Thomas Tubbs v. State – molestation – Tubbs was accused of having molested a three-year- old girl that he and his wife were babysitting in December 2009. Once at home, the child told her mother that Thomas had licked her and pointed to her private parts. Tubbs told an investigator that he had spanked the girl. He told someone else that she was doing flips in the bed and “flipped right in my face.” The state was allowed to introduce Tubbs’s prior conviction for rape of a ten-year-old child was admitted for the limited purpose of proving motive, intent, or absence of mistake or accident. Tubbs was found guilty and given a 15 year sentence. On appeal he argues that it was error to let the child testify, to admit her out-of-court statements and to error to admit evidence of dna testing when there was a break in the chain of custody in the handling of the evidence taken from the child’s underpants.
The Court affirms finding that the kid was unusually bright, her out-of-court statements were accompanied by indicia of reliability, and the state has never been required to produce everyone who handled the evidence. “The test of whether there has been a break in the chain of custody is ‘whether there is an indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.’”