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CECIL HENRY HINES v. STATE OF MISSISSIPPI

JUNE 05, 1985

CECIL HENRY HINES
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J., DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is a subjectively disgusting case of the sexual battery of a young nine year old girl by a now 24 year old man. Most substantially proved was the Defendant's use of his penis to penetrate his victim anally. Less substantial but nevertheless credible evidence also suggests vaginal and oral penetration. Here as in other cases we are bound on our oaths that we suppress our visceral reactions to these facts and adjudicate this appeal by reference to rules of law objectively ascertained and applied - and that alone.

 The acts involved here have been made unlawful by an enactment of the legislature and denominated sexual battery. Upon proof the legislature has authorized the imposition of substantial criminal penalties. As explained below, the evidence points to guilt with sufficient force that the jury's verdict of guilty and the judgment of conviction entered thereon are beyond our authority to disturb. We have reviewed one by one the several assignments of error and find none having merit. Because Cecil Henry Hines has been lawfully convicted and sentenced and not because we are repulsed by what he has done, we affirm.

 II.

 A.

 The evidence taken in the light most favorable to the State *fn1 revealed the following facts. The nine-year old Prosecutrix, R.W., on May 23, 1982, spent the night with her father along with her seven-year old brother, and six-year-old sister. R.W.'s parents were separated at the time. Her mother, who had custody of the children, was staying at a nearby hospital with her grandfather who was ill. R.W.'s

 father, T.W., allowed a couple of men to stay with him while they looked for jobs, one of whom was Cecil Henry Hines, Defendant below and Appellant here. On the night in question, all persons in the household stayed up late, and the men drank plenty of beer. R.W.'s brother got so drunk that the adults attempted to shower him, and he subsequently passed out on the couch in the living room in a drunken stupor.

 The children were put to sleep in their father's bed. Sometime thereafter in the early morning hours of May 24, 1982, their father left the house for a while. During this time, Hines climbed into the bed shared by the children whereupon R.W. awoke. He had his trousers unzipped and moved up behind her. Hines picked R.W. up and carried her into the kitchen. He then laid her on the floor, got over her, and removed her clothes. He remained dressed except for unzipped trousers. Hines then attempted to penetrate her vagina and did, in fact, penetrate her anus. He covered her mouth with his hand to keep her from screaming, and threatened her by telling her that if she told anyone he would hurt her even more.

 After committing this first anal sexual battery of the child, Hines permitted her to go to the bathroom. Hines then followed R.W. into the bathroom and forced her to perform oral sex for him. Finally, he allowed her to go back to bed. Shortly after R.W. returned to bed, Hines demanded that she come into the living room to sit in his lap and watch television. Both Hines and R.W. were completely dressed by that time.

 R.W.'s father returned by about 7:00 a.m. and took all the children on an errand. After returning to the house following the errand, R.W. asked her father to come upstairs so she could talk with him privately. R.W. told her father she had been raped by Hines but did not give all details. Her father took her to the hospital where she was examined by Dr. Bouldin Marley, Jr., a specialist in obstetrics and gynecology.

 Dr. Marley testified that R.W. had bruises around her neck area, back and legs. The outside of the female genitalia had nondescript dirt and debris. Further pelvic examination revealed abrasions and redness outside the vagina but no tears or bleeding. R.W.'s hymen was intact, but a smear of the vaginal opening showed trace amounts of acid phosphatase not normally present in a nine-year-old girl's vagina. Acid phosphatase is one of the specific things found in the semen or sperm of a male's ejaculate. Examination of the rectal area revealed a red area with some abrasions and a" real hard

 bruise ". There was abnormal presence of fecal matter in little pieces all over the perineal area mixed with the dirt and debris. Dr. Marley unequivocably stated," In my opinion there was definite anal penetration. "

 Hines' defense to the charge was that he simply did not do it.

 Hines was charged on July 7, 1982, via an indictment returned by the Coahoma County grand jury. Trial was set for February 7, 1983. At 8:20 on the morning of trial, Hines filed a demurrer to the indictment, urging essentially that the indictment was legally insufficient to charge a crime. This demurrer was overruled by the trial judge as not having been timely filed. The trial judge had apparently provided by prior order that all motions for this case were to have been filed prior to January 20, 1983. *fn2

 On February 8, 1983, the jury found Hines guilty of sexual battery. In due course the Circuit Court sentenced Hines to the custody of the Department of Corrections for a period of twenty-five (25) years.

 Thereafter, Defendant Hines acting by and through his attorney, timely filed a motion for judgment of acquittal notwithstanding the verdict of the jury, or, in the alternative, for a new trial. On February 16, 1983, the Circuit Court entered its order overruling these alternative motions. Hines now appeals to this Court.

 III.

 A.

 Hines' principal assignment of error regards the indictment. First and foremost, Hines complains that the trial judge erred when he rejected Hines' demurrer on grounds it had not been filed by a pre-trial deadline fixed by the court. Second, and assuming that the merits of the demurrer be reached, Hines argues that the indictment is far too general in its charging language to provide him with fair notice of the charges against him.

 1.

 On January 6, 1983, the trial judge entered an order which related primarily to discovery matters and then provided

 VII. All other motions shall be made as required by law and/or within a reasonable

 time. It will be in the discretion of the Court whether to grant or refuse any ...


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