Justin Miller Bradshaw v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-00469-COA

JUSTIN MILLER BRADSHAW APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/15/2022
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ARTHUR HUGO CALDERON
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DANIELLE LOVE BURKS
DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/26/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Justin Bradshaw appeals his felony conviction of one count of sexual battery in

violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014).1 The Madison

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Mississippi Code Annotated section 97-3-95 states:

“(1) A person is guilty of sexual battery if he or she engages in sexual
penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically
helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of
age, if the person is thirty-six (36) or more months older than
the child; or
County Circuit Court sentenced Bradshaw to serve forty years in the custody of the

Mississippi Department of Corrections and to register as a sex offender. On appeal,

Bradshaw argues that the indictment charging him was overly broad, that his right to a

speedy trial was violated, and that the circuit court abused its discretion by admitting

evidence of prior bad acts. We do not find any of these arguments convincing and affirm the

jury’s verdict and the court’s sentence.

FACTS AND PROCEDURAL HISTORY

¶2. Bradshaw married Caitlin in July 2012 when M.E.B.,2 Caitlin’s daughter from a

previous relationship, was two years old. Bradshaw and Caitlin testified that Bradshaw

“informally adopted” M.E.B. by writing his name on her birth certificate after marrying

Caitlin, though he never went through a formal adoption process.3 Between 2012 and 2017,

the family lived in Brandon, Mississippi. In 2018, the family moved to Gluckstadt in

Madison County, Mississippi. Caitlin and Bradshaw had two more children during the

marriage.

(d) A child under the age of fourteen (14) years of age, if the
person is twenty-four (24) or more months older than the child.
(2) A person is guilty of sexual battery if he or she engages in sexual
penetration with a child under the age of eighteen (18) years if the person is
in a position of trust or authority over the child including without limitation
the child's teacher, counselor, physician, psychiatrist, psychologist, minister,
priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt,
uncle, scout leader or coach.
2
In the interest of privacy, we use initials for the minor victim.
3
It is unclear from the record to what extent Bradshaw was considered M.E.B.’s
legal guardian, but the State, the defense, and the circuit court all referred to him as M.E.B.’s
adoptive father, so that is the language this Court will use.

2
¶3. Caitlin worked and attended school, often being gone from the home between 8 a.m.

and 8 p.m. during the weekdays and between 8 a.m. and 1 p.m. during the weekends.

Bradshaw, a police officer, usually finished work and arrived home at 2 p.m. and would be

available when M.E.B. and one of her siblings returned home from school at 2:30 p.m.

Caitlin would often call Bradshaw when she was on her way home to remind him to pick up

their youngest child from daycare.

¶4. On March 10, 2021, while Bradshaw was not home, M.E.B. (then eleven years old)

informed Caitlin that Bradshaw had been molesting her for a long time. Caitlin confronted

Bradshaw when he returned home, and Bradshaw questioned the allegations. Caitlin then

took M.E.B. and the other two children to Caitlin’s mother’s house. There, M.E.B. told

Caitlin that the most recent act of abuse occurred three days prior on March 7, 2021. M.E.B.

also described to Caitlin several acts of penetration, as well as times when Bradshaw had

forced M.E.B. to perform sexual acts on him.

¶5. On the night of March 10, 2021, Caitlin went to the Madison County Sheriff’s

Department and gave a witness statement. On March 21, 2021, Latosha Christmas of the

Mississippi Child Advocacy Center interviewed M.E.B. concerning the abuse. On March

26, 2021, the local police arrested Bradshaw and charged him with sexual battery. On the

night before he was indicted, Bradshaw sent multiple text messages to Caitlin, apologizing

for everything, asking her to drop the accusations, and stating that “I’ve done way worse.”

¶6. On August 17, 2021, Bradshaw was indicted. The indictment read:

On, about, and between the dates of July 1, 2017 and March 10, 2021, in the
county [of Madison] and within the jurisdiction of this Court, the said

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Defendant, a human being over age eighteen years, whose date is June 26,
1986, did unlawfully, willfully, and feloniously engage in sexual penetration
with M.E.B., a child under age fourteen years, whose date of birth is February
19, 2010, and the said Defendant being twenty-four or more months older than
the said M.E.B., in violation of Miss. Code Ann. § 97-3-95(1)(d), and being
against the peace and dignity of the State of Mississippi.

Prior to trial, the State provided Bradshaw with witness statements and other information it

had. The State also notified Bradshaw of its intent to present testimony from M.E.B. about

acts that occurred prior to July 1, 2017. At a pre-trial hearing, the court ruled that it would

consider objections as the testimony was presented at trial. On December 13, 2021, the trial

began.

