IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-KA-00263-COA
BILLY JOE BUETO A/K/A BILLY BUETO APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/02/2024
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: WILLIAM BRENDON ADAMS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/15/2026
MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., LAWRENCE AND LASSITTER ST. PÉ, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. A jury found Billy Joe Bueto guilty of sexual battery, touching a physically helpless
person for lustful purposes, and filming a person without permission where there was an
expectation of privacy. The victim of those crimes was his wife, PB.1 Bueto appeals,
arguing (1) that the elements jury instruction constructively amended the indictment, (2) that
the trial court erred by allowing evidence of his prior sexual battery conviction, and (3) that
attempting to retry him would violate his right against double jeopardy. Finding no error,
Bueto’s convictions and sentences are affirmed.
1
We use initials to protect the victim’s privacy.
FACTS AND PROCEDURAL HISTORY
¶2. On March 5, 2024, Billy Bueto was indicted for three counts of sexual battery; six
counts of touching and handling a physically helpless person for lustful purposes; three
counts of filming another without permission where there was an expectation of privacy; and
one count of possession of a firearm by a felon. The victim here was Bueto’s wife, PB. The
trial court entered an order on September 24, 2024, severing Count 13, possession of a
firearm by a felon, from the first twelve counts.2
¶3. Bueto filed pre-trial motions in limine to prevent the State from presenting (1)
evidence of Bueto with women other than the victim, (2) pictures or videos from the internet
allegedly posted by Bueto that depicted any women, and (3) proof of Bueto’s prior sexual
battery conviction.
¶4. Prior to trial, the trial judge heard arguments on the motions in limine and ruled that
videos and pictures of Bueto could be introduced, and the victim would be given the
opportunity to identify herself. A ruling on whether the prior conviction would be admissible
was held in abeyance until such time that the State sought to introduce that evidence. The
trial began on September 26, 2024.
¶5. Officer Jeffrey Letchworth testified first. He had been working as a detective for law
enforcement in Pike County when he was contacted on June 14, 2023, by a lieutenant about
“a rape case” with a “welfare check concern.” He was informed “about some videos” that
Bueto’s step-daughters had found and reported to the police. Letchworth went to Bueto’s
2
This count was remanded to the files.
2
house on Van Norman Curve Road in Pike County. At the house, he spoke with PB and
Bueto, and Bueto was arrested. Letchworth testified that he left the house and returned with
a search warrant. Letchworth described the house as “filthy,” and “there were roaches in the
refrigerator, roaches on the – in the beds.” Letchworth stated that there was a bed set up in
the living room, where PB slept, and Bueto slept in the bedroom. Letchworth found a phone
on the dresser in the house.
¶6. Letchworth spoke with PB, who stated that she suspected that Bueto “had been
drugging her” for five years, but “she could never prove it.” PB admitted to taking
prescribed Ambien to sleep, so she knew she would test positive for drugs. Further,
Letchworth stated that PB described “bleeding from her vagina and her rectum.” PB
“couldn’t explain” either “because she didn’t know what was going on.”
¶7. Later that day, after the police search, PB found a second phone, a “black Alcatel cell
phone with a busted screen,” under Bueto’s mattress and turned it over to the police.
Letchworth obtained a search warrant issued for the Alcatel, and the police performed an
extraction. On the Alcatel, there were multiple photos and videos of Bueto performing
sexual acts on PB and an unidentifiable female body.
¶8. Letchworth interviewed Bueto the following day, and Bueto waived his Miranda3
rights and spoke to Letchworth in a recorded video interview. As the State attempted to
introduce the video interview into evidence, the defense objected to the portion of the video
between Letchworth and Bueto discussing his prior conviction. The State argued that the
3
Miranda v. Arizona, 384 U.S. 436 (1966).
3
conviction was admissible to show intent, which was at issue because Bueto pled not guilty.
