Ricky L. Shoemaker, Sr. v. State of Mississippi , 256 So. 3d 604 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00983-COA
RICKY L. SHOEMAKER, SR. A/K/A RICKY APPELLANT
SHOEMAKER A/K/A RICKY L. SHOEMAKER
A/K/A RICKY L. SHOEMAKER, JR. A/K/A
RICKEY L. SHOEMAKER A/K/A RICKEY
SHOEMAKER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/23/2016
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 03/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
TINDELL, J., FOR THE COURT:
¶1. A Rankin County jury convicted Ricky Shoemaker of Count I, sexual battery, and
Count II, gratification of lust. See Miss. Code Ann. §§ 97-3-95(1)(d) & 97-5-23(1) (Rev.
2014). On appeal, Shoemaker asserts the following issues: (1) he received ineffective
assistance of counsel; (2) his indictment was defective; (3) his convictions violate his right
against double jeopardy; and (4) the circuit court erroneously admitted prior-bad-acts
evidence.
¶2. Finding no error, we affirm Shoemaker’s convictions and sentences.
FACTS
¶3. On January 16, 2015, Shoemaker’s thirteen-year-old step-granddaughter, Amy,1 told
her mother that Shoemaker had sexually assaulted her on numerous occasions. Amy’s
parents contacted the Rankin County Sheriff’s Office, which investigated the reported sexual
abuse. On July 2, 2015, a grand jury indicted Shoemaker for Count I, sexual battery, and
Count II, gratification of lust. After amendment, the indictment charged that, over a two-year
span,2 Shoemaker committed the alleged acts against Amy at a time when Shoemaker was
more than twenty-four months older than Amy.
¶4. On March 3, 2016, the State filed a notice of intent to elicit testimony under
Mississippi Rule of Evidence 404(b) about other prior bad acts Shoemaker had committed.
The notice provided that Freedom Newton, Shoemaker’s former stepdaughter, planned to
testify Shoemaker sexually assaulted her when she was a child. The State asserted Newton’s
testimony was admissible under Rule 404(b) “to prove . . . motive, opportunity, intent,
preparation, plan, knowledge, identity, [or] absence of mistake or accident.” Shoemaker filed
an unsuccessful motion to limit the trial testimony to only the acts charged in the indictment.
¶5. At trial, Amy’s mother, Becky, testified that she was Shoemaker’s cousin and had
married Shoemaker’s stepson, Cliff. Becky testified that she and Cliff separated in 2007 or
1
Due to the nature of the offenses and the victim’s age, we use an alias to protect her
identity. We also use an alias for the names of the victim’s relatives who are mentioned
throughout the opinion.
2
The original indictment charged that Shoemaker committed the acts over a five-year
span.
2
2008 and then divorced in 2010. During the couple’s marriage, the family lived next door
to Cliff’s mother and Shoemaker. After the separation, Becky and the children moved.
However, Cliff continued to live next door to his mother and stepfather, and the children
visited Cliff every other weekend and on holidays.
¶6. Becky testified that, around the time she and the children moved, Amy failed the
fourth grade and had to repeat it. Becky also testified that Amy began having emotional
outbursts as though “something was bothering her.” However, Becky stated that she did not
know at the time the reason for Amy’s outbursts.
¶7. According to Becky, when Amy was about eleven years old, she stopped visiting her
dad’s house unless he asked her to visit or unless her mother made her go. On January 16,
2015, Amy’s grandmother and Shoemaker hosted a birthday party for Amy’s younger cousin.
Although Amy begged not to attend, Becky insisted. After Amy grew hysterical, though,
Becky questioned her daughter further. Amy finally disclosed Shoemaker’s sexual abuse.
Becky testified that she believed Amy had told her the truth because of “the sheer terror I
[saw] on that child’s face when she told me, and you can’t make stuff like that up.” Becky
called Amy’s father, who contacted the authorities. Becky testified that Amy had “gained
absolutely nothing” by disclosing the sexual abuse. In fact, Becky stated that Amy had
continued to experience problems at school since the disclosure and had even lost
relationships with friends and close family members who did not believe her.
¶8. Following Becky’s testimony, the courtroom was cleared for Amy, who was fourteen
years old at the time of trial. Amy stated that Shoemaker’s sexual abuse began when she was
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five or six and ended when she was eleven or twelve. Amy admitted that she stopped
wanting to visit her dad because she also had to go to her grandparents’ house, where “[b]ad
stuff” happened. Amy testified that the “[b]ad stuff” happened “a lot” when she and
Shoemaker were alone together in his car, his house, and her dad’s house.
