David Patrick Boone a/k/a David P. Boone a/k/a David Boone v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-00684-COA

DAVID PATRICK BOONE A/K/A DAVID P. APPELLANT
BOONE A/K/A DAVID BOONE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/24/2023
TRIAL JUDGE: HON. CELESTE EMBREY WILSON
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: STEVEN E. FARESE SR.
JOSEPH WHITTEN COOPER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: ROBERT R. MORRIS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/07/2025
MOTION FOR REHEARING FILED:

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

BARNES, C.J., FOR THE COURT:

¶1. A DeSoto County Circuit Court jury found David Boone guilty of two counts of

gratification of lust for fondling his minor daughter. The court sentenced Boone to serve

fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for Count

I, to be followed by ten years of post-release supervision for Count II.1 Boone appeals his

convictions. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

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Boone was also ordered to pay fines and to register as a sex offender.
¶2. Boone and his former wife, Penny, have two daughters, Marcia and Sasha.2 The

couple separated in 2010 when Marcia was six years old and when Sasha was three years old.

The couple had a contentious divorce, lasting from 2010 to 2013. A guardian ad litem

(GAL), Robin Minyard, was appointed in June 2012 after a therapist for the children had a

private conversation with the presiding chancellor. Upon the GAL’s recommendation, the

DeSoto County Chancery Court temporarily required supervised visits between Boone and

his daughters in 2012. The girls would stay with Boone at his apartment every other

weekend during the school year and every other week during the summer. A final decree of

divorce was entered on June 7, 2013, with sole physical custody given to Penny.

¶3. In August 2020, sixteen-year-old Marcia disclosed to her mother that Boone had

sexually abused her and her sister. Penny filed a report with the Southaven Police

Department. On June 9, 2021, a DeSoto County grand jury indicted Boone on two counts

of gratification of lust (fondling).

¶4. The defense filed a pretrial motion in limine on March 23, 2023, seeking to exclude

any prior bad-acts testimony by Sasha that her father had “allegedly touched her

inappropriately on her breasts at an unknown date.” The motion argued that “any proposed

evidence of prior bad acts does not conform to the Mississippi Rules of Evidence and should

be excluded.” The defense also noted in the motion that the GAL’s extensive report

2
The Court will use pseudonyms to refer to the minors involved in this case to protect
their identities.

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contained no allegations of sexual abuse.3

¶5. The trial was held on March 27, 2023. Prior to any testimony, the trial court heard

arguments on the defense’s motion in limine. The court examined Sasha’s anticipated

testimony using Mississippi Rule of Evidence 403 and found that the potential for unfair

prejudice did not substantially outweigh the probative value of the evidence. The court

denied the motion in limine, concluding that Sasha’s testimony “would be admissible under

common plan or scheme” and that “[t]he State may prove commonalities for the purpose of

motive, intent, plan, identity, absence of mistake or lack of accident.”

Detective William Kjellin’s Testimony

¶6. Detective William Kjellin with the Southaven Police Department was the investigator

for Marcia’s case. During his investigation of the sexual-assault allegations, he discovered

“there was an investigation in Tennessee involving” Sasha. When asked on cross-

examination about his investigation report, he said Marcia’s mother only reported “the

fondling of the breast”; she did not mention touching of the penis. However, Detective

Kjellin’s recollection of Marcia’s statement in her 2020 forensic interview was that Boone

“made her touch his penis.” Detective Kjellin had subpoenaed a copy of a prior forensic

interview of Marcia, but he was told that there was no record of it. When later recalled by

the defense as a witness, the detective clarified (after reviewing the 2020 forensic interview)

3
Boone filed several other motions in limine that are not relevant to the issues raised
in this appeal.

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that Marcia did not explicitly state she touched Boone’s penis. He explained, “In the forensic

interview, [Marcia] stated that [Boone] took her hand. He was [lying] on the couch in his

boxers with the slit open, and he took her hand and put it in between the slit of his boxers.”

