Troy Lee Masters v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01010-COA

TROY LEE MASTERS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/02/2018
TRIAL JUDGE: HON. JOHN KELLY LUTHER
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART
AND REMANDED FOR RE-SENTENCING
ON COUNTS I AND II; REVERSED AND
RENDERED ON COUNTS III AND IV -
11/19/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Troy Lee Masters was charged and convicted of three counts of sexual battery and one

count of touching a child for lustful purposes in the Circuit Court of Union County. Masters

was sentenced to 40 years in the custody of the Mississippi Department of Corrections

(MDOC) on Count I, with 16 years suspended and 24 years to serve; to serve 15 years on

Count II; to serve 24 years on Count III; and to serve 24 years on Count IV. The trial court

set each of Masters’s sentences to run concurrently and placed Masters on five years’ post-
release supervision. Masters filed a motion for judgment notwithstanding the verdict (JNOV)

or, alternatively, for a new trial, which the trial court denied. Aggrieved, Masters appeals.

After review of the record, we affirm the judgment on the convictions of the charges in

Counts I and II, but we reverse and remand for re-sentencing on these counts; further, we

reverse and render judgment on the convictions of the charges in Counts III and IV.

FACTS AND PROCEDURAL HISTORY

¶2. In the 1980s, Troy Lee Masters and his wife adopted Cara and her brother, Adam,1

when Cara was five years old. The Masters family lived in a trailer home in Union County,

Mississippi. In 2012, Cara began working as an ER housekeeper at Baptist Memorial

Hospital in New Albany, Mississippi. Cara did not drive, so Masters would drop her off and

pick her up from work. While working at Baptist Memorial Hospital, Cara became friends

with head-nurse Cindy Adkins. Adkins helped Cara advance from working as a part-time

employee to working as a full-time employee, which entitled her to benefits; took her grocery

shopping; and helped organize her finances and obtain housing. Adkins noticed that Cara

would become especially anxious when it was time for Masters to pick Cara up from work,

so Adkins began staying one hour longer on her shift so she could give Cara rides home from

work. Adkins would then stay on the phone with Cara from the time she dropped Cara off

until Cara would fall asleep. Cara eventually moved in with Adkins for about 10 to 12

months before finally moving into her own place.

¶3. At some point between October and November 2016, Cara disclosed to Adkins that

1
We have chosen to use the pseudonyms “Cara” and “Adam” to protect the identities
of these individuals. The incidents first occurred when the individuals were minors.

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Masters had sexually abused her, beginning when she was a minor and continuing into

adulthood. On November 15, 2016, Adkins took Cara to the Union County Sheriff’s Office

to file a report regarding Masters’s abuse of Cara.

¶4. Investigator Baron Baker took Cara’s statement. Baker had Cara return on November

30, 2016, to give a more detailed report. In these reports, Cara alleged the abuse began at age

13 and continued until only a few months prior to her making the report. Baker went to

Baptist Memorial Hospital on December 1 and 5, 2016, to record telephone conversations

between Cara and Masters. On a call made on December 5, Masters asked Cara about her

counseling sessions she had attended, and Cara expressed that she was nervous during them

because the doctors were asking her about her past. Masters then replied, “Well, tell them

about it. Don’t tell them about me, but tell them about what happened to you. Tell them your

aunt sexually abused you.” Masters went on to ask, “Did you tell your girls that you’re living

with about what happened between me and you? Is that why they’re not wanting you to be

around me?” Cara returned to the sheriff’s office on December 12, 2016, to give a third,

even more detailed statement to Baker.

¶5. On December 13, 2016, the police stopped Masters while he was driving a car and

took him to the sheriff’s office. Baker advised Masters of his Miranda rights,2 and Masters

signed a waiver of those rights. Baker played the recording of the December 5, 2016

telephone conversation for Masters. Masters acknowledged that the recording was a

conversation between Cara and himself. Baker asked Masters if Masters wanted to make a

2
Miranda v. Arizona, 384 U.S. 436 (1966).

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statement. Masters responded with the statement, “I have seen [Cara] naked before. I’ve

done some things in the past that I know I shouldn’t have done. I guess I need a lawyer.”

Baker then stopped questioning Master and later that day charged Masters with four counts

of sexual abuse.

¶6. The grand jury indicted Masters on March 30, 2017. Count I alleged Masters

committed sexual battery of a child under 14 years of age, pursuant to Mississippi Code

Annotated section “97-3-95 (1)(d),” between January 1, 1992, and December 31, 1992, by

inserting his finger into Cara’s vagina.3 The indictment stated Count I imposed a minimum

sentence of 20 years and a maximum sentence of life in prison.

