King Edward May v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00871-COA
KING EDWARD MAY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
01/27/2000
HON. ROBERT H. WALKER
HARRISON COUNTY CIRCUIT COURT
MICHAEL W. CROSBY
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY:
CONO A. CARANNA II
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
01/27/2000: SEXUAL BATTERY: SENTENCED TO SERVE
20 YEARS IN THE CUSTODY OF THE MDOC, SAID
SENTENCE SHALL BE SERVED DAY FOR DAY
WITHOUT THE HOPE OF PAROLE OR PROBATION.
DISPOSITION:
AFFIRMED - 10/16/2001
MOTION FOR REHEARING FILED: 11/30/2001; denied 1/29/2002
CERTIORARI FILED:
MANDATE ISSUED:
2/19/2002
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Appellant King Edward May was indicted by a Harrison County grand jury for the sexual battery,
capital rape, and statutory rape of his minor daughter. Following a trial, the jury found May guilty of sexual
battery, but acquitted him on the charges of capital rape and statutory rape. The circuit court sentenced
May to twenty years imprisonment in the custody and control of the Mississippi Department of Corrections
without hope of parole or probation. Aggrieved, May cites the following issues on appeal:
I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF
THE EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN DENYING MAY'S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT.
III. WHETHER THE TRIAL COURT ERRED BY REFUSING TO LET THE VICTIM'S
MOTHER TESTIFY IN THE FORM OF OPINION ABOUT THE VICTIM'S VERACITY.
STATEMENT OF THE FACTS
¶2. King Edward May, a Captain Reserve Officer with the Gulfport Police Force, was accused by his
adopted daughter of sexual molestation.
¶3. The victim, eleven years old at the time of the trial, testified that May frequently forced her to have both
oral and vaginal intercourse. She stated that May's sexual demands were continuous, occurring for more
than two and one-half years; however, she could not recall exactly how many times. The victim also
provided a detailed, graphic description of May's anatomy.
¶4. Eventually the victim came forward, although her reasons for doing so are unclear. At one point the
victim testified that she came forward after Jane Doe(1), the daughter of the victim's godmother, told her the
story of another girl who had been molested. However, the victim later testified that she told Jane Doe
about May's sexual demands prior to Jane Doe telling the story of the other girl who had been molested.
Likewise, Jane Doe testified that she did not tell the story until after the victim revealed May's activities.
Regardless, it is clear that shortly after their conversation, the victim and Jane Doe called the Department of
Human Services (DHS) and spoke with a social worker.
¶5. On June 2, 1999, police took custody of the victim and her brother and placed them in a shelter. While
in the shelter, Adriane Jackson, a social worker with DHS, interviewed the victim. The victim told Jackson
that May molested her. Jackson then scheduled a psychological evaluation for the child.
¶6. Doctor Donald Matherne conducted the psychological evaluation. He testified that the victim specifically
described how May had placed "his penis in my vagina and made me suck his private or suck his nipple."
Furthermore, Dr. Matherne testified that the victim knew the size and structure of May's penis and that she
accurately described the color and temperature of his semen. Dr. Matherne concluded that the victim
showed no signs of being coached and that her detailed descriptions of her father's sexual organ and the
sexual process lead to one conclusion: she had been sexually abused.
¶7. Doctor Matherne's testimony was corroborated with physical evidence that the victim had actually been
sexually abused. Doctor Ronald Bruni, the victim's pediatrician, noticed that in May of 1997, the victim's
"hymenal opening seemed a bit wider open than it normally should be for this age child." At that time the
victim denied that May had sexually abused her. However, she later testified that she remained silent
because May warned her that "if you tell anyone, something [will] happen."
¶8. Likewise, Doctor Curtis Broussard, a general physician, examined the victim on June 4, 1999, and
concluded that the victim's hymenal ring was no longer intact. However, she was later examined by Doctor
Carl Townsend, an OB/GYN specialist, who testified that the victim showed no physical signs of sexual
molestation. Nonetheless, Dr. Townsend cautioned that "just because I do a negative find . . . does not
mean it [molestation] did not occur, particularly in younger individuals where healing can take place . . . in
such a short period of time . . . ."
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE?
¶9. May claims that the guilty verdict is contrary to the overwhelming weight of the evidence. May first
raised this argument in a motion for a new trial. It is well established that new trial decisions rest within the
discretion of the trial court. McClain v. State, 625 So.2d 774, 781 (Miss. 1993). Likewise, this Court is
obligated to accept all evidence supporting the verdict as true and will reverse only where it is clear that the
trial court has abused its discretion by refusing a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.
1997). Ultimately, a motion for a new trial should only be granted when the verdict is so contrary to the
overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable
justice. Wetz v. State, 503 So.2d 803, 812 (Miss. 1987).
¶10. May contends that the jury verdict cannot stand because of several inconsistencies between testimony
given by the victim and that given by Jane Doe. However, "[o]ur case law is axiomatic on the proposition
that the jury is [the] arbiter of the credibility of testimony." Collier v. State, 711 So.2d 458, 462 (¶18)
(Miss. 1998). Additionally, all inconsistencies or contradictions fall under the issue of witness credibility
and, therefore, should only be considered by the trier of fact. Blade v. State, 240 Miss. 183, 188, 126
So.2d 278, 280 (1961). Therefore, any inconsistency between the testimony of the victim and that of Jane
Doe was to be addressed and resolved by the jury, not this Court.
