         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



                                            3
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



                                              4
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
