IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-KA-00647-COA
MARCUS HARRIS A/K/A PEANUT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/31/2022 TRIAL JUDGE: HON. CHARLES E. WEBSTER COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/23/2024 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Marcus Harris was indicted by a Tunica County grand jury for the attempted sexual
battery of his daughter as an authority figure (Count I) and touching a child (the same
daughter) for a lustful purpose as an authority figure (Count II). After a jury trial, he was
acquitted of Count I but convicted of Count II. The trial court sentenced him to ten years in
the custody of the Mississippi Department of Corrections, with four years suspended and six
years to serve, followed by four years of supervised probation. Harris appeals, claiming three
errors: first, the State’s repeated “use” of “certain critical” testimony allegedly denied him
a fair trial; second, defense counsel provided ineffective assistance of counsel due to numerous alleged deficiencies; finally, the evidence allegedly is insufficient to “support the
verdict.” Finding no error, we affirm.
FACTS
¶2. T.H.1 is the natural child of Marcus Harris; her parents were never married. During
the events at issue, T.H. was fourteen years old. At some point between June 1, 2017, and
December 31, 2017, T.H. went to visit her father, Harris.2 Harris decided that he, T.H., and
his girlfriend Titobia Clark would visit a casino in Tunica.3 The three would spend the night
in the same hotel room.
¶3. That night, after eating pizza, T.H. stayed in the hotel room while Harris and Titobia
were “downstairs” gambling. It was undisputed that Harris returned to the hotel room first,
while Titobia stayed on the casino floor. T.H. was asleep, fully clothed, and in the bed lying
“on her side” when Harris returned to the room.
¶4. T.H. testified at trial that she was woken by the “noise” of Harris entering the hotel
room. She knew it was Harris because she had “seen him.” She then “fell back to sleep.”
She stated, “[T]hen I woke up again, and I had felt his hands on me trying to go in my pants,
but he couldn’t because my legs were closed.” She testified she felt the “lower part” of his
body against her. She explained that his hand was “inside” her underwear “in between [her]
1 We will refer to the victim as T.H. to protect her identity. 2 These are the dates alleged in the indictment. At trial, T.H. thought the visit was “sometime in the summertime,” while Harris said it was on his wife’s birthday in December. 3 Our record does not reveal the exact casino where this incident occurred. Harris did not identify which casino when he testified. T.H. and Harris both admitted the casino was in Tunica County, Mississippi.
2 legs” and that he touched her “private.” She kept her legs closed so his hand could not go
“into” her “private.” She stated that after he “took” his hand out, he moved his lower body
against “[her] butt.” Later, Titobia came back to the room from gambling, and the three went
to sleep for the night.
¶5. The next day, the family left the casino. T.H. testified that Harris asked her if she
“remember[ed] anything,” to which T.H. responded “no” because she was “scared.” T.H.
explained that after the casino incident, Harris would “look in the window” at her when she
got out of the shower and was “about to get dressed.”
¶6. After the incident, T.H. told Titobia’s son about what happened. In October 2018,
T.H. sent a text message to Harris about it, and he responded. T.H. sent her mother a
screenshot of that text message exchange. Harris’s responsive text message was introduced
for identification at trial during the State’s direct examination of T.H.4 The text message
read:
I’m lost of words . . . . call me just too here me out . . . causes life too shot and if I make u feel like that I’m very sorry and never want you to feel like that . . ilove you still here for u alway. . . [.]
¶7. When T.H.’s mother discovered what had happened at the casino, she contacted the
police. She and T.H. went to the police station to discuss the matter. A forensic interview
was conducted over two months later on January 3, 2019. After the interview, Harris was
arrested. A Tunica County grand jury indicted him for attempted sexual battery and the
touching of a child for lustful purposes, both of which were allegedly committed by the
4 The text message was marked for identification but was never introduced into evidence at trial.
3 defendant while in a position of trust or authority.
¶8. The trial began on March 28, 2022. The State called T.H.’s mother first. She lived
in Memphis, Tennessee, with T.H. and testified T.H. was born in 2003 and was fourteen
years old in 2017. At the time of the incident, T.H. had visitation with Harris every other
weekend.