¶7. During the trial, the State called Caitlin to testify. Caitlin testified that on March 10,

2021, after arriving at M.E.B.’s grandmother’s home, she asked M.E.B. for details of the

abuse. Caitlin said that at the time, M.E.B. described Bradshaw “putting his ‘stick’ in her

mouth and moving her head back and forth and making her gag.” Caitlin also testified that

M.E.B. told her that Bradshaw inserted his finger in her rectum. Caitlin further corroborated

details of the molestation that M.E.B. would later testify about, like the fact that Bradshaw

was uncircumcised and that M.E.B. described the difference between Bradshaw’s genitalia

and her younger brother’s.

¶8. The State also called Christmas to testify regarding the forensic interview she

conducted on M.E.B. Christmas stated that during the forensic interview, M.E.B. described

multiple instances of cunnilingus performed by Bradshaw and multiple attempts to have

M.E.B. perform fellatio on him. M.E.B. also told Christmas about multiple times Bradshaw

forced her to masturbate him as well as other indecent acts, including watching pornographic

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videos, using sex toys, detailing Bradshaw’s ejaculate (including what it looked and smelled

like), and making M.E.B. “go up and down on his private part with her private part.” Taking

all these details into account, Christmas stated that these descriptions were consistent with

a child who had experienced sexual abuse.

¶9. During trial, the State also called M.E.B. to testify. She testified that the first act of

molestation occurred when she was seven years old on the Memorial Day weekend in 2017

in Biloxi, Mississippi, while the family was on vacation. She stated that Bradshaw touched

her inappropriately, put his mouth on her vagina, and tried to force her to perform fellatio on

him. M.E.B., while describing these acts, did not clearly state whether penetration occurred.

M.E.B. then described acts that occurred at her grandparent’s house in Rankin County

approximately one year after the Biloxi trip when M.E.B. was eight years old. M.E.B. stated

that Bradshaw fondled her chest and vagina and attempted to force her to perform fellatio on

him but was unsuccessful.

¶10. M.E.B. then recounted how, after moving to Madison County two years later when

M.E.B. was nine or ten years old, the acts of molestation occurred roughly three times a week

(on Mondays, Wednesdays, and Fridays) after school when she and her younger siblings

were alone with Bradshaw, and Caitlin was either at work or at school.4 During the first

abusive instance in Madison County, Bradshaw had M.E.B. sit on the couch and had her

masturbate him. He then moved her to his bedroom, where he put his mouth on her vagina

and again attempted to force her to perform fellatio on him, though M.E.B. refused. M.E.B.

4
M.E.B. testified that she had horseback riding and tennis lessons on Tuesdays and
Thursdays, and that was how she remembered the days when the abuse took place.

5
failed to describe any specific act of penetration during this first instance of abuse at the

Madison County house. While recounting the incidents of abuse, M.E.B. primarily

referenced her age or the location where the abuse occurred to establish the date of the

incidents.

¶11. When pressed for details to determine if any penetration occurred, M.E.B. stated that

Bradshaw’s tongue would only “hit the outside” of her vagina. She testified that while in

Madison County, Bradshaw put his penis in her mouth in 2019. She described the feeling

in detail, consistent with the testimony she had provided to Latosha Christmas during the

forensic interview. She also testified that he put his penis in her mouth five times in total at

the Madison house. M.E.B. later testified that Bradshaw had put his tongue in her vagina

twice. M.E.B. denied that Bradshaw had ever put his fingers in her vagina, but said that he

did put his fingers in her rectum once when she was nine or ten years old. M.E.B. further

testified about Bradshaw’s use of a “minty paste” on her vagina and forced her to watch

pornographic videos. M.E.B. also testified that Bradshaw used a vibrator on the outside of

her vagina, and Bradshaw attempted to put his penis in her vagina but stopped when she told

him it was painful.

¶12. At the close of the State’s case, Bradshaw moved for a directed verdict on the ground

that the evidence presented by the State only presented evidence of oral penetration and not

digital penetration.5 Further, Bradshaw argued that the indictment only covered sexual

5
The defense conceded that the difference between oral and digital penetration did
not matter according to the statute, but Bradshaw still moved for a directed verdict on that
ground.

6
battery that occurred between July 1, 2017, and March 10, 2021, but the State put on

evidence of bad acts that allegedly occurred outside the window of the indictment, that is,

prior to July 1, 2017. The State pointed out that M.E.B. had testified about instances

occurring between July 1, 2017, and March 10, 2021, and that these instances occurred in

Madison County. Further, the State pointed out that the definition of penetration in the

Mississippi Code does not differentiate between oral and digital penetration for the purpose

of determining if a sexual battery occurred. Taking the evidence in the light most favorable

to the State (the non-moving party), the court denied the motion for a directed verdict. Later,

at the close of the defense’s evidence, Bradshaw renewed his motion for a directed verdict

on the same ground. The Court denied the motion for the same reasons.

¶13. Bradshaw testified in his defense, saying that he had a drinking problem but that he

never sexually abused M.E.B. He believed she was angry with him and that she made up the

allegations because “[s]he didn’t want me in her life anymore.” Bradshaw believed M.E.B.’s

biological father’s entering her life, her recent interactions at school regarding sex education,

and the fact that Bradshaw was the disciplinarian of the family were all contributing factors

as to why M.E.B. would have fabricated the allegations of sexual battery.

