Percy Bridgeman v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01389-COA
PERCY BRIDGEMAN
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/19/2008
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
GEORGE T. HOLMES
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
MICHAEL GUEST
CRIMINAL - FELONY
CONVICTED OF TW O COUNTS OF
STATUTORY RAPE AND SENTENCED TO
TWENTY-FIVE YEARS ON EACH COUNT,
W IT H T H E S E N T E N C E S T O R U N
CONCURRENTLY IN THE CUSTODY OF
THE M ISSISSIPPI DEPARTM ENT OF
CORRECTIONS
AFFIRMED - 11/02/2010
BEFORE MYERS, P.J., IRVING AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
A jury in the Madison County Circuit Court found Percy Bridgeman guilty on two
counts of statutory rape. On appeal, Bridgeman claims the circuit court improperly admitted
the eight-year-old victim’s out-of-court statements. He also argues the post-trial discovery
of a government witness’s prior embezzlement conviction requires a new trial.
¶2.
We find the child’s out-of-court statements fall within Mississippi Rule of Evidence
803(25) — the tender-years hearsay exception. We also conclude the newly discovered
embezzlement conviction is merely impeachment evidence and does not warrant a new trial.
We likewise reject Bridgeman’s remaining assignments of error and affirm.
FACTS
¶3.
From 2005 to 2006, L.H.1 was a student at Canton Elementary School. She lived with
her mother and her two younger half-siblings. At the time, L.H.’s mother dated Bridgeman,
who was the natural father of L.H.’s two siblings but not L.H. In April 2006, a Madison
County grand jury charged Bridgeman with the statutory rape of L.H.
I.
¶4.
L.H.’s testimony
L.H. explained that Bridgeman “touched her in the wrong place.” The first encounter
occurred when she was in her bedroom at her grandparents’ house. Bridgeman made her
take off her clothes, then took off his own. He touched her “private part” first with his finger
and then with his “private part.” L.H. testified that his “private part” went “inside” her
“private part.” She recalled that this incident occurred soon before her eighth birthday in
April 2005.
¶5.
She claimed that an almost identical incident of sexual penetration took place later in
a motel room. L.H. remembered this second encounter happened in January 2006 because
1
To protect the identity of the child victim, we have substituted initials in place of her
name.
2
it was near the time when her mother died. She claimed Bridgeman sexually assaulted her
on other occasions as well. According to L.H., no one else had improperly touched her. L.H.
was eleven years old when she testified at Bridgeman’s trial.
II.
¶6.
L.H.’s Out-of-Court Statements
Prior to trial, the circuit court held a hearing on the admissibility of L.H.’s statements
to (1) Benae Jackson, an employee of the Madison County Department of Human Services
(DHS); (2) Rhonda Poe, the Canton Elementary principal; and (3) Lieutenant Shelby
Burnside, an investigator with the Canton Police Department. After hearing testimony from
these three witnesses, the circuit court admitted their recitations of L.H.’s prior statements
under the tender-years exception to the hearsay rule. See M.R.E. 803(25).
¶7.
Jackson testified that during late January 2006, the Madison County Department of
Human Services received an anonymous phone call from a concerned parent. The parent’s
child was in L.H.’s class and had heard stories leading the parent to suspect sexual abuse.
Jackson met with L.H. and asked her “if she knew the difference between good and bad
touches.” L.H. responded that she did, and Jackson then asked “if she had experienced bad
. . . touches.” Jackson did not indicate whether L.H. responded, but she did maintain that
L.H. was “reluctant” to answer. Jackson provided L.H. with a school contact if she wished
to speak further about being “touched in a bad way.”
¶8.
Soon after, the school principal, Poe, met privately with L.H. in her office. The
meeting occurred shortly after L.H.’s teacher raised suspicions that L.H. may have been a
victim of sexual abuse. According to Poe, L.H. told her that Bridgeman had been “touching
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her inappropriately and doing things that were inappropriate.” L.H. explained that on
weekends her family often stayed in motel rooms, where Bridgeman touched her. L.H. did
not specifically describe the touching, and Poe did not attempt to elicit additional details.
After meeting with L.H., Poe contacted DHS.
¶9.