¶9. T.H.’s mother testified that on October 10, 2018, she received a text message from
T.H., which was “out of the ordinary, disturbing.” She spoke to T.H. about the text and left
work to drive home. On the way home, she called the Memphis Police Department, and the
Tennessee Department of Human Services (DHS) “also” got involved. After DHS
interviewed T.H., she contacted the Tunica Police Department, and an officer told her to
come to the station. T.H.’s mother met with Detective Favian Jones and a forensic
interviewer.
¶10. On cross-examination, T.H.’s mother explained she called T.H. after receiving the
“very disturbing” text message. T.H. said she sent the text because it “was hard for her to
tell me.” After receiving the text, she immediately left work to go home.
¶11. The State called Favian Jones, a lieutenant with the Tunica County Sheriff’s Office,
as its first witness. Jones was a criminal investigator handling juvenile cases. Jones
explained that on October 15, 2018, he was at the office when T.H.’s mother appeared at the
office “in reference to a molestation.” He interviewed her, and she explained what occurred
with her daughter. Jones immediately set up a forensic interview for the child with the
Family Crisis Center in Oxford, Mississippi. The interview was scheduled for January 3,
4 2019. Jones observed the interview from another room. As a result of what he observed in
the child’s interview, he had a warrant issued for Harris’s arrest.
¶12. After Harris was arrested on February 15, 2019, Jones interviewed him. Jones
testified that Harris admitted he had two children: a son with Titobia and a daughter named
T.H. Jones testified that Harris also admitted he regularly visited the casinos, and the last
time he went to a casino was with T.H. and his wife around December 19, 2017. They were
allegedly there to celebrate his wife’s birthday. On this particular casino visit, after the three
ate pizza, he and his wife went downstairs “to the games,” and T.H. stayed in the room
upstairs. Harris admitted in the interview that when he went back to the room, his wife
stayed downstairs and continued gambling. According to Jones, Harris told him that when
he got back to the room, “he laid down in a bed with his daughter.” His wife came back “ten
minutes” later and got between him and T.H.
¶13. After asking more questions about Harris’s statements, the State moved to introduce
a video of the interview Jones had with Harris into evidence. That effort produced the
following discussion:
STATE’S ATTORNEY: Your Honor, at this time State moves State’s Exhibit 3 into evidence. THE COURT: Any objection? DEFENSE COUNSEL: No objection, Your Honor. . . . THE COURT: Is this the same interview that we just spent 40 minutes interrogating this witness about? STATE’S COUNSEL: Yes, Your Honor. But there’s additional information he has not testified to. THE COURT: I understand that. What he has testified to, is it all on the tape? . . . THE COURT: I’m trying to figure out why we just wasted 40 minutes when you had the tape that you could’ve
5 played and covered all of it. And it would’ve been coming out of the mouth of the defendant, as opposed to this witness. . . . THE COURT: I didn’t say it was improper. It’s been a complete waste of time. . . . THE COURT: Not to mention the fact now you’re going to get to tell the story twice, once through the witness and once through this tape, which, of course, will be that additionally prejudicial to the defendant. And I understand the State wants to be prejudicial to the defendant. But I don’t know that -- you know, I don’t know that it’s exactly fair to allow the witness to go through what was said on the tape and then play the tape too. STATE’S COUNSEL: Judge, it’s the State’s position that, given the fact that the entirety of the tape – he has not discussed the entirety of the tape. STATE’S COUNSEL: Yes, Judge. THE COURT: So now we’re going to spend another how long listening to this tape? STATE’S COUNSEL: I certainly only can play portions of it. He has not objected to it. He has reviewed it. I can only play the portions that I deem that he has not testified to. THE COURT: I mean, have you got it indexed so well that you can do that? STATE’S COUNSEL: Yes, Judge. THE COURT: Well, I’m not going to - - I’m not going to tell you how to play it or how you’re going to do it. I’m going to allow you to play the tape in any fashion you want to. . . . THE COURT: You want to object? DEFENSE COUNSEL: I was - - my objection was going to be before playing the tape that - - it’s essentially the same objection as what asked and answered is, is that what happens is, when you get to go through evidence twice, it puts more weight on that specific piece of evidence than other pieces of evidence will have. THE COURT: I understand. I note your objection. You’ll have a continuing objection to it. DEFENSE COUNSEL: Thank you, Your Honor.
6 THE COURT: If we hadn’t done it this way, he wouldn’t have had to object. And I don’t know what the Supreme Court is going to say in the event of a conviction. All right. Let’s get the witness brought in.
