OF JUDGMENT: 04/02/2018
COUNTY CIRCUIT COURT HON. JOHN KELLY LUTHER TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
Troy Lee Masters was charged and convicted of three counts of
sexual battery and one count of touching a child for lustful
purposes in the Circuit Court of Union County. Masters was
sentenced to 40 years in the custody of the Mississippi
Department of Corrections (MDOC) on Count I, with 16 years
suspended and 24 years to serve; to serve 15 years on Count
II; to serve 24 years on Count III; and to serve 24 years on
Count IV. The trial court set each of Masters's sentences
to run concurrently and placed Masters on five years'
post- release supervision. Masters filed a motion for
judgment notwithstanding the verdict (JNOV) or,
alternatively, for a new trial, which the trial court denied.
Aggrieved, Masters appeals. After review of the record, we
affirm the judgment on the convictions of the charges in
Counts I and II, but we reverse and remand for re-sentencing
on these counts; further, we reverse and render judgment on
the convictions of the charges in Counts III and IV.
AND PROCEDURAL HISTORY
In the 1980s, Troy Lee Masters and his wife adopted Cara and
her brother, Adam,  when Cara was five years old. The Masters
family lived in a trailer home in Union County, Mississippi.
In 2012, Cara began working as an ER housekeeper at Baptist
Memorial Hospital in New Albany, Mississippi. Cara did not
drive, so Masters would drop her off and pick her up from
work. While working at Baptist Memorial Hospital, Cara became
friends with head-nurse Cindy Adkins. Adkins helped Cara
advance from working as a part-time employee to working as a
full-time employee, which entitled her to benefits; took her
grocery shopping; and helped organize her finances and obtain
housing. Adkins noticed that Cara would become especially
anxious when it was time for Masters to pick Cara up from
work, so Adkins began staying one hour longer on her shift so
she could give Cara rides home from work. Adkins would then
stay on the phone with Cara from the time she dropped Cara
off until Cara would fall asleep. Cara eventually moved in
with Adkins for about 10 to 12 months before finally moving
into her own place.
At some point between October and November 2016, Cara
disclosed to Adkins that Masters had sexually abused her,
beginning when she was a minor and continuing into adulthood.
On November 15, 2016, Adkins took Cara to the Union County
Sheriff's Office to file a report regarding Masters's
abuse of Cara.
Investigator Baron Baker took Cara's statement. Baker had
Cara return on November 30, 2016, to give a more detailed
report. In these reports, Cara alleged the abuse began at age
13 and continued until only a few months prior to her making
the report. Baker went to Baptist Memorial Hospital on
December 1 and 5, 2016, to record telephone conversations
between Cara and Masters. On a call made on December 5,
Masters asked Cara about her counseling sessions she had
attended, and Cara expressed that she was nervous during them
because the doctors were asking her about her past. Masters
then replied, "Well, tell them about it. Don't tell
them about me, but tell them about what happened to you. Tell
them your aunt sexually abused you." Masters went on to
ask, "Did you tell your girls that you're living
with about what happened between me and you? Is that why
they're not wanting you to be around me?" Cara
returned to the sheriff's office on December 12, 2016, to
give a third, even more detailed statement to Baker.
On December 13, 2016, the police stopped Masters while he was
driving a car and took him to the sheriff's office. Baker
advised Masters of his Miranda rights,
Masters signed a waiver of those rights. Baker played the
recording of the December 5, 2016 telephone conversation for
Masters. Masters acknowledged that the recording was a
conversation between Cara and himself. Baker asked Masters if
Masters wanted to make a statement. Masters responded with
the statement, "I have seen [Cara] naked before.
I've done some things in the past that I know I
shouldn't have done. I guess I need a lawyer." Baker
then stopped questioning Master and later that day charged
Masters with four counts of sexual abuse.
The grand jury indicted Masters on March 30, 2017. Count I
alleged Masters committed sexual battery of a child under 14
years of age, pursuant to Mississippi Code Annotated section
"97-3-95 (1)(d)," between January 1, 1992, and
December 31, 1992, by inserting his finger into Cara's
vagina. The indictment stated Count I imposed a
minimum sentence of 20 years and a maximum sentence of life
Count II alleged Masters committed the crime of touching a
child for lustful purposes, under Mississippi Code Annotated
section 97-5-23 (Supp. 1991), between the same dates as Count
I, by fondling Cara's breasts and vagina. The indictment
stated Count II's maximum sentence for imprisonment was
15 years. Counts III and IV alleged that on two separate
occasions between January 17, 1993, and January 17, 1994,
Masters committed sexual battery of a child between 14 and16
years of age, under Mississippi Code Annotated section
"97-3-95(c)," by inserting his penis into
Cara's mouth when Cara was 15 years old.¶8. At the
pre-trial conference, the prosecution moved for the allowance
of Rule 404(b) evidence. The prosecution sought to introduce
evidence of touching and other sexual activity between
Masters and Cara that occurred after Cara reached adulthood.
The trial court found that the potential probative value of
Cara's testimony of her continued abuse during adulthood
outweighed the potential prejudice to Masters; that if the
defense wanted to limit such testimony, it would have to make
contemporaneous objections; and, that if the defense wanted
to give a limiting jury instruction, it would have to renew
its request for it at the time the jury would be given
At trial, Cara testified that the sexual abuse began when she
was 13 years old. When Cara had her first menstrual cycle,
Masters said, "You ain't my baby girl anymore."
Cara testified that Masters would come into her room in the
early morning and "finger" her. Cara also testified
that Masters would rub lotion on her from her breasts to her
vagina, and that he would make her rub lotion onto his penis.
Cara stated that on two occasions Masters made her put her
mouth on his penis. Cara testified that Masters taught her
how to masturbate when she was 15. As explanation, Masters
told Cara that all fathers and daughters have such a
relationship; that he was ...