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JULY 24, 1985





It is hard to understand just what dark forces would impel a young male of 15 years to stalk, assault and rape an elderly woman who unsuspectingly entered a church building on a hot July Sunday afternoon in broad open daylight, if you will, yet that is the situation we face here. All of the facts save penetration are uncontested and the evidence there is adequate.

 Though the case was vigorously defended at trial and commendably so, and has been competently argued on appeal, the questions of law are not inordinately difficult. The trial judge was correct when he denied the defendant's motion to quash the indictment, was within his discretion when he denied defendant's motion for change of venue, was correct when he overruled objections to admission of defendant's confession, was correct when he denied defendant's assorted challenges to the sufficiency of the evidence, and was within his discretion when he denied defendant's motion for a new trial, all of which we explain more fully below. The rape conviction and twenty-five year sentence imposed upon defendant are affirmed.



 At about 4:00 p.m. on Sunday, July 11, 1982, Mrs. Adelaide Townes, a 70-year old white female resident of Grenada, remembered that she had forgotten to turn off the loud speaker at the First Presbyterian Church in Grenada when she left that morning. She got in her car and drove to the church and parked across from the door she intended to enter. As she got out of her car, she noticed Curtis Winters, a fifteen year old black male, walking by on the sidewalk. She and Winters did not speak, and she proceeded into the Sunday School Building, down a hall and to the back of the church where she turned off the microphone. She then turned around and came directly back out. No one else was present in the church at the time.

 When Mrs. Townes reached the door through which she had entered, Curtis Winters was standing in front of it. Mrs. Townes was startled to see him there, and stopped and asked, "Can I do anything for you?" Winters answered, "Yeah" , reached behind him and locked the door, and then walked towards her. As he walked towards her he said, "I have a knife." Mrs. Townes saw the knife at that point but did not know what he did with it after that.

 Winters took hold of both of Mrs. Townes' arms between the wrist and the elbow and pushed her back into the hallway to a bench, pulled her down on his knee and then forced her up and into an adjoining Sunday School room. He forced her to the floor and sat on her stomach, pulling her arms back and placing his knees on her arms. She tried to struggle but found herself helpless. With his knees still on her arms, he reached back with one hand and pulled her slip up and her panty hose down. Winters then unzipped his pants and raped her. When he had finished he ran down the hall and exited the same door through which he had entered.

 Mrs. Townes left the church immediately thereafter, got in her car and started towards city hall thinking that she would find a policeman. She encountered Bill and Ella Whitten, friends of hers from church, and called out to Ella. After informing the Whittens that she had been raped they went to the police station and from there to the Grenada County Hospital. Dr. Thomas Holden was on call that day and conducted the examination of Mrs. Townes. Mrs. Townes reported to him that she had been raped. Mrs. Townes was not hospitalized, but was given a prescription of an antibiotic to be taken as a prophylaxis against any potential venereal disease. Curtis Winters was arrested the next day by Detective Greg Harris of the Grenada Police Department.


 Curtis Wayne Winters was born on January 31, 1967. On July 27, 1982, Curtis Wayne Winters was charged with the rape of Adelaide Horton Townes, a female human being over the age of twelve years, in an indictment returned by the Grenada County Grand Jury. *fn1 The indictment reflected that the charges were brought under Miss. Code Ann. 97-3-65 (Supp. 1981).

 After a plethora of pretrial motions and proceedings, the case against Curtis Winters was called for trial in the Circuit Court of Grenada County, Mississippi, beginning February 2, 1983. After hearing all the evidence and receiving the instructions of the court and the arguments of counsel, the jury found Winters guilty of rape. On February 9, 1983, the Circuit Court entered its order that Winters be sentenced to the custody of the Mississippi Department of Corrections for a term of twenty-five (25) years.

 Thereafter, Winters timely filed a motion for a new trial challenging both the weight and sufficiency of the evidence. On February 25, 1983, the Circuit Court entered its order denying the motion. Winters now appeals to this court.


 Prior to trial Winters moved to quash the indictment asserting two grounds: (1) that Mississippi's rape sentencing scheme violates rights said to have been secured to Winters by the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States and (2) that because of his age at the time of the crime, 15, this case should have been remanded to the Grenada County Youth Court.

 The equal protection argument - conceded by counsel at oral argument to be somewhat "convoluted" - runs something like this. The statute under which Winters has been prosecuted, Miss. Code Ann. 97-3-65 (2) (Supp. 1984) provides for a maximum punishment of life imprisonment. He notes, however, that the entire Section 97-3-65 *fn2 provides two punishments for the crime of rape depending upon the age of the victim. If the victim is above the age of twelve, the punishment prescribed for juvenile offenders and for adult offenders is the same: life imprisonment or a term of years less than life. Miss. Code Ann. 97-3-65 (2) (Supp. 1984) If the victim is twelve years of age or younger, an adult offender (18 or older) can receive either the death penalty or life imprisonment whereas the punishment for juveniles (such as Winters) is ("such term of imprisonment as the court, in its discretion, may determine." Miss. Code Ann. 97-3-65 (1) (Supp. 1984). Thus on its face the statute, we are told, allows for an irrational gradation of severity of punishment for "essentially identical offenses" and is unconstitutional. It is difficult to understand how Winters has any right to complain of such irrationality, if indeed the statute contains such, in that the penalty to which he has subject was life or less no matter what the victim's age.

 The flaw in counsel's argument, if we understand it, exists in his basic premise that the rape statute arbitrarily provides for two separate and unequal punishments for juvenile offenders "charged with committing essentially identical offenses." (Appellant Brief, p. 23). The fact that the legislature did not consider rape of an individual under twelve and rape of an individual over twelve to be "essentially identical offenses," is evidenced by the amendment of the rