IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-KA-00185-COA
JOSHUA LOWRY CARR A/K/A JOSHUA L. APPELLANT CARR A/K/A JOSHUA CARR
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/12/2024 TRIAL JUDGE: HON. BRAD ASHLEY TOUCHSTONE COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/06/2025 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., WESTBROOKS AND ST. PÉ, JJ.
ST. PÉ, J., FOR THE COURT:
¶1. Joshua Carr was charged with and found guilty of fondling three of his nieces and
committing sexual battery against one of them. On appeal, he argues that he was entitled to
funds to hire an expert witness, that the trial court erred by allowing testimony about other
alleged bad acts, that his conviction of fondling one niece merges with the conviction of
sexual battery of the same niece, and that his indictment was insufficient for him to prepare
an adequate defense. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Carr was indicted in Pearl River County on three counts of child molestation under Mississippi Code Annotated section 97-5-23 (Rev. 2020) and one count of sexual battery
under section 97-3-95(1)(d) (Rev. 2020). The indictment alleged that Count I occurred
between January 1, 2018, and March 30, 2021, and that Carr had “handle[d], touch[ed], or
rub[bed] with his hand the genitals of [Amy].[1]” Count II alleged the same dates and that
Carr had “handle[d], touch[ed], or rub[bed] with his hand the breasts of [Jane].” Count III
alleged the same dates and that Carr had “handle[d], touch[ed], or rub[bed] with his hand the
genitals of [Kate].” Count IV alleged that Carr was older than 18 and had “digitally
penetrated the genitals of [Kate]” at a time when she was younger than 14 and he was more
than 24 months older than her.
Abuse Allegations
¶3. Amy and Jane’s mother (and Kate’s stepmother) is Jennifer, and her sister Samantha
had been married to Carr for most of Jennifer’s kids’ lives. Jennifer had known him for about
eighteen years. She described their relationship as “really close.” At one point, Jennifer, her
husband Shaun, and their four kids lived with Carr, Samantha, and their three kids. They
later moved across the street from Samantha and Carr, and they were “always together” at
one another’s houses. It was not unusual for her girls to be at Carr’s house or to be alone with
Carr. She said that sometimes Carr would go into his room to watch a movie if he did not feel
like hanging out with the rest of the family, and he would ask the girls to come into the room
to watch a movie with him.
1 We use the aliases as given by the parties to protect the victims of sexual abuse.
2 ¶4. Jennifer testified that on May 27, 2021, the girls had gone on a long walk and were
upset when they got home. She could tell that Jane had been crying, and Jennifer asked what
was wrong. Jane asked for a “family meeting,” which Jennifer explained was their family’s
way of creating a safe, judgment-free space for the children. Jennifer asked why they needed
to meet, and Jane’s knees buckled as she told Jennifer, “Mom, it’s bad.” At the family
meeting, the girls told Jennifer that Carr “had been doing inappropriate things to them . . .
that he was touching their private parts and that he was making them touch his.”
¶5. Jennifer testified that a few years before this, in 2016 or 2017, Jane told her that she
was not comfortable around Carr. Jennifer said that they were living across the street from
Carr at the time. The adults were at Carr’s house, and the children were watching movies at
her house. Jennifer testified that the adults realized Carr was no longer with them. She and
her father went across the street to get some Diet Coke, and when she went inside, she found
Carr watching a movie with the kids. Jennifer testified that Carr was in a chair with Jane in
his lap and that there was a blanket covering her.
¶6. Jane was upset and crying. While Jennifer’s father yelled at Carr that it was
“inappropriate” for him to be alone with the kids while all the adults were across the street,
Jennifer spoke to Jane. Jane said that Carr had been rubbing her back and that he “had put
his hand on the inside of her panty line on her back” near her bottom. Jennifer testified that
she “honestly did not put too much thought into it at that moment.” She said Carr had been
drinking, and he often rubbed the kids’ backs. But she did speak to her sister Samantha. She
3 told Samantha that she did not want Carr to have the kids on his lap or under blankets
anymore. Carr denied doing anything wrong and was angry at their suggestions.
¶7. On cross-examination, Jennifer testified that Samantha did not initially believe the
girls’ allegations, but Samantha changed her mind after their other sister’s daughter disclosed
that she too had been touched. Jennifer said that the girls have not changed their story since
first disclosing it, and she had not encouraged them to fabricate the story.