¶7. Count II alleged Masters committed the crime of touching a child for lustful purposes,

under Mississippi Code Annotated section 97-5-23 (Supp. 1991), between the same dates as

Count I, by fondling Cara’s breasts and vagina. The indictment stated Count II’s maximum

sentence for imprisonment was 15 years. Counts III and IV alleged that on two separate

occasions between January 17, 1993, and January 17, 1994, Masters committed sexual

battery of a child between 14 and16 years of age, under Mississippi Code Annotated section

3
The applicable statutory provision at the time of the alleged offense appears in the
1992 cumulative supplement to the Mississippi Code of 1972 Annotated. Miss. Code Ann.
§ 97-3-95(c) (Supp. 1992). The same law applied in 1991. Id. The substantive statutory
language used in the indictment apparently derives from the current version of the Code
section, Miss. Code Ann. § 97-3-95(1)(d) (Rev. 2014), which first appeared in the 1998
supplement. Miss. Code Ann. § 97-3-95(1)(d) (Supp. 1998). The language in the indictment
includes an additional element in the 1998 and 2014 versions that did not apply to offenses
committed in 1991 or 1992, namely that the person engaging in sexual penetration be
“twenty-four (24) or more months older than the child.” Id. Masters does not raise any
challenge to the proof of this issue on appeal, and we therefore need not address it.
M.R.A.P. 28(a).

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“97-3-95(c),” by inserting his penis into Cara’s mouth when Cara was 15 years old.4

¶8. At the pre-trial conference, the prosecution moved for the allowance of Rule 404(b)

evidence. The prosecution sought to introduce evidence of touching and other sexual activity

between Masters and Cara that occurred after Cara reached adulthood. The trial court found

that the potential probative value of Cara’s testimony of her continued abuse during

adulthood outweighed the potential prejudice to Masters; that if the defense wanted to limit

such testimony, it would have to make contemporaneous objections; and, that if the defense

wanted to give a limiting jury instruction, it would have to renew its request for it at the time

the jury would be given instructions.

¶9. At trial, Cara testified that the sexual abuse began when she was 13 years old. When

Cara had her first menstrual cycle, Masters said, “You ain’t my baby girl anymore.” Cara

testified that Masters would come into her room in the early morning and “finger” her. Cara

also testified that Masters would rub lotion on her from her breasts to her vagina, and that

he would make her rub lotion onto his penis. Cara stated that on two occasions Masters

made her put her mouth on his penis. Cara testified that Masters taught her how to

masturbate when she was 15. As explanation, Masters told Cara that all fathers and

daughters have such a relationship; that he was teaching her how to please a man; and that

she was not to tell anyone about it. Cara testified that these acts occurred almost every day

from age 13 until 37.

4
It appears the substantive statutory language in the indictment derives from the
current version of the code section, Miss. Code Ann. § 97-3-95 (Rev. 2014), which first
appeared in the 1998 supplement. Miss. Code Ann. § 97-3-95(1)(c) (Supp. 1998). The
applicable statutes appear in the 1992 and 1993 supplements as discussed below.

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¶10. Cara testified that Masters continued to make sexual advances to her when she was

an adult. When Masters would drive Cara to and from work, he would say things like, “You

need a hysterectomy, you need a penis in you,” and that she had nice breasts. Cara testified

that she was hospitalized for being suicidal, spending twelve days in a behavioral health

facility, and it was at this time that the abuse stopped because she was not allowed any

visitors.

¶11. Although he made several hearsay objections to the testimonies of Baker, Adkins, and

Cara, Masters never specifically objected to the testimony of other bad acts or requested such

testimony be limited. When the parties were reviewing the jury instructions, the trial judge

asked if Masters wanted a limiting instruction regarding other bad acts, and he declined.

¶12. The jury found Masters guilty on all four counts. For Count I, the trial court sentenced

Masters to 40 years in the MDOC’s custody, with 16 years suspended and 24 years to serve.

For Count II, the trial court sentenced Masters to 15 years in prison. For Count III, the trial

court sentenced Masters to 24 years in prison. For Count IV, the trial court sentenced

Masters to 24 years in prison. All four sentences were set to run concurrently, leaving a total

sentence of 40 years in the MDOC’s custody, with 16 years suspended and 24 years to serve.