II. DID THE TRIAL COURT ERR IN DENYING MAY'S MOTION FOR A JUDGMENT
NOTWITHSTANDING THE VERDICT?
¶11. May argues that the evidence was insufficient to support the adverse verdict and, as such, the trial
court should have granted a JNOV. When reviewing a trial court's denial of a motion JNOV, this Court
considers "the sufficiency of the evidence as a matter of law . . . in a light most favorable to the State."
McClain, 625 So.2d at 778. Likewise, this Court will accept any credible evidence that supports guilt as
true, granting the prosecution "the benefit of all favorable inferences that may reasonably be drawn from the
evidence." Wetz, 503 So.2d at 808. This Court will only reverse where "no reasonable, hypothetical juror
could find beyond a reasonable doubt that the defendant was guilty." May v. State, 460 So.2d 778, 781
(Miss. 1984).
¶12. In the instant case, May argues that the victim not only gave inconsistent testimony, but that her
testimony was uncorroborated. In support of this argument, May cites to a recent Mississippi Supreme
Court decision for the proposition that "the totally uncorroborated testimony of a . . . victim is sufficient to
support a guilty verdict where the testimony is not discredited or contradicted by other evidence." Vaughan
v. State, 759 So.2d 1092, 1098 (¶18) (Miss. 1999).
¶13. According to May, the inconsistencies in the victim's testimony along with the testimony of Dr.
Townsend discredit and contradict the uncorroborated testimony of the victim. However, it would defy
reason for this Court to conclude that the victim's testimony went uncorroborated. For instance, after
examining the victim for psychological disorders, Dr. Matherne concluded that the victim's mental state and
detailed knowledge of her father's anatomy were consistent with that of one who has been sexually
molested. Furthermore, both Dr. Bruni and Dr. Broussard conducted physical examinations of the victim,
noting that her hymen was no longer intact, a condition indicating sexual activity. Finally, Dr. Townsend
emphasized that his failure to find any physical evidence of sexual abuse did not lead to the conclusion that
the victim had not been sexually abused. Based on this medical evidence alone, it would be reasonable for a
juror to find May guilty beyond a reasonable doubt. Therefore, May's claim that the evidence was legally
insufficient has no merit.
III. DID THE TRIAL COURT ERR BY REFUSING TO LET THE VICTIM'S MOTHER
TESTIFY IN THE FORM OF OPINION ABOUT THE VICTIM'S VERACITY?
¶14. May argues for the first time on appeal that the trial court should have permitted Glenda May to state
her opinion of the victim's propensity for telling lies, rather than limit her testimony to the victim's reputation
in the community.
¶15. The Mississippi Supreme Court has said that the admissibility and relevancy of evidence are within the
trial court's discretion and, absent an abuse of that discretion, the trial court's decision will not be reversed.
Reynolds v. State, 784 So.2d 929, 932 (¶7)(Miss. 2001). Deference will be given to the trial judge as long
as he or she remains within the confines of the Mississippi Rules of Evidence. Johnston v. State, 567
So.2d 237, 238 (Miss. 1990). Moreover, "the admission or exclusion of evidence must result in prejudice
and harm, if a cause is to be reversed on that account." Jackson v. State, 594 So.2d 20, 25 (Miss. 1992).
¶16. In the case at hand, the defense counsel stated that he intended to call Glenda May to testify about the
victim's character. Specifically, the defense counsel asserted that he "would like to get into some details with
the mother of [the victim] as far as raising her . . . and [the victim's] tendency to lie and blame it on her
brother." The trial court correctly denied the defense counsel's request, noting that such testimony entailed
specific instances of conduct as prohibited under M.R.E. 405. The trial court then ordered all character
testimony to be in the form of reputation. However, the court never prevented Glenda May from giving an
opinion of her daughter's tendency to lie. The Mississippi Supreme Court has noted that "a trial court is not
put in error unless it has the opportunity to pass on the question." Swington v. State, 742 So.2d 1106,
1110 (¶9) (Miss. 1999). Therefore, whereas May never raised the issue of opinion testimony at the trial
level, he is procedurally barred from asserting this objection for the first time on appeal.
CONCLUSION
¶17. May was not entitled to a new trial based on a few inconsistent statements made by the the victim and
Jane Doe. This Court has made it clear that the duty of determining credibility is exclusively delegated to the
jury. Furthermore, the victim's testimony that she was molested, along with the medical evidence offered to
corroborate her claims, was legally sufficient to constitute sexual battery; thus, the trial court correctly
denied May's motion for a JNOV. Finally, the trial court never ruled on the admissibility character evidence
in the form of Glenda May's opinion of the victim's dishonest character; therefore, May was procedurally
barred from asserting the issue for the first time on appeal.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF COUNT I SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS
WITHOUT PAROLE OR PROBATION IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
1. Jane Doe, the alias listed in this case, is used to protect the identity of an individual close to the
minor victim.
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