughter, is
married to Herbert. On Friday, Amy spent the night with her
other grandmother. Amy and her brother returned to Sue's
house on Saturday.
When Amy and Sue were getting ready for bed, Amy mentioned
that she had broken a new electronic device she had received
for Christmas and commented that "bad things" were
happening. Sue noticed that Amy was "fidgety" and
kept tossing and turning in bed. Sue asked Amy if she felt
bad, and Amy responded that she did not. After Amy continued
to toss and turn, Sue asked her again what was wrong. Amy
responded, "Maw-maw, I need to tell you something . . .
. I don't think this was a dream, maw-maw . . . . I think
I was molested at auntie's house." Amy advised that
she felt someone kiss her breast and touch her. When Sue
asked who had kissed and touched her, Amy stated that she did
not see the person but that the person had big hands and
smelled like smoke. In response, Sue commented that the only
adults at the house that night were Suzanne and Herbert and
that it must have been Herbert who had touched her.
Sue subsequently called Amy's parents and advised them of
the allegations. The Bolivar County Sheriff's Department
was contacted. Investigator Michael Williams interviewed Sue
and Herbert. Investigator Williams did not speak with Amy
but, instead, referred her to a forensic interviewer.
In February 2013, Jaime Moore conducted a forensic interview
of Amy. During the interview, Amy identified Herbert as the
person who had touched her. Amy advised that Herbert touched
her breast with his mouth and touched her vagina with his
Prior to trial, the circuit court held two separate hearings
outside the jury's presence to determine whether
Amy's statements to Sue and Moore were admissible. After
considering the time, content, and circumstances surrounding
Amy's statements, the circuit court ruled that the
statements had substantial indicia of reliability and were
admissible under the tender-years hearsay exception.
At trial, Sue and Moore testified regarding Amy's
statements. Amy also testified. Amy explained that while at
Suzanne's house, she and her brother slept on the couch
in the living room; Suzanne and Herbert slept in their
bedroom. Throughout the night, Amy would hear Suzanne and/or
Herbert come in to check on them. At one point, Herbert came
in, raised up her shirt, and kissed her "upper
chest" or "boobs" with "his lips."
He then "reached in [her] pants and touched [her]
vaginal area" with "his hand" and left.
According to Amy, her brother was asleep on the other end of
the couch. Although her eyes were closed, Amy was not asleep.
Herbert was convicted of fondling and sentenced to serve ten
years in the custody of the Mississippi Department of
Corrections, with two years suspended, followed by two
years' supervised probation. He was further ordered ...