The defense stated that the indictment “charged [Bueto] with sexual battery of a 14-year-oldgirl,” which was irrelevant to sexual battery against Bueto’s wife. The trial judge stated that
this was “a 404(b) issue” and that “it’s going to be really difficult to kick the conviction out
based on motive and intent[.]” The defense responded that it was “going to ask for a curative
instruction,” and the court granted that request. The motion in limine to keep out the prior
conviction was denied.
¶9. In the interview, Letchworth showed Bueto video files that had been gathered from
the phone and asked him if he had been “feeding [PB] Ambien, putting it in her drink just
like [Bueto] posted” about on a website. Bueto denied any knowledge of the videos and
stated that he and his wife had not had sex in years. The State then introduced into evidence
the videos extracted from the phone and played the videos for the jury.
¶10. The State called PB to testify. She stated that her daughters had found pictures of her
on a porn website and told her about it. PB testified that she was “outside of the house”
when the police arrived and that she “was at a friend’s house” when they searched the house.
She stated that upon returning to the house, she was pushing Bueto’s mattress onto the bed
when she found a phone, which she turned over to Letchworth. PB stated that she and Bueto
did not sleep together, did not have a “loving relationship,” and had not had “healthy marital
sex” in “at least ten years, maybe longer.” She stated that she kept a suitcase on her bed in
the living room “filled with heavy objects in case Billy tried to get in [her] bed.”
¶11. The videos were shown to PB, and she identified herself in each of them as the person
4
upon whom the acts were being performed. She stated that she had no memory of the videos
or photos and that she did not consent to the acts. PB said that one time she “woke up
choking” and found “gobs of stuff” in her mouth; her “vision was still blurry,” but she could
make out Bueto “shoving stuff down her throat” before she “passed back out.” PB stated that
she had not filed for divorce. PB stated that she “knew [she] was being drugged and raped
or molested,” but she did not know the extent of it until she saw the videos for the first time
at trial. She testified that she did not have a car to get to the doctor, and she never had any
evidence to prove what she suspected Bueto was doing to her. PB also stated that she knew
about Bueto’s prior felony conviction when she married Bueto in 1996, but he told her “he
was innocent.”
¶12. Bueto testified in his defense. He stated that he married PB on May 17, 1996, and that
PB knew about his prior sexual battery conviction. Bueto changed his testimony on the stand
from what he originally told Letchworth in his police interview. Bueto stated that he had lied
to Letchworth. Bueto testified that he and PB had never “stopped having sex.” Bueto told
a background story of how he was previously convicted of sexual battery, how he never
raped the girl, how he thought she was 18 years old (not 13),4 and how he was “tricked” by
his attorney into pleading guilty to avoid a trial. Bueto stated that he and PB bought sex toys
together and that she was a nymphomaniac who preferred to lay still and “breathe[] real
heavy” during intercourse. Bueto admitted ownership of the phone, admitted that he took
the videos, and admitted that he performed the sexual acts on PB. Bueto insisted that PB
4
Bueto told the jury that the victim was 13 years old, while his attorney stated that the conviction was for sexual battery of a 14-year-old.
5
traded him “sexual favors” to take her to casinos to gamble.
¶13. After Bueto testified, the defense rested. During deliberations, the jury asked the
court, “Are the videos on S-19 in order by count number?” The State responded that the 12
videos were listed on the CD by number and “to the right of that [number] is the file number
that was read out in court when the videos” were shown. The jury found Bueto guilty of
Count 3, sexual battery, Counts 7 and 9, touching and handling a physically helpless person
for lustful purposes, and Counts 10 through 12, filming another without permission where
there is an expectation of privacy. Bueto was sentenced to terms of forty years on Count 3,
fifteen years each for Counts 7 and 9, and five years each for Counts 10, 11, and 12. All
sentences were ordered to run consecutively, and Bueto was ordered to serve forty years on
Count 3 and five years on Count 7, with all remaining years suspended. On October 7, 2024,
Bueto filed a motion for a new trial,5 and on March 3, 2025, Bueto appealed.6
ISSUES PRESENTED
¶14. On appeal, Bueto raised the following arguments:
I. Whether jury Instruction 16 constructively amended each count of the
indictment.
