Benito Jo Ruiz, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02168-COA
BENITO JO RUIZ, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
11/01/2007
HON. ALBERT B. SMITH III
COAHOMA COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF SEXUAL BATTERY, AND
SENTENCED TO SERVE TWENTY-FIVE
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND TO REGISTER AS A
SEX OFFENDER WITH THE SENTENCE
TO RUN CONSECUTIVELY TO ANY AND
ALL SENTENCES PREVIOUSLY IMPOSED
AFFIRMED-06/23/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On August 17, 2007, Benito Jo Ruiz, Jr., was found guilty in the Circuit Court of
Coahoma County of sexual battery. He was sentenced to twenty-five years in the custody
of the Mississippi Department of Corrections, and he was ordered to undergo psychological
evaluation and treatment as well as alcohol and drug treatment. In addition, Ruiz was
ordered to register as a sex offender pursuant to Mississippi Code Annotated section 45-3325 (Supp. 2008). Aggrieved by the circuit court’s ruling, Ruiz appeals, alleging two
assignments of error: (1) the evidence was insufficient to support the verdict; and (2) the
verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
This case involves the sexual battery of an eight-year-old girl, G.W.,1 by Ruiz during
the spring of 2006. The case was tried before a jury which unanimously found that Ruiz was
guilty of committing the crime. The precise day on which the crime occurred is unclear. At
trial, Ruiz’s girlfriend, Jan Harbin, testified that on April 19, 2006, she received a call from
Ruiz asking her to come over because he had a private matter that he wished to discuss with
her. When she arrived at Ruiz’s house, he confessed to her that he had inappropriately
touched a young girl. Harbin recommended that they call the sheriff’s office to inform them
of the situation, and she stayed with Ruiz until two deputies arrived at his house. The
officers advised Ruiz of his rights and took him to the sheriff’s department. Harbin also went
to the sheriff’s department, where she gave her statement to the officers.
¶3.
Deputy Sheriff Chris Doss testified that on April 19, 2006, he received a call in
1
The Court of Appeals declines to identify sexual battery victims. In the interest
of the child’s privacy, the minor’s name, as well as the names of family members, have
been replaced with initials.
2
reference to a child fondling. Deputy Doss was instructed to go to Ruiz’s house, and when
he arrived, Ruiz told Deputy Doss that he wished to turn himself in to the authorities for
touching an eight-year-old girl on the outside of her pants. Deputy Doss stopped Ruiz from
continuing his story and read him his Miranda rights. Investigator Fernando Bee also arrived
at Ruiz’s house, and while he was there, he received a call reporting a child rape case.
Investigator Bee left Ruiz’s house to go investigate the case while Deputy Doss took Ruiz
to the sheriff’s department. Investigator Bee soon realized that the call he had received
regarding the child rape case and the call Deputy Doss had received about the child fondling
arose from the same incident involving G.W. Investigator Bee then returned to the station
to talk to Ruiz.
¶4.
Ruiz told Investigator Bee that one night he had been drinking beer at the home of
G.W.’s grandmother, G.M. Ruiz’s cousin was also there, and the two women wanted to go
out. They needed a babysitter for G.W., so Ruiz volunteered to watch her. Ruiz took G.W.
to his house where he then drank more beer with his father, Benito Ruiz, Sr. After his father
went to bed, Ruiz admitted that he sat on the love seat with G.W., and he “put [his] hands
down on her private [area] on the outside of her pants.” He then “told [G.W.] to stand up and
bend over the arm of the love seat and [he] took [his] penis out and rubbed it against her –
against the back of her down by her private area.” Ruiz further stated that he never put his
penis inside of her, nor did he ejaculate when he rubbed against her, and he asked G.W. not
to tell anyone what happened. According to Ruiz, he then sent G.W. to his bedroom to go
to sleep and instructed her to lock the door. He claimed that the only time he had touched
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G.W. inappropriately was that incident on the love seat.
¶5.