The video was then played before the jury. After Detective Jones testified, the State called
T.H. to testify. Her testimony was essentially the same as set out in the facts discussed above
and will not be repeated here. After T.H. testified, the State rested.
¶14. Titobia Clark testified for the defense.5 Titobia testified that she was married to
Harris and that they had been married since “2017... 2018,” but she explained they had dated
for twenty-two years. Titobia explained that Harris told her when T.H.’s mother was
pregnant with T.H. Titobia testified she loved T.H. and acted as her stepmother. She
explained Harris spoiled T.H. and they had a good father/daughter relationship.
¶15. Titobia testified the casino trips were family getaways, where the kids could swim,
and Harris and Titobia could gamble. She testified her kids would attend the casino trips,
and T.H. did as well. She did not remember a time when Harris left the casino floor without
her or a time when she came to the hotel room to find Harris and T.H. in the bed together.
¶16. Harris testified in his defense. He testified he had been married to Titobia for twenty-
two years but had a sexual relationship with T.H.’s mother.6 He learned she had been
pregnant with T.H. “after the baby was born.” Harris testified that he paid child support and
eventually saw T.H. every other weekend. Harris testified he and T.H.’s mother did not get
5 Titobia specifically directed the court to refer to her as “Ms. Clark.” 6 Again, Titobia’s testimony indicates they were married in 2017 or 2018, though she did not definitively indicate.
7 along, and she did not like him having visitation.
¶17. Harris explained that he would take his family to Tunica to “get the family out to have
a good time.” Harris would get the hotel room for free “most of the time” because of “comps
off the cards.”
¶18. Harris admitted that on October 15, 2018, he received a text message from T.H. The
message was about T.H. not wanting to be “around me.” He testified he was “shocked,
confused, bothered, sick.” Harris explained, “I love my daughter very much,” and said that
he “never in my life touched my daughter.”
¶19. Harris explained why he responded the way he did to questions asked by the officers
during his videotaped statement. He explained that when he was questioned about T.H., he
started talking about Titobia’s birthday trip to Tunica without being told that was the time
T.H. was touched. He explained: “because that’s the only weekend – that was the only
weekend that I can think of that she might could use saying that – what was in her texts
maybe.” He testified that T.H. was “angry” with him because he “took” her phone when she
was “sending inappropriate pictures.”
¶20. Harris admitted that on Titobia’s birthday in December 2017, he, T.H. and Titobia
went to a casino and stayed in a room. He admitted they had pizza, and T.H. stayed in the
room while he and Titobia “went to go to the gambling floor to have drinks and play.” He
stated, “I was – got too intoxicated,” so he told Titobia he was going back to the room. He
admitted he arrived at the room first, and Titobia came up later.
¶21. Once in the room, he testified, he went to sleep, fully clothed, on “top of the bed.”
8 Harris testified that T.H. acted normally the next morning. He further stated that T.H. stayed
with him the rest of the weekend and continued with the normal visitation schedule.
¶22. On cross-examination, Harris admitted almost all the details T.H. gave except that he
touched her. He also admitted to telling the police during his videotaped statement after his
arrest, “I don’t know. Maybe I thought she was my wife?” He maintained that T.H. lied
about him looking into a window after she showered and about him touching her at the
casino.
¶23. After the evidence was presented, the jury acquitted Harris of Count I (attempted
sexual battery of a child by an authority figure) but convicted him of Count II (touching of
a child for a lustful purpose by an authority figure). He was sentenced to serve ten years in
custody, with four years suspended and six years to serve, followed by four years of
supervised probation. He appeals, claiming that the State’s “use” of “certain critical”
testimony denied him a fair trial; he received ineffective assistance of counsel; and the
evidence was “simply not sufficient to meet the demands of the statute or the indictment.”