II. Whether the trial court erred by allowing evidence of his prior felony
conviction.
III. Whether a retrial of Bueto would violate double jeopardy.
ANALYSIS
5
Bueto’s motion for a new trial was never ruled upon, so it was “deemed denied as of the thirtieth (30th) day after the motion was filed.” MRCrP 25.3.
6
Bueto was granted permission to file an out-of-time appeal.
6
I. Whether jury Instruction 16 constructively amended each count of
the indictment.
¶15. Instruction 16 was the elements instruction for all twelve counts that were tried before
the jury. Bueto raised three specific claims of error within his challenge to Instruction 16.
However, Bueto failed to object to Jury Instruction 16 at trial, so this issue is procedurally
barred. Neal v. State, 15 So. 3d 388, 397 (¶13) (Miss. 2009) (citing Rubenstein v. State, 941
So. 2d 735, 774 (¶169) (Miss. 2006)). It may, however, be reviewed for plain error. Evans
v. State, 372 So. 3d 167, 172 (¶14) (Miss. Ct. App. 2023) (citing Brown v. State, 690 So. 2d
276, 297 (Miss. 1996)).
¶16. The Mississippi Supreme Court has stated that “[a] constructive amendment of the
indictment occurs when the proof and instructions broaden the grounds upon which the
defendant may be found guilty of the offense charged so that the defendant may be convicted
without proof of the elements alleged by the grand jury in its indictment.” Bell v. State, 725
So. 2d 836, 855 (¶58) (Miss. 1998) (citing United States v. Miller, 471 U.S. 130 (1985)).
However, “[n]ot all variances between the indictment and instructions constitute constructive
amendment, nor do they rise to plain error.” Id. at (¶61). “A variance is not ‘plain error’ if
it does not prejudice the defendant’s defense at trial or deny his right to a fair trial.” Evans,
372 So. 3d at 172 (¶15) (quoting Collins v. State, 305 So. 3d 1262, 1267 (¶20) (Miss. 2020)).
“The central question is whether the variance is such as to substantially alter the elements of
proof necessary for a conviction.” Bell, 725 So. 2d at 855 (¶61).
A. Sexual Battery Instructions
¶17. On appeal, Bueto has argued that the element instructions for Count 2 and Count 3 are
7
identical, whereas “the indictment sets out elements that distinguish the two charges.” Bueto
contended that the failure to include the specific “acts which are the subject of the
charge . . . as well as any reference to the specific video related to that charge” creates a
variance between the indictment and the instructions that alters the proof of the elements.
The State has argued on appeal that there was no plain error and that Count 3’s elements for
sexual battery (along with Instructions 8, 9, and 10 that define sexual battery, sexual
penetration, and slight penetration) instructed the jury on the essential elements needed to
convict Bueto on Count 3.
¶18. The jury found Bueto guilty of Count 3 but not guilty of Count 2. Both counts alleged
sexual battery occurred on March 13, 2023. There were two different video files for each
count that were listed in the indictment and presented as evidence to the jury.7 For Count 2,
the indictment alleged that on March 13, 2023, Bueto sexually penetrated PB’s vagina with
a baseball bat while she was a physically helpless person “as shown in file
VID_20230313_040240.mp4[.]” Count 3 of the indictment alleged that on March 13, 2023,
Bueto sexually penetrated PB’s vagina with a balloon while she was a physically helpless
person “as shown in file VID _20230313_040514.mp4[.]”
¶19. Instruction 16 listed nearly identical instructions for Counts 2 and 3. For Count 2 the
instruction stated:
BILLY JOE BUETO has been charged in Count Two with the offense of
7
The video file labels included the date on which they were recorded. For example, “VID_20230313_040240.mp4” would have occurred on “20230313” or March 13, 2023. The State, through Letchworth’s testimony, informed the jury of this labeling system when the videos were introduced into evidence.