At the time of trial, G.W. was nine years old, and her testimony was somewhat
different than the statement given by Ruiz. She testified that while she was at Ruiz’s house
he did not touch her between her legs while they were sitting on the love seat; however, he
had asked her to bend over the sofa, and when she did, he “hunch[ed]” her. She further
testified that she stayed overnight at Ruiz’s house and slept in his bedroom. When G.W.
went to bed, she said that she did not have any clothes on, and that Ruiz, who was also
undressed, came into her bedroom and got on top of her, and he “hunch[ed]” her again. She
testified that he put his private part in hers, and it hurt and lasted a long time.
¶6.
G.M. learned in April 2006 what had happened. G.M. testified that Ruiz came to her
house one morning and asked if G.W. wanted to go to the store with him. G.W. replied that
she did not and put her head down. When G.M. asked G.W. what was wrong, G.W. told her
what Ruiz had done. G.M. confronted Ruiz with G.W.’s story, and he confessed that he
might have done something like that. On April 19, 2006, G.M. called the sheriff’s office and
spoke with Investigator Bee.
¶7.
Patricia White, a family nurse practitioner and certified nurse mid-wife, testified that
G.M. brought G.W. in to be examined on April 21, 2006. G.M. told White that someone had
touched G.W. between her legs and that it had occurred two weeks earlier. White examined
G.W. and found breaks in the tissue around the urethra and breaks in her hymen. White
testified that the hymen is located inside the opening of the vagina, between the labia, and
it should be intact in virgins and children unless there has been some kind of trauma.
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DISCUSSION
I.
¶8.
Sufficiency of the Evidence
Ruiz first complains that the evidence presented was insufficient to sustain a guilty
verdict. The standard of review for appeals regarding sufficiency of the evidence requires
the appellate court to view the evidence “in a light most favorable to the State. The credible
evidence consistent with the defendant’s guilt must be accepted as true. The prosecution
must be given the benefit of all favorable inferences that may be reasonably drawn from the
evidence.” McCoy v. State, 878 So. 2d 167, 174 (¶17) (Miss. Ct. App. 2004) (quoting
Muscolino v. State, 803 So. 2d 1240, 1243 (¶10) (Miss. Ct. App. 2002)). The court must
determine whether the evidence demonstrates “beyond a reasonable doubt that [the] accused
committed the act charged, and that he did so under such circumstances that every element
of the offense existed.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). The jury has
the duty of resolving matters regarding the weight and credibility of the evidence. Smith v.
State, 904 So. 2d 1217, 1221 (¶11) (Miss. Ct. App. 2004). This Court “may reverse only
where, with respect to one or more of the elements of the offense charged, the evidence so
considered is such that reasonable and fair-minded jurors could only find the accused not
guilty.” Id. In addition, with regard to this specific type of case, the Mississippi Supreme
Court has consistently held the following:
the unsupported word of the victim of a sex crime is sufficient to support a
guilty verdict where the testimony is not discredited or contradicted by other
credible evidence, especially if the conduct of the victim is consistent with the
conduct of one who has been victimized by a sex crime.
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Maiden v. State, 802 So. 2d 134, 136 (¶5) (Miss. Ct. App. 2001) (citing Cross v. State, 759
So. 2d 354, 356 (¶11) (Miss. 1999)).
¶9.
In reviewing the evidence in a light favorable to the State, we find that the evidence
was sufficient to sustain the guilty verdict. G.W. testified that she spent the night at Ruiz’s
house, and he came into his bedroom, where he had told her to sleep. She further testified
to the following:
[State]: And were your clothes on when you went to bed?
[G.W.]: No.
[State]: And when you saw Benito, did he have clothes on?
[G.W.]: No.
[State]: And did he come into the room where you were at?
[G.W.]: Yes.
[State]: And did you see him at a time when he was undressed, didn’t have any
clothes on?
[G.W.]: Yes.
[State]: And when you saw him like that, what did he do?