¶14. After deliberations, the jury found Bradshaw guilty of sexual battery, and the court

sentenced him to serve forty years in custody. After the trial, Bradshaw moved for a new

trial on the grounds that the verdict was contrary to the law and the weight of the evidence.

The court denied this motion on May 9, 2022. Bradshaw then appealed, in forma pauperis,

on May 10, 2022. On appeal, Bradshaw raises three issues: (1) the single-count indictment

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failed to provide him the requisite notice of the charge against him when it covered a four-

year timeframe; (2) the defendant’s fundamental right to a speedy trial was violated; and (3)

the trial court abused its discretion when it admitted evidence of prior bad acts.

STANDARD OF REVIEW

¶15. On the first issue, the sufficiency of indictments are questions of law, which are

reviewed de novo. Brady v. State, 337 So. 3d 218, 233 (¶10) (Miss. 2022). An indictment

acts as a means of informing the criminal defendant “with some measure of certainty as to

the nature of the charges brought against him so that he may have a reasonable opportunity

to prepare an effective defense . . . .” Baker v. State, 930 So 2d 399, 404 (¶8) (Miss. Ct. App.

2005) (citing Moses v. State, 795 So. 2d 569, 571 (¶13) (Miss. Ct. App. 2001)).

¶16. On the second issue, regarding the defendant’s fundamental right to a speedy trial, we

apply a plain error standard because Bradshaw did not raise this issue before, during, or after

trial. Morgan v. State, 793 So. 2d 615, 617 (¶6) (Miss. 2001) (“A defendant who fails to

make a contemporaneous objection must rely on plain error to raise the assignment on

appeal.”).

¶17. This Court reviews the third issue regarding the admission of prior bad acts evidence

for abuse of discretion. Collins v. State, 172 So. 3d 724, 738-39 (¶14) (Miss. 2015).

DISCUSSION

I. Whether the indictment was overly broad.

¶18. Bradshaw argues that the indictment’s timeframe was overly broad, and as such it

failed to provide him with sufficient notice of the specific acts for which he was being

8
prosecuted. Bradshaw states that the indictment’s timeframe was unreasonable because the

court did not consider whether the defendant had adequate notice of the charges against him

so that he was able to prepare his defense and not be surprised at trial. This argument fails

for the following reasons.

A. Waiver

¶19. Although Bradshaw objected during the trial to testimony concerning certain events

that would be introduced that fell outside the indictment’s timeframe (namely the Biloxi

abuse) as prior bad acts, Bradshaw never objected to the allegedly insufficiency of the

indictment. Bradshaw also failed to raise this issue in his motion for a new trial, in which

he only stated that “[t]he verdict of the jury is contrary to the law and the weight of the

evidence.” Nonetheless, on appeal Bradshaw argues that the defective indictment constituted

plain error.

¶20. Mississippi law recognizes at least two types of “jurisdictional defects” in indictments

that may be raised for the first time on appeal: where the “indictment fails to charge a

necessary element of a crime or if there exists no subject matter jurisdiction.” Maggett v.

State, 230 So. 3d 722, 728 (¶16) (Miss. Ct. App. 2016).6 For non-jurisdictional defects, the

defendant must show cause and actual prejudice. Id.

¶21. In this case, there was no jurisdictional defect with Bradshaw’s indictment. This was

a criminal matter that was tried in the Circuit Court of Madison County where the charged

6
For example, in Crawford v. State, 716 So. 2d 1028 (Miss. 1998), superseded on
other grounds by MRE 702, the Mississippi Supreme Court found that a language-placement
issue with the indictment was considered a non-jurisdictional defect. Id. at 1050-51 (¶¶81-
82).

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crime occurred, giving the court subject matter jurisdiction. In addition, the indictment

charged all the necessary elements of the crime of sexual battery. Mississippi Code

Annotated section 97-3-95 lists the elements of the sexual battery of a minor under the age

of fourteen as the (1) sexual penetration (2) of a child under the age of fourteen years of age

by (3) a person who is twenty-four or more months older than the child. The indictment in

Bradshaw’s case stated:

“On, about, and between the dates of July 1, 2017 and March 10, 2021, in the
county aforesaid and within the jurisdiction of this Court, the said Defendant,
a human being over age eighteen years, whose date of birth is June 26, 1986,
did unlawfully, willfully, and feloniously engage in sexual penetration with
M.E.B., a child under age fourteen years, whose date of birth is February 19,
2010, and the said Defendant being twenty-four or more months older than the
said M.E.B., in violation of Miss. Code Ann. § 97-3-95(1)(d), and being
against the peace and dignity of the State of Mississippi.”

(Emphasis added). This indictment establishes each of the required elements of the statute.