8
Sexual Battery. If you find from the evidence in this case beyond a reasonable
doubt that: BILLY JOE BUETO, on or about March 13, 2023, in Pike County,
Mississippi, BILLY JOE BUETO willfully, unlawfully and feloniously
engaged in sexual penetration with one [PB], a physically helpless person, then
you must find the said BILLY JOE BUETO guilty of “Sexual Battery.” If the
State has failed to prove any one or more of the above elements, then you must
find the defendant not guilty in Count Two.
The elements language provided for Count 3 was identical to the above-quoted language,
except it stated “Count Three” instead of “Two.”
¶20. Graham v. State, 185 So. 3d 992 (Miss. 2016), is instructive here. In Graham, a jury
instruction was given that allowed the jury to “find Graham guilty of sexual battery if it
found beyond a reasonable doubt that Graham ‘did willfully, unlawfully and knowingly
engage in sexual penetration, to wit: fellatio, with [the victim], a female person, without her
consent, by putting his penis in her mouth.’” Id. at 1002 (¶26). This instruction was factually
“inverse” from the indictment, which alleged “that Graham had performed fellatio on the
victim.” Id. Graham argued that this inaccuracy in the jury instruction impermissibly
amended the indictment. Id. at (¶27). The Mississippi Supreme Court found that “the jury
instruction did not alter Graham’s defense, so the alteration is immaterial.” Id. at (¶29). A
plethora of similar cases have found variations between allegations in the indictment and the
instructions presented at trial did not effectively amend the indictment. Burrows v. State, 961
So. 2d 701, 706 (¶14) (Miss. 2007) (“The variance between the language of the indictment,
which explicitly stated that Burrows engaged in sexual battery against the victim by inserting
his finger into her vagina[,] and the proof presented at trial [(that he used an object)] was not
a fatal error.”); Faulkner v. State, 109 So. 3d 142, 147 (¶18) (Miss. Ct. App. 2013).
9
¶21. In Lepard v. State, this Court evaluated a jury instruction that failed to state the
“method of achieving” touching of a child for lustful purposes. Lepard v. State, 394 So. 3d
1061, 1068-69 (¶29) (Miss. Ct. App. 2024). The Court stated:
In sexual battery, any penetration of a child is prohibited, and the “method of
achieving” the penetration, while required to be proved by a reasonable doubt,
is not an essential element for purposes of the jury instructions. The same logic
applies here; the fondling statute prohibits any touching of a child for a lustful
purpose, and the “method of achieving” that touching, while required to be
proved beyond by a reasonable doubt, is not an essential element for purposes
of the jury instructions.
Id. (citations omitted).
¶22. In this case, the essential elements for sexual battery were “sexual penetration with . . .
a mentally defective, mentally incapacitated or physically helpless person[.]” Miss. Code
Ann. § 97-3-95 (Rev. 2020). These elements were clearly set forth in the instruction. Failure
to include the “name” of the video file and method of achieving penetration were not
required elements for the instruction but were shown by the evidence at trial. Accordingly,
this Court finds no plain error with Instruction 16 for the elements of Count 2 and Count 3.
B. Touching and Handling a Physically Helpless Person
¶23. Bueto argued that the elements listed in Instruction 16 for Count 7 and Count 9 were
identical and failed to include the specific actions and video files that were related to those
charges in the indictment. The State argued that the jury was instructed specifically as to the
kind of touching to support a finding of “touching, handling a physically helpless person”8
8
The instruction stated “‘touching, handling a physically helpless person’ includes, when a person indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, a person at the time when said person was physically helpless.”
10
and what is necessary to find that a person is a “physically helpless person.”9 The State
contended that the essential elements were sufficiently set forth in the instruction, further
defined by the additional instructions, and proven by the State.
