GULFPORT -- The state Court of Appeals has ordered new sentencing for a Biloxi man who is serving a 40-year prison term for the sexual battery of a 9-year-old girl.
A Harrison County jury in Gulfport convicted David Alan Ringer on Oct. 30, 2014, on two counts of sexual battery. He received a 50-year prison term, with 10 years suspended.
In a ruling Tuesday, the appellate court ordered a re-sentencing for Ringer on one count of sexual battery and a sentence on a lesser charge of touching a child for lustful purposes.
The Court of Appeals found insufficient evidence to convict him on one of the sexual battery counts.
The order sends the case back to Harrison County Circuit Court. It wasn't clear Wednesday if a hearing date has been set.
Ringer, now 41, had received the maximum prison term of 30 years on the first count of sexual battery and 20 years on the second. Judge Michael Ward imposed the penalties, ordering the prison terms served consecutively.
Ringer appealed, claiming there was insufficient evidence to support the crime of sexual battery on the second count, and that the 10-year suspension was ambiguous.
The girl was 11 when she testified against Ringer. She told the court she had gone on an overnight camping trip with a friend. The girl said she went to the back of an SUV to sleep. She said when she woke, Ringer was with her and touching her in a sexual manner.
The Court of Appeals found there was not enough evidence to convict him on the count alleging anal sex had occurred. Sexual battery involves penetration.
The court found he had committed the lesser crime of touching for lustful purposes, punishable by two to 10 years in prison.
Questions on the suspended sentence issue will be resolved with new sentences.
Judge Eugene Fair, writing for the majority opinion, said rules of court say a defendant convicted on two or more counts must be sentenced separately on each count.
"Here, the suspended sentence was not conflicting or otherwise ambiguous; it was erroneously applied to a cumulative sentence encompassing both counts," Fair wrote.
In a dissenting opinion, Judge Virginia Carlton said both convictions should stand because the girl's testimony, medical evidence of physical trauma and DNA found on her underwear provided sufficient proof.
"The weight and credibility of (the girl's) testimony was a matter solely for the jury to determine," Carlton wrote.
Under the original prison terms, Ringer would have been eligible for release from prison June 25, 2054.