Further, it should be noted that in regard to sexual battery cases “the date ‘of the offense is

not an essential element of the offense charged in the indictment.’” Faulkner v. State, 109

So. 3d 142, 149 (¶28) (Miss. Ct. App. 2013) (quoting Daniels v. State, 742 So. 2d 1140, 1143

(¶10) (Miss. 1999), overruled on other grounds by Wilson v. State, 194 So. 3d 855, 874 (¶60)

(Miss. 2016)); see also Ross v. State, 288 So. 3d 317, 323 (¶21) (Miss. 2020). Because the

indictment clearly listed all the necessary elements of the charged offense, and the date of

the offense is not an essential element of the offense of sexual battery under Mississippi

caselaw, Bradshaw’s alleged defect in the indictment is not jurisdictional. Maggett, 230 So.

3d at 728 (¶16).

¶22. Because the span of time in the indictment is supposedly overbroad, Bradshaw must

10
show cause and actual prejudice based on the indictment being overly broad. Id. Bradshaw

offers no such proof of cause and actual prejudice. Indeed, Bradshaw fails to address the

non-jurisdictional nature of the alleged defect in his brief at all. Based on this, we need not

address the non-jurisdictional alleged defect in the indictment raised for the first time on

appeal, and it is considered waived.

B. Failure on the Merits

¶23. Notwithstanding the failure to raise the issue to the trial court, Bradshaw’s argument

fails on the merits. As stated above, our review for the insufficiency of indictments is de

novo. Brady, 337 So. 3d at 223 (¶10). Mississippi Rule of Criminal Procedure 14.1(a)(1)

states that an indictment “shall be a plain, concise and definite written statement of the

essential facts and elements constituting the offense charged and shall fully notify the

defendant of the nature and cause of the accusation.” Brady, 337 So. 3d at 224 (¶11)

(quoting MRCrP 14.1(a)(1)). Where an indictment cannot be said to grant “some measure

of certainty” regarding the nature of the charges brought, it may be deemed insufficient.

Baker, 930 So. 2d at 405 (¶8). However, “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 against him.”

Anderson v. State, 293 So. 3d 279, 289 (¶27) (Miss. Ct. App. 2019) (quoting Jenkins v. State,

131 So. 3d 544, 549 (¶14) (Miss. 2013)); see also Eakes v. State, 665 So. 2d 852, 860 (Miss.

1995).

¶24. An indictment that states a general timeframe for sexual abuse is sufficient in cases

of sexual battery of a minor. In Baker, the defendant was indicted for sexual battery over a

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one-and-a-half to two-and-a-half-year timeframe. Baker, 930 So. 2d at 403 (¶4). The

indictment specifically stated the abuse occurred “on or about from 2000 thru [sic] June 22,

2002.” In Baker, we found the indictment was sufficient to apprise Baker of the crimes with

which he was charged. Id. Specifically, this Court looked at Uniform Rule of Circuit and

County Court Practice 7.06(5), in effect at the time, which provided that the indictment shall

include the “date, and if applicable, the time at which the offense was alleged to have been

committed . . . .”7 The “[f]ailure to state the correct date shall not render the indictment

insufficient.” We further pointed to Eakes v. State, 665 So. 2d 852 (Miss. 1995), where the

Mississippi Supreme Court 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 against him.’”

Anderson, 293 So. 3d at 289 (¶27); see also Baker, 930 So. 2d at 405-06 (¶12) (quoting

Eakes, 665 So. 2d at 860).

¶25. The indictment in Baker was based on the defendant’s own confessions, which

established two instances of sexual battery. Baker, 930 So. 2d at 406 (¶13). However, these

instances conflicted with the dates of the victim. Id. Based on this, the indictment was

crafted to take into account the entire time that Baker had taken care of the victim. Id. at 407

7
The current requirements for the contents of indictments are in Mississippi Rule of
Criminal Procedure 14.1, which states, “An indictment shall include the following: . . . the
date and, if applicable, the time at which the offense was alleged to have been committed.”
However, since this change in the rules, the Mississippi Supreme Court has stated in another
sexual battery case, that “an allegation as to the time of the offense is not an essential
element of the offense charged in the indictment.” Ross, 288 So. 3d at 322 (¶17) (quoting
Chapman v. State, 250 So. 3d 429, 450 (¶128) (Miss. 2018)). Accordingly, it is clear that
the requirement for the specific date and time of the offense is not required for sexual battery
charges.

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(¶15).8 Baker is applicable to the case at hand. The State in the present case based the

indictment on M.E.B.’s forensic interview testimony in which she could not specify dates or

times but rather windows of time based on her age or where she lived. Just as Baker took

care of the victim during the span of time charged in his indictment, here Bradshaw watched

M.E.B. every Monday, Wednesday, and Friday after school during the period in which the

indictment charged him with sexual battery. M.E.B. testified that on those days, in that

timeframe, Bradshaw sexually battered her. While there was no testimony from either

Bradshaw or M.E.B. establishing a specific date or time in which the abuse occurred, this

was not necessary. Just as in Baker, because M.E.B.’s testimony did not specify any

particular dates, it was legally sufficient for the indictment to span a period of time from the

first instance of abuse to the most recent abuse at the Madison house. Just as this court held

in Baker “[s]o long as from a fair reading of the indictment, taken as a whole, the nature and

cause of the charge against the accused are clear, the indictment is legally sufficient.” Baker,

930 So. 2d at 406 (¶13) (relying on Richmond v. State, 751 So. 2d 1038, 1046 (¶19) (Miss.

1999)).