Masters filed a motion for JNOV or alternatively a new trial, which the trial court denied.

Aggrieved, Masters appeals.

DISCUSSION

I. Whether the trial court erred in allowing other-bad-acts evidence
of Masters’s sexual activity with Cara after she became an adult.

¶13. Masters argues that admission of the other-bad-acts evidence (his abuse of Cara as an

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adult) was an abuse of discretion because it was not probative of his abuse of Cara as a child

and that it was not necessary evidence for the State to prove its case and therefore was

prejudicial, violating Mississippi Rule of Evidence 403. “Admissibility of evidence is

reviewed for abuse of discretion.” Jones v. State, 154 So. 3d 872, 878 (¶18) (Miss. 2014).

¶14. In Shoemaker v. State, 256 So. 3d 604, 613-14 (¶36) (Miss. Ct. App. 2018), this Court

stated:

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. 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.
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.
Where the evidence’s probative value outweighs its prejudice, the trial judge
may admit the evidence. 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.

(Citations omitted).

¶15. Here, the State asserts that the testimony regarding the abuse Cara received as an adult

was necessary to tell a complete story and that whatever prejudice Masters suffered was

outweighed by its probative value. We agree. Here, Cara’s testimony was relevant to tell

the story of what lead to her disclosure of the abuse. The Mississippi Supreme Court “has

held that even though it may reveal other crimes, evidence or testimony may be given in

order to tell a rational and coherent story of what happened and where it is substantially

necessary to present a complete story.” Flowers v. State, 773 So. 2d 309, 319 (¶28) (Miss.

2000). The Supreme Court has also held that “evidence of another crime is also admissible

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if it sheds light upon the motive or if it forms a part of a chain of facts intimately connected

so that in order to interpret its general parts, the whole must be heard.” Bruce v. State, 35 So.

3d 1236, 1239 (¶12) (Miss. Ct. App. 2010) (internal quotation mark omitted).

¶16. “The weighing and balancing task required by Rule 403 asks only that a judge rely on

his/her own sound judgment.” O’Connor v. State, 120 So. 3d 390, 398 (¶20) (Miss. 2013)

(quoting Jones v. State, 920 So. 2d 465, 476 (¶33) (Miss. 2006)). So, “if a trial court

determines that the prejudicial effect of evidence substantially outweighs its probative value,

it is not obligated to exclude the evidence, but may do so at its discretion.” Id. (emphasis

added) (quoting Ross v. State 954 So. 2d 968, 993 (¶44) (Miss. 2007)). Therefore, we find

no error in the trial court’s admission of Cara’s testimony.

¶17. Masters also maintains that the trial court erred in its failure to cite any permitted use

for which the evidence was admitted and did not give an appropriate limiting instruction.

This assignment of error is misplaced because a “trial court’s failure to identify the specific

applicable exception(s) under Rule 404(b) does not require reversal.” Green v. State, 89 So.

3d 543, 551 (¶17) (Miss. 2012). Also, under Mississippi caselaw, Masters had the burden

of requesting a limiting instruction. Brown v. State, 890 So. 2d 901, 913 (¶36) (Miss. 2004).

The record reflects that Masters declined a limiting instruction during the instructions

conference. Therefore, we find that this issue lacks merit.

II. Whether Masters’s sentences for Counts I and II are illegal.

¶18. Masters argues that the sentences he received in Counts I and II are beyond the

maximum sentences for the offenses at the time the offenses were committed and the State

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agrees.

¶19. In Cozart v. State, 226 So. 3d 574, 576-77 (¶9) (Miss. 2017), the Mississippi Supreme

Court held:

It is well-established that the imposition of a sentence is within the discretion
of the trial court, and this Court will not review the sentence, if it is within the
limits prescribed by statute. However, the issue of whether the application of
a statute constitutes an ex post facto violation is a question of law. Where
questions of law are raised the applicable standard of review is de novo.

(Citations and internal quotation marks omitted).

¶20. Masters was sentenced to 40 years in the MDOC’s custody, with 16 years suspended

and 24 years to serve, for sexual battery under Count I. However, at the time of the offense,

between January 1, 1992, and December 31, 1992, the maximum sentence for sexual battery

was 30 years under Mississippi Code Annotated section 97-3-101 (Supp. 1992):

Every person who shall be convicted of sexual battery shall be imprisoned in
the State Penitentiary for a period of not more than thirty (30) years; provided,
however, that any person convicted of a second or subsequent offense under
this act shall be imprisoned in the penitentiary for not less than five (5) years
nor more than thirty (30) years.

