Ross v. State

51 So. 3d 977, 2010 WL 2367288
CourtCourt of Appeals of Mississippi
DecidedJune 15, 2010
DocketNos. 2009-KA-00796-COA, 2009-KA-00797-COA
StatusPublished
Cited by1 cases

This text of 51 So. 3d 977 (Ross 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
Ross v. State, 51 So. 3d 977, 2010 WL 2367288 (Mich. Ct. App. 2010).

Opinion

MYERS, P.J.,

for the Court:

¶ 1. Tyshunna Cooper Ross was indicted on one count of gratification of lust and one count of sexual battery by a Madison County grand jury. The indictments stemmed from the thirty-seven-year-old Ross’s relationship with a twelve-year-old boy, A.B.1 The State alleged that on July 4, 2007, Ross committed sexual battery by having sexual intercourse with A.B. and that she had touched his penis for the purpose of gratifying her lust.

¶ 2. Ross was subsequently convicted on both counts in the Circuit Court of Madison County. The trial court sentenced Ross to fifteen years on the gratification of lust count and forty years on the sexual battery count, with the sentences to be served consecutively. The sentencing order provided that the final thirty-seven years of the sentence would be suspended, with five years’ supervised probation. Ross was also ordered to register as a sex offender. Aggrieved by her conviction and [979]*979sentence, Ross appeals, arguing that: the jury’s verdict is against the overwhelming weight of the evidence; the evidence was insufficient to support the convictions; and she received constitutionally ineffective assistance of counsel at trial. Finding no error, we affirm Ross’s convictions and sentences.

FACTS

¶ 3. At trial, A.B., then fourteen years of age, testified for the State. A.B. stated that he knew Ross through her daughter, who A.B. had “dated” for some period of time in the sixth grade.2 Some time later, Ross had bought beer for A.B. and his friends on two separate occasions. Then, on July 3, 2007, Ross invited A.B. and two of his friends, both fourteen years old, to “hang out” with her at the home she shared with a roommate. Ross’s home was located approximately one quarter mile from A.B.’s. Ross told the boys that she was locked out, so they sat out on the carport. Ross smoked cigarettes and drank vodka, both of which she shared with the boys. A.B. consumed four or five “shots” of vodka. At Ross’s request, the party then went into the nearby woods, where they continued to smoke and drink. A.B. testified that while in the woods, he and Ross kissed and he fondled Ross’s breasts. When it started to get dark, C.D., one of A.B.’s friends, sneaked Ross into his bedroom through an outside window. Ross stayed with C.D. for an hour or so before calling her boyfriend, Tom Carter, who picked Ross up from C.D.’s house. Later that evening, A.B., C.D., and two girls aged twelve or thirteen sneaked into A.B.’s bedroom, where they “talked and kissed” for about forty-five minutes before A.B.’s mother abruptly entered the bedroom at approximately 11:00 p.m. and took the other children home.

¶ 4. The next day, July 4, 2007, A.B.’s parents were hosting a party at their home. Ross and A.B. made contact around noon, either by telephone or text message. Later that day, Ross told A.B. that her boyfriend had beaten her and that she needed a place to stay. A.B. offered to let Ross stay with him. She arrived a short time later, at approximately 8:30 p.m., and A.B. helped her sneak into the home through a laundry room window. A.B. and Ross went to A.B.’s bedroom, and A.B. locked the bedroom door. Ross asked for a drink, and A.B. gave her a beer from a case he had taken from his parents’ party and hidden in a gun cabinet in his bedroom.

¶ 5. A.B. recounted what happened next as follows:

Q. And once y’all are in your room and she was drinking beer, what happened then?
A. We sat on the floor and talked a little bit. I don’t — I don’t specifically remember what we talked about, but I know we’re — we were about to go to sleep and then we started kissing and touching and stuff.
Q. Okay. And where was she touching you?
A. All over me.
Okay. <D
Including my penis. >
On top of your clothes or beneath your clothes? eO
Beneath, ma’am. >
Q. Under your underwear or on top of your underwear?
A. Under my underwear.
Q. And what — what happened after that?
[980]*980A. Well, one thing lead to another. Basically, the inti — the intimacy grew and we — there was a condom sitting on my nightstand, I guess would say—
Q. And what was that doing there and how did it get there?
A. Well, I — I had gotten it from a guy that I didn’t even know. He just gave it to me and—
Q. When? How long had you had it?
A. Two or three weeks maybe.
Q. Okay.
A. And it was just sitting there because I didn’t know — well, I just had it sitting out. And from then on I kind of — I grabbed it and I held it up and she looked at it and she' kind of nodded yes and there— there wasn’t really verbal, it was more nodding and shaking of the head.
And so I went to the bathroom and put that on. And when I came back she was sitting on my bed, and my bed at that the time squeaked really bad so I was like, you know, you can’t do it on the bed. It squeaked really bad, so we proceeded on the floor and she laid down—
Q. Did she have her clothes on or off at that time?
A. She had a shirt on and she had her scrubs on and she pulled those down about to her knees or ankles.
Q. Were your clothes on or off?
A. I pulled my pajama bottoms down to my knees.
Q. And then what happened?
A. And then we proceeded to have sexual intercourse.
Q. On the floor?
A. Yes, ma’am.
Q. And were you on top or bottom or—
A. I was on top.
Q. Okay. And what, if anything, was she saying to you at this time?
A. She just kept repeating “F me,” “F me” in my ear.
Q. And how long do you think that lasted?
A. Ten, [fifteen] minutes, maybe.
Q. And then at — what—did you ejaculate at that time?
A. Yes, ma’am.
Q. And you had a condom on?
A. Yes, ma’am.
Q. Okay. What did you do at that point?
A. I went to the bathroom and tried to flush it down the toilet and it didn’t go down. It came right back up and I grabbed it and put it in the trash can.
Q. All right. And then what did you do?
A. I went — I was about to go to bed. I laid [sic] down and I was just about to doze off and I see the door open and the light flicker on, and it was my mom and Tyshunna through [sic] the cover over her head and just her ham was hanging out.
Q. Okay. And after your mom came in what did you do?

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51 So. 3d 977, 2010 WL 2367288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-state-missctapp-2010.