¶26. The indictment charged Bradshaw with a specific offense within a three-and-a-half-

year timeframe. It was crafted specifically to fit with the victim’s testimony available at the

time of the indictment, and no testimony or evidence came to light before the trial that could

have narrowed the timeframe any more than it was. In Shoemaker v. State, 256 So. 3d 604,

8
Based on Richmond v. State, 751 S0. 2d 1038, 1046 (¶19) (Miss. 1999), this Court
found that indictment, taken as a whole, informed the defendant of the nature and cause of
the charge against him and, as such, was legally sufficient. Baker, 930 So. 2d at 406 (¶13).

13
612 (¶¶28-29) (Miss. Ct. App. 2018), we found that the State could not provide a more

definite time frame for the alleged offenses than it already had in the indictment. The victim

in that case testified to sexual abuse that occurred over a five to seven-year time span when

she was between five and twelve years old. Id. at (¶28). In that case, we pointed out that the

defendant and victim had constant interaction with each other over the span of the indicted

time. Id. at (¶29). Based on those facts, we found that the State could not narrow the date

range provided in Shoemaker’s indictment any more than it had. Id. In the current case, the

State was as specific as possible in stating the details of the specific offense given the

evidence available at that time. The indictment was not overly broad.

¶27. Bradshaw argues that this case is similar to the facts of Moses v. State, 795 So. 2d 569

(Miss. Ct. App. 2001), where we held that the indictment was held to be overly broad. In

Moses, Walter Moses was charged in a single indictment to twenty-two counts of sexual

activity with two minors. Id. at 570 (¶1). Thirteen of the counts applied to the first minor

victim, and the remaining counts applied to the second minor victim. Id. All the counts were

alleged to have occurred between 1994 and 1997. Id. at 570 (¶4). Although the State did

narrow the dates of counts fifteen through twenty-two prior to trial, it failed to amend the

indictment to account for the new, more narrow charges. Id. at 571 (¶9). On appeal, this

Court found Moses’s indictment failed for two reasons: (1) although the timeframe was

narrowed, the indictment was never amended; and (2) the separate, but identical, counts in

the indictment did not serve to notify the defendant of the distinct acts for which he was

being charged. Id. at (¶12). Neither of these failures were present in Bradshaw’s indictment.

14
¶28. Bradshaw’s indictment included one count of sexual battery of a minor, occurring

between July 1, 2017, and March 10, 2021. After a thorough review of the record, it is clear

that the State did not have any evidence which could have further narrowed the timeframe

of the indictment. M.E.B. was of tender years when the abuse started. She knew the days

of the week when the abuse occurred but not any particular dates. Indeed, Moses specifically

stated:

[T]he Mississippi Supreme Court has relaxed [the provision requiring the date
of the offense in the indictment] to some extent in cases involving sexual
abuse of children. The court has done so in recognition of the fact that, due to
a child’s inherent lack of awareness of dates and the secretive circumstances
under which such offenses normally occur, it is often difficult to pinpoint the
exact time of the offense.

Id. at 572 (¶15) (citing Eakes, 665 So. 2d at 860). The most specific time frames M.E.B.

could provide were the first instance of abuse at the Biloxi hotel and the most recent instance

of abuse at the Madison house. When dealing with a sexual abuse case involving a minor

child, the exact date of the offense need not be specified. Id.

¶29. The case before us deals with prolonged abuse of a child by someone who was close

to the child and had ready access to her at the home, as did the defendant in Baker. It is

distinguishable from those cases where a child is abused once or even multiple times over

the course of years on a sporadic basis, like in Moses. When a child is sexually abused on

random occasions, the State may be able to provide a narrower timeframe due to the nature

of the events. But in cases where the child is repeatedly subjected to abuse on a regular basis

over a period of time in the victim’s own home, the child may not recall the specific dates

of abuse. In the present case, because M.E.B. lived with Bradshaw over a significant period

15
of time, Moses is distinguished. For this reason, and due to the nature of the case and the

inability of the State to further narrow the timeframe listed in the indictment, we find that the

indictment in this case clearly apprised Bradshaw of the nature and cause of the charge

against him.

II. Whether Bradshaw’s right to a speedy trial was violated.

¶30. Bradshaw argues for the first time on appeal that his constitutional right to a speedy

trial was violated.9 Bradshaw’s alleged speedy-trial violation shall only be enough to

overturn his conviction if it amounts to “a miscarriage of justice[.]” Johnson v. State, 9 So.