¶8. Amy testified that Carr started abusing her when she was seven or eight years old and
that it continued until she was thirteen. She said that Carr would touch her breasts and her
“private part” and that it happened more than once. She testified that she and Carr would
sometimes be alone together in his room, and he would cover them with a blanket.
Sometimes her sisters would be there too, but Kate was more likely to be there than Jane. She
said they saw him touch her. She said it was sometimes on top of her clothes and sometimes
underneath. He used his hands, and he did not say anything. At least once, Carr forced her
to put her hands on his “private part.”
¶9. Whenever she tried to get out from under the covers, Carr would tell her she would
get cold; if she tried to leave the room, he would tell her that the movie was not over yet.
Sometimes, when Carr was drunk, he would grab Amy’s behind and try to make out with her.
The last time he had kissed her was New Year’s in 2021.
¶10. Amy said she felt very upset by the New Year’s incident, and sometime after, she and
her sisters went on a walk and somehow began talking about it. She said talking about it then
4 and now made her feel sick. Amy testified that she had not told anyone before that because
she was afraid to ruin her family. She testified that it had been hard since she disclosed the
abuse because she could not see everyone in her family anymore.
¶11. On cross-examination, Amy testified that she had seen Carr with her sisters too. If
they were all in the bed, she would see Carr touching them the same way he had touched her.
She saw him kiss Kate with his tongue, too. Amy said that the abuse got worse after they
moved across the street from Carr’s house. Amy did not know at the time the abuse was
happening that it was wrong.
¶12. Jane testified that Carr began abusing her when she was eight or nine. She did not
know the exact date it started. Jane testified that Carr would touch her breasts and “between
[her] legs,” but usually only the outside of her clothes. She testified that the abuse was
happening “a lot.” Jane testified that sometimes Carr put her on his lap “on top of him” and
would kiss her on the lips, rub her back, and rub her bottom. She had her clothes on, but his
were off. He often told her he loved her.
¶13. Jane said the abuse happened in his bedroom or on the couch in the living room.
Usually, no one else was there, but sometimes one of his daughters would be there too when
they were infants or toddlers. Sometimes, Carr would wear only his underwear. Carr covered
them with a blanket. She testified that Carr would ask her if she wanted to “snuggle” before
they got on the couch or bed. If she said she did not want to, he would “get upset.”
¶14. Jane testified that the day she and her sisters disclosed the abuse, they had taken a
5 walk. She did not remember how it came up, but one of her sisters mentioned that Carr made
her uncomfortable. Jane asked if anything had happened to the other girls, and they both said
yes. When they all realized what was going on, Jane decided to tell her mom. She did not
know that it had been happening to her sisters too. She had never planned to tell anyone
because she was embarrassed and worried what would happen to the family, but when she
realized her sisters were being abused too, she decided to speak up.
¶15. Kate testified that Carr began abusing her when she was six or seven and that it
happened more than once over the years. She could not say how many times it happened, but
she knew that the last time was in 2019 or 2020. She testified that Carr used his hand to touch
her chest and vagina—her “private areas”—both on top of and under her clothes. This
usually happened in the bed in his room. She said that sometimes he had his hand in her
pants, but other times his finger would “go, like, in between [her] lips.” The State asked her
to clarify, and she said, “The lips for, like your vagina kind of like covering, like, the holes,
I guess you could say.” She clarified on cross that his finger went “in between the lips of her
vagina” but that he never went “inside of [her] vagina.” She did not know what “penetrating”
meant; she guessed that it meant “touching.”
¶16. Kate said the abuse happened mostly in Carr’s bedroom. He would ask if she wanted
to watch a movie and snuggle, and when they lay down on the bed, he would start to touch
her. Sometimes he made her touch his penis under his clothes. He would put her hand on
him, and when she tried to move it, he would “force [her] hand back down.”
6 Expert Witness
¶17. Kaitlyn Jewell, the forensic interviewer for Hope Haven Child Advocacy Center,
testified as an expert in forensic interviews. She testified that they had received a referral
from law enforcement for the girls, and she explained the general process of interviewing.
At the time of the interview, June 2021, Kate was thirteen, Jane was fourteen, and Amy was
thirteen. Each girl made a disclosure during the interview about improper touching by their
uncle, Carr.
