Russell Lee Wright v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00703-COA
RUSSELL LEE ( RUSTY) WRIGHT
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
8/30/2001
HON. THOMAS J. GARDNER, III
LEE COUNTY CIRCUIT COURT
WILLIAM C. STENNETT
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
JOHN RICHARD YOUNG
CRIMINAL - FELONY
SEXUAL BATTERY - SENTENCED TO SERVE A
TERM OF TWENTY YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED - 11/18/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Russell Lee (Rusty) Wright was convicted in the Circuit Court of Lee County of sexual battery and
sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved,
he asserts the following issues on appeal:
I.
THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT
OF THE EVIDENCE AND CONTRARY TO THE LAW.
II.
THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY
EVIDENCE DURING THE STATE'S CASE IN CHIEF.
Finding no error, we affirm.
FACTS
¶2.
Russell Lee (Rusty) Wright was indicted and charged with sexual battery of a child under sixteen
years. The alleged victim was a six year old girl. The mother of the victim testified at trial that she first
became aware of a potential problem when her daughter threw a fit and did not want to be left alone with
Rusty one night. The next day, the mother questioned her daughter and the child said that she did not want
to be left alone with Rusty because he had touched her inappropriately.
¶3.
On April 12, 2000, the mother reported this touching to the Department of Human Services, and
the situation was investigated by Angela Terry. Ms. Terry interviewed the victim and testified at trial about
this interview. After the interview, an appointment was made for a sexual abuse exam and the Lee County
Sheriff's Office was contacted. A deputy also interviewed the victim and testified that she gave him a
similar account. Dr. William Marcy performed an exam on the victim and testified that he found evidence
of sexual abuse based on the ease of Q-tip insertion into the vaginal area of the victim, and the fact that the
vaginal opening of the victim was at the outer edge of the range expected in a child of the victim's age. Dr.
Marcy testified that this evidence was the sole basis for his opinion and there was nothing definitive outside
of that evidence.
¶4.
At the conclusion of the trial, the jury found Rusty Wright guilty as charged. Wright was sentenced
to a term of twenty years' imprisonment. Wright moved for a motion for judgment notwithstanding the
verdict which was denied. Wright then perfected an appeal to this Court.
I.
THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT
OF THE EVIDENCE AND CONTRARY TO THE LAW.
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¶5.
Rusty Wright alleges that the jury verdict was against the overwhelming weight of the evidence and
contrary to the law. Wright contends that the physical evidence did not support the conviction, and that
the victim's testimony on cross-examination changed regarding the number of times the alleged touching
took place and whether or not she was forced to touch his "private spot." Wright challenges both the weight
and sufficiency of the evidence against him.
¶6.
In regard to the physical evidence, "the Mississippi Supreme Court has held that the 'totally
uncorroborated testimony of a victim is sufficient to support a guilty verdict where that testimony is not
discredited or contradicted by other evidence.'" Taylor v. State, 836 So. 2d 774, 777 (¶13) (Miss. Ct.
App. 2002) (quoting Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)). Therefore, Wright's
conviction does not depend on any medical or physical evidence. As in Christian and Taylor, there was
corroborating evidence to support the victim's testimony. The victim's testimony was corroborated by her
mother, the counselor from the Department of Human Services, a law enforcement officer, and a doctor.
Dr. Marcy testified to better than a reasonable degree of medical certainty that the victim had been digitally
penetrated. Other than the victim's testimony on cross-examination, Wright fails to point this Court to any
evidence which contradicts or discredits the evidence against him. It is the jury's duty to resolve conflicts
in testimony. Groseclose v. State, 440 So. 2d 297, 300 (Miss 1983).
¶7.
"If there is sufficient evidence to support a verdict of guilty, this Court will not reverse." Meshell
v. State, 506 So. 2d 989, 990 (Miss. 1987). See also Haymond v. State, 478 So. 2d 297, 300 (Miss.
1985); Fairley v. State, 467 So. 2d 894, 902 (Miss. 1985). This Court should reverse only where, "with
respect to one or more elements of the offense charged, the evidence so considered is such that reasonable
and fair minded jurors could only find the accused not guilty." Alexander v. State, 759 So. 2d 411, 421
(¶23) (Miss. 2000) (quoting Gossett v. State, 660 So. 2d 1285, 1293 (Miss. 1995)).
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¶8.
The standard of review in determining whether a jury verdict is against the overwhelming weight
of the evidence is also well settled. "[T]his Court must accept as true the evidence which supports the
verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant
a new trial." Collins v. State, 757 So. 2d 335, 337 (¶5) (Miss. Ct. App. 2000) (quoting Dudley v. State,
719 So. 2d 180, 182 (¶9) (Miss. 1998)). On review, the State is given "the benefit of all favorable
inferences that may reasonably be drawn from the evidence." Collins, 757 So. 2d at 337 (¶5) (citing
Griffin v. State, 607 So. 2d 1197, 1201 (Miss. 1992)). "Only in those cases where the verdict is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will this Court disturb it on appeal." Collins, 757 So. 2d at 337 (¶5) (quoting
Dudley, 719 So. 2d at 182).
¶9.
There is sufficient evidence to support the verdict. Taking as true all of the evidence to support the
verdict, it was not against the overwhelming weight of the evidence. This issue is without merit.
II.
THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY
EVIDENCE DURING THE STATE'S CASE IN CHIEF.
¶10.
Wright asserts that the trial court erred in allowing hearsay evidence including statements made by
the child victim under Mississippi Rule of Evidence 803(25). Wright admits, however, that the trial court
made extensive findings as to the factors necessary to ascertain the veracity of the declarant's testimony.
The trial court did conduct a hearing outside the presence of the jury with regard to the victim and each
witness that would be testifying under the exception and made extensive findings of fact and conclusions
of law.
¶11.
The trial judge has discretion to either accept or reject evidence offered by the parties. Austin v.
State, 784 So. 2d 186, 193 (¶23) (Miss. 2001). "That discretion must be exercised within the scope of
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the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in
prejudice to the accused." Id. at 193- 94 (¶23). As in the case of Voyles v. State, 822 So. 2d 353 (Miss.
Ct. App. 2002), the trial judge did not abuse his discretion in allowing the testimony of the witnesses after
the proper procedure was followed, a hearing was conducted, and a determination under Mississippi Rule
of Evidence 803(25) was made. This issue is without merit.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION
OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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