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LARRY VAN WEST v. STATE OF MISSISSIPPI

SEPTEMBER 28, 1983

LARRY VAN WEST
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J., BOWLING AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

Larry Van West was convicted in the Circuit Court of Forrest County, Mississippi, of the crime of attempted sexual battery. Miss. Code Ann. 97-3-95 and 97-3-97 (Supp. 1982) and 97-1-7 (1972). He was sentenced to serve a term of

20 years in the custody of the Mississippi Department of Corrections.

 The evidence establishes without serious contradiction that on March 2, 1981, West inveigled his victim, a female student at the University of Southern Mississippi, into an apartment near where she lived, made a few suggestive comments, and without her consent, fondled her breasts, put his hand inside her panties, and later exposed himself. The question is not whether what West did was criminal or whether it offends sensibilities. We inquire whether what West did constitutes the specific crime of attempted sexual battery as defined in a combined reading of three statutes, Section 97-3-95, -97 and 97-1-7. We answer in the negative.

 We begin with Section 97-3-95 which makes sexual battery a crime. At the time of the act in question, that statute read as follows:

 A person is guilty of sexual battery if he or she engages in sexual penetration with:

 (a) Another person without his or her consent; . . . . Miss. Code Ann. 97-3-95 (Supp. 1982).

 Sexual penetration is the essence of the offense of sexual battery. Section 97-3-97 defines sexual penetration as follows:

 (a)" Sexual penetration "includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body. Miss. Code Ann. 97-3-97 (Supp. 1982).

 Attempted sexual battery becomes a criminal offense by virtue of the two statutes just mentioned when read in combination with Section 97-1-7 which in pertinent part provides:

 Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the

 commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, . . . be punished . . . .

 Our concern is whether there is in the record evidence sufficient to support the jury's verdict that Larry Van West was guilty of attempted sexual battery. As we have said repeatedly, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. See, e.g., Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980); Pearson v. State, 428 So. 2d 1361, 1364 (Miss. 1983). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that on the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979); Pearson v. State, 428 So. 2d 1361, 1364 (Miss. 1983).

 The facts are uncontradicted. There was no penetration. Moreover, the prosecution, in effect, has conceded that there was no attempt to penetrate. West had every opportunity to penetrate if he had wished to do so. His failure was not the product of his victim's admittedly ineffective resistance or the intervention of extraneous causes. ...


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