¶18. Jewell did not think it was odd that none of the girls had disclosed Carr’s abuse
previously. She testified that it was “a process for a lot of children,” and that it often took
time for children to “finally feel comfortable enough to come forward about things.” Jewell
concluded that the girls were “consistent with sharing information that they were being
touched inappropriately.” She recommended to law enforcement that they continue the
investigation and that there be no further contact with Carr. Jewell explained that it was not
her job to determine whether a crime had been committed; her job was to gain information
from the children to pass along to law enforcement.
¶19. Jewell was cross-examined about the form she completed for each interview. In each
instance, she did not mark that digital penetration, fondling, or kissing had taken place but
wrote “touching private parts.” She testified that the girls had disclosed that their uncle
kissed them even though she did not mark it. She said that “it was a mistake that I actually
did not catch until right now.” She saw no signs that the girls had been coached or otherwise
7 told what to say.
Prior Bad Acts Witnesses2
¶20. Jennifer and Samantha’s niece Molly testified that when she was twelve or fourteen,
and was in Mississippi for vacation, Carr would touch her in ways that made her
uncomfortable. She testified that once Carr asked her to lie on a trampoline with him to look
at stars and that he rested his hand on her breasts for at least a minute. As they lay there, he
started to move his hand to the top of her underwear, but they were interrupted by Amy.
When Amy went back inside, he tried to put his hand in her shorts again, and this time he
was successful. He touched her vaginal area on top of her underwear. Molly said she froze
because she did not understand or know what to do. He started to move his hand under her
underwear, but Molly “freaked out” and made him stop.
¶21. Deanna, Carr’s second cousin, testified that she visited family in Mississippi when she
was roughly eleven or twelve. During her visit, Carr gave her a drink containing alcohol and
lied to her when she asked if it was alcoholic. She was driving a four-wheeler, and Carr was
riding behind her. As they rode, he put his hands in her pants on the outside of her
underwear. When she questioned him, he told her his hand was cold. She did not tell anyone
because she thought it was just a “drunken mistake,” since she thought everyone in his family
had a drinking problem.
2 The Appellant’s Brief does not assign aliases to these witnesses and refers to them by their initials. The State instead adopted aliases (Molly and Deanna) for I.J. and A.L., respectively.
8 Carr’s Testimony
¶22. Carr testified that Jennifer, Shaun, and their children moved in with him and Samantha
sometime between 2017 and 2019 and lived with them for roughly a year. Carr and Samantha
slept in their room; their kids slept in their rooms; Jennifer and Shaun slept on a mattress in
the living room; and Jennifer and Shaun’s kids slept “between the couch and children’s
bedrooms.” He testified that there were TVs in the living room, his bedroom, and one in each
of his kids’ bedrooms. Sometimes the kids would watch TV in his room. He testified that he
always kept the door to his room open if the kids were in there.
¶23. He denied that he ever touched, fondled, or sexually touched Molly or Deanna. He
denied touching any of the other children sexually. He denied ever being behind closed doors
with the girls. He also denied that he had ever been alone in a bedroom with the girls. He
further denied ever forcing them to touch his penis or to lie on top of him. He likewise denied
putting his hand in their underwear or touching their breasts. He testified that he viewed the
girls “as they were [his] own children. [He] treated them exactly the same. [He] basically
helped raise them.”
¶24. On cross-examination, he claimed that Kate, Jane, Amy, Molly, and Deanna were all
lying. But he admitted that there had been times when he was in his room with the girls. He
claimed that the girls had all made up the story to help his ex-wife, Samantha, in her divorce.
He testified that despite the charges against him, he had been able to see his children
regularly.
9 ¶25. The jury found Carr guilty of all four counts. Carr was sentenced to fifteen years on
Count I, with seven years to serve and eight years suspended; fifteen years on Count II, with
seven years to serve and eight years suspended, to be served consecutively to Count I; fifteen
years on Count III, with six years to serve and nine years suspended, to run consecutively to
Counts I and II; and thirty years on Count IV, with twenty years to serve and ten years
suspended, to run concurrently with Counts I, II, and III, all in the custody of the Mississippi
Department of Corrections.3
ANALYSIS
¶26. Carr raises four issues on appeal. First, he argues that the trial court erred when it
denied him funds to hire an expert in forensic psychology. Second, he argues that the trial
court erred in allowing the State to present witnesses under Mississippi Rule of Evidence
404(b). Third, he argues that his conviction for fondling in Count III merges with the sexual
battery conviction in Count IV. Finally, he argues that the trial court erred when it denied his
motion for a statement of particulars.