3d 413, 416 (¶8) (Miss. Ct. App. 2008). A court should use four factors to determine if a

speedy-trial violation occurred: (1) the length of the delay; (2) the reason(s) for the delay; (3)

whether the defendant asserted their right to a speedy trial; and (4) whether the defendant

suffered prejudice from the delay. Manix v. State, 895 So. 2d 167, 175-76 (¶16) (Miss. 2005)

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). As later established in Bateman v. State,

125 So. 3d 616, 628-29 (¶40) (Miss. 2013), we must consider the totality of the

circumstances in determining whether a speedy-trial violation occurred.

¶31. Normally, in determining whether a speedy-trial violation occurred, the burden is on

the State to show good cause for the delay. Harris v. State, 311 So. 3d 638, 664-65 (¶79)

(Miss. Ct. App. 2020). However, in cases where the trial court never held a hearing on the

9
“Issues raised for the first time on appeal and not contemporaneously objected to
at trial are waived.” McCain v. State, 971 So. 2d 608, 612 (¶7) (Miss. Ct. App. 2007).
“However, a violation of a constitutional right ‘may reach such serious dimension’ that it
will be addressed when raised for the first time on appeal.” Id. (quoting Whigham v. State,
611 So. 2d 988, 995 (Miss. 1992), abrogated on other grounds by Wright v. State, 958 So.
2d 158, 166 (¶21) (Miss. 2007)).

16
matter, our supreme court has stated:

[T]his Court has two options: (1) decide the case based on a de novo review
of the record before us, if good cause for the delay is apparent, or (2) remand
the case to the circuit court to allow the State to present evidence explaining
the delay and to conduct a proper Barker analysis.

Rowsey v. State, 188 So. 3d 486, 494 (¶20) (Miss. 2015) (citing Myers v. State, 145 So. 3d

1143, 1151-52 (Miss. 2014)). In the present case, Bradshaw did not assert his speedy-trial

claim to the trial court and, instead, raises it for the first time on appeal. Thus, no hearing

was held, and the State was unable to provide a reason for the delay to the trial court.

However, we find good cause for the delay is apparent from our de novo review of the

record, and, therefore, need not remand for an evidentiary hearing.

A. Length of the Delay

¶32. The Mississippi Supreme Court has held that a delay of eight months or longer

triggers the rest of the Barker analysis. Smith v. State, 550 So. 2d 406, 408 (Miss. 1989).

This delay does not support a finding of actual prejudice but simply acts as a triggering

mechanism for the rest of the Barker analysis. Barker, 407 U.S. at 530. The length of the

delay is calculated from the date of the arrest or date of the indictment, whichever comes

first. Johnson v. State, 296 So. 3d 198, 202 (¶9) (Miss. Ct. App. 2020) (“A formal

indictment or information or an arrest—whichever first occurs—triggers the constitutional

right to a speedy trial.”). Between Bradshaw’s arrest and his trial, eight months and

seventeen days elapsed.10 This meets the requirements to trigger a full Barker analysis.

B. Reason for the Delay

10
Bradshaw was arrested on March 26, 2021, and his trial began December 13, 2021.

17
¶33. Once indicted, the court expeditiously set the matter for trial. Bradshaw was indicted

on August 17, 2021, and trial was set for December 6, 2021. Were the indictment date the

beginning date for a Barker analysis, Bradshaw would have no speedy trial claim. It is the

time between his arrest and his indictment that caused the eight month threshold laid out in

Barker to be exceeded. However, as this Court reiterated in Harris, 311 So. 3d at 665 (¶80):

[I]t requires no extended argument to establish that prosecutors do not deviate
from “fundamental conceptions of justice” when they defer seeking
indictments until they have probable cause to believe an accused is guilty;
indeed it is unprofessional conduct for a prosecutor to recommend an
indictment on less than probable cause. It should be equally obvious that
prosecutors are under no duty to file charges as soon as probable cause exists
but before they are satisfied they will be able to establish the suspect’s guilt
beyond a reasonable doubt.

(Citing State v. Woodall, 801 So. 2d 678, 682 (¶15) (Miss. 2001) (quoting United States v.

Lovasco, 431 U.S. 783, 790-91 (1977))). Such delays between a finding of probable cause

and an indictment are considered “investigative delays,” as they are the result of law

enforcement gathering evidence to support the indictment. Lovasco, 431 U.S. at 795.

“[I]nvestigative delay is fundamentally unlike delay undertaken by the [g]overnment solely

to gain tactical advantage over the accused.” Id. Different reasons for delay are assigned

different weight. Williams v. State, 305 So. 3d 1122, 1132 (¶31) (Miss. 2020). While more

nefarious reasons may weigh heavily against the State, more neutral reasons for delay may

weigh only slightly against the State. Id. Since investigative delays are considered more

neutral reasons for delay, Lovasco, 431 U.S. at 795, they should be weighed only slightly

against the State. Williams, 305 So. 3d at 1132 (¶31).