Marcia’s Testimony

¶7. Marcia, now eighteen years old, testified that Boone fondled her after her parents’

separation in 2010. The two girls would sleep with Boone in his bed, with Sasha “on one

side of [Boone]” and Marcia “on the other [side].” Marcia said that her father “would start

by rubbing [her] back,” then “move to the front of [her] shirt and then feel . . . where [her]

breasts would be.” Marcia testified that as to “the first instance [she] was talking about, that

happened from the time [she] was six up until the time [she] was ten.” A second instance

occurred when Marcia was “about seven or eight.” Boone and Marcia were sitting on the

living room couch at his apartment. Marcia said, “He grabbed my hand, and he placed it in

his boxers, and I had touched his penis.”

¶8. When asked why she never reported these incidents to a teacher or a counselor,

Marcia replied that she “just kept it down because [she] really didn’t realize it was such a bad

thing until [she] got older.” She finally told her mother when she was sixteen “[b]ecause

[she] realized it was wrong and it wasn’t okay.” Marcia also claimed she had told a forensic

interviewer “what was going on” when she was approximately seven or eight, but “nothing

was done about it.” She claimed that she told the interviewer “that he would make my girl

parts bleed.” To impeach her testimony, the defense provided Marcia with a report from

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Tupelo Forensics that stated she had denied any abuse. However, the trial judge clarified

after her testimony concluded that she had been “cross-examined on her sister’s report, not

her own forensic report.” When asked about the GAL’s report, Marcia said that her dad

“coach[ed]” her to say that he was “fun.”

Sasha’s Testimony

¶9. Prior to fifteen-year-old Sasha’s testimony, the trial court addressed the issue of the

limiting instruction for her testimony. The trial judge determined “that the testimony . . .

would be admissible for motive, opportunity, proof of common plan or scheme.” Sasha

testified that when she was younger, she slept in Boone’s bedroom because she did not like

sleeping alone. She said that Boone “would tell [her] that he was going to give [her] a back

scratching, and he would put his hand under [Sasha’s] shirt and start scratching [her] back.”

Boone would “then tell [Sasha] to turn over and start rubbing [her] stomach,” and “he would

slowly move his hand up [her] shirt onto [her] breast.” Sasha also recalled an occasion where

she wore a bra because “the things that [Boone was] doing” had “made [her] uncomfortable

. . . and [she] thought a bra would help prevent this.” She said that when Boone “put his

hand under [her] shirt to give [her] a back scratching,” he asked, “Eww, why are you wearing

a bra?”

¶10. Sasha testified that the inappropriate touching “would happen on multiple visitations.”

Sasha did not disclose the abuse to Child Protection Services “[b]ecause [she] was scared,

and [she] figured that [she and Marcia] would still have to go see him, and [she] was scared

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of what [Boone] would do.”

Minyard’s Testimony (GAL)

¶11. Minyard testified that she had been appointed as the guardian ad litem (GAL) during

the divorce proceedings because a therapist had reported allegations of sexual abuse privately

to the chancery court. However, Minyard said that neither of the girls made any allegation

to her of any criminal sexual behavior committed by Boone. Minyard recalled a specific

occasion when she talked to Marcia and Sasha at Applebee’s. She observed that the girls

seemed “delighted to see him, and there was no sign of uneasiness.” Minyard acknowledged

on cross-examination that her initial recommendation to the chancery court had been to

suspend Boone’s visitation until a hearing could be held.

Barry Hunt’s Testimony

¶12. The Chancery Court had appointed Barry Hunt to supervise the visitations between

Boone and his daughters in 2012. Hunt said the girls “loved being with their father.” Hunt

never saw anything that caused him concern. He noted that Marcia was “strong-willed,” and

Sasha “was a very subdued girl.” Hunt admitted that he only supervised them “through the

day.”

¶13. The defense rested and moved for a directed verdict of acquittal. The trial court

denied the motion. The jury found Boone guilty of both charges. In his post-trial motion for

judgment notwithstanding the verdict or a new trial, Boone claimed that (1) the verdict was

against the overwhelming weight of the evidence, (2) the court erred in denying his motion

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in limine, and (3) the court erred in giving the State’s jury instruction S-6.4 At the sentencing

hearing on May 24, 2023, the trial court denied Boone’s motion. For Count I, the court

sentenced Boone to serve fifteen years in the custody of the MDOC. For Count II, the court

sentenced Boone to ten years of post-release supervision (five years reporting and five years

non-reporting) upon release from MDOC’s custody. Boone appeals his convictions.