¶9. According to Amy, Shoemaker touched both the outside and inside of the “private
areas between [her] legs” with his hands. Amy testified that Shoemaker touched her both on
top of and underneath her clothes in her “private areas” and that he touched her chest with
both his hands and his mouth. In addition, Amy stated that Shoemaker made her massage
“his private areas” with her hands and that sometimes a “[g]ooey, whitish, clearish”
substance came out.
¶10. Amy testified that Shoemaker said no one would believe her if she revealed the sexual
abuse. She stated that Shoemaker also said any disclosure would get him into trouble, which
would negatively affect Amy’s younger cousin who lived with Shoemaker and his wife.
After finally revealing the abuse to her mother, Amy testified that “a lot” had changed and
that she was no longer as close to several family members.
¶11. Sheila Tucker, a juvenile investigator with the Rankin County Sheriff’s Department,
next testified for the State. Based on her investigation into the reported sexual abuse, Tucker
contacted the Children’s Advocacy Center and scheduled a forensic interview for Amy.
From a nearby room, Tucker observed Amy’s interview. Tucker stated that Amy seemed
nervous and embarrassed to talk about the sexual abuse. However, Tucker further testified
that Amy told the interviewer “that on different occasions [Shoemaker] would rub her on her
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no[-]no spots, what she called her vaginal spots, what she pointed [to] on the diagram” the
forensic interviewer provided. Amy further told the forensic interviewer that Shoemaker
“would touch her under her clothes[,] and then he would put his finger in her at different
times and that he . . . had made her rub his no[-]no spot[,] and she saw gooey sticky stuff
come out of it like he was peeing.”
¶12. On cross-examination, Tucker testified that she interviewed Amy, Amy’s mother, and
Shoemaker. Because of the time lapse between the purported abuse and Amy’s disclosure,
no physical evidence existed to support the sexual-abuse allegations. Tucker stated that
Shoemaker repeatedly denied the allegations but that he admitted Amy had stopped visiting
him as regularly as her brothers. Tucker testified that Shoemaker identified several people
she should interview, including his former stepdaughter, Newton. Shoemaker told Tucker
the people he listed could confirm that he “would never do anything like that as far as
sexually assaulting [Amy] or anybody.”
¶13. Following Tucker’s testimony, the State called Shoemaker’s former stepdaughter,
Newton, as a witness. At the time of Shoemaker’s trial, Newton was thirty-nine years old
with a family of her own. Between the time that Newton completed kindergarten and third
grade, her mother twice married and divorced Shoemaker. According to Newton, Shoemaker
“physically, emotionally, mentally, and sexually abused” her. Specifically, Newton testified
as follows:
[Shoemaker] would encourage me to touch him. He would touch me at first
on top of the clothing and under the clothes. He would encourage me to touch
him down in his pants, to jerk him off, then to orally please him until he
ejaculated. Sometimes he would encourage [me] to [lie] on top of him with
5
my pants off or have me lock my ankles around each other and move myself
up and down until he got off. And this happened several occasions. I would
orally get him off all the time. It was too numerous to count how often. It was
daily.
¶14. Newton testified that Shoemaker threatened to beat her and to hurt her mother, her
siblings, and the family pets if Newton disclosed the abuse. Although Newton stated that she
eventually told several family members about Shoemaker’s conduct, she never reported the
abuse to authorities because her family members dissuaded her. When she became a
teenager, however, Newton began attending counseling and therapy. Newton testified that
she first heard about Shoemaker’s trial when she received phone calls from her mother and
the district attorney’s office. According to Newton, she had nothing to gain by testifying, and
she stated that she had never met Amy prior to the trial.
¶15. After Newton’s testimony, the State rested its case-in-chief. The defense then moved
for a directed verdict. Following the circuit court’s denial of the motion, the defense called
Shoemaker to testify. Shoemaker denied that he ever sexually abused Newton or Amy.
Shoemaker corroborated Newton’s testimony that she and Amy did not know each other prior
to the trial. Shoemaker further agreed that he had not seen Newton since she was about
sixteen. Shoemaker testified that he once had a good relationship with Newton but that she
grew to hate him after he separated from her mother the second time. He further testified that
Amy accused him of sexual abuse and testified against him because she was jealous.
