Campbell v. State
| Docket Number: | 2011-KA-00272-COA Linked Case(s): 2011-KA-00272-COA ; 2011-CT-00272-SCT ; 2011-CT-00272-SCT ; 2011-CT-00272-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2012 Opinion Author: Griffis, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Fondling a minor over whom has position of trust - Sufficiency of evidence - Position of trust or authority over victim - Section 97-5-23(2) - Foster parent - De facto foster parent Judge(s) Concurring: Lee, C.J., Ishee, Roberts, Russell and Fair, JJ. Dissenting Author : Irving, P.J., and Barnes, J. Concur in Part, Concur in Result 1: Maxwell, J., Concurs in Part and in the Result Without Separate Written Opinion Concurs in Result Only: Carlton, J., Concurs in Result Only Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 02-18-2011 Appealed from: Lafayette County Circuit Court Judge: Robert Elliott Disposition: CONVICTED OF FONDLING AND SENTENCED TO SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND TWO YEARS OF POST-RELEASE SUPERVISION District Attorney: Benjamin F. Creekmore Case Number: LK2008-279 |
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| Note: | On August 1, 2013, the Supreme Court reversed the Court of Appeals. The Court of Appeals opinion can be found at http://courts.ms.gov/Images/Opinions/CO85490.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | David Campbell |
STEVEN E. FARESE SR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Fondling a minor over whom has position of trust - Sufficiency of evidence - Position of trust or authority over victim - Section 97-5-23(2) - Foster parent - De facto foster parent |
| Summary of the Facts: | David Campbell was convicted of fondling a minor over whom he held a position of trust or authority. He was sentenced to seven years, with two years to serve, five years suspended, and two years of post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Campbell argues that there was insufficient evidence to support his conviction of fondling because the State failed to prove that he held a position of trust or authority over the victim. Pursuant to section 97-5-23(2), when the child is between sixteen and eighteen years old, the State must prove the additional element that the defendant occupied a position of trust or authority over the child. The indictment alleged that Campbell “was in a position of trust and authority over the victim, to wit: the child’s foster parent.” While it seems that foster parent would easily fit into the category of a person in a position of trust or authority, the State failed to prove that Campbell was, indeed, the victim’s foster parent. It is undisputed that, at all times, the victim was in the legal custody of DHS. While the State says in its brief that the victim was in the physical custody of the Campbells, the evidence shows that her physical custody remained with Millcreek. The State argues that the victim was the de facto foster child of the Campbells. It supports this argument largely by the victim’s testimony that she believed Campbell was her foster father. Even viewing the evidence in favor of the State, the victim’s subjective belief, which was contrary to the other evidence, is not sufficient credible evidence to prove an essential element of the crime charged. There is no evidence in the record to support the State’s argument that Campbell was acting as the victim’s de facto foster parent other than the sole fact that she was staying at his home. Even a witness for the State said that DHS allowed the victim to visit the Campbells’ home – even though they were not licensed foster parents – because Campbell’s wife was the victim’s counselor. Because there is no evidence to support the allegation that Campbell held a position of trust or authority over the victim, the jury could not have found all of the elements of the crime of fondling beyond a reasonable doubt. |
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