¶24. The jury found Bueto guilty of Count 7 and Count 9. In Count 7 of the indictment,
it was alleged that “on or about March 13, 2023,” Bueto, who was “above the age of eighteen
years[,] did willfully, unlawfully and feloniously handle, touch or rub with his hands the
buttocks of [PB] for the purposes of gratifying his lust or indulging his depraved licentious
sexual desires . . . [when PB] was a physically helpless person, and as shown in file
VID_20230313 _033057.mp4[.]” Count 9 of the indictment alleged that on or about March
13, 2023, Bueto, who was
a person above the age of eighteen years, did willfully, unlawfully and
feloniously touch or rub with his tongue the anus of [PB] for the purpose of
gratifying his lust or indulging his depraved licentious sexual desires, said act
having occurred at a time when the said [PB] was a physically helpless person,
and as shown in file VID_20230313_041536.mp4[.]
¶25. Similar to the first issue, the jury instruction for Counts 7 and 9 were identical by
generally stating the essential elements of “Touching, Handling a Physically Helpless Person
for Lustful Purposes.” It provided:
BILLY JOE BUETO has been charged in Count Seven with the offense of
Touching, Handling a Physically Helpless Person for Lustful Purposes. If you
find from the evidence in this case beyond a reasonable doubt that: BILLY
JOE BUETO, on or about March 13, 2023, in Pike, County, Mississippi,
willfully, [un]lawfully, and feloniously handled touched or rubbed with his
hands or any part or member of his body [PB], a physically helpless person for
9
The instruction stated that a “‘physically helpless person’ is any person who is unconscious or unable to communicate his or her unwillingness to engage in an act including, but not limited to, a person who cannot give effective consent to sexual activity.”
11
the purpose of gratifying his lust, then you must find the defendant guilty of
“Touching, Handling a Physically Helpless Person for Lustful Purposes.” If
the State has failed to prove any one or more of the above elements, then you
must find the defendant not guilty in Count Seven.
Count 9 merely changed all references from “seven” to “nine.”
¶26. Again, as stated, the State was not required to instruct the jury to find the specific
method or action that achieved the touching. See Lepard, 394 So. 3d at 1068-69 (¶29).
Mississippi Code Annotated section 97-5-23(1) (Rev. 2020), prohibits:
Any person above the age of eighteen (18) years, who, for purposes of
gratifying his or her lust, or indulging his or her depraved licentious sexual
desires, shall handle, touch or rub with his hands or any part of his or her body
or any member thereof, or with any object, any . . . mentally incapacitated or
physically helpless person[.]
Instruction 16 clearly set forth the essential elements. Further, the instruction did not “alter
the elements of proof necessary for a conviction.” Bell, 725 So. 2d at 855 (¶61). Bueto’s
argument lacks merit.
¶27. Bueto also argued that Instruction 16 failed to include the requirement that Bueto was
over the age of 18 when the events occurred. Bueto’s age, however, was not contested
during the trial. Further, even if Bueto had contested his age, the evidence supported that
Bueto and PB were married in 1996, meaning they had been married for twenty-seven years.
Bueto testified that he had lived at the Van Norman Curve Road address for twenty-eight
years with PB and that Bueto had been previously married. Additionally, in a letter, which
was introduced into evidence at trial, Bueto wrote to a female inmate while he was in prison,
“I’m going on 63 Dec 8th.” The fact that Bueto was over 18 years old was clearly, without
any doubt, shown by the evidence, and his argument is without merit. Further, Bueto did not
12
raise this issue at trial when the jury instruction was being considered by the trial court; it is
therefore procedurally barred. See Gardner v. State, 430 So. 3d 818, 828 (¶28) (Miss. 2026).
C. Filming Where There Is an Expectation of Privacy
¶28. Bueto argued on appeal that giving Instruction 16 as to Counts 10, 11, and 12, the
counts on illegal filming, was plain error because the counts omitted “the element of Bueto’s
age and do not include the specific [video] file for the charge.” Bueto argued that the
instructions for Counts 11 and 12 were identical, when they should have been distinct
because of the video file. The State contended that “neither the file names nor Bueto’s age
were elements of the offense.”
