Friley v. State


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Docket Number: 2002-CT-00041-SCT
Linked Case(s): 2002-CT-00041-SCT ; 2002-CT-00041-SCT ; 2002-CT-00041-SCT ; 2002-KA-00041-COA ; 2002-KA-00041-COA

Supreme Court: Opinion Link
Opinion Date: 08-05-2004
Opinion Author: Waller, P.J.
Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CONVICTION OF SEXUAL MOLESTATION AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED

Additional Case Information: Topic: Child molestation - Sexual battery - Lesser-included offense - Section 97-5-23(1) - Section 97-3-95(1)(a)
Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz, J.
Concurs in Result Only: Graves, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Writ of Certiorari: Granted
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 01-17-2001
Appealed from: Warren County Circuit Court
Judge: Isadore Patrick
Disposition: DEFENDANT SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
District Attorney: G. Gilmore Martin
Case Number: 00-0150-CR-P

Note: The supreme court found that where penetration has been achieved by touching a child under the age of 14, molestation is a lesser-included offense of sexual battery, and reversed the court of appeals and affirmed the trial court's conviction.

  Party Name: Attorney Name:  
Appellant: Raymond Helton Friley, Jr.




JANE CLELAND O'MARA



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY  

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Topic: Child molestation - Sexual battery - Lesser-included offense - Section 97-5-23(1) - Section 97-3-95(1)(a)

Summary of the Facts: Raymond Friley, Jr., was convicted of child molestation and sentenced to fifteen years. On appeal, the Court of Appeals reversed and rendered. The Supreme Court granted certiorari.

Summary of Opinion Analysis: The circuit court instructed the jury to find Friley guilty of molestation as a lesser- included offense of sexual battery if the State has failed to prove any one or more of the essential elements of the crime of sexual battery. On appeal, Friley argued that molestation is not a lesser-included offense of sexual battery, and the court erred in giving the instruction. The State argues that Friley failed to preserve an objection regarding the instruction. While the objection made by Friley's trial counsel was not artfully stated, it was sufficient to preserve this issue for appeal. The State also argues that molestation is a lesser-included offense of sexual battery. An offense is a lesser-included offense of another where the more serious offense includes all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense. Friley was indicted for sexual battery, which requires penetration. He was convicted of molestation, which requires touching. A plain reading of the statutes shows that sexual battery (penetration) includes molestation (touching). It is impossible to penetrate without touching. There is a reasonable inference from the circumstances that Friley's actions were done with the purpose of gratifying his lust, and the victim was under the age of 14 at the time of the incident. The molestation statute, section 97-5-23(1), requires a showing of intent in that the State must prove that a defendant's actions were done with purpose. The sexual battery statute, section 97-3-95(1)(a), requires no such showing of intent -- the State must show only that the act was committed. However, by his very acts of grabbing the victim, touching her genital area, and touching himself, Friley was gratifying his lust. There is absolutely no other reason why Friley would have performed these acts. It is well settled that intent can be inferred from a defendant's actions. Under these particular circumstances, molestation is a lesser-included offense of sexual battery.


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