DISCUSSION

I. Whether the verdict was against the overwhelming weight of the
evidence.

¶14. Boone argues that the verdict is against the overwhelming weight of the evidence

because (1) Marcia’s prior claims during a 2012 forensic interview were never corroborated;

(2) the GAL testified that Marcia never disclosed any abuse to her or the forensic

interviewer; (3) Tennessee authorities investigated Sasha’s abuse claim, but no charges were

filed; and (4) Marcia’s allegations “were discredited and contradicted by other credible

evidence.”

¶15. In reviewing a challenge to the weight of the evidence, the evidence is viewed “in the

light most favorable to the verdict.” Webb v. State, 339 So. 3d 118, 129 (¶43) (Miss. 2022).

“[W]e will only reverse a jury’s verdict ‘when it is so contrary to the overwhelming weight

of the evidence that to allow it to stand would sanction an unconscionable injustice.’”

Crawford v. State, 282 So. 3d 1230, 1238 (¶27) (Miss. Ct. App. 2019) (quoting Forrest v.

4
Boone also claimed that the trial court erred in refusing two of his jury instructions,
D-2 and D-8, but he has not raised this argument on appeal.

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State, 57 So. 3d 36, 38 (¶9) (Miss. Ct. App. 2011)).

¶16. Boone was charged and convicted of two counts of gratification of lust under

Mississippi Code Annotated section 97-5-23 (Rev. 2014). The indictment alleged that

between January 2009 and December 2012, Boone “willfully, unlawfully and feloniously,

for the purpose of gratifying his lust or indulging his depraved licentious sexual desires”

placed his hands on Marcia’s breast (Count I) and “plac[ed] his penis to the hands of

[Marcia]” (Count II).5

¶17. Marcia’s testimony at trial was consistent with the information she provided during

her 2020 forensic interview. Marcia testified at trial that her father touched her on her

breasts on more than one occasion and that he had her put her hand in his boxers to touch his

penis when she was seven or eight years old. Boone acknowledges the Mississippi Supreme

Court’s holding that “the unsupported word of the victim of a sex crime is sufficient to

support a guilty verdict where that testimony is not discredited or contradicted by other

credible evidence.” Miley v. State, 935 So. 2d 998, 1001 (¶10) (Miss. 2006). Boone claims,

however, that Marcia’s allegations “were discredited and contradicted by other credible

5
Section 97-5-23(1) defined fondling as follows:

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 sixteen (16) years, with or
without the child’s consent, . . . shall be guilty . . . .

Miss. Code Ann. § 97-5-23(1) (Rev. 2014).

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evidence because the allegation was investigated contemporaneously with the dates of the

alleged acts, and all acts of abuse were denied by this same alleged victim years prior.” In

other words, he argues that Marcia’s testimony was discredited or contradicted because the

previous investigations “yielded no charges.”

¶18. Marcia’s prior forensic interview from 2012 was not admitted into evidence.6

Although the GAL testified that she saw no report of sexual abuse in the “synopsis” of

Marcia’s forensic interview, Minyard admitted that she had no first-hand knowledge of what

Marcia said in the forensic interview. As Boone admits, Marcia “unequivocally” testified

that she did disclose the sexual abuse to the forensic interviewer in 2012, telling “her that he

touched me” and “that he would make my girl parts bleed.” She testified that during the

interview,

[t]here was a diagram, and we identified certain areas, and we went over what
areas were okay to touch and what areas were not okay to touch, and when she
asked me if he had ever touched me in those areas, I told her yes, and when she
asked me if I had ever touched an area that I wasn’t supposed to on him, I said
yes.

As noted, the report that the defense used to try and impeach Marcia’s testimony was not her

interview. With no evidence of Marcia’s former forensic interview, there is no evidence to

weigh against the jury’s verdict. We also find Marcia’s failure to disclose abuse to the GAL

does not weigh against the verdict. Marcia explained that she did not disclose the abuse

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Detective Kjellin said he could not obtain the interview. At trial, defense counsel
tried to impeach Marcia’s testimony using her sister’s forensic interview, not her own.