¶29. The jury found Bueto guilty of Counts 10, 11, and 12. Under these counts, Bueto was
indicted pursuant to Mississippi Code Annotated section 97-29-63(1)(a) (Rev. 2020), which
states in relevant part:
(1)(a) It is a felony for any person with lewd, licentious or indecent intent to
photograph, film, videotape, record or otherwise reproduces the image of
another person without the permission of the other person when the other
person is located in a place where a person would intend to be in a state of
undress and have a reasonable expectation of privacy, including, but not
limited to, private dwellings[.]
The jury’s elements instruction (Instruction 16) asked the jury to consider whether Bueto:
wilfully, unlawfully and feloniously recorded the image of [PB] without her
permission in a partially undressed state and located in her dwelling where she
has a reasonable expectation of privacy with lewd, licentious, or indecent
intentions, then you shall find the defendant guilty of “Filming Another
Without Permission Where There Is an Expectation of Privacy.”
The important difference between the elements instruction for the counts was that Count 10
alleged that the filming occurred on September 9, 2022, whereas Count 11 and 12 alleged
13
the filming occurred on February 4, 2023.
¶30. As previously found, the inclusion of the video file in the elements instruction was not
required. While better practice would be for the jury instructions to clearly track the
evidence and language included in the indictment, the State did not commit plain error by
excluding the specific video file or Bueto’s age from the language in Instruction 16. The age
of the person conducting the illegal filming is not an essential element and the actual videos
were introduced into evidence. The elements instruction included the essential elements
required by Mississippi Code Annotated section 97-29-63. Accordingly, this Court finds
Bueto’s argument as to Counts 10, 11, and 12 lacks merit.
¶31. Bueto’s theory of defense was pure denial until he testified. Upon testifying, Bueto
admitted to being in the videos, but he contended that PB was awake and had given consent.
Instruction 16 did not constructively amend the indictment because it did not alter either of
Bueto’s theories of defense or alter the elements of proof necessary for a conviction.
Ultimately, Bueto’s arguments are without merit.
II. Whether the trial court erred by allowing evidence of his prior
felony conviction.
¶32. Bueto argued that the trial court erred by allowing his prior felony conviction of
sexual battery to be admitted into evidence before the jury. Bueto contended that sexual
battery against a minor and sexual battery against his wife were two different factual
scenarios that bear no factual similarities. The State, however, contended that “Bueto’s
intent, motive, and opportunity in this case were like those of his previous conviction—Bueto
used his position of trust (once as an adult supervising a teenager and next as a spouse), while
14
alone with his victims to sexually abuse them.”
¶33. The decision of the trial court to deny the motion in limine and admit Bueto’s prior
conviction is reviewed for abuse of discretion. Young v. State, 106 So. 3d 775, 777 (¶9)
(Miss. 2012) (citing Hargett v. State, 62 So. 3d 950, 952 (Miss. 2011)). Mississippi Rule of
Evidence 404(a) prohibits “[e]vidence of a person’s character or character trait” from being
admitted “to prove that on a particular occasion the person acted in accordance with the
character or trait.” However, evidence of “a crime, wrong, or other act” can be admitted to
prove “motive, opportunity, [or] intent,” among other things. MRE 404(b)(2). The
Mississippi Supreme Court has authorized the introduction of “prior sexual misconduct” but
it “must satisfy Rule 404(b), be filtered through Rule 403, and be accompanied by a limiting
instruction.” Young, 106 So. 3d at 778 (¶12) (citing Derouen v. State, 994 So. 2d 748, 756
(¶20) (Miss. 2008)).
¶34. This Court is unable to find, and neither party provided, a case that specifically finds
a prior sexual battery against a 14-year-old to be relevant to a sexual battery charge against
a helpless person. Section 97-3-95(1) provides:
(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
(d) A child under the age of fourteen (14) years of age, if the person is
15
twenty-four (24) or more months older than the child.
Bueto’s prior conviction and current charge for sexual battery are pursuant to the same
statute, but different subsections. Evidence of the prior conviction that was admitted did not
include that the conviction was for sexual battery against a 14-year-old pursuant to section
97-3-95(1)(c); instead, it merely stated Bueto was convicted of “sexual battery (two
counts).”10 The specifics of the sexual battery conviction were disclosed to the jury by Bueto
himself and his attorney when he took the stand on direct-examination and explained the
details of the felony.
