Carl Musgrove v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00487-COA
CARL MUSGROVE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
1/28/1999
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
ROBERT H. KOON
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CONO A. CARANNA, II
CRIMINAL - FELONY
CONVICTION OF SEXUAL BATTERY SENTENCED TO A TERM OF 15 YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS
AFFIRMED - 11/18/2003
BEFORE MCMILLIN, C.J., MYERS, CHANDLER AND GRIFFIS, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Carl Musgrove was convicted of sexual battery and sentenced to serve a term of fifteen years'
imprisonment. He appeals asserting that the Circuit Court of Harrison County erred in denying his motion
for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. Finding no error, we
affirm.
DISCUSSION
¶2.
A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d
774, 778 (Miss.1993). A reviewing court must consider as true all credible evidence consistent with the
defendant's guilt, and the State must be given the benefit of all favorable inferences that may reasonably be
drawn from the evidence. Id. This Court may only reverse where, with respect to one or more of the
elements of the offense, the evidence so considered is such that reasonable and fair-minded jurors could
only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).
¶3.
A motion for a new trial challenges the weight of the evidence, and implicates the discretion of the
trial court. McClain, 625 So.2d at 781. The trial court should only grant a new trial motion 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 injustice. Wetz, 503 So.2d at 812. This Court, on appeal, will reverse and
order a new trial only upon a determination that the trial court abused its discretion, accepting as true all
evidence favorable to the State. Id.
¶4.
In this case, the victim, J.S., testified that Musgrove engaged in sexual intercourse with her without
her consent on the evening of Friday, September 6, 1996. J.S. was thirty-seven years old at the time of
crime, and was born with cerebral palsy, which rendered her unable to walk. She was a resident of
Saraland, which is a retirement home for elderly and disabled people, where Musgrove also resided in an
apartment with his grandmother. J.S. testified that Musgrove sometimes "did her hair." On the evening of
the crime, J.S. was asleep in her nightgown when she was awakened by Musgrove knocking on her
apartment door. She let Musgrove into her apartment, and after he had washed her hair, Musgrove carried
her to a couch where they watched television for approximately one hour. As they sat on a couch,
Musgrove got on top of J.S., removed her panties and began having sex with her. She testified that she
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told him that she had a boyfriend and asked him to leave. She also testified that she said, "I don't want you
to hurt me," and was afraid of Musgrove. Musgrove ignored her protests and continued having sex until
he ejaculated. After which, he told her not to tell anyone what he had done. J.S. testified that she was
afraid of Musgrove, and consequently she did not tell anyone of the assault until the following Monday,
when she told Saraland's assistant manager, Rose Harrien, that she had been "raped."
¶5.
Musgrove contends that no physical evidence supported J.S.'s testimony, and the lack of such
evidence, coupled with inconsistencies in her testimony, are insufficient to support the verdict. Musgrove
specifically contends that the evidence could not support a finding of either penetration or lack of consent.
There was no physical evidence to show that Musgrove committed the sexual battery. However, where
a victim's testimony is not so discredited or contradicted by other evidence that it becomes unbelievable,
that testimony alone is sufficient to sustain a guilty verdict. Collier v. State, 711 So.2d 458 (¶15)
(Miss.1998). See also Mabus v. State, 809 So.2d 728 (¶16) (Miss. Ct. App. 2001); Riley v. State, 797
So.2d 285 (¶10) (Miss. Ct. App. 2001). In this case, the record shows that while J.S. had a disability and
little education, she did convey a consistent, credible account of what occurred on the evening of the crime.
J.S. testified to penetration, "[h]e stuck his private up in me." J.S. testified to lack of consent, "I said, you
supposed to come and do my hair, I said, not to have sex with me." She further testified, "I was fighting
him off." Other witnesses, including Harrien and two investigating police officers, testified that she was
distraught and acting consistently with regard to being a victim of sexual battery.
¶6.
Based on this record, there was evidence tending to support all elements of the crime.
Consequently, the evidence was sufficient to return a guilty verdict, and the circuit court correctly denied
the motion for a JNOV. A motion for a new trial is directed to the circuit court's discretion, and the
standard is whether the evidence is so slight that it would be unjust to allow the conviction to stand. See
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Wetz, 503 So.2d at 812. In this case, the circuit court viewed the witnesses, and was better situated to
judge credibility than an appellate court viewing the cold record. Moreover, while Musgrove was under
no compunction to testify, it cannot escape notice that his only witness was a forensic scientist from the
Mississippi Crime Lab, and the substance of her testimony was simply the lack of physical evidence.
Musgrove's defense did not contradict J.S.'s testimony. Given these facts, it cannot be said that the circuit
court abused its discretion in denying the motion for a new trial.
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTEEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
HARRISON COUNTY IS ASSESSED ALL COSTS OF THIS APPEAL.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND GRIFFIS, JJ., CONCUR.
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