[7/24/03]A Vicksburg man’s child molestation conviction was overturned by the Mississippi Court of Appeals in a ruling that he was found guilty of a charge other than the one for which he was indicted.

Raymond Helton Friley Jr., 36, started a 15-year sentence after being convicted in 2000 and will remain in prison until the courts issue a final ruling on the case.

The court said the jury was allowed to consider a molestation verdict although Friley was indicted on a charge of sexual battery.

“We find that to allow Friley to be convicted of a crime for which he was never charged would create an injustice,” the majority opinion said. “The prosecutor and the trial court confused the jury by allowing them to consider an erroneous instruction.

“Although applying the law in this instance may produce an unpopular result in the eyes of the public, in light of the evidence and applicable law we have no choice but to reverse and render,” the judges wrote.

Friley was found guilty of fondling a 9-year-old while working on a swimming pool at the child’s residence. He’s at the Central Mississippi Correction Facility in Pearl.

Nancy East, executive assistant for Attorney General Mike Moore, said a motion will be filed for the Appeals Court to reconsider its ruling. If the court denies the motion, Friley would be freed unless the Mississippi Supreme Court agreed to hear the case.

The prosecutor for the case, John W. Bullard, assistant district attorney for the 9th Circuit Court District, said if freed, Friley could be indicted for molestation, but that would mean a new trial and requiring the victim to testify again. Any decision to file a new charge, Bullard said, would be made after consultation with the victim.

Juries are allowed to consider “lesser included” offenses after a person has been indicted on a specific charge, but the court said one element of the crime of molestation is not the same as battery, and that invalidates the conviction.

“That’s just the way the law is,” Bullard said. “But it’s not over until it’s over.”

Friley is also facing a two-count indictment for perjury, based on his testimony at the trial. Each count carries a 10-year sentence.