¶35. As stated, prior convictions and bad acts of the defendant are admissible to prove
intent. For example, “[e]vidence of prior involvement in the drug trade is admissible to
prove intent to distribute.” Holland v. State, 656 So. 2d 1192, 1196 (Miss. 1995) (citing
Jowers v. State, 593 So. 2d 46, 47 (Miss. 1992)). Prior sexual offenses that involve different
child victims may be admissible for Rule 404(b) reasons, if “filtered through Rule 403, and
accompanied by an appropriately-drafted limiting or cautionary instruction to the jury[.]”
Derouen, 994 So. 2d at 756 (¶20). Testimony of prior sexual abuse is admissible to
demonstrate a “means of accomplishing [pedophilic sexual] activities on past occasions [that]
bear substantial resemblance to each other and with the present offense.” Gore v. State, 37
So. 3d 1178, 1187 (¶20) (Miss. 2010) (quoting Louisiana v. Driggers, 554 So. 2d 720, 726
(La. Ct. App. 1989)). Additionally, prior to the inclusion of the age specific sexual batteries
10
Bueto testified that the victim was 13 years old, but this Court relies on the representations of Bueto’s attorney to the trial court that the conviction was for sexual battery of a 14-year-old.
16
stated in section 97-3-95, the Supreme Court equated abuse of a four-year-old child by a 65-year-old man to sexual battery of a helpless person. Bennett v. State, 468 So. 2d 855 (Miss.
1985). The Court found that “the four-year-old child was physically helpless when compared
to the 65-year-old Bennett.” Id. (citing Ulster Cnty. Court v. Allen, 442 U.S. 140 (1979)).
¶36. In Mai v. State, 384 So. 3d 1242 (Miss. Ct. App. 2024), this Court found that
testimony of Betty, the 25-year-old daughter of Mai, about abuse by Mai, her father, when
she was 9 years old was admissible for Rule 404(b) reasons, that would ultimately prove
whether Mai had fondled his other daughter Karen when she was 16 years old. Id. at 1244-43, 1251 (¶¶2-3, 32). Although the ages of the daughters were different and the alleged
abuse to Betty was over ten years before the abuse to Karen, the Court noted that “evidence
of past allegations of sexual abuse, although remote, was admissible to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. at 1251 (¶30) (citing Gore, 37 So. 3d at 1187 (¶20)).
¶37. We decline to set a general rule that all sexual battery convictions are relevant to other
sexual battery convictions for Rule 404(b) purposes. However, in this case, Bueto initially
pled not guilty and denied any knowledge of the acts done to PB. Bueto’s plea placed his
intent “squarely in issue.” McGrath v. State, 271 So. 3d 437, 443 (¶20) (Miss. 2019) (“[B]y
merely pleading not guilty to this specific-intent crime, McGrath put his intent squarely in
issue.”). “Touching and Handling a Physically Helpless Person for Lustful Purposes” is a
specific intent crime that required the State to present evidence of Bueto’s “licentious sexual
desires.” Id. This Court agrees with the State that the sexual battery conviction was relevant
17
to prove intent of Bueto on the sexual battery and fondling charges.
¶38. However, even if the trial court erred by admitting the conviction, the error was
harmless. Robinson v. State, 35 So. 3d 501, 507 (¶17) (Miss. 2010) (applying harmless error
to admission of prior bad acts). “[E]rror is considered harmless and not grounds for reversal
when “it is apparent on the face of the record that a fair minded jury could have arrived at
no verdict other than that of guilty.” Scott v. State, 396 So. 3d 515, 526 (¶50) (Miss. Ct. App.
2024) (quoting Young v. State, 981 So. 2d 308, 313 (¶17) (Miss. Ct. App. 2007)). In this
case, the evidence was overwhelming. Bueto admitted ownership of the Alcatel cell phone
and admitted to taking the multiple photos and videos of PB. PB and Bueto admitted that
they were the ones in the videos that depicted the sexual acts. The jury saw the videos.