ANALYSIS
I. “Certain Critical” Testimony and Videotape as Evidence
¶24. Harris argues that it was error to introduce a recording of his police interview after the
investigator had already testified about the statements Harris made on the video. At trial,
following Detective Jones’s testimony about his interview with Harris, the State moved to
enter the video of this same interview into evidence. The court then directed the jury to retire
to jury quarters, and a lengthy discussion was had as to whether introducing the video was
9 cumulative evidence and prejudicial to the defendant. Defense counsel initially stated no
objection when the State sought to move the interview into evidence. After the court
questioned the State’s attorney about the “waste of time” by asking the detective about
Harris’s statements and then introducing the video to be played relaying the same information
a second time, the defense objected that it put “more weight” on that “specific piece of
evidence.” The defense’s objection concerned bolstering or, as stated by defense counsel at
trial, “essentially the same objection as what asked and answered is.” Later, defense counsel
did not include this objection (asked and answered, bolstering, or cumulative) in the motion
to vacate the judgment or for a new trial. The defense used the word “cumulative” for the
first time in his brief on appeal.
¶25. In response to Harris’s argument, the State maintains that “the investigator’s testimony
was not a comprehensive review of the interview” and that “the purpose of the investigator’s
testimony was to lay the foundation to introduce the video.” The State further claims that
because “Harris later sought to re-introduce the video during his case-in-chief,” he cannot
now claim it was error.7
¶26. The admission of evidence is reviewed for an abuse of discretion. Webb v. State, 113
So. 3d 592, 597 (¶13) (Miss. Ct. App. 2012) (citing Palmer v. State, 986 So. 2d 328, 331
(¶12) (Miss. Ct. App. 2007)). The “discretion of the trial judge runs toward almost unlimited
7 At trial, Harris did not seek to “re-introduce” the entire video. He sought to introduce parts of the videotaped statement that had been redacted by the State pursuant to a pre-trial ruling prohibiting evidence relating to photographs the victim had sent to her boyfriend. A lengthy discussion occurred about what exactly was on the video and what parts Harris wanted to introduce.
10 admissibility regardless of the . . . repetitiveness” of evidence. Williams v. State, 544 So. 2d
782, 785 (Miss. 1987). Unless the trial judge’s judicial discretion is abused, this Court will
not reverse his ruling. Lewis v. State, 573 So. 2d 719, 722 (Miss.1990) (citing Shearer v.
State, 423 So. 2d 824, 826 (Miss.1982)).
¶27. The Mississippi Supreme Court has “recogniz[ed] and endors[ed] a trial judge’s duty
to control the courtroom, using reasonable measures to efficiently move matters along[.]”
In re Blake, 912 So. 2d 907, 914 (¶16) (Miss. 2005); see Matthews v. State, 288 So. 2d 714,
715 (Miss. 1974); Aeroglide Corp. v. Whitehead, 433 So. 2d 952, 953 (Miss. 1983) (“[A]ll
courts possess the inherent authority to control the proceedings before them including the
conduct of the participants.”). “A court’s power to maintain control over the proceedings
before it is not grounded in its punitive jurisdiction, but in the necessary and inherent power
to regulate its proceedings.” Spore v. State, 214 So. 3d 223, 227 (¶9) (Miss. 2017) (internal
quotation marks omitted) (quoting Knott v. State, 731 So. 2d 573, 576 (¶11) (Miss. 1999)).
¶28. Mississippi Rule of Evidence 403 provides, “The court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” (Emphasis added). When a trial court
determines that potentially prejudicial evidence possesses sufficient probative value, it is
within that court’s sound discretion whether to admit it because the Rules of Evidence do not
mandate exclusion; instead, they provide that the evidence may be excluded. Burleson v.
State, 166 So. 3d 499, 508 (¶25) (Miss. 2015), overruled on other grounds by Nevels v. State,
11 325 So. 3d 627, 634 (¶20) (Miss. 2021).
¶29. This Court was faced with the issue of cumulative evidence in Lambert v. State, 101
So. 3d 1172 (Miss. Ct. App. 2012). In that case, the defendant was charged with touching
a child for lustful purposes. Id. At trial, the victim testified. Id. at 1176 (¶11). Following
her testimony, the State introduced a videotape of a forensic interview of the victim. Id.
Defense counsel objected to the admission of the tape on the grounds of cumulative
evidence. Id. The trial court admitted the video, and Lambert was convicted. Id. at 1173
(¶1). Lambert appealed. Id. On appeal, Lambert argued that “the jury did not need to hear
repeated accounts on the videotape” and that “the probative value of the interview was
outweighed by the danger of unfair prejudice.” Id. at 1176 (¶11).
