Sharp v. State

862 So. 2d 576, 2004 WL 26751
CourtCourt of Appeals of Mississippi
DecidedJanuary 6, 2004
Docket2002-KA-00310-COA
StatusPublished
Cited by5 cases

This text of 862 So. 2d 576 (Sharp 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
Sharp v. State, 862 So. 2d 576, 2004 WL 26751 (Mich. Ct. App. 2004).

Opinion

862 So.2d 576 (2004)

Timothy R. SHARP, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-00310-COA.

Court of Appeals of Mississippi.

January 6, 2004.

*577 Kelly Lee Mims, attorney for appellant.

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

Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.

McMILLIN, C.J., for the Court.

¶ 1. Timothy Sharp was convicted on both counts of an indictment charging him with sexual crimes against his female relative, who was ten years old at the time of trial. Sharp, through counsel, has appealed that conviction and raises three issues. Additionally, Sharp has filed a supplemental pro se brief in which he makes an extended number of allegations regarding the ineffectiveness of his appointed defense counsel at trial as well as certain other complaints regarding the conduct of the trial that were not raised by his attorney. We find none of the issues properly raised before this Court in either brief to have merit and affirm Sharp's convictions.

I.

Facts

¶ 2. After receiving an anonymous tip that A.S., Sharp's ten-year-old relative, had been the victim of sexual abuse, a Department of Human Services social worker interviewed the child as part of the investigatory process. During that interview, *578 the child reported one incident where she contended Sharp had penetrated her vagina with his penis. She further reported an incident in which she had awoken to discover that Sharp was rubbing his penis against her buttocks area. The child was subsequently examined by Dr. Linda Chidester, who testified that her examination revealed a torn hymen and physical abnormalities in the child's anal region that were consistent with sexual activities inappropriate for a child of that age.

¶ 3. Sharp was indicted for one count of sexual battery and one count of fondling. At trial, the social worker was permitted to testify as to the child's extra-judicial statements made about the abuse, Dr. Chidester testified concerning her professional examination of the child, and the child testified before the jury.

¶ 4. The jury convicted Sharp on both counts and this appeal ensued. We will discuss the issues in the same order presented in Sharp's brief and supplemental brief and will expand on the facts of the case when appropriate for a full understanding of our discussion.

II.

The Quality of the State's Proof of Guilt

¶ 5. Sharp raises two distinct challenges to the evidence in a single issue. First, he contends that the evidence was insufficient as a matter of law to support a guilty verdict and that, for that reason, his conviction should be reversed and rendered. Alternatively, he argues that the guilty verdicts were so against the weight of the credible evidence that a manifest injustice will occur if the present convictions are not set aside and the case remanded to the circuit court for a new trial.

¶ 6. The basis of Sharp's contentions regarding his perception of the inadequacy of the State's proof of guilt consists entirely of suggestions that there were discrepancies between the versions of events related by the child victim to the social worker and others, and the child's in-court testimony. There can be no doubt that the child testified at trial to the occurrence of two episodes of sexual contact with Sharp: one of which contained all of the necessary elements of the crime of sexual battery and the other of which contained all the necessary elements of a charge of fondling or gratification of lust. We need not recite those separate elements here nor delve further into the child's testimony to demonstrate the point since Sharp's challenge to the State's proof does not involve such analysis. Rather, he makes the broad contention that, because the child's prior statements were inconsistent with her in-court testimony, the version of events related at trial was so lacking in probative value as to be unworthy of belief.

¶ 7. The jury sits as finders-of-fact and, under our system of criminal justice, is assigned the often difficult task of listening to the evidence and making assessments regarding the credibility of witnesses and what weight and worth any particular part of the evidence should play in determining the proper outcome of the proceeding. Hicks v. State, 812 So.2d 179(¶ 40) (Miss.2002). There are a number of ways by which the credibility of a witness may be tested before the jury. One of the long-recognized means of doing so is by presenting evidence that, at another time and place, the witness has related a different version of events. M.R.E. 613, e.g., Everett v. State, 835 So.2d 118(¶ 7) (Miss.Ct.App.2003). Impeaching the credibility of a witness in this manner does not necessarily destroy any probative value of the witness's in-court testimony, however. It is merely an appropriate factor for the jury to consider in arriving at its view of *579 the truthfulness of the evidence that witness gives at trial. In this instance, Dr. Chidester testified, based on her professional experience, that it was not uncommon for a child sexual abuse victim to give different versions of events when talking to different people because, among other considerations, a child in that situation is often inclined to conceal or even deny matters if the child is made uncomfortable or fearful of the person making inquiry. The jury, having heard of the child's prior statements, nevertheless listened to her testimony in open court and collectively came to the conclusion that the child had truthfully related the events of the two encounters with Sharp that led to the charges in the indictment. We do not think that any discrepancies in the child's prior statements were so damaging to the child's credibility as to compel the conclusion the jury abused its discretion in so finding.

¶ 8. In this appeal, our obligation is to view the entire evidence in the light most favorable to upholding the jury's verdict. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Having found that the State presented competent evidence relating to the essential elements of both crimes, we are not persuaded that the trial court erred in failing to enter a directed verdict or JNOV in favor of the defendant. Neither can we say that the evidence tending to establish Sharp's innocence—consisting principally of the previously-discussed attack on the victim's credibility and Sharp's own denial of such conduct—was so persuasive that to permit the jury verdict to stand would work a manifest miscarriage of justice. Moran v. State, 822 So.2d 1074(¶ 3) (Miss.Ct.App.2002). For these reasons, we find Sharp's first issue to be without merit.

III.

Ineffective Assistance of Counsel

¶ 9. Sharp's appeal was prosecuted by an attorney other than the one who represented him at trial. This second attorney contends that Sharp received ineffective assistance of counsel at trial. He raises the issue in this direct appeal, though not dealt with at the trial level, as is permitted in certain circumstances recognized in such cases as Swington v. State, 742 So.2d 1106 (Miss.1999), and Pittman v. State, 836 So.2d 779 (Miss.Ct.App.2002).

¶ 10.

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Bluebook (online)
862 So. 2d 576, 2004 WL 26751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-v-state-missctapp-2004.