I. Expert Funds
¶27. We review the denial of expert funding for an abuse of discretion, recognizing that
the decision must be made on a case-by-case basis. Barnett v. State, 192 So. 3d 1033, 1038
(¶17) (Miss. Ct. App. 2015). The United States Supreme Court has held that “a criminal trial
3 The court ordered the terms to be served day-for-day and imposed post-release supervision.
10 is fundamentally unfair if the State proceeds against an indigent defendant without making
certain that he has access to the raw materials integral to the building of an effective
defense.” Ake v. Oklahoma, 470 U.S. 68, 77 (1985). However, this does not mean that the
“State must purchase for the indigent defendant all the assistance that his wealthier
counterpart might buy[.]” Id. Rather, an indigent defendant is entitled to expert assistance
when the “denial of such assistance would render the trial fundamentally unfair.” Lowe v.
State, 127 So. 3d 178, 181 (¶13) (Miss. 2013). The right to expert funds is “conditioned upon
a showing that such expenses are needed to prepare and present an adequate defense.”
Barnett, 192 So. 3d at 1039 (¶18) (quoting Green v. State, 631 So. 2d 167, 171 (Miss. 1994)).
The defendant must present “concrete reasons, not unsubstantiated assertions that assistance
would be beneficial.” Brown v. State, 152 So. 3d 1146, 1166 (¶90) (Miss. 2014).
¶28. Additionally, “[t]he relative importance of the testimony offered by the State’s experts
is one factor to consider in assessing the fairness of the trial.” Id. Where the “State relies on
expert testimony alone to prove or corroborate an element of the crime, then the defendant
is entitled to an expert to assist in his defense and preparation for cross-examination.” Isham
v. State, 161 So. 3d 1076, 1083 (¶33) (Miss. 2015).
¶29. Carr argues that the trial court erred in denying his request for funds to hire an expert
“[b]ecause the State’s case heavily relied” on its expert’s conclusion that the victims’
statements were consistent with their allegations, and he suggests that the trial court
erroneously focused on Carr’s ability to hire his own expert because he had retained counsel.
11 But the trial court’s order shows that it denied Carr’s motion based on Carr’s failure to
“clearly show[] ‘a substantial need or concrete reason’” that he needed a psychology expert
“to adequately defend himself.”
¶30. This was not an abuse of discretion. Carr’s motion argued that the expert was
necessary because of the State’s questioning the witnesses at grand jury4 and to “consider all
of the circumstances in this case” and to “opine on a child’s veracity when confronted by
adult figures in authoritative settings.” At the hearing on his motion, he argued simply that
a psychologist “would be able to tell when a child is put in an authoritative situation or a high
risk situation in front of an authoritative figure, they may have the propensity to lie or change
their answers.” This was not concrete enough to show a substantial need for an expert, and
the trial court did not abuse its discretion by denying the funds.
¶31. Plus, the State’s case did not hinge solely or even significantly on its expert’s
testimony. Jewell’s testimony was not the sole connection between Carr and the crimes—the
victims’ testimonies were. Without Jewell’s testimony, the victims’ testimonies would have
been sufficient for the jury to convict. Carr was also able to rigorously cross-examine Jewell
on her methodology and conclusions as a forensic interviewer. He pointed out the
discrepancies between Jewell’s written reports and her testimony, effectively calling Jewell’s
4 At the hearing on Carr’s motion, Carr asserted that Kate had changed her allegations during her grand jury testimony, and Carr’s counsel suggested that the State had questioned her improperly in order to induce this change. The State vigorously disputed this allegation. The trial court ultimately determined the assistant district attorney who had questioned Kate had not made herself a necessary witness.
12 credibility into question as well as the victims’ credibility.
¶32. The trial court did not abuse its discretion by denying Carr’s motion for expert funds
because Carr did not provide sufficient proof that an expert was required to rebut the State’s
case, and the denial did not render the trial fundamentally unfair because the State’s case did
not rely solely on expert testimony.