Jackson returned to the school for a second interview with L.H., who repeated her
account of inappropriate touchings but provided no further details. Jackson later interviewed
L.H. while Lieutenant Burnside observed from a separate room. This time L.H. identified
two occasions when she had been sexually assaulted. The first incident occurred in her
bedroom at her grandparents’ house. The most recent encounter happened in a motel room,
when she and Bridgeman were alone. L.H. explained that Bridgeman had gotten on top of
her and that penetration had occurred. She claimed similar sexual assaults had taken place
in motel rooms on other occasions between these two incidents.
¶10.
Like Jackson, Lieutenant Burnside recounted L.H.’s description of being penetrated
in her “private part.” He also testified that L.H. identified specific locations and time
periods. The first sexual assault occurred at her grandparents’ house. L.H. claimed the same
thing happened more than five other times, with the most recent assault occurring in a motel
room when L.H.’s mother had taken the other two children to a doctor’s appointment.
¶11.
Dr. Janice Bacon examined L.H. after a referral from DHS. She also spoke directly
with L.H. about her encounters with Bridgeman. Dr. Bacon testified that L.H. indicated
Bridgeman “did bad touches” and that Bridgeman “stuck his finger in her vaginal area[.]”
L.H. explained these events took place at her grandparents’ house and in motel rooms.
4
III.
¶12.
Medical Evidence
Dr. Bacon testified as an expert in pediatrics. Based on results of vaginal and rectal
examinations and her conversations with L.H., Dr. Bacon concluded L.H. had been sexually
abused. She reached this opinion though it appeared to her that L.H.’s hymen was still intact.
¶13.
Test results revealed L.H. had contracted chlamydia, which Dr. Bacon described as
“primarily” a sexually transmitted disease. She explained a newborn child could possibly
contract the disease from passing through an infected mother’s birth canal. But Dr. Bacon,
who had been L.H.’s pediatrician since birth, believed that if L.H. had contracted the disease
at birth, she would have manifested noticeable symptoms at a younger age. In Dr. Bacon’s
opinion, L.H. received the disease through “sexual transmission.”
¶14.
Dr. Robert Foose, who had treated Bridgeman, testified that in December 2005,
Bridgeman complained of testicular swelling and pain and a urethral discharge. Dr. Foose
believed the most likely diagnosis was chlamydia.
Dr. Foose also observed from
Bridgeman’s medical records that Bridgeman had admitted having a sexually transmitted
disease in the past. Dr. Foose did not identify the particular disease.
IV.
¶15.
Bridgeman’s Testimony
Bridgeman testified in his own defense. He denied raping or inappropriately touching
L.H. and denied he had ever been diagnosed with chlamydia.
PROCEDURAL HISTORY
¶16.
The jury found Bridgeman guilty on both counts of statutory rape. The court
sentenced him to twenty-five years on each count, with the sentences to run concurrently.
5
Bridgeman filed a motion for judgment notwithstanding the verdict or, in the alternative, a
new trial. The circuit court denied the motion. On appeal Bridegman claims: (1) the circuit
court erred in admitting hearsay evidence under the tender-years exception; (2) the court
erred by not granting a new trial due to newly discovered evidence; and (3) the verdict is not
supported by sufficient evidence or is against the overwhelming weight of the evidence.
DISCUSSION
I.
¶17.
L.H.’s Statements
Bridgeman argues the circuit court erred in admitting L.H.’s statements to Poe,
Jackson, Lieutenant Burnside, and Dr. Bacon. In reviewing his claim, we note that because
L.H. testified at trial and was subject to full cross-examination, the Confrontation Clause is
not implicated. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); see also United
States v. Owens, 484 U.S. 554, 560 (1988) (introduction of out-of-court statements, even if
unreliable, does not violate the Confrontation Clause where declarant testifies at trial subject
to full and effective cross-examination); Story v. Collins, 920 F.2d 1247, 1255 (5th Cir. 1991)
(where victim in child-sexual-abuse case testified at trial subject to full cross-examination,
Confrontation Clause not violated by testimony of another witness concerning victim’s
extrajudicial statements); Eakes v. State, 665 So. 2d 852, 866 (Miss. 1995).
¶18.
While the Confrontation Clause was not violated, we still must determine whether the
questioned testimony offends state hearsay rules. Crawford, 541 U.S. at 51. Mississippi
Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
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matter asserted.” The hearsay rule excludes evidence meeting this definition unless it falls
within an exception provided by law. M.R.E. 802.