¶34. Bradshaw’s right to a speedy trial attached when he was arrested on March 26, 2021.

18
McBride v. State, 61 So. 3d 138, 142 (¶8) (Miss. 2011). Bradshaw was not indicted until

August 17, 2021. The court then entered an order setting trial for December 6, 2021, to

which both Bradshaw and his attorney agreed. Trial was actually held on December 13,

2021. Thus, Bradshaw’s trial was set less than five months after his indictment. As

previously noted, it is clear from the record that, but for the delay between the arrest and the

indictment, we would not need to launch a full Barker analysis, as the eight month threshold

would not have been met. Since we only have to conduct this full analysis due to a delay

between the arrest and indictment, this delay is considered an “investigative delay.” Harris,

311 So. 3d at 665 (¶80). Investigative delays still fall upon the government, as it does in this

case, but are a more neutral reason for delay. Johnson v. State, 68 So. 3d 1239, 1242 (¶9)

(Miss. 2011) (“[T]he ultimate responsibility for such circumstances must rest with the

government.”).

C. Assertion of the Right

¶35. A defendant does not waive his constitutional right to a speedy trial by failing to assert

it to the trial court. In Rowsey v. State, 188 So. 3d 486, 494 (¶21) (Miss. 2015), the

Mississippi Supreme Court discussed Barker, stating:

‘[W]e reject . . . the rule that a defendant who fails to demand a speedy trial
forever waives his right.’ . . . ‘[T]he better rule is that the defendant’s assertion
of or failure to assert his right to a speedy trial is one of the factors to be
considered in an inquiry into the deprivation of the right.’ Id.

Further, when a defendant makes motions for continuances, whether successful or not, it

undermines the argument asserted by the defendant that he was disadvantaged by the delay.

Jasso v. State, 655 So. 2d 30, 34 (Miss. 1995). Bradshaw failed to assert his right to a speedy

19
trial until this appeal. Further, he moved for a continuance prior to trial, but the court denied

the motion. The failure to assert the right to a speedy trial, while also having moved for a

continuance prior to trial, weighs against the argument that a speedy-trial violation occurred.

Perry v. State, 637 So. 2d 871, 875 (Miss. 1994). As such, this factor weighs heavily against

Bradshaw.

D. Prejudice to the Defendant

¶36. As set out in Courtney v. State, 275 So. 3d 1032, 1043-44 (¶34) (Miss. 2019), “[t]o

determine whether a defendant was prejudiced by the delay, the Court considers: (1)

preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the

accused; and (3) limiting the possibility that the defense will be impaired.” Of these factors,

the most important one is whether the defense was impaired. Id. To prove such impairment

or prejudice, the defendant must show “loss of evidence, death of witnesses, or staleness of

an investigation.” Sharp v. State, 786 So. 2d 372, 381 (¶19) (Miss. 2001).

¶37. As to the first factor, Bradshaw was released from incarceration pending his trial, so

his incarceration did not prejudice his defense. Regarding the second factor, Bradshaw does

not argue any anxiety or concern regarding the trial. Thus, the only factor Bradshaw claims

is that the delay impaired his defense because the minor victim had difficulty remembering

the details of the abuse.

¶38. Bradshaw points out that M.E.B. had difficulty remembering some details of events

that occurred three to four years earlier, such as whether they were in a hotel or a house in

Biloxi when the first instance of molestation occurred. But M.E.B. was seven years old at

20
the time. This Court is not convinced that the additional time between arrest and trial skewed

the memory of the victim so heavily as to create prejudice for the defendant, especially when

she was recounting an event that occurred four years earlier. It is well established that minor

victims of sexual abuse are given leniency in describing and recalling the exact time and

place the abuse occurred. Jenkins, 131 So. 3d at 549-50 (¶16). As such, M.E.B.’s inability

to specifically describe the events that took place over a four-year time frame are not

presumed to be caused by a delay. The victim specifically testified about what happened to

her over a four-year period. The fact that M.E.B. could not recall specific dates of abuse was

not caused by the delay in trial. Because Bradshaw has failed to show any other evidence of

prejudice, this factor weighs against him.

¶39. It is clear that despite the presumption of a speedy-trial violation, the Barker factors

weigh heavily against Bradshaw’s claim that such a violation actually occurred. Bradshaw

did not raise the alleged speedy-trial violation to the trial court, and in fact he tried to move

for a continuance but was denied. Although the State did not provide any reason for the

delay, it was during the investigative period of the indictment, and there was no proof that

the State delayed the prosecution for the purposes of gaining a tactical advantage. Therefore,

this factor only slightly weighed in Bradshaw’s favor. Lastly, Bradshaw failed to show any

evidence that this delay prejudiced him in any way, and as such this last factor weighs against

him as well. Based on the foregoing, and considering the totality of the circumstances, we

do not find that a speedy-trial violation occurred.

