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Herbert v. State

Court of Appeals of Mississippi

January 15, 2019

DAVID LEE HERBERT A/K/A DAVID HERBERT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/29/2016

          TRIAL 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

         EN BANC.

          GRIFFIS, C.J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In December 2012, eight-year-old Amy[1] 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.

         ¶3. 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."[2] 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.

         ¶4. 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.

         ¶5. 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 hand.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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 ...


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