[G.W.]: Hunch me.
[State]: Say that one more time?
[G.W.]: Hunch me.
[State]: Hunched you. Did he get on top of you?
[G.W.]: Yes.
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....
[State]: And that night, were you able to see the private parts of Benito? Did
you see him undress?
[G.W.]: Yes.
[State]: And did he ever do anything to you with his private part?
[G.W.]: Yes.
[State]: Okay, what did he do?
[G.W.]: Got on top of me.
[State]: Did he put his private part in yours?
[G.W.]: Yes.
[Defense Counsel: Objection]
[The Court]: . . . Sustained.
[State]: When he got on top of you, can you tell me if it hurt or not?
[G.W.]: Yes.
[State]: And did it last very long?
[G.W.]: Yes.
[State]: Did it hurt the whole time?
[G.W.]: Yes.
¶10.
Keeping in mind that this testimony is that of a nine-year-old girl, we find that the
victim attempted to express herself to the best of her ability. Furthermore, her testimony is
corroborated by the medical evidence provided by the examining nurse practitioner. The
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tears in G.W.’s hymen indicated trauma, which was consistent with G.W.’s recount of what
had happened. This Court has held that “any penetration of the labia, no matter how slight,
is sufficient to establish the element of ‘sexual penetration’ in a rape case.” Pryer v. State,
958 So. 2d 818, 823 (¶13) (Miss. Ct. App. 2007) (quoting McGee v. State, 452 So. 2d 438,
440-41 (Miss. 1984)). “The same standard may also be applied to sexual battery.” Id.
¶11.
We find that Ruiz’s admission, and the testimonies of G.W. and the examining nurse
practitioner were sufficient to support the contention that Ruiz’s actions resulted in sexual
penetration. While examining G.W., White found tears in G.W.’s hymen, which would have
required, at a minimum, some penetration of the labia; therefore, the essential element of
sexual penetration required in a sexual battery case was met. In addition, Ruiz admitted to
rubbing his penis against G.W.’s private parts, and G.W. testified that he “hunched her.”
Upon careful review of the record, we find it was certainly possible for reasonable, fairminded jurors to have found Ruiz guilty.
¶12.
With regard to Ruiz’s complaint that conflicts existed in the recounts offered by G.W.
and Ruiz of what happened on the night in question, “[j]urors are permitted, indeed have the
duty, to resolve the conflicts in the testimony they hear.” Givens v. State, 967 So. 2d 1, 7
(¶19) (Miss. 2007) (citation omitted). The jurors in this case had the opportunity to review
the evidence and testimonies presented at trial, and they then had the responsibility of
determining the amount of weight to give to the evidence and witnesses in making their
decision. As a result, the jury acted properly in their deliberations, and we find that Ruiz’s
assignment of error is without merit.
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II.
¶13.
Weight of the Evidence
Ruiz also alleges that the verdict was against the overwhelming weight of the evidence
and that the circuit court erred in denying his motion for a new trial. He contends that it was
not possible for a reasonable jury to have found there was penetration beyond a reasonable
doubt. The supreme court has held the following with regard to an appeal which involves
a claim that a verdict is against the overwhelming weight of the evidence:
In determining whether a jury verdict is against the overwhelming weight of
the evidence, this 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. Only when 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.
Boone v. State, 973 So. 2d 237, 243 (¶¶ 20-21) (Miss. 2008) (quoting Herring v. State, 691
So. 2d 948, 957 (Miss. 1997)).
¶14.
We do not find that the circuit court abused its discretion in failing to grant a new trial.
The jury found sufficient evidence that penetration had occurred to support a conviction of
sexual battery. Their findings were based on the medical evidence presented, an admission
by the defendant, and the testimonies of the victim and the examining nurse practitioner.
Therefore, we do not find that the verdict was against the overwhelming weight of the
evidence. This issue is without merit.
¶15. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO REGISTER AS A SEX OFFENDER IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
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KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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