A.
¶19.
The Tender-Years Exception
After hearing from Poe, Jackson and Lieutenant Burnside, the circuit judge concluded
their testimony about L.H.’s statements was admissible under Rule 803(25) — the
tender-years hearsay exception. Under Mississippi Rule of Evidence 803(25):
A statement made by a child of tender years describing any act of sexual
contact performed with or on the child by another is admissible in evidence if:
(a) the court finds, in a hearing conducted outside the presence of the jury, that
the time, content, and circumstances of the statement provide substantial
indicia of reliability; and (b) the child either (1) testifies at the proceedings; or
(2) is unavailable as a witness: provided, that when the child is unavailable as
a witness, such statement may be admitted only if there is corroborative
evidence of the act.
¶20.
For purposes of Rule 803(25), we look to “the age of the child at the time the relevant
statement was made rather than the age of the child at the time that testimony is given at
trial.” Withers v. State, 907 So. 2d 342, 348 (¶14) (Miss. 2005). “[T]here is a rebuttable
presumption that a child under the age of twelve is of tender years.” Id.
¶21.
Since L.H. was eight years old when she made the statements, she qualifies as a child
of tender years. As to other considerations under Rule 803(25), L.H.’s statements obviously
described sexual contact performed on her by Bridgeman. And because L.H. testified at trial,
no inquiry into her availability is necessary. So the remaining question under Rule 803(25)
turns on the reliability of L.H.’s statements.
B.
Reliability
7
¶22.
The comment to Rule 803(25) cites twelve factors from the United States Supreme
Court’s decision in Idaho v. Wright, 497 U.S. 805, 822 (1990), courts should consider in
assessing reliability.2 These factors are not exhaustive, and “no mechanical test is available.”
Grimes v. State, 1 So. 3d 951, 955 (¶10) (Miss. Ct. App. 2009) (quoting Withers, 907 So. 2d
at 350 (¶23)). In Wright, the Supreme Court observed “the unifying principle is that these
factors relate to whether the child declarant was particularly likely to be telling the truth
when the statement was made.” Wright, 497 U.S. at 822. “Corroborating evidence may not
be used as an indicia of reliability.” M.R.E. 803(25) cmt.
¶23.
Following a Rule 803(25) hearing, conducted at the State’s request, the circuit court
found sufficient indicia of reliability and admitted L.H.’s statements made to these three
witnesses. The circuit judge did not make specific findings on each factor, but he considered
all twelve and found “enough [evidence] there that it’s reliable, it’s consistent, spontaneous,
the credibility of the witnesses and it’s the opinion of the Court, very high [sic].”
¶24.
Bridgeman attacks the reliability of L.H.’s out-of-court statements by pointing to
testimony from Maria Thames, a therapist at the Child Advocacy Center. Bridgeman called
2
The Wright factors include: “(1) whether there is an apparent motive on declarant’s
part to lie; (2) the general character of the declarant; (3) whether more than one person heard
the statements; (4) whether the statements were made spontaneously; (5) the timing of the
declarations; (6) the relationship between the declarant and the witness; (7) the possibility
of the declarant’s faulty recollection is remote; (8) certainty that the statements were made;
(9) the credibility of the person testifying about the statements; (10) the age or maturity of
the declarant; (11) whether suggestive techniques were used in eliciting the statement; and
(12) whether the declarant’s age, knowledge, and experience make it unlikely that the
declarant fabricated.” M.R.E. 803(25) cmt.
8
Thames in his case-in-chief, and her trial testimony was based largely on her recollections
gleaned from her report of her forensic interview of L.H. Bridgeman focuses on Thames’s
testimony that L.H. denied being touched inappropriately. Bridgeman argues that because
this denial conflicts with L.H.’s alleged statements to Poe, Jackson, and Lieutenant Burnside,
L.H.’s disclosures to these three witnesses should have been excluded.
¶25.
But Thames’s testimony was not before the circuit court when it considered the
admissibility of L.H.’s prior statements. The record shows the circuit judge asked defense
counsel twice if he desired to call witnesses or put on evidence at the Rule 803(25) hearing.