Further, the jury heard PB’s testimony that she did not consent to the videos, touching or
penetration that occurred. The evidence presented to the jury supported the conviction.
¶39. Further, the jury was instructed in a limiting instruction that the prior sexual battery
could only be considered for the purposes of determining Bueto’s intent. “Generally
speaking, our law presumes that jurors follow the trial judge’s instructions, as upon their
oaths they are obliged to do.” Robinson v. State, 247 So. 3d 1212, 1233 (¶51) (Miss. 2018)
(quoting Parker v. Jones Cnty. Cmty. Hosp., 549 So. 2d 443, 446 (Miss. 1989)). The jury
in this case apparently was following the limiting instruction, as evidenced by a finding of
not guilty of two counts of sexual battery and four counts of fondling. This Court finds that
the trial court did not abuse its discretion by allowing the sexual battery conviction into
evidence to prove Bueto’s intent. Further, any error here was harmless.
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¶40. Lastly, Bueto argued that the trial judge did not consider the balancing test of
Mississippi Rule of Evidence 403 prior to admitting the evidence. Rule 403 requires that
relevant evidence may be excluded if its probative value is substantially outweighed by a
danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” MRE 403. Mississippi caselaw is clear
that while “this Court certainly expects trial judges to have considered Rule 403 in making
their evidentiary rulings, we certainly do not predicate the soundness of these determinations
on the express use of magic words.” Jones v. State, 920 So. 2d 465, 476 (¶34) (Miss. 2006).
A “judge’s failure to perform an on-the-record Rule 403 analysis in no way affected
[Bueto’s] rights.” Id. The judge in this case considered the motion in limine, heard the
arguments of the parties (including whether the admission of the conviction would be
prejudicial), and ruled that the conviction was relevant to show intent. This Court finds that
the trial court considered Rule 403 and did not err by allowing it into evidence.
III. Whether a retrial of Bueto would violate his right against double
jeopardy.
¶41. Bueto argued that “the State made twelve separate allegations” in the indictment that
are indistinguishable in some of the jury instructions. Bueto’s argument mirrored that from
his first issue but goes further by contending that double jeopardy applies because the jury’s
verdict on each count cannot be determined without “guesswork” due to ambiguity in the jury
instructions. Bueto relied on Goforth v. State, which held that “multiple, identically worded
counts in the indictment . . . failed to protect Goforth’s constitutional right against double
jeopardy in the event of future prosecution.” Goforth v. State, 70 So. 3d 174, 189-90 (¶69)
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(Miss. 2011) (emphasis added).
¶42. In Goforth, “[n]either the indictment nor the charging instruction differentiated
among the five counts.” Id. at 189 (¶69). This is distinguishable from Bueto’s case. Here,
Bueto’s indictment is specific and his jury instructions contain no plain error. It is
abundantly clear what the jury found because the indictment has twelve counts that
coordinate with the twelve counts in the elements provided in Instruction 16. Further, there
are twelve videos of a particular date with particular acts that coincide with the twelve counts
in the indictment. Bueto’s argument is without merit, and Goforth does not provide support.
CONCLUSION
¶43. This Court finds that (1) giving Instruction 16 was not plain error and did not amend
the indictment; (2) the trial court did not err by allowing Bueto’s prior sexual battery
conviction to be admitted (and if it was error, it was harmless); and (3) his right against
double jeopardy was not violated. This Court finds no error in the jury’s finding that Bueto
sexually battered and touched his wife for lustful purposes without her consent when she was
unconscious. Against her will, Bueto filmed PB on three separate instances in her home in
a state of undress while she was a helpless person. Bueto is granted no relief by this Court,
and his convictions and sentences are affirmed.
¶44. AFFIRMED.
BARNES, C.J., CARLTON, P.J., McDONALD, McCARTY, WEDDLE AND
LASSITTER ST. PÉ, JJ., CONCUR. WILSON, P.J., AND EMFINGER, J., CONCUR
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION.
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