Powell v. State

49 So. 3d 166, 2010 Miss. App. LEXIS 650, 2010 WL 4970584
CourtCourt of Appeals of Mississippi
DecidedDecember 7, 2010
DocketNo. 2009-KA-00675-COA
StatusPublished
Cited by5 cases

This text of 49 So. 3d 166 (Powell 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
Powell v. State, 49 So. 3d 166, 2010 Miss. App. LEXIS 650, 2010 WL 4970584 (Mich. Ct. App. 2010).

Opinion

MYERS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefore.

¶ 2. Powell was convicted in the Circuit Court of Copiah County of the statutory rape of his eleven-year-old daughter, A.B.1 The trial court sentenced Powell to serve a term of thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Powell appeals.

FACTS

¶ 3. On May 17, 2008, A.B. went to stay with her mother in Hinds County, Mississippi, for the summer. A.B. had spent most of the previous two years with her father, Powell. Powell lived in Crystal Springs, Mississippi, in Copiah County. On May 27, 2008, A.B. told her mother that she was suffering from burning and pain during urination. A.B.’s mother called Powell, who told her that he believed A.B. was suffering from a urinary tract infection. Powell stated that A.B. “has them all the time,” and he recommended that A.B.’s mother “put some of those women creams [sic] on her and she’ll be all right in a little while.” A.B.’s mother insisted on taking A.B. to see a doctor, and Powell replied that she should call him back and let him know what happened.

¶ 4. A.B.’s mother then took the child to the emergency room at the Central Mississippi Medical Center in Jackson, Mississippi. A.B. was examined by Michael Williams, a nurse practitioner. Williams ordered a urinalysis, which revealed that A.B. was suffering both from a urinary tract infection and trichomoniasis, a sexually transmitted disease. Williams conducted a noninvasive exterior examination of the child and noted significant vaginal discharge. A.B. initially told her mother and Williams that she had never had any sexual contact with anyone. However, because A.B. was diagnosed with a sexually transmitted disease, an employee of the Mississippi Department of Human Services 2 interviewed the child at the hospital. A.B. disclosed to the DHS interviewer that she had been sexually abused by her father, Powell.

¶ 5. A.B. testified. at trial that Powell had raped her approximately ten times while she was in the fourth and fifth grades. She described the abuse as follows: “[Powell] would call me in his room, and he asked me to do something, and he told me what he was going to do, and he told me to pull my pants down, and he pulled his down and he puts [sic] his private parts in mine.” A.B. testified that she had not previously disclosed the abuse because she was afraid of her father.

¶ 6. Chad Sills, an investigator with the Copiah County Sheriffs Department, also testified for the State. He stated that he had interviewed Powell and that Powell had denied raping his daughter. Powell had admitted, however, that he and his current wife, Melody, had previously contracted trichomoniasis.

¶ 7. Powell and his wife testified. Powell denied raping his daughter. His principal defense was that he was impotent because of medication he took to combat high [170]*170blood pressure. Powell’s wife acknowledged that she had contracted trichomo-niasis in early 2006, from an extramarital affair, but both claimed Powell had not been infected because of his impotence. Powell also testified that he had prominent genital warts, which A.B. would have noticed but had not mentioned. Powell also averred that he had not had an opportunity to rape A.B. because of his and his wife’s work schedules and the cramped living conditions in his home. Powell was subsequently convicted and sentenced, and he appeals from that judgment, arguing five issues.

DISCUSSION

1. Weight of the Evidence

¶ 8. In his first issue, Powell argues that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 9. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 3 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999)). The supreme court has discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice-However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The court has cautioned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 10. On appeal, Powell’s argument is largely a rehashing of his defense at trial, which we have outlined above. He further argues on appeal that there was no physical evidence of penetration and that the testimony indicated that A.B. could have contacted trichomoniasis through contact with bodily fluids and that physical penetration was not required for her to have been infected.

¶ 11. Reviewing the testimony as we have summarized it above, we are thoroughly satisfied that the jury’s verdict is not against the overwhelming weight of the evidence. A.B.’s testimony was that Powell had raped her, and this testimony was corroborated by medical evidence. Although Powell testified that he had never been infected with trichomoniasis, this was contradicted by his prior admission to police interviewers that he had, in fact, contracted the disease. Likewise, the testimony that Powell had become impotent in late 2005 was contradicted by his own admission on cross-examination that he [171]*171may have fathered a child born on March 12, 2007. Furthermore, Powell had not mentioned any problems with impotence during his prior interview with the authorities. And, while it was conceded that A.B. could possibly have contracted trichomo-niasis absent vaginal penetration, A.B. was unequivocal in stating that Powell had penetrated her.

¶ 12. Boiled down, this case presented a question of credibility. The jury, in finding Powell guilty of statutory rape, clearly favored A.B.’s testimony over Powell’s. In that, we can find no reversible error. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)).

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49 So. 3d 166, 2010 Miss. App. LEXIS 650, 2010 WL 4970584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-missctapp-2010.