However, Bridgeman neither countered with Thames, nor made a proffer of her proposed
conflicting testimony when responding to the State’s request for a pre-trial ruling on the
admissibility of L.H.’s statements. Because Thames’s testimony was not before the court
when it admitted L.H.’s prior statements, we assess the reliability aspect of the tender-years
exception for abuse of discretion by examining Poe’s, Jackson’s and Lieutenant Burnside’s
recitations of L.H.’s statements.
¶26.
According to Lieutenant Burnside, L.H. had no difficulty remembering details of the
sexual abuse. L.H. was calm through most of the interview but toward the end “broke down
and started crying.” At that point, the interview was terminated. Lieutenant Burnside further
testified that no “specific techniques” were used to gather the statement from L.H., and he
had no reason to believe L.H. falsely accused Bridgeman.
¶27.
Jackson emphasized that she followed protocol in conducting her interview, and L.H.
had no difficulty remembering the details of what occurred. Jackson explained that L.H.’s
9
statements were “spontaneous” and that L.H. was very fearful, withdrawn, and at times
“crying uncontrollably” when she made the disclosures. She was aware of no motive for
L.H. to lie.
¶28.
According to Poe, L.H. was “hanging her head” and “really shy-like” when she
disclosed the abuse. She maintained that no suggestive techniques were used in speaking
with L.H. As Poe put it, “I just let her tell me.”
¶29.
Poe’s, Jackson’s and Lieutenant Burnside’s versions of L.H.’s descriptions of the
incidents of abuse identify specific acts Bridgeman performed on L.H. They also point out
her grandparents’ house and motel rooms where the assaults occurred. The circuit judge’s
finding of reliability is further strengthened by the fact that L.H.’s statements to multiple
witnesses remained mostly consistent. There are no indications of suggestive interview
techniques, and Jackson’s testimony about L.H.’s disclosures of sexual penetration is
corroborated by Lieutenant Burnside, who accompanied Jackson during one of the
interviews. And there is no apparent motive for L.H. to fabricate the assaults.
¶30.
Bridgeman suggests Thames’s testimony about her interview with L.H. renders
unreliable these other recitations of L.H.’s prior statements. But Thames described her
interview with L.H. as “inconclusive and incomplete” due to the fact that Thames terminated
the interview when L.H. fell asleep. Thames was not even sure whether she had asked L.H.
specifically about Bridgeman. And since reliability of L.H.’s prior statements is the crux of
our inquiry, we simply cannot disregard that Thames indicated in her report that “strong
consideration should be given to [L.H.’s] previous disclosures.”
10
¶31.
Because of the lack of evidence disputing that L.H. was particularly likely to be telling
the truth when the contested statements were made, we find no abuse of discretion in the
circuit court’s admission of L.H.’s statements to these witnesses.
C.
¶32.
Dr. Bacon’s Testimony
Bridgeman did not object to Dr. Bacon’s recital of L.H.’s allegations of Bridgeman’s
sexual abuse. Though the issue is waived, we note the hearsay exception found in Rule
803(4) applies to statements made in furtherance of medical diagnosis and treatment. The
scope of Rule 803(4) encompasses a child’s identification of a molester under the theory that
part of the treatment of an abused child includes reasonable efforts to isolate the child from
the abuser. Rowlett v. State, 791 So. 2d 319, 321 (¶4) (Miss. Ct. App. 2001) (citing
Hennington v. State, 702 So. 2d 403, 415 (¶49) (Miss. 1997)). Waiver aside, we find Dr.
Bacon’s testimony about L.H.’s disclosure of Bridgeman’s abuse was admissible.
II.
¶33.
Jackson’s Prior Conviction
Bridgeman next contends he is entitled to a new trial because of “newly discovered
evidence” that a witness for the State had an undisclosed 2001 felony embezzlement
conviction. Following trial, Bridgeman’s attorney learned of this impeaching information
“by chance” and raised the issue of Jackson’s felony conviction in his post-trial motion.
¶34.
Jackson had testified at trial about interviews she conducted with L.H., and the court
permitted Jackson to recount L.H.’s statements to her. Bridgeman contends a diligent search
would not have revealed Jackson’s embezzlement conviction because the amended judgment
of conviction and the court’s sentencing order erroneously listed her last name as “Johnson.”
11
At a post-trial motion hearing, Jackson testified that her last name had never been Johnson,
and the mistake must have been a typographical error. The circuit court rejected the newly
discovered impeachment evidence as a basis for granting a new trial.