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before 2020 because she “tried too hard to excuse it because [she] wanted a relationship with

[her father.]” She also said her father would “coach” her for the interview and promise her

rewards. Minyard acknowledged that the failure to disclose an allegation of sexual abuse did

not mean it did not happen.

¶19. Viewing the evidence in the light most favorable to the verdict, we cannot say that

allowing the verdict to stand would sanction an unconscionable injustice. We find this issue

lacks merit.

II. Whether the trial court erred in denying the motion in limine to
exclude Sasha’s testimony about prior bad acts.

¶20. As discussed, the trial court denied the defense’s motion in limine, finding Sasha’s

testimony regarding any prior bad acts was relevant and admissible. A limiting instruction

(Jury Instruction 12) was also given, informing the jury that Sasha’s testimony was “to be

considered only for the limited purpose of showing proof of motive, opportunity, common

scheme[,] or plan” and that the jury “must not simply infer that the Defendant acted in

conformity with his previous acts[.]”

¶21. This Court reviews a trial court’s ruling “on the admission of prior bad-acts evidence

for abuse of discretion.” Bradshaw v. State, 371 So. 3d 822, 836 (¶41) (Miss. Ct. App.

2023). “Under Mississippi Rule of Evidence Rule 404(b), ‘motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident,’ are proper

reasons to present prior-bad-acts evidence to the jury.” Id. at 837 (¶42) (quoting M.R.E.

404(b)). “The court undertakes a Rule 403 analysis, and a limiting instruction must be

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presented to distinguish the prior bad acts.” Id. (citing Smith v. State, 326 So. 3d 510, 517-18

(¶20) (Miss. Ct. App. 2021)). Thus, “[s]uch evidence is admissible if ‘properly admitted

under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted

limiting or cautionary instruction.’” Id. at 837 (¶41) (quoting Derouen v. State, 994 So. 2d

748, 756 (¶20) (Miss. 2008)).

¶22. Boone admits that the trial court “conducted the proper balancing test and also

properly stated the merits of the limiting instruction.” However, he argues that because “the

State was attempting to use the younger daughter’s allegation to show that [he] acted in

conformity with his propensity for pedophilic sexual activity,” Sasha’s testimony should not

have been allowed and that he is entitled to a new trial without that testimony.

¶23. In Green v. State, 89 So. 3d 543 (Miss. 2012), the supreme court held that

“overwhelming similarities” between prior instances of sexual misconduct and the charged

offense “undeniably bring the testimony of these other victims within the purview of

admissibility under Rule 404(b).” Id. at 550 (¶17). In Green, the defendant was charged

with gratification of lust and sexual battery of his minor stepdaughter. Id. at 545 (¶1). The

State offered testimony at trial of female witnesses related to the defendant who alleged that

the defendant had “sexually abused them in a similar manner . . . when they were near the

age of puberty,” around the same age as the victim. Id. at 546 (¶4). Finding the testimony

“more probative than prejudicial,” the trial court reasoned, “[T]he more people you have, the

more prejudicial it is, but the more people you have, . . . the more likely it is that it is a

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reliable indicator of a pattern or plan.” Id. at 548 (¶10). The supreme court affirmed the trial

court’s decision, noting that “evidence of this ‘similar misconduct supports an inference of

a common plan, scheme, or system,’ utilized ‘repeatedly to perpetrate separate but very

similar crimes.’” Id. at 550 n.19. The Green Court also held that “the mere fact that

evidence offered for noncharacter purpose(s) bears some reflection on the defendant’s

character does not bar its admissibility under Rule 404(b)” but must be considered by the trial

court under Rule 403. Id. at 551 (¶18).

¶24. Furthermore, the supreme court has “emphasized that any evidence that tends to show

a seemingly uncontrollable desire to partake in pedophilic sexual activities with young and

developing female juveniles[] is probative regarding motive.” Webb, 339 So. 3d at 125 (¶18)

(quoting McGrath v. State, 271 So. 3d 437, 442 (¶18) (Miss. 2019)). “And a jury may hear

evidence of a defendant’s means of accomplishing these activities if they bear substantial

resemblance to each other and with the present offense.” Id. (internal quotation marks

omitted) (quoting McGrath, 271 So. 3d at 442 (¶18)).