¶30. This Court emphasized the “great deal of discretion” enjoyed by a trial judge and
found no abuse of that discretion in admitting the videotape. Id. This Court found that
“while the videotape of the interview may have been cumulative in nature, [the victim’s]
testimony, as well as [the forensic interviewer’s testimony], corroborated the contents of the
interview on the videotape.” Id. at (¶12). This Court noted that “even if the videotape was
excluded, the jury would have still heard the statements on the videotape from oral
testimony.” Id. Finally, for purposes of argument here, even if admitting the videotape was
improper, this Court in Lambert reminded us that “[w]here corroborative evidence exists and
the hearsay evidence is merely cumulative, the admission may be held to be harmless.” Id.
(emphasis added) (citing Young v. State, 679 So. 2d 198, 203 (Miss. 1996) (citing Jones v.
State, 606 So. 2d 1051, 1057 (Miss. 1992))).
12 ¶31. Here, it is questionable whether the “cumulative” objection was preserved for appeal.
The defense attorney objected to questions “asked and answered” and the playing of the
videotaped statement of Harris would place “more weight” on a particular “piece of
evidence” but never actually uttered the word cumulative. Harris did not allege any sort of
error as to this issue, regardless of the technical name of the objection, in his post-trial
motion. Be that as it may, the trial court had considerable discretion in the admission or
exclusion of evidence. The trial court criticized the State’s counsel for what the court
deemed to be a “waste of time.” However, the trial court ultimately admitted the tape, and
it was played for the jury. The State certainly has the right to decide how to present its
evidence in accordance with the Rules of Evidence, and there is no precedent in this State
that holds it is reversible error to admit cumulative evidence if indeed it was cumulative at
all. Young, 679 So. 2d at 203; see also Sanders v. State, 757 So. 2d 1022, 1025 (¶5) (Miss.
Ct. App. 2000); Harrison v. State, 724 So. 2d 978, 983 (¶11) (Miss. Ct. App. 1998); Jones,
606 So. 2d at 1057.
¶32. The State pointed out the video revealed additional relevant evidence that the officer’s
testimony did not reveal. We find no reversible error. As such, we find that the trial judge
acted with inherent authority “to control the courtroom,” and the judge did not abuse his
discretion in admitting the videotape following Jones’s testimony. In re Blake, 912 So. 2d
at 914 (¶16).
II. Ineffective Assistance of Counsel
¶33. Harris lists a host of alleged deficiencies by his defense counsel at trial. Namely, he
13 asserts (1) lack of preparation, (2) failure to give an opening statement, (3) lack of familiarity
with the State’s video, (4) failure to obtain Harris’s videotaped statement, (5) deficiency
during his motion for a directed verdict, and (6) that counsel failed to submit jury
instructions.
¶34. “To succeed on an ineffective-assistance-of-counsel claim, [the defendant] must meet
both prongs of the test laid out in Strickland v. Washington, 466 U.S. 668, 687 (1984).”
Beasley v. State, 355 So. 3d 245, 248 (¶6) (Miss. Ct. App. 2022) (citing Lovett v. State, 270
So. 3d 133, 135 (¶5) (Miss. Ct. App. 2018)), cert. denied, 355 So. 3d 774 (Miss. 2023).
Under the two-part test in Strickland, “[t]he defendant must demonstrate [(1)] that his
counsel’s performance was deficient, and [(2)] that the deficiency prejudiced the defense of
the case.” Ransom v. State, 919 So. 2d 887, 889 (¶12) (Miss. 2005). “To determine the
second prong . . . , the standard is ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Harrell v.
State, 947 So. 2d 309, 313 (¶11) (Miss. 2007) (quoting Mohr v. State, 584 So. 2d 426, 430
(Miss.1991)). “In considering a claim of ineffective assistance of counsel, an appellate court
must strongly presume that counsel’s conduct falls within a wide range of reasonable
professional assistance, and the challenged act or omission might be considered sound trial
strategy.” Liddell v. State, 7 So. 3d 217, 219 (¶6) (Miss. 2009).
¶35. Concerning handling ineffective assistance claims on direct appeal, the Mississippi
Supreme Court has held the following:
It is unusual for [an appellate c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. . . . [An
14 appellate c]ourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.
Sanders v. State, 228 So. 3d 888, 892 (¶17) (Miss. Ct. App. 2017) (citations and internal
quotation marks omitted) (citing Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003)).
“We may also address such claims on direct appeal when the record affirmatively shows that
the claims are without merit.” Gregg v. State, 372 So. 3d 132, 137 (¶13) (Miss. Ct. App.
2023) (citing Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss. 2020)).
¶36. Further, “where the record cannot support an ineffective assistance of counsel claim
on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right
to argue the same issue through a petition for post-conviction relief.” Brandon v. State, 109
So. 3d 128, 134 (¶23) (Miss. 2013) (citing Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss.
Ct. App. 2002)). The State admitted in its brief that the record was “sufficient for the Court
to review Harris’s claim” on some issues but that the record was insufficient on others. We
agree. However, Harris certainly has the right to raise arguments in post-conviction
collateral proceedings. We will not address the issues Harris raises in this appeal concerning
ineffective assistance of counsel in a piecemeal fashion. Therefore, we decline to address
this issue, preserving for Harris the right to raise his claims in a post-conviction proceeding.
III. Sufficiency of the Evidence
¶37. Harris argues the evidence was “simply not sufficient to meet the demands of the
statute or the indictment.” Harris was charged with the touching of a child for lustful
15 purposes under Mississippi Code Annotated section 97-5-23(2) (Supp. 2015), which provides
the following:
Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony.
In considering whether the evidence is sufficient to sustain a conviction, “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.” Clements, 237 So. 3d at 181 (¶35) (citing Williams v. State, 35 So. 3d
480, 485 (¶16) (Miss. 2010)). Where the facts and inferences “point in favor of the
defendant on any element of the offense with sufficient force that reasonable [jurors] could
not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy
is to reverse and render. Id. However, if “reasonable fair-minded [jurors] in the exercise of
impartial judgment might reach different conclusions on every element of the offense,” the
evidence will be deemed sufficient. Id.
¶38. “Our Supreme Court has held that the unsupported word of [a] victim of a sex crime
is sufficient to support a guilty verdict where that testimony is not discredited or contradicted
by other credible evidence[.]” Clements, 237 So. 3d at 181 (¶39) (citing Collier v. State, 711
So. 2d 458, 462 (¶15) (Miss. 1998)). The State presented sufficient evidence to support
Harris’s conviction of the touching of a child for lustful purposes. The State provided
16 evidence that Harris was over the age of eighteen on the date of the incident and that he
occupied a position of trust or authority over T.H. Section 97-5-23(2) specifically lists
examples of a “person in a position of trust or authority over a child” and explicitly includes
the term “parent.” As T.H.’s biological father with visitation, Harris certainly occupied a
position of trust or authority. Further, the State presented testimonial evidence that Harris
“put his hand in [T.H.’s] underwear,” and as his hand lowered, he touched her “private area
in between her legs.” T.H. testified that she squeezed her legs together in an effort to prevent
Harris from penetrating her. T.H. further stated that after he “took” his hand away, he moved
his lower body against “[her] butt.” Finally, T.H. testified she was fourteen years old at the
time of the incident. Considering all these facts in light of section 97-5-23(2), a rational juror
clearly could find all elements of the crime beyond a reasonable doubt. Furthermore, T.H.’s
unsupported testimony was sufficient to support the conviction. Clements, 237 So. 3d at 181
(¶39). “It is a well-settled principle of law that issues of weight and credibility of witness
testimony are within the sole province of the jury as fact-finder.” Lyles v. State, 12 So. 3d
552, 555 (¶15) (Miss. Ct. App. 2009) (quoting King v. State, 798 So. 2d 1258, 1262 (¶14)
(Miss. 2001)); accord Williams v. State, 544 So. 2d 782, 758 (Miss. 1987). “The jury has a
much better vantage point to view and assess the tone, mannerisms, and disposition of
witnesses.” Lyles, 12 So. 3d at 555 (¶15). The jury apparently found T.H.’s testimony to be
credible, and it is not our role to now second guess the jury’s credibility determination.
Accordingly, we find sufficient evidence was presented to support Harris’s conviction.
CONCLUSION
17 ¶39. The trial judge did not abuse his discretion by admitting the testimony and recording
into evidence. The evidence was sufficient to convict Harris. Accordingly, we affirm, but
we do not decide the issue of ineffective assistance of counsel so that Harris may proceed
with the claim in post-conviction collateral relief proceedings.
¶40. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.