A.
¶35.
Brady and Its Progeny
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held
that due process requires the government to disclose favorable, material evidence not
otherwise discoverable through due diligence. We note Bridgeman neither suggests the State
or its investigators had prior knowledge of Jackson’s conviction, nor does he claim the
prosecution in any way violated its affirmative duty to provide impeachment evidence under
Brady and its progeny. Still we find it prudent to point out he has no cognizable claim under
this line of cases.
¶36.
The government’s duty under Brady extends to evidence impeaching the credibility
of government witnesses. Giglio v. United States, 405 U.S. 150, 154-55 (1972). A Brady
violation can occur even if evidence is withheld in good faith. Brady, 373 U.S. at 87. But
a Brady suppression only occurs when prosecutors fail to turn over evidence known to the
government or police investigators. Youngblood v. West Virginia, 547 U.S. 867, 869-70
(2006) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[T]he individual prosecutor has
a duty to learn of any favorable evidence known to the others acting on the government’s
behalf in the case, including the police.”)).
¶37.
Because the judgment and sentencing order erroneously listed Jackson’s name as
“Johnson,”and absent the slightest allegation of government misconduct, we find no Brady
12
suppression occurred.
¶38.
But even assuming an impermissible suppression, Bridgeman must convince us there
is a “reasonable probability” the result of his trial would have been different had the
conviction been disclosed to the defense. Kyles, 514 U.S. at 434. Under this hypothetical
circumstance, “[t]he question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Id. Based on the
evidence before us, including the victim’s testimony, the corroborative testimony of
Lieutenant Burnside, who accompanied Jackson during one of the interviews, and the
favorable inferences drawn from Dr. Bacon’s and Dr. Foose’s medical testimony, we find
the merely impeaching evidence does not undermine confidence in the jury’s guilty verdict.
Therefore, even assuming impermissible suppression, the touchstone of materiality is not
met, and no Brady violation exists.
¶39.
Because there is no cognizable Brady claim, we review Bridgeman’s post-trial
discovery of Jackson’s embezzlement conviction under Mississippi’s standard for newly
discovered evidence.
B.
¶40.
Newly Discovered Evidence
A defendant is entitled to a new trial based on newly discovered evidence where: (1)
the evidence will probably produce a different result or verdict; (2) the evidence has been
discovered since trial and could not have been discovered before trial by the exercise of due
diligence; (3) it is material to the issue; and (4) it is not merely cumulative or impeaching.
13
Ormond v. State, 599 So. 2d 951, 962 (Miss. 1992). We review a trial court’s grant or denial
of a motion for a new trial for abuse of discretion. Id.
¶41.
The circuit judge cited this four-pronged test and found “the newly discovered
evidence would not change the result, could have been discovered before trial by exercising
due diligence, is not material to the issue, and is merely impeaching.” He also noted other
testimony and evidence corroborated Jackson’s testimony regarding L.H.’s disclosure of
sexual abuse.
¶42.
Our supreme court addressed the issue of post-trial discovery of impeachment
evidence in Ormond. In Ormond, the defendant was charged with raping his girlfriend’s
child. The assault allegedly occurred in February 1988. Around one month later, a doctor
diagnosed the young girl with gonorrhea. Ormond, 599 So. 2d at 954. At trial, the State
offered medical evidence that the defendant had been diagnosed with the same sexually
transmitted disease. Id. at 957-58. The mother testified she too was tested for gonorrhea in
1988, but she claimed results showed she did not have the disease. Id. at 954. Following
trial, defense counsel alleged the mother had been dishonest about having the disease around
the time of the assault. Id. at 961-62. The trial court held a hearing on the post-trial motion
where the mother’s medical records were offered, which showed she had been diagnosed and
provided notice in 1988 that she had gonorrhea. Id. The supreme court found this newly
discovered evidence did not warrant reversal because it only served to impeach the mother’s
testimony. Id.
¶43.
The holding in Ormond comports with the widely accepted principle that the post-trial
14
discovery of impeachment evidence is not normally a basis for granting a motion for a new
trial. See, e.g., Mesarosh v. United States, 352 U.S. 1, 9 (1956); United States v. Reedy, 304
F.3d 358, 372 (5th Cir. 2002) (upholding district court’s denial of motion for new trial based
on newly discovered impeachment evidence); United States v. Pena, 949 F.2d 751, 758 (5th
Cir. 1991) (“Evidence which merely discredits or impeaches a witness’[s] testimony does not
justify a new trial.”); United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987)
(“Newly discovered impeaching evidence is insufficient to warrant a new trial.”); United
States v. Johnson, 596 F.2d 147, 148-49 (5th Cir. 1979).