¶25. Here, Sasha’s testimony bore “overwhelming similarities” to the allegations of sexual

abuse reported by her sister Marcia. As the State notes, “[b]oth girls were prepubescent

when the abuse took place.” Also, the incidences of sexual abuse occurred within the privacy

of Boone’s home, and “his method of sexually abusing Sasha was identical to his means of

abusing Marcia” (i.e., rubbing the girls’ backs and moving his hand up the shirt to touch their

breasts). In McGrath, the supreme court found the “familial relationship and position” held

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by the abuser (stepfather) to be “particularly relevant, not only for the substantive charges,

but also for Rule 404(b) purposes.” McGrath, 271 So. 3d at 441 (¶16). “Sexual acts which

demonstrate ‘a common plan, scheme, or system . . . utilized . . . repeatedly to perpetrate

separate but very similar crimes,’ such that the defendant ‘had a system that involved taking

advantage of the parent-child relationship’ are admissible.” Id. (quoting Young v. State, 106

So. 3d 775, 779 (¶15) (Miss. 2012)). Like the defendant in McGrath, Boone’s “motives and

opportunity were similar—he used his position of trust, while alone with his [daughters] to

sexually abuse them.” Id. at 442 (¶18).7

¶26. Accordingly, we find no abuse of discretion in the trial court’s ruling that this

testimony was admissible.

III. Whether the trial court erred in giving Jury Instruction 13.

¶27. Jury Instruction 13 (S-6) stated: “The Court instructs the jury that, under Mississippi

law, the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict

where the testimony is not discredited or contradicted by other credible evidence.” Defense

counsel objected to the instruction at trial, arguing that the instruction was “impermissible

bolstering of the accused and the indictment’s testimony.” The trial court overruled the

objection and gave the instruction, finding that it was “an appropriate instruction on the law.”

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We also find no merit to Boone’s argument that her testimony contradicted her
statement to Tennessee authorities, particularly since this statement was not included in the
record. Sasha also testified that she was scared to disclose the abuse. See Bateman v. State,
125 So. 3d 616, 625 (¶27) (Miss. 2013) (holding that “[i]t was the jury’s duty to weigh the
credibility of” a sexual-abuse victim’s prior statements and her trial testimony).

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¶28. Boone contends on appeal that the instruction “is proper to be included as a jury

instruction as long as the Court also instructs the jury that they are the ‘sole and exclusive

judges of credibility of each witness.’” Boone concedes that the trial court included that

language in Jury Instruction 1, but he further argues that while this “instruction is a comment

on the maxim appellate courts utilize when determining whether or not to uphold a jury

verdict,” it “has no place in the hands of the jury who[m] it can only confuse.” He therefore

asserts that giving this instruction was prejudicial and warrants a new trial.

¶29. We find the State is correct that Jury instruction 13 “is an accurate statement of

Mississippi law.” As discussed in Issue I, the Mississippi Supreme Court held that “the

unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where

that testimony is not discredited or contradicted by other credible evidence.” Miley, 935 So.

2d at 1001 (¶10). The supreme court has further concluded that a jury instruction containing

this language “did not constitute an improper comment on the weight of the evidence,” and

in “reviewing the jury instructions as a whole,” the trial court’s giving of the instruction was

not an abuse of discretion. Pitts v. State, 2901 So. 3d 751, 758-59 (¶39) (Miss. 2020); see

also Barnes v. State, 348 So. 3d 974, 983 (¶14) (Miss. Ct. App. 2022) (holding that the trial

court did not err in giving jury instruction containing this precise language). We therefore

find no abuse of discretion in the trial court’s giving of Jury Instruction 13.

¶30. Finding no error, we affirm Boone’s convictions and sentences.

¶31. AFFIRMED.

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CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD,
LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. ST. PÉ, J.,
NOT PARTICIPATING.

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