II. Rule 404(b) Witnesses
¶33. Mississippi Rule of Evidence 404(b)(1) prohibits the use of “evidence of a crime,
wrong, or other act . . . to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” But that evidence “may be
admissible for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” MRE 404(b)(2). A trial
judge’s decision to allow this evidence is reviewed for an abuse of discretion. Green v. State,
89 So. 3d 543, 549 (¶15) (Miss. 2012). “Unless the judge abuses [his] discretion so as to be
prejudicial to the accused, the Court will not reverse” his ruling. Gore v. State, 37 So. 3d
1178, 1183 (¶13) (Miss. 2010).
¶34. Our Supreme Court has held that “evidence of a sexual offense, other than the one
charged, which involves a victim other than the victim of the charged offense for which the
accused is on trial” may be admitted “if properly admitted under Rule 404(b), filtered through
Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction.”
Derouen v. State, 994 So. 2d 748, 756 (¶20) (Miss. 2008). Rule 403 allows the court to
13 exclude otherwise relevant evidence “if its probative value is substantially outweighed by a
danger” of unfair prejudice, confusion of the issues, or misleading the jury, among other
things.
¶35. Carr complains that the trial court erred by allowing Molly and Deanna to testify that
Carr had abused them because their evidence was “substantially more prejudicial than
probative” under Rule 403. He argues that the State’s remark during closing argument shows
that the State intended to use Molly’s and Deanna’s testimony as propensity evidence.5 He
does not argue that the evidence was inadmissible under Rule 404(b), only that the evidence
violated Rule 403 because it unfairly prejudiced the trial, confused the issues, and misled the
jury.
¶36. We disagree. The trial court found that Molly’s and Deanna’s allegations bore “a
clear and substantial resemblance” to the victims’ allegations because they were abused
around the same ages as the victim, they were also related to Carr, and they were touched in
the same places. The testimonies support this finding and illustrate their probative value,
which Carr does not contest.
5 The State said at trial: “And the Judge told you about how you’re supposed to judge the evidence that we put on, which we call 404(b) evidence. That was [Molly] and [Deanna]. What— they have nothing to lose here. The purpose of that evidence is to show you that Joshua Carr was a predator. He preyed on young girls that he could get his hands on at any given time.” Carr did not object to this statement at trial. Even if he had, the statement is not entirely out-of-bounds. The Supreme Court has allowed similar evidence in as proof of motive: a “seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles.” Boggs v. State, 188 So. 3d 515, 521 (¶18) (Miss. 2016) (quoting Gore, 37 So. 3d at 1186 (¶18)).
14 ¶37. The trial court did not abuse its discretion by finding that the probative value was not
substantially outweighed by the risk of unfair prejudice to Carr. Beyond pointing to the
State’s closing argument, to which Carr did not contemporaneously object, Carr does not
explain how the probative value of Molly’s and Deanna’s testimony was substantially
outweighed by the danger of undue prejudice.
¶38. Finally, the trial court gave a limiting instruction, instructing the jurors that Molly’s
and Deanna’s testimony could only be considered “for the limited purpose of showing
motive, intent, plan, lack or accident, or mistake” and that the jury could not “infer that the
defendant acted in conformity with his previous acts and that he is therefore guilty” of the
charged crimes.
¶39. The trial court did not abuse its discretion by allowing Molly and Deanna to testify
about their abuse.
III. Double Jeopardy Merger
¶40. We review de novo double-jeopardy claims. Shoemaker v. State, 256 So. 3d 604, 612
(¶30) (Miss. Ct. App. 2018). Carr argues that his convictions of Count III, which charged him
with fondling Kate, and Count IV, which charged him with sexual battery of Kate, violate
his right against double jeopardy because fondling is a lesser-included offense of sexual
battery.
¶41. Carr argues that the Supreme Court’s holding in Friley v. State, 879 So. 2d 1031
(Miss. 2004), prevents his conviction of both Count III and Count IV because the allegations
15 of Count III were indistinguishable from those of Count IV. In Friley, the Supreme Court
held that it was not error to give a fondling instruction as a lesser-included-offense
instruction to sexual battery because “[i]t is impossible to penetrate without touching.” Id.
at 1035 (¶15). But this Court has noted that this “general holding . . . is not absolute”: “where
sufficient evidence exists to support separate and distinct acts of fondling and sexual battery,
separate indictable charges can properly stand without implicating jeopardy issues. This is
so even if the criminal acts are closely connected or based on a common nucleus of fact.”
Shoemaker, 256 So. 3d at 613 (¶32) (quoting Faulkner v. State, 109 So. 3d 142, 147 (¶20)
(Miss. Ct. App. 2013)).
