Lee v. State

910 So. 2d 1123, 2005 WL 646655
CourtCourt of Appeals of Mississippi
DecidedMarch 22, 2005
Docket2003-KA-02523-COA
StatusPublished
Cited by7 cases

This text of 910 So. 2d 1123 (Lee 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
Lee v. State, 910 So. 2d 1123, 2005 WL 646655 (Mich. Ct. App. 2005).

Opinion

910 So.2d 1123 (2005)

Johnny LEE, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02523-COA.

Court of Appeals of Mississippi.

March 22, 2005.

*1124 David L. Tisdell, Tunica, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before BRIDGES, P.J., IRVING and MYERS, JJ.

MYERS, J., for the Court.

¶ 1. Johnny Lee was charged with two counts of attempted rape under Mississippi Code Annotated § 97-1-7 and one count of statutory rape under Mississippi Code Annotated § 97-3-65(1)(b). On August 7, 2003, he was convicted on all three counts. On October 16, 2003, he was sentenced to life in prison for the count of statutory rape with concurrent sentences of ten years imposed for each of the counts of attempted rape. On August 13, 2003, Lee filed a motion for JNOV or, in the alternative, for new trial, and on August 18, 2003, the court denied this motion. Lee now appeals, raising the following three issues:

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LEE'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR A NEW TRIAL BASED UPON THE STATE'S FAILURE TO PROVE VENUE IN THE CASE?
II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LEE'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR A NEW TRIAL BASED UPON IMPROPER COMMENTS MADE BY THE STATE IN CLOSING ARGUMENTS?
III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LEE'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR A NEW TRIAL BASED UPON THE WEIGHT OF THE EVIDENCE?

FACTS

¶ 2. Lee is the step-grandfather of the victim, S.W. At the time of the first two incidents in question, S.W. was eleven years old; however, the last incident occurred on S.W.'s twelfth birthday. According to S.W.'s testimony, on July 5, 2002, Lee attempted to have sex with her. She also testified that on July 9, 2002, Lee succeeded in having sex with her. On both of these occasions, Lee was driving S.W. to her grandmother's house, when he pulled off the road (both times in remote areas) and committed the acts of sexual abuse upon her. On August 13, 2002, under similar circumstances, Lee again attempted to have sex with S.W.; however, S.W. struggled, causing Lee to desist. These were the three specific incidents covered by the indictment in this case; *1125 however, there was some indication that this behavior of Lee towards S.W. had been ongoing. After a time, S.W. came forward with her charges. She stated that she delayed in coming forward because Lee told her that he had killed someone before, and she took this statement to be a threat.

¶ 3. S.W. was prompted to come forward about what had been happening to her when Lee's wife, Mae Ella, asked S.W. if she had been abused. Mae Ella's suspicions (that prompted such a difficult question) were triggered when she witnessed several strange incidents involving Lee and S.W. For instance, after the July 9, 2002 incident, Mae Ella returned home to find S.W. wearing Mae Ella's clothes. When she inquired about this, Lee said that he had instructed S.W. to take a bath and that he had given S.W. some of Mae Ella's clothes to wear. Lee did not explain why he had done this. On another occasion, Mae Ella returned home to find Lee, wearing only his boxer shorts, alone inside with S.W. with all of the doors to the house locked. These kinds of strange circumstances brought about Mae Ella's suspicions. When she finally approached S.W. and asked her what had been happening, Mae Ella's suspicions were confirmed.

¶ 4. S.W. was examined by Dr. Waller, a doctor with experience in child sexual abuse cases, and he concluded that S.W. had been sexually abused. In particular, Dr. Waller's examination revealed that S.W. showed signs of having been penetrated. S.W. was also counseled on numerous occasions by Dr. Lisa Phelps, a psychologist with expertise in the area of child sexual abuse. Dr. Phelps also concluded that S.W. had been sexually abused. After noting that she had dealt with cases in which the alleged victim was found to be lying, Dr. Phelps testified that, based upon her experience, there was no doubt in her mind that S.W. was telling the truth.

¶ 5. Based upon the testimony of another doctor, Dr. Irene Buckner, who examined S.W. on May 10, 2002, it appeared that S.W. may also have been abused sometime before July 5, 2002. However, at least some of this apparent prior abuse may not have been connected to Lee, and the jury ultimately found that this possibility of prior abuse, perhaps by someone other than Lee, did not create a reasonable doubt as to whether Lee committed the specific acts of abuse for which he was charged in the indictment.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LEE'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR A NEW TRIAL BASED UPON THE STATE'S FAILURE TO PROVE VENUE IN THE CASE?

¶ 6. Lee argues that the State failed to prove that the incidents took place in Coahoma County, and that, since venue is an essential part of criminal prosecution, the court should have granted his motion for JNOV or, in the alternative, for a new trial. The State argues that it did, in fact, prove venue, because S.W.'s testimony regarding the location of the incidents was sufficient to prove venue.

STANDARD OF REVIEW

¶ 7. Our standard of review of issues related to motions for JNOV and/or new trial has been stated as follows:

Challenges to the sufficiency of the evidence (raised by motions for directed verdict and for JNOV) and challenges to the weight of the evidence (raised by motions for a new trial) raise similar issues. This Court has set forth the standards for the challenges to the former as follows: Our standards of review for a denial of a judgment notwithstanding the verdict and a directed verdict *1126 are also identical. Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Cousar v. State, 855 So.2d 993, 998 (¶ 14) (Miss.2003) (citations omitted).

¶ 8. We have also held in this regard:

The appellate court must accept as true all evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Swann v. State, 806 So.2d 1111, 1117 (¶ 25) (Miss.2002). On review, the State is given "the benefit of all favorable inferences that may reasonably be drawn from the evidence." Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice. Hilliard v. State, 749 So.2d 1015, 1016-17 (¶ 10) (Miss.1999). "This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible." Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

McCoy v. State, 881 So.2d 312, 314 (¶ 7) (Miss.Ct.App.2004).

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Cite This Page — Counsel Stack

Bluebook (online)
910 So. 2d 1123, 2005 WL 646655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-state-missctapp-2005.