Durdin v. State

924 So. 2d 562, 2005 WL 3112415
CourtCourt of Appeals of Mississippi
DecidedNovember 22, 2005
Docket2004-KA-00735-COA
StatusPublished
Cited by2 cases

This text of 924 So. 2d 562 (Durdin v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durdin v. State, 924 So. 2d 562, 2005 WL 3112415 (Mich. Ct. App. 2005).

Opinion

924 So.2d 562 (2005)

Michael DURDIN a/k/a Michael Lloyd Durdin a/k/a Mike L. Durdin, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-00735-COA.

Court of Appeals of Mississippi.

November 22, 2005.
Rehearing Denied March 21, 2006.

*563 Stephen P. Livingston, New Albany, attorney for appellant.

Office of Attorney General by W. Daniel Hinchcliff, attorney for appellee.

EN BANC.

IRVING, J., for the Court.

¶ 1. Michael Durdin was convicted of sexual battery by a Union County jury. Feeling aggrieved, he challenges his conviction on the grounds that (1) the evidence produced below was insufficient to support his conviction and (2) several of his jury instructions were erroneously denied by the court below.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In September 2001, B.G.[1] spoke to a teacher at her school concerning an incident that had happened to her friend, K.D. According to B.G., she had spent the night at K.D.'s house in April when she witnessed K.D. and Durdin engage in a sexual act. At the time, Durdin was thirty years old. At trial, the testimony of B.G. and K.D. regarding what happened that night was virtually the same. According to the girls, K.D.'s family had gone to the store, leaving K.D. and B.G. alone with Durdin, K.D.'s mother's live-in boyfriend. At that time, Durdin began playing a pornographic video and asked K.D. to give him a "blow-job." Then eleven-year-old K.D. proceeded to perform oral sex on Durdin while B.G. watched. The oral sex stopped when K.D.'s mother and siblings returned home from the store.

¶ 4. The testimony of K.D. and B.G. regarding what happened after the assault is not entirely in agreement. According to K.D., the two girls continued to be friends and socialized at school. B.G. testified that she thought K.D. was mad at her and did not speak to her again after the incident in question.

¶ 5. B.G. told no one about the assault until the next school year when a friend convinced her to take the information to a teacher. At that time, the Mississippi Department of Human Services (DHS) was brought in to investigate the allegations. K.D. admitted to DHS that she had performed oral sex on Durdin. K.D. later recanted that admission; during direct examination at trial, she said she recanted because her mother had told her that if she did not do so, her baby brother would grow up without a father.

¶ 6. At trial, Durdin's attorney pressed both K.D. and B.G. with questions about whether they had fabricated their story together. Both denied having discussed the incident with each other. K.D. admitted during cross-examination that she hated Durdin and would do anything to have him move out of the house.[2] During its *564 case-in-chief, the State called only three witnesses: K.D., B.G., and the investigating police officer. During the defense case-in-chief, only one witness, D.H., K.D.'s great aunt, was called. D.H. testified that K.D. had called to tell D.H. that K.D. had not been molested by Durdin, and that K.D. was now afraid to tell the truth. Despite D.H.'s testimony, the jury returned a guilty verdict.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Sufficiency of the Evidence

¶ 7. Durdin first asks us to reverse his conviction for insufficiency of the evidence. When this Court reviews appeals based on insufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 8. Durdin's basic contention is that the State's case consisted almost entirely of the testimony of two young girls whose stories were sometimes contradictory. Durdin also argues that K.D.'s testimony was impeached by the testimony of D.H., who testified that K.D. had told her that she lied about what had happened. Durdin points out that neither K.D. nor B.G.'s testimony was corroborated by evidence other than the statement of the other girl.

¶ 9. Durdin argues that the testimony of both K.D. and B.G. should have been treated with caution and suspicion under the ruling of Black v. State, which held: "the uncorroborated testimony of an accomplice will support a guilty verdict, but the rule requires that such uncorroborated testimony should be viewed with great caution and suspicion, and that it must be reasonable and not improbable or self-contradictory, or substantially impeached." Black v. State, 336 So.2d 1302, 1303 (Miss. 1976) (citing Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953)). However, Black is not applicable to this case for the simple reason that K.D. and B.G. were not accomplices: K.D. was the victim in this case, not the perpetrator. In order to reverse Durdin's conviction, this Court would have to extend the reasoning of Black to support the notion that the uncorroborated testimony of a victim and witness should be viewed with the same suspicion as that of accomplices. We decline to do so.

¶ 10. Durdin cites several more cases as support for this argument, claiming: "[t]his Honorable Court has held on numerous occasions that if the testimony is unreasonable, that if it is contradictory, and if it is impeached, then the case should be reversed." The first case Durdin cites, Clemons v. State, 535 So.2d 1354 (Miss. 1988), provides no relief to Durdin.[3] The court in Clemons stated: "[t]he testimony of a co-indictee or a co-conspirator, if not improbable, or materially self-contradictory, or thoroughly impeached, is sufficient to sustain a conviction." Clemons, 535 So.2d at 1358. This is merely a restatement of the holding of Black and provides no relief to Durdin for the same reason. The next case cited by Durdin reversed a conviction because the testimony of the defendant's accomplice was insufficient to *565 sustain the conviction. Flanagan v. State, 605 So.2d 753, 758 (Miss.1992). This case, like Black and Clemons, supplies no relief to Durdin because K.D. and B.G. were not accomplices.

¶ 11. Particularly on point is a recent Mississippi Supreme Court case correcting a defendant who appealed his sentence on the basis of Flanagan:

Payton [the appellant/defendant] argues that Freeman's [a witness] testimony required corroboration. Apparently, Payton confuses the corroboration required for questionable co-conspirator testimony with that of a disinterested witness. The only requirements for the admissibility of a disinterested witness' testimony is that the witness be competent and speak from personal knowledge, and that the testimony be relevant.

Payton v. State, 897 So.2d 921, 938(¶ 47) (Miss.2003). The reasoning of Payton is directly applicable to the case at bar. K.D. was a complaining victim. B.G. was a disinterested witness whose testimony did not require corroboration as might an accomplice's testimony. Durdin's arguments to the contrary are without merit.

¶ 12. Durdin also argues[4] that K.D.'s testimony was impeached by the testimony of D.H., but the decision of the jury convicting him of sexual battery indicates otherwise.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pittman v. DYKES TIMBER CO., INC.
18 So. 3d 923 (Court of Appeals of Mississippi, 2009)
Walker v. State
956 So. 2d 292 (Court of Appeals of Mississippi, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
924 So. 2d 562, 2005 WL 3112415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durdin-v-state-missctapp-2005.