¶42. Carr argues that this case is indistinguishable from Stewart v. State, 228 So. 3d 872
(Miss. Ct. App. 2017), in which this Court reversed and rendered a fondling conviction after
finding a double jeopardy violation. However, in that case, the victim testified that the
defendant touched her vagina with his tongue and that he put his tongue in her vagina; “there
was no testimony the two acts occurred separately.” Id. at 876 (¶13). This Court reversed and
rendered the conviction because the State did not present “sufficient evidence . . . to support
separate and distinct acts of molestation and sexual battery.” Id. at 878 (¶20).
¶43. Here, the evidence supported two separate and distinct acts sufficient to support
convictions of Count III and Count IV. Kate testified that there were numerous occasions
when Carr touched her vagina and that at least once he digitally penetrated her labia. She
testified that the assaults took place over the years; this is quite different from the victim’s
16 testimony in Stewart, where the victim testified about only one incident. Because the State
presented evidence of separate and distinct acts, there is no merger of Counts III and IV, and
Carr’s right to be free from double jeopardy has not been violated.
IV. Indictment
¶44. We review de novo the legal sufficiency of an indictment. Shoemaker, 256 So. 3d at
610 (¶21). “[W]hether an indictment is fatally defective is an issue of law and deserves a
relatively broad standard of review by this Court.” Id. (quoting Williams v. State, 169 So. 3d
932, 925 (¶7) (Miss. Ct. App. 2014)).
¶45. “The purpose of an indictment is to furnish the defendant with notice and a reasonable
description of the charges against him so that he may prepare his defense.” Goff v. State, 14
So. 3d 625, 665 (¶175) (Miss. 2009). “An indictment must contain (1) the essential elements
of the offenses charged, (2) sufficient facts to fairly inform the defendant of the charge[s]
against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy
in the event of a future prosecution for the same offense.” Shoemaker, 256 So. 3d at 610-11
(¶22) (quoting Jones v. State, 215 So. 3d 508, 510-11 (¶8) (Miss. Ct. App. 2017)). The
Supreme Court has held that “a specific date in a child sexual abuse case is not required so
long as the defendant is fully and fairly advised of the charge against him.” Jenkins v. State,
131 So. 3d 544, 549 (¶14) (Miss. 2013). Two cases are instructive here.
¶46. In Morris v. State, 595 So. 2d 840 (Miss. 1991), the defendant’s indictment alleged
that he had molested his stepdaughter “over a cumulative period of one to two-and-a-half
17 years” when she was nine or ten years old. Id. at 841. On appeal, the defendant argued that
the State’s “failure to provide specific dates deprived him of the opportunity to present a
convincing alibi to the jury.” Id. at 841-42. The Supreme Court held that the due process
required “that the defendant be given the specific date if at all possible[,]” and because the
victim could not recall specific dates of the molestation five years after the fact, “the State
could not narrow the time frame any more than it did.” Id.
¶47. In Shoemaker, this Court affirmed a similar conviction under an indictment alleging
sexual abuse of a child over the course of two years. Shoemaker, 256 So. 3d at 611-12 (¶¶25-
29). The victim in Shoemaker testified that “she could not say how many times the sexual
abuse occurred or the exact dates on which it occurred because it happened ‘a lot.’” Id. at 612
(¶27). We also noted that the testimony showed that the defendant and the victim “had
constant interaction with each other during the period at issue,” partly because they lived next
door to one another. Id. at (¶28).
¶48. Carr argues that his indictment failed to provide him with an opportunity to present
a theory of defense because there were “no real grounds” on which he could defend himself
beyond a blanket denial. He argues that if the indictment had contained more specific
information, “he could have mounted a more specific defense to the allegations,” but he stops
short of explaining what that defense would have been.
¶49. This was the appellant’s argument in Shoemaker, and like in Shoemaker, we find that
the State could not narrow the date ranges in the indictment any more than it already did.
18 Each victim testified that the abuse occurred many times, and none knew an exact date. They
also all testified that they spent a lot of time with Carr and his family, which was supported
by Jennifer’s and Carr’s testimony too. Carr’s indictment provided him with notice sufficient
to prepare a defense. Under these facts, the indictment was not defective.
CONCLUSION
¶50. We affirm Carr’s convictions and sentences for the three counts of fondling and one
count of sexual battery.
¶51. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER AND WEDDLE, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.