Foxworth v. State
| Docket Number: | 2006-KA-01640-COA Linked Case(s): 2006-KA-01640-COA ; 2006-CT-01640-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-06-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child molestation - Hearsay - M.R.E. 803(25) - M.R.E. 801(c) - Jury tampering - M.R.E. 606(b) - Intent Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-08-2006 Appealed from: MARION COUNTY CIRCUIT COURT Judge: R. I. Prichard, III Disposition: CONVICTED OF CHILD MOLESTATION AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Claiborne McDonald Case Number: K03-0277P |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | L. D. FOXWORTH |
WILLIAM JOSEPH BARNETT |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND | ||
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: | Child molestation - Hearsay - M.R.E. 803(25) - M.R.E. 801(c) - Jury tampering - M.R.E. 606(b) - Intent |
| Summary of the Facts: | L.D. Foxworth was convicted of child molestation and sentenced Foxworth to fifteen years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Foxworth argues that the court erred when it allowed the victim’s mother and a detective to present hearsay testimony as to what the victim told them. The court found the mother’s testimony admissible pursuant to M.R.E. 803(25), the tender years exception to the hearsay rule. Foxworth argues that the testimony was not admissible under the tender years exception because it lacked sufficient indicia of reliability. Foxworth argues that the victim fabricated the incident to cast doubt on his character because he was going to tell her mother that she had been promiscuous with a boyfriend. However, absolutely no witness testified that the victim had a boyfriend. Foxworth also notes that the victim’s mother was the only person who heard the victim say, “Uncle L.D. tried to rape me.” However, that does not, in and of itself, render the victim’s statement unreliable. While there is no doubt that the victim’s statement came after her mother asked her, “what’s wrong,” there is no indication that the mother provoked the victim’s statement or that the statement was the product of suggestion. That a child made the declaration to a parent does not indicate that a statement is unreliable. With regard to the investigator, he was merely recounting the facts of his investigation and was not offering that testimony as truth of the matter asserted. Therefore, his testimony was not hearsay under M.R.E. 801©. Issue 2: Jury tampering The day before Foxworth’s sentencing hearing, a private investigator apparently met with one of the jurors that found Foxworth guilty of count one. She claimed that she and three other jurors were coerced into finding Foxworth guilty because the jury had to reach a unanimous verdict before it could be discharged. Additionally, she claimed that a female juror had been molested when she was a child. Foxworth argues that, based upon these statements, the circuit court should grant either a judgment notwithstanding the verdict or a new trial. M.R.E. 606(b) was specifically designed to prevent the type of matters that Foxworth would present through this juror. It is up to individual jurors to vote according to their own conclusions. It is not entirely clear that the juror voted guilty against her wishes. Since there is no indication or allegation that anyone tampered with the jury or interfered in the deliberation process, the juror’s post-verdict statements are insufficient upon which to base a motion for JNOV or a motion for new trial. As for the allegation that some unnamed juror was the victim of sexual abuse or molestation, that too is insufficient under the circumstances. During voir dire, Foxworth did not ask the venire whether anyone had been the victim of a crime. There is no indication that the unnamed juror influenced the jury’s decision or that other jurors felt compelled to find Foxworth guilty based upon that unnamed juror’s experiences. Also, any such information as to the jury’s deliberative process is strictly prohibited by M.R.E. 606(b). Issue 3: Intent Foxworth argues that the prosecution did not adequately prove that he intended to gratify his lust. The evidence indicated that Foxworth put his hand down the victim’s shirt and touched her bare breast. Further, she testified that she tried to get away from Foxworth and that he restrained her. There can be no doubt that, under such circumstances, the jury is permitted to draw a reasonable inference that Foxworth had an improper purpose in mind. Touching in this fashion goes beyond innocent “prankish” touching or affectionate behavior. |
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