¶16. The defense’s second and final witness was Shoemaker’s mother-in-law, Doris, who
lived with her daughter and Shoemaker. Prior to the sexual-abuse allegations, Doris stated
that Amy came to visit all the time, even when Shoemaker was present, and that Amy never
6
indicated she did not want to be around Shoemaker. On cross-examination, Doris, who is
wheelchair bound, testified that she mostly stayed in the kitchen, which allowed her to see
into the home’s living room but not the bedrooms.
¶17. After considering the parties’ evidence and testimony, the jury found Shoemaker
guilty of both charges. The circuit court sentenced Shoemaker to twenty years in the custody
of the Mississippi Department of Corrections for his sexual-battery conviction and to a
concurrent fifteen-year sentence for his gratification-of-lust conviction, with five years
suspended and five years of supervised probation. The circuit court also ordered Shoemaker
to register as a sex offender with the Mississippi Department of Public Safety. See Miss.
Code Ann. § 45-33-25 (Rev. 2015). Shoemaker filed an unsuccessful motion for a judgment
notwithstanding the verdict or, in the alternative, a new trial. Aggrieved by his convictions
and sentences, Shoemaker appeals.
DISCUSSION
I. Ineffective Assistance of Counsel
¶18. Shoemaker asserts his trial attorney rendered ineffective assistance by failing to object
to Tucker’s testimony about Amy’s statements to the forensic interviewer. According to
Shoemaker, Tucker’s testimony about the statements constituted inadmissible hearsay. To
succeed on his ineffective-assistance-of-counsel claim, Shoemaker must show (1) his
counsel’s performance was deficient and (2) the deficiency prejudiced him. See Strickland
v. Washington, 466 U.S. 668, 686 (1984). If Shoemaker fails to meet either prong, his claim
fails. See Pinter v. State, 221 So. 3d 378, 386 (¶17) (Miss. Ct. App. 2017).
7
¶19. This Court does not usually consider an ineffective-assistance claim on direct appeal
since we are limited to the trial-court record, which often lacks sufficient evidence to
evaluate the claim. McClendon v. State, 152 So. 3d 1189, 1191-92 (¶12) (Miss. Ct. App.
2014). “[W]here the record cannot support an ineffective[-]assistance[-]of[-]counsel claim
on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right
to argue the same issue through a petition for post[]conviction relief.” Id. (quoting Aguilar
v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2002)). However, we may address the
claim’s merits on direct appeal when “(1) the record affirmatively shows ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is adequate and [we]
determine[] that findings of fact by a trial judge able to consider the demeanor of witnesses,
etc., are not needed.” Bell v. State, 202 So. 3d 1239, 1242 (¶12) (Miss. 2016) (quoting Read
v. State, 430 So. 2d 832, 841 (Miss. 1983)).
¶20. Mississippi caselaw clearly establishes “that, with respect to the overall performance
of the attorney, counsel’s choice of whether or not to file certain motions, call witnesses, ask
certain questions, or make certain objections falls within the ambit of trial strategy and
cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Pinter, 221 So. 3d at
386 (¶19) (citation and internal quotation marks omitted). Based on the record before us, we
cannot say whether Shoemaker’s trial attorney had a strategic reason for not objecting to
Tucker’s testimony about Amy’s statements during the forensic interview. In addition, even
if Shoemaker’s attorney had objected to the disputed testimony, we do not know whether the
State could have articulated a response sufficient to persuade the circuit court to admit the
8
testimony. Because we find the trial record inadequate to evaluate Shoemaker’s assignment
of error, we deny his claim without consideration, thereby preserving it for a postconviction-
relief motion. See Webb v. State, 113 So. 3d 592, 602 (¶¶39-41) (Miss. Ct. App. 2012).
II. Defective Indictment
¶21. Shoemaker claims that, due to the broad date ranges identified, his “indictment failed
to specifically and adequately allege criminal conduct for which [he] could viably assert a
theory of defense[, especially an alibi defense].” “The question of whether an indictment is
fatally defective is an issue of law and deserves a relatively broad standard of review by this
Court. The legal sufficiency of an indictment must be reviewed de novo.” Williams v. State,
169 So. 3d 932, 935 (¶7) (Miss. Ct. App. 2014) (quoting Young v. State, 119 So. 3d 309, 313
(¶10) (Miss. 2013)).
¶22. “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[s] against him.”
Pustay v. State, 221 So. 3d 320, 342 (¶52) (Miss. Ct. App. 2016) (citation and internal
quotation marks omitted). The indictment’s primary purpose is to give the defendant fair
notice of the crimes charged. Jones v. State, 215 So. 3d 508, 510-11 (¶8) (Miss. Ct. App.
