Simmons v. State

722 So. 2d 666, 1998 WL 753526
CourtMississippi Supreme Court
DecidedOctober 29, 1998
Docket96-KA-01405-SCT
StatusPublished
Cited by16 cases

This text of 722 So. 2d 666 (Simmons v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. State, 722 So. 2d 666, 1998 WL 753526 (Mich. 1998).

Opinion

722 So.2d 666 (1998)

Antonio SIMMONS, Joseph Wells, Jr., a/k/a Joseph Bradley Wells and Bobby Varnado, a/k/a Bobby Varnado, Jr.
v.
STATE of Mississippi.

No. 96-KA-01405-SCT.

Supreme Court of Mississippi.

October 29, 1998.

*667 Joseph A. Fernald, Jr., Brookhaven, Jack G. Price B. Calvin Cosnahan, McComb, Attorneys for Appellants.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

¶ 1. This out-of-time criminal appeal comes before the Court challenging a jury verdict of guilty issued against the Appellants from the Circuit Court of Lincoln County, Mississippi, Keith Starrett, Circuit Judge, presiding.

¶ 2. According to the testimony of two young girls, Girl A and Girl B[1], aged 11 and 13 respectively at the time of the incident, the three Appellants forced the girls to perform oral sex and then vaginally raped them on January 21, 1996.

¶ 3. Following a three (3) day trial by jury on August 12-14, 1996, the three (3) Defendants/Appellants, Antonio Simmons ("Simmons"), Joseph Wells ("Wells") and Bobby Varnado ("Varnado"), were convicted of the following: conspiracy (to commit kidnaping, rape and sexual battery) charged in count one (1); sexual battery charged in counts four (4) and five (5) and rape charged in counts six (6) and seven (7). The convictions followed a seven (7) count indictment charging the defendants with multiple sexual offenses committed on January 21, 1996.

¶ 4. Count one (1) of the indictment charged the Appellants with conspiracy to commit the crimes of kidnaping, rape and sexual battery. Count two (2) charged the Appellants with kidnaping Girl B and count three (3) charged the Appellants with kidnaping Girl A. Count four (4) charged the Appellants with sexual battery (oral sex) against Girl B, while count five (5) charged them with sexual battery (oral sex) against Girl A. Count six (6) charged the Appellants with forcible rape of Girl B, a female child *668 under fourteen years of age, and count seven (7) charged them with the forcible rape of Girl A, also a female child under fourteen years of age.

¶ 5. The jury convicted the Defendants/Appellants of all charges except counts two (2) and three (3) of kidnaping, of which all three were acquitted.

¶ 6. The jury was not able to fix a penalty for the charges of rape. Following the presentence reports, Judge Starrett imposed the following sentences.

¶ 7. Each of the Defendants/Appellants received concurrently running sentences and a period of post-release supervision. In sum, Simmons received twenty-three (23) years to serve with eleven (11) years suspended. Wells was sentenced to serve sixteen (16) years with eight (8) years suspended. Varnado basically received a sixteen (16) year sentence with eight (8) years suspended.

¶ 8. On appeal, the Appellants are represented individually by different counsel, and have filed separate briefs. Aggrieved by the decision reached in the court below, the Appellants individually raise the following assignments of error:

SIMMONS' ASSIGNMENTS OF ERROR

I. THE COURT ERRED IN ALLOWING THE MOTHER OF GIRL B TO TESTIFY AS TO HEARSAY RELATED TO HER BY GIRL B.
II. THE COURT ERRED IN ALLOWING DR. LEROY BYRD TO TESTIFY CONCERNING FACTS INVOLVED WITH THE RAPE, AS RELATED TO HIM BY THE VICTIMS, AT THE TIME OF HIS MEDICAL EXAMINATION OF THE VICTIMS.
III. THE COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE TESTIMONY CONCERNING OUT-OF-COURT LINEUP IDENTIFICATION OF VARNADO BECAUSE EVIDENCE OF THE LINEUP HAD BEEN PREVIOUSLY SUPPRESSED AS IT WAS IMPERMISSIBLY SUGGESTIVE.
IV. THE COURT ERRED IN OVERRULING DEFENSE COUNSEL'S MOTION FOR A DIRECTED VERDICT.

WELLS' ASSIGNMENTS OF ERROR

I. THE COURT IMPROPERLY ALLOWED DR. LEROY BYRD TO TESTIFY AS AN EXPERT ON RAPE.
II. THE VERDICT OF THE COURT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AS PRESENTED AT TRIAL.

VARNADO'S ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN ALLOWING DR. LEROY BYRD TO TESTIFY AS AN EXPERT IN REGARDS TO THE INJURIES OF GIRL A AND GIRL B.
II. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND IS NOT SUFFICIENT TO SUSTAIN THE CONVICTION.

¶ 9. This Court holds that the Appellants' points of error are without merit. The trial court and jury, after hearing all of the evidence, chose to convict the Appellants of the charges related to the rape of Girl A and Girl B. This Court can find no error which would require us to disturb the jury's guilty verdict. As a result, the convictions of Antonio Simmons, Bobby Varnado and Joseph Wells are affirmed.

STATEMENT OF FACTS

¶ 10. On the afternoon of Sunday, January 21, 1996, Girl A and Girl B, ages 11 and 13 respectively, who were residents of the Brookhaven area, willingly entered an automobile driven by nineteen (19) year old Antonio Simmons, and occupied by nineteen (19) year old Bobby Varnado and eighteen (18) year old Joseph Wells. The Appellants drove to the Spanish Inn and attempted to rent a room, but decided not to stay at the motel. Girl A and Girl B testified that during the next three (3) or so hours, from 5:00 p.m. until 8:30 p.m., they were forced to *669 perform oral and vaginal sex with Simmons, Varnado and Wells.

¶ 11. Girl A testified that the driver of the car, Simmons, told the girls that they could either perform oral sex or die. Girl A also testified that Wells and Varnado forced her to give them oral sex in the car soon thereafter. Girl A said that Varnado required her to have vaginal sex in an abandoned apartment house in Magnolia, Mississippi, a short time later.

¶ 12. Girl B testified that Simmons was the one who first suggested that the girls perform oral sex. Girl B said that Simmons forced her to perform oral sex on him in a McDonald's parking lot and threatened to kill her if she refused him. Girl B stated that she was forced to have vaginal sex with Simmons and Wells a short time later at the abandoned apartment house.

¶ 13. Varnado, the only Appellant who testified, denied that any sexual acts took place and claimed that the girls merely went joyriding with the three Appellants.

¶ 14. Subsequently, the Appellants dropped Wells off at his house and eventually returned the girls to Brookhaven, Mississippi. After the girls arrived at home, they were taken to a local hospital and examined by Dr. Leroy Byrd, III.

¶ 15. At trial the doctor was asked to identify the physical condition of the minor children. Dr. Byrd testified that upon examining the girls, he detected vaginal injuries due to excessive stretching in a concentric fashion. Dr. Byrd opined that the injuries he observed were consistent with those associated with forceful penetration by a cylindrical object. Dr. Byrd also put together a standard rape kit containing samples of bodily fluids, the clothing of the victims and other items of evidence. The Defendants/Appellants objected to Dr. Byrd's testimony claiming that the doctor's area of practice, emergency medicine, did not qualify him as an expert in the area of gynecology.

¶ 16. At the close of the State's case-inchief, all three of the Defendants/Appellants moved for a directed verdict of acquittal. The trial judge overruled the motion, finding that the State had made a prima facie showing as to each count.

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Cite This Page — Counsel Stack

Bluebook (online)
722 So. 2d 666, 1998 WL 753526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-miss-1998.