¶44.
Given L.H.’s testimony, the medical evidence, and the abundance of additional
corroborating testimony convincingly showing Bridgeman’s guilt, we are unable to find that
having knowledge of Jackson’s conviction, the jury would have probably found Bridgeman
not guilty. Because we conclude the newly discovered evidence is merely impeaching, we
find no abuse of discretion by the circuit court’s denial of Bridgeman’s motion for a new
trial.
III.
¶45.
Sufficiency and Weight of the Evidence
Bridgeman argues his conviction is not supported by sufficient evidence or the weight
of the evidence. When addressing the legal sufficiency of evidence, we consider all evidence
in a light most favorable to the State. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005).
Credible evidence consistent with guilt must be accepted as true. The State receives the
benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20
So. 3d 57, 64 (¶16) (Miss. Ct. App. 2009) (citing Hughes v. State, 983 So. 2d 270, 275-76
15
(¶¶10-11) (Miss. 2008)). The jury resolves matters of weight and credibility. Reversal is
proper when reasonable and fair-minded jurors could only find the accused not guilty. Id.
Our primary duty in considering the sufficiency of the evidence is to determine whether from
the evidence presented, it would be impossible for a reasonable juror to find the defendant
guilty. Ducksworth v. State, 767 So. 2d 296, 301 (¶10) (Miss. Ct. App. 2000).
¶46.
The standard differs slightly when reviewing a claim based on the weight of the
evidence challenging a trial court’s denial of a motion for a new trial. Under this standard,
“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.” Bush, 895 So.
2d at 844 (¶18). This court evaluates the evidence in the light most favorable to the verdict.
Id. And we are required to accept all evidence consistent with the defendant’s guilt as true,
along with any reasonable inferences that might be drawn from the evidence. Young v. State,
891 So. 2d 813, 821 (¶21) (Miss. 2005). “[T]he power to grant a new trial should be invoked
only in exceptional cases in which the evidence preponderates heavily against the verdict.”
Bush, 895 So. 2d at 844 (¶18).
¶47.
To sustain a conviction under Mississippi Code Annotated section 97-3-65(1)(b)
(Supp. 2009), the State must prove beyond a reasonable doubt that Bridgeman had “sexual
intercourse with a child . . . under the age of fourteen (14) years[.]” The statute also requires
proof that the child is twenty-four or more months younger than the defendant and is not his
spouse. Id. “Neither the victim’s consent nor the victim’s lack of chastity is a defense to a
charge of statutory rape.” Miss. Code Ann. § 97-3-65(2) (Supp. 2009). The element of
16
“sexual intercourse” is met where there is “a joining of the sexual organs of a male and
female human being in which the penis of the male is inserted into the vagina of the
female[.]” Miss. Code Ann. § 97-3-65(6) (Supp. 2009).
¶48.
Bridgeman was more than thirty years older than L.H. and not her spouse. And
although she used a more age-appropriate term, “private part,” L.H. testified at trial that
Bridgeman committed various sexual acts involving penetration of both his finger and penis
into her vagina on or near the charged dates. Several witnesses who spoke with L.H. after
the alleged sexual-abuse incidents also testified L.H. disclosed that Bridgeman had sexually
assaulted her and that penetration occurred. Medical evidence likewise created a strong
inference that Bridgeman had given L.H. a sexually transmitted disease. Thus, sufficient
evidence exists to meet section 97-3-65(6)’s definition of “sexual intercourse.”
¶49.
Viewing the evidence in the light most favorable to the guilty verdict, we find the
testimony and medical evidence strongly support the two statutory rape convictions.
Allowing the verdict to stand would not sanction an unconscionable injustice. Accordingly,
we find the verdict is not against the overwhelming weight of the evidence.
¶50.
For these reasons, we affirm.
¶51. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF TWO COUNTS OF STATUTORY RAPE AND SENTENCE OF
TWENTY-FIVE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO MADISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE
AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.
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