¶21. Masters was sentenced to serve 15 years for his conviction of fondling of a child in

Count II; however, at the time of his offense, the maximum sentence for fondling of a child

was 10 years. In 1991 and 1992, the applicable law read:

Any person above the age of eighteen (18) years, who, for the purpose of
gratifying his or her lust, or indulging his or her depraved licentious sexual
desires, shall handle, touch or rub with hands or any part of his or her body or
any member thereof, any child under the age of fourteen (14) years, with or
without the child’s consent, shall be guilty of a high crime and, upon
conviction thereof, shall be fined in a sum not less than One Hundred Dollars
($100.00) nor more than One Thousand Dollars ($1,000.00), or be committed
to the custody of the State Department of Corrections not less than one (1)

9
year nor more than ten (10) years, or be punished by both such fine and
imprisonment, at the discretion of the court.

Miss. Code Ann. § 97-5-23 (Supp. 1992) (emphasis added).

¶22. “Both the federal and our state constitutions protect persons from ex post facto laws,

and provide that those convicted should be sentenced pursuant to the statute existing on the

date of his offense to avoid an ex post facto problem.” Cozart, 226 So. 3d at 578 (¶14)

(internal quotation marks omitted) (quoting Johnston v. State, 618 So. 2d 90, 94 (Miss.

1993)). “It is fundamental that the statute in effect at the time an offense is committed is the

one that must control the prosecution of the offense.” Flowers v. State, 35 So. 3d 516, 518

(¶5) (Miss. 2010).

¶23. The proper remedy for imposition of an illegal sentence is to remand for re-sentencing

in accordance with the applicable statute. See Foreman v. State, 51 So. 3d 957, 962 (¶12)

(Miss. 2011); Jefferson v. State, 958 So. 2d 1276, 1281 (¶16) (Miss. Ct. App. 2007).

Therefore, the matter should be remanded for re-sentencing on Counts I and II under the

applicable version of the statutes in effect at the time of the offenses.

III. Whether Counts III and IV of the indictment are fatally defective.

¶24. Masters argues that the indictment was fatally defective for Counts III and IV because

it failed to charge a crime cognizable under Mississippi law, and the State agrees. “Whether

an indictment is fatally defective is a question of law that we review de novo.” Bryant v.

State, 238 So. 3d 1213, 1216 (¶7) (Miss. Ct. App. 2018).

¶25. Counts III and IV allege that Masters committed sexual battery by inserting his penis

into Cara’s mouth “between January 17, 1993 and January 17, 1994” when Cara was 15 years

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old. Mississippi Code Annotated section 97-3-95(c) (Supp. 1992) provided for sexual battery

for sexual penetration with “[a] child under the age of fourteen (14) years.” Cara was 15

years old during the relevant period in the indictment.

¶26. Effective July 1, 1993, the amended statue contained subsection (2), which provided

that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with a

child of fourteen (14) but less than eighteen (18) years if the person is in a position of trust

or authority over the child . . . .” Miss. Code Ann. § 97-3-95 (Supp. 1993).

¶27. Masters argues that his indictment is fatally defective even after the amendment

because it failed to allege the essential element that he was in a position of power or authority

over Cara. We agree.5 “[A]n indictment must contain the essential elements of the crime

charged.” Warren v. State, 187 So. 3d 616, 621 (¶10) (Miss. 2016). As such, Counts III and

IV are fatally defective because the indictment failed to allege the essential elements of the

crime under the statute in effect at the time.

¶28. This Court is often faced with the difficult task of applying the law as written, even

when personal opinion would dictate otherwise. Every prosecution and sentence must be

conducted in accordance with the authority given to us by the Mississippi Legislature. The

trial court sentenced Masters under the wrong version of the statutes, and we have no choice

but to remand this case for re-sentencing under the proper statutes for Counts I and II. As

to Counts III and IV, the State concedes in its brief that the indictment was fatally defective.

Our review leads to the same conclusion. As to Counts III and IV, we must reverse and

5
Thus, we need not consider whether the jury found guilt based solely on acts done
between July 1, 1993, and January 17, 1994, when the amended Code section applied.

11
render because the indictment failed to charge a crime cognizable under the law as written

in Mississippi at that time.

¶29. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RE-
SENTENCING ON COUNTS I AND II; REVERSED AND RENDERED ON COUNTS
III AND IV.

BARNES, C.J., CARLTON, P.J., GREENLEE, TINDELL, McDONALD,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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