III. Whether the trial court abused its discretion by admitting evidence
of Bradshaw’s prior bad acts.

21
¶40. Bradshaw contends that the circuit court erred in allowing M.E.B. to testify about his

prior bad acts of sexual molestation prior to the date charged in the indictment. Bradshaw

specifically raises the argument that the testimony regarding the Biloxi abuse, which occurred

prior to the dates of the indictment, was improperly admitted evidence of prior bad acts.

¶41. Our Court reviews rulings on the admission of prior bad-acts evidence for abuse of

discretion. Collins, 172 So. 3d at 738-39 (¶14). “[E]vidence of prior sexual acts between

the accused and the victim is admissible to show the accused’s lustful, lascivious disposition

toward the particular victim, especially in circumstances where the victim is under the age

of consent.” Walker v. State, 878 So. 2d 913, 915 (¶14) (Miss. 2004). Such evidence is

admissible if “properly admitted under Rule 404(b), filtered through Rule 403, and

accompanied by an appropriately-drafted limiting or cautionary instruction.” Derouen v.

State, 994 So. 2d 748, 756 (¶20) (Miss. 2008). As long as the proper filter, notice, and

cautionary instructions are used, prior bad-acts evidence may be presented to a jury in cases

of sexual assault of a minor victim. Id.

¶42. Under Mississippi Rule of Evidence Rule 404(b),11 “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident[,]” are proper

11
Rule 404(b) provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.

22
reasons to present prior-bad-acts evidence to the jury. The court undertakes a Rule 40312

analysis, and a limiting instruction must be presented to distinguish the prior bad acts. Smith

v. State, 326 So. 3d 510, 517-18 (¶20) (Miss. Ct. App. 2021). Further, the court must present

a limiting instruction to prevent the forbidden inference being drawn that because the

defendant may have committed the prior bad acts, he is predisposed to have committed them

again in the present case. Based on our review of the record, all these requirements were

met.

¶43. In this case, the trial court heard arguments regarding M.E.B.’s testimony on the abuse

that occurred at the Biloxi hotel during a pre-trial hearing when it made its determination on

whether the tender-years exception applied. See MRE 803(25). The State made it clear that

the testimony regarding the abuse at the Biloxi hotel was not being presented for the purpose

of proving the charged offense but, instead, to establish the beginning of the abuse. Further,

the State explained that although M.E.B. would testify regarding acts that occurred outside

Madison County (the county listed in the indictment) her testimony about the Biloxi abuse

was presented to paint a complete picture, rather than to prove any particular instances of

abuse. During the hearing, the court determined that the prior bad acts evidence was more

probative than prejudicial because it helped establish when the abuse started and the

beginning of the victim’s testimony. The trial court also reasoned that “[t]here might be

something that comes up that’s objectionable. We’ll just have to deal with that at trial.”

12
Rule 403 of the Mississippi Rules of Evidence states, “The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.”

23
When M.E.B. did testify concerning the Biloxi incident, Bradshaw failed to make any such

objections. The court later gave the jury a limiting instruction, agreed to by both Bradshaw

and the State.13 As required by Rule 404(b), this instruction distinguished the Biloxi abuse

from the Madison abuse, by telling the jury the Biloxi act was not to be considered in

determining whether Bradshaw was likely to act in conformity with the prior bad act.

¶44. Because all the requirements under Rule 404 were met, the court did not abuse its

discretion in allowing M.E.B.’s testimony regarding Bradshaw’s abuse outside the

indictment’s timeframe. The defendant was given sufficient notice of the State’s intention

to present said evidence, the court determined it was more probative than prejudicial, and the

jury was instructed regarding the testimony being distinguishable from the substantive acts

at issue during the trial. Accordingly, we find the trial court did not abuse its discretion

regarding the admission of the prior bad-acts evidence.

CONCLUSION

¶45. We hold that the indictment was not overly broad, as it stated with sufficient clarity

the act of which Bradshaw was being accused. The specific time and place of the abuse was

not a necessary element that had to be particularly stated in the indictment. Further,

13
The court gave the following jury instruction regarding the Biloxi abuse, to which
neither party objected:

The Court instructs the jury that acts testified to by [M.E.B.] are acts relating
to charges for which the defendant is not presently on trial and are to be
considered only for the limited purpose of showing proof of motive, intent, or
absence of mistake or accident. You cannot and must not simply infer that the
defendant acts in conformity with his previous acts and that he is therefore
guilty of the charge for which he is presently on trial.

24
Bradshaw failed to raise the issue of a speedy-trial violation to the circuit court.

Notwithstanding, the Barker factors weighed against Bradshaw in determining that there was

not any prejudice. Lastly, the trial court did not abuse its discretion by allowing the prior

bad-acts evidence because the court properly filtered all the testimony and evidence as

required by the Mississippi Rules of Evidence and gave the jury the necessary limiting

instructions. Finding no error, we affirm the trial court’s denial of the motion for a new trial

and the judgment of conviction and sentencing.

¶46. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR.
EMFINGER, J., NOT PARTICIPATING.

25