Moses v. State

885 So. 2d 730, 2004 Miss. App. LEXIS 912, 2004 WL 2036925
CourtCourt of Appeals of Mississippi
DecidedSeptember 14, 2004
DocketNo. 2003-KA-00547-COA
StatusPublished
Cited by1 cases

This text of 885 So. 2d 730 (Moses v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moses v. State, 885 So. 2d 730, 2004 Miss. App. LEXIS 912, 2004 WL 2036925 (Mich. Ct. App. 2004).

Opinion

IRVING, J.,

for the Court.

¶ 1. Willie Walter Moses was convicted by a Marion County Circuit Court jury of five counts of statutory rape, one count of sexual battery, and three counts of fondling. Moses now appeals and alleges that the trial court erred (1) in not sustaining his motion to quash the indictment, (2) in allowing the State to amend the indictment, and (3) in denying his motion for a mistrial when the State elicited testimony of prior bad acts. He also contends that the verdict is contrary to the weight and sufficiency of the evidence.

¶ 2. We find no reversible error; therefore, we affirm Moses’s convictions and sentences for the several counts in the indictment.

FACTS

¶ 3. This is the second time this case has been before us. In Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001) (Moses I), Moses was indicted on fifteen counts of raping Child A, along with two counts of sexual battery and five counts of fondling Child B.1 The indictment in Moses I charged that the alleged crimes in counts one through seventeen occurred between June 1994 and September 1997.2 Id. at 570 (¶¶ 4-5). No dates were alleged for counts eighteen through twenty-two. Id. at (117).

¶ 4. In Moses /, the trial judge granted a directed verdict in favor of Moses on three counts although there were no specific dates in the counts. The record reveals, however, that three specific, dated incidents were discussed by the trial judge as forming the basis for the counts being dismissed. However, in granting the directed verdict, the trial judge failed to properly correlate the factual incidents to an appropriate numerical count of the indictment. That could be done only by correlating the incidents from a temporal [733]*733perspective with the numerical counts of the indictment, i.e., by making the first incident correspond with count one of the indictment and the successive incidents correspond seriatim with the numbered counts of the indictment. Rather than making the correlation, the trial judge arbitrarily designated those three counts as counts fourteen, fifteen, and twenty-two. Id. at 570(¶ 3). A proper correlation of the incidents temporally with the counts in the indictment would reveal that the trial judge actually granted a directed verdict as to counts one, six, and twenty instead of fourteen, fifteen and twenty-two as stated in the judgment of conviction.

¶ 5. On appeal, this Court reversed and rendered seven counts. Id. at 573(¶ 19). The trial judge’s failure to properly correlate the factual incidents temporally with the counts in the indictments resulted in this Court incorrectly identifying those counts as counts seven through thirteen when in fact they were counts nine thróugh fifteen. Although the counts were misidentified by number, it is clear from the record in Moses I, that we reversed and rendered all offenses which occurred after Child A had reached her fourteenth birthday. Id.

¶ 6. We also reversed and remanded the remaining counts, i.e., counts one through six and sixteen through twenty-one, due to a lack of specificity in the dates and facts of the alleged incidents. Id. at 572-73 (¶¶ 17-18). Because the incidents were not temporally correlated seriatim with the numbered counts of the indictment, the remaining counts were also misidentified. Had the correlation been done, the remaining counts would have been identified as two through five, seven and eight, sixteen through nineteen, and twenty-one and twenty-two.

¶ 7. On remand, Moses was re-indicted on eleven counts. Counts one through six charged him with statutory rape of Child A. Counts seven through eleven charged him with one count of sexual battery and four counts of fondling Child B. The indictment alleged specific and separate times for each offense set forth in the eleven counts. Before the trial commenced, the State moved to dismiss counts one and ten. The jury found Moses guilty of the remaining counts of the indictment.

¶ 8. At the time of the alleged incidents, Moses was married to Child B’s mother who was also the aunt of Child A.3 Moses, however, was not Child B’s father. Both Child A and Child B lived with BB and Moses. Child A testified that Moses began sexually abusing her in October 1994. She testified that she had just turned eleven years old. Child A stated that the abuse occurred twice that month, once when her mother and cousin were gone to the store, and again when her mother was at work. Child A further testified that the abuse happened again in September 1995, then in August 1996, and in January 1997 when she was thirteen years old.

¶ 9. Child A also testified that in June and July of 1998, she observed Moses touch her cousin, Child B, in her genital area while her mother was at work. Child A stated that when Moses became aware that she was standing there looking, he continued to move his hands in Child B’s shorts while he looked back at her (Child A). Child A claimed that she also saw Moses touch Child B on another occasion.

¶ 10. Child B next testified that Moses began sexually abusing her in June 1998 when she was thirteen years old. She stated that Moses asked her to massage him and then took her hands and put them [734]*734in his shorts. Child B alleged that he then touched her on her vagina. She further testified that the abuse happened again approximately a week later, and that she told her mother that Moses had been molesting her. Child B alleged that the next night while her mother was at home asleep, Moses touched her again on her vaginal area, but he was interrupted when the telephone rang. Child B stated that after Moses finished talking on the phone, he left the house and she woke her mother up and told her that it had happened again. Child B stated that the following day, while her mother was at work, Moses rubbed something on her vaginal area.

¶ 11. Moses was arrested shortly thereafter, and BB consented to a search of their residence. Police found items that the victims alleged were used during their sexual encounters with Moses. ■ These items included a pornographic tape, condoms, and some lubricant. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Motion to Quash the Indictment

¶ 12. Moses first argues that the trial court committed reversible error in not sustaining his motion to quash the indictment. He specifically contends that the charges in the new indictment were barred by the doctrine of double jeopardy because the same factual allegations in the new indictment had been disposed of in the previous indictment.

¶ 13. As already noted, in Moses I, the trial judge granted Moses a directed verdict on counts fourteen, fifteen and twenty-two, and we reversed and rendered Moses’s conviction on counts seven through thirteen. But, as pointed out in the factual portion of this opinion, the record indicates that the directed verdict targeted specific, dated incidents which correspond numerically to counts one, six and twenty. The counts which we reversed and rendered were identified as those counts comprising incidents which occurred after Child A had reached her fourteenth birthday. We found that Moses was entitled to a directed verdict on those counts because the indictment alleged that all offenses occurred prior to Child A’s fourteenth birthday and not after. Moses,

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Bluebook (online)
885 So. 2d 730, 2004 Miss. App. LEXIS 912, 2004 WL 2036925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moses-v-state-missctapp-2004.