2017). “An indictment must contain (1) the essential elements of the offense[s] 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[s].” Id. at 511 (¶8) (quoting Davis v. State, 171 So. 3d 537,
540 (¶11) (Miss. Ct. App. 2015)).
9
¶23. In Morris v. State, 595 So. 2d 840, 840 (Miss. 1991), a grand jury indicted the
defendant for child molestation. The defendant’s stepdaughter accused him of molesting her
over a cumulative period of one to two-and-a-half years when she was around nine or ten
years old. Id. at 841. Morris’s indictment alleged that the molestation occurred between
March 1986 and May 1986. Id. Morris filed an unsuccessful motion to require the State to
provide a more definite time period for the offense. Id. at 842. On appeal, Morris argued
his indictment’s “failure to provide specific dates deprived him of the opportunity to present
a convincing alibi to the jury.” Id. at 841-42.
¶24. In addressing Morris’s argument, the supreme court recognized that, “[t]raditionally,
time and place have been viewed as not requiring considerable specificity because they
ordinarily do not involve proof of an element of crime.” Id. at 842. The Morris court further
held that prior caselaw only required “that the defendant be given the specific date if at all
possible.” Id. (citing Wilson v. State, 515 So. 2d 1181, 1183 (Miss. 1987)). Morris’s
stepdaughter, who was fifteen at the time of trial, could not recall the specific dates of the
molestation. Id. at 841-42. The Morris court found her testimony “amply illustrate[d] the
fact that the State could not narrow the time frame any more than it did.” Id. After
determining that Morris’s indictment fully and fairly notified him of the charges against him,
the supreme court concluded his argument lacked merit. Id.
¶25. We find Morris controls the present case. Shoemaker’s original indictment charged
him with committing the alleged crimes during a five-year time period. Like Morris,
Shoemaker filed a pretrial motion requesting that his indictment provide more specific dates
10
so he could establish an alibi defense. In response to Shoemaker’s motion, the State asked
during the pretrial hearing that the circuit court amend Shoemaker’s indictment and narrow
the identified time frame to two years. The State argued it could not provide more specific
dates because the acts were recurrent, which like the victim in Morris, prevented Amy from
recalling exact dates and times. After considering the parties’ arguments, the circuit court
denied Shoemaker’s motion for more date specificity and granted the State’s motion to
amend the indictment to reflect a two-year time period.
¶26. In pertinent part, Shoemaker’s amended indictment read as follows:
Count I: [Shoemaker,] . . . on, about[,] or between the dates of [June 27],
2010[,] to [June 27], 2012, . . . being a male human being above the age of
eighteen (18) years, . . . did willfully, unlawfully, and intentionally engage in
sexual penetration as defined by [section] 97-3-97 with [Amy], a female child
under the age of fourteen (14) years, . . . by inserting his finger in [Amy’s]
vagina, at a time when [Shoemaker] was more than twenty-four (24) months
older than [Amy], . . . in violation of [s]ection 97-3-95(1)(d)[.]
Count II: And based upon a series of acts connected together and constituting
parts of a common scheme and plan, [Shoemaker,] . . . on, about[,] or between
the dates of [June 27], 2010[,] to [June 27], 2012, . . . being a male human
being above the age of eighteen (18) years, . . . who, for the purpose of
gratifying his lust or indulging his depraved licentious sexual desires, did
willfully, unlawfully, and intentionally handle, touch[,] or rub with his hands
or any part of his body, the body of [Amy], a minor female child under the age
of sixteen (16) years, . . . in violation of [section] 97-5-23(1)[.]
¶27. At trial, Amy testified she could not say how many times the sexual abuse occurred
or the exact dates on which it occurred because it happened “a lot.” She stated, however, that
the abuse began when she was five or six and ended when she was eleven or twelve. On
cross-examination, Amy further testified that she thought the abuse began in 2007 and ended
in 2012. As discussed, each count of Shoemaker’s indictment charged that the acts occurred
11
between the last two years of this time frame from 2010 to 2012.
¶28. As in Morris, we find the State could not provide a more definite time frame for the
alleged offenses against Shoemaker than it already did in the amended indictment. Cf.
Morris, 595 So. 2d at 842. Amy testified the sexual misconduct occurred over a five-year
to seven-year time span when she was between five and twelve years old. Although the State
narrowed the time frame provided in the indictment from five years to two years, Amy still
testified that the sexual misconduct occurred so often she could not give specific dates and
times. Indeed, the trial testimony reflects that Shoemaker and Amy had constant interaction
with each other during the period at issue. Over the course of her parents’ marriage, Amy’s
family lived next door to her paternal grandmother and Shoemaker. Even after Amy’s
parents divorced, she and her brothers frequently visited their father, who continued to live
next door to his mother and Shoemaker.
¶29. Thus, based on the specific facts presented, we find the State could not narrow the
date range provided in Shoemaker’s indictment counts any more than it already did. We
therefore find no merit to this assignment of error. However, in reaching our decision, we
caution prosecutors to limit the time frame provided in an indictment as much as reasonably
possible to sufficiently notify defendants of the charges against them and to allow defendants
the opportunity to prepare a defense.
III. Double Jeopardy
¶30. Shoemaker contends the State failed to prove that his charges for sexual battery and
gratification of lust constituted separate and distinct acts. Citing the supreme court’s decision
12
in Friley v. State, 879 So. 2d 1031 (Miss. 2004), Shoemaker asserts gratification of lust is a
lesser-included offense of sexual battery. He therefore argues that his lustful-touching
conviction merged with his sexual-battery conviction and violated his right against double
jeopardy. We review double-jeopardy claims de novo. Woods v. State, 30 So. 3d 362, 365
(¶8) (Miss. Ct. App. 2009).
¶31. Upon review, we find Shoemaker’s argument is procedurally barred. As previously
discussed, Shoemaker raised an objection before the circuit court that his indictment lacked
date specificity and was therefore too vague and ambiguous. However, the record fails to
show that Shoemaker ever objected to the indictment on the ground that Counts I and II
should have merged. “When a defendant fails to object to the form of the indictment, the
issue is waived on appeal.” Pustay, 221 So. 3d at 353 (¶109). “Failure to make a
contemporaneous objection constitutes waiver of the objection and cannot be raised for the
first time on appeal because the trial court is denied the opportunity to consider the issue and
possibly remedy the situation.” Copeland v. Copeland, 904 So. 2d 1066, 1073 (¶24) (Miss.
2004).
¶32. Notwithstanding the procedural bar, we also find that Shoemaker’s double-jeopardy
claim lacks merit. “[S]exual battery of a child and unlawful touching are separate and
distinct criminal offenses. While sexual battery of a child requires some sort of penetration[,]
. . . unlawful touching does not.” Faulkner v. State, 109 So. 3d 142, 147 (¶20) (Miss. Ct.
App. 2013). “[U]nder ‘particular circumstances[,]’ when penetration is achieved by touching
a child under the age of fourteen, fondling or molestation is a lesser-included offense of
13
sexual battery.” Id. at 147-48 (¶20) (quoting Friley v. State, 879 So. 2d 1031, 1035 (¶17)
(Miss. 2004)). However, “Friley’s general holding—that it is not possible to penetrate a
minor without touching the child—is not absolute.” Id. at 148 (¶20) (citing Tapper v. State,
47 So. 3d 95, 103 (¶30) (Miss. 2010)). Instead, our caselaw recognizes:
[I]t is possible to commit an unlawful touching without committing sexual
battery. And 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 . . . .
Id. at (¶21) (internal citations and quotation marks omitted).
¶33. In Mosby v. State, 134 So. 3d 850, 857 (¶25) (Miss. Ct. App. 2014), this Court found
the victim’s testimony established two distinct criminal acts—that the defendant (1) fondled
her breast and (2) digitally penetrated her vagina. As a result, we found no merit to the
defendant’s claim that his sexual-battery and fondling convictions merged and violated his
right against double jeopardy. Id.
¶34. As in Mosby, we find the State presented sufficient evidence in the present case “to
support separate and distinct acts of fondling and sexual battery[.]” Faulkner, 109 So. 3d at
148 (¶21) (citations omitted). Amy testified to a long-term pattern of sexual abuse by
Shoemaker. According to Amy, on numerous occasions, Shoemaker touched her both
outside and inside her “privates.” In addition to testifying that Shoemaker digitally
penetrated her vagina, Amy stated that he also fondled her chest with his hands and mouth.
Amy testified that, at least one time, she remembered her shirt “was pulled over [her]
shoulders[,] like over [her] arms[,] but just around [her] neck[,]” while Shoemaker fondled
14
her chest. Based on Amy’s testimony, we find the record fails to support Shoemaker’s
argument that his gratification-of-lust conviction merged with his sexual-battery conviction.
We therefore find this issue lacks merit.
IV. Prior-Bad-Acts Evidence
¶35. In his final assignment of error, Shoemaker alleges the circuit court erred by admitting
Newton’s testimony that Shoemaker also sexually abused her when she was a child. We
review the circuit court’s admission or exclusion of evidence for abuse of discretion.
Strickland v. State, 220 So. 3d 1027, 1032 (¶9) (Miss. Ct. App. 2016).
¶36. Rule 404(b) prohibits the use of prior-bad-acts evidence to prove a person’s character
to show that he acted in conformity therewith. Pritchett v. State, 201 So. 3d 1095, 1097 (¶9)
(Miss. Ct. App. 2016). However, Rule 404(b) permits the use of such evidence to show
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Id. Before admitting prior-bad-acts evidence, a trial judge should filter the
evidence through Mississippi Rule of Evidence 403 and determine whether the evidence’s
probative value outweighs its prejudicial effect to the defendant. Id. at 1098 (¶10). Where
the evidence’s probative value outweighs its prejudice, the trial judge may admit the
evidence. Id. In the context of child-sexual-abuse cases, even evidence of remote past
sexual-abuse allegations may be admitted for a proper purpose under Rule 404(b), especially
when coupled with an appropriate limiting instruction to the jury. Westbrook v. State, 109
So. 3d 609, 615 (¶18) (Miss. Ct. App. 2013).
¶37. In the present case, the State filed a notice of its intent to elicit Rule 404(b) testimony
15
from Newton, Shoemaker’s former stepdaughter. The State asserted that Newton’s testimony
showed Shoemaker’s motive, intent, preparation, and plan. At the pretrial hearing, Newton
testified about Shoemaker’s alleged sexual abuse toward her and her brother. Shoemaker’s
attorney raised no objection to Newton’s testimony. However, the circuit court still made an
on-the-record finding regarding Newton’s proffered testimony. After considering the
evidence’s purpose under Rule 404(b) and filtering it through Rule 403’s balancing test, the
circuit court limited Newton’s testimony to incidences involving Shoemaker’s alleged sexual
abuse toward her alone. The circuit court found Newton’s testimony about Shoemaker’s
alleged sexual abuse of her was admissible for proper non-character purposes under Rule
404(b). The circuit court further stated that, after filtering the testimony through Rule 403’s
balancing test, it found the probative value of Newton’s testimony outweighed the prejudice
to Shoemaker.
¶38. The trial transcript reflects several similarities between Newton’s and Amy’s
testimony about Shoemaker’s sexual abuse. Similar to Amy, Newton testified that, when she
was about six years old, Shoemaker began to abuse her on numerous occasions at home and
in the car. Also similar to Amy, Newton stated that Shoemaker touched her both on top of
and underneath her clothing and that he would encourage her to touch his penis until he
ejaculated. Amy and Newton also testified that Shoemaker threatened to hurt them
individually and to hurt their family members to prevent them from disclosing the abuse.
¶39. Following the parties’ presentation of their evidence, the circuit court instructed the
jury. In accordance with Mississippi caselaw, the circuit court issued the jury the following
16
limiting instruction on Newton’s testimony:
[A]cts testified to by . . . Newton are acts relating to charges for which the
[D]efendant is not presently on trial and are to be considered only for the
limited purpose of showing proof of motive, intent, preparation, or plan. You
cannot and must not simply infer that the [D]efendant acted in conformity with
his previous acts and that he is therefore guilty of the charges for which he is
presently on trial.[3]
¶40. Upon review, we find the circuit court admitted the evidence of Shoemaker’s alleged
prior sexual acts for a proper Rule 404(b) purpose only after determining the evidence’s
probative value outweighed its prejudice under Rule 403. See Westbrook, 109 So. 3d at 616
(¶20). We also find the circuit court provided the jury an appropriate limiting instruction
about the limited purpose for which it could consider the prior-bad-acts evidence. Id. We
therefore find no abuse of discretion in the circuit court’s admission of the evidence. Id. As
a result, this issue lacks merit.
CONCLUSION
¶41. Because we find no error, we affirm Shoemaker’s convictions and sentences.
¶42. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
3
Although Shoemaker’s attorney raised no objection to the limiting instruction, we
note that the instruction’s language substantially tracks that of other limiting instructions
previously approved by the supreme court and this Court. See Gore v. State, 37 So. 3d 1178,
1184 (¶14) (Miss. 2010); Strickland, 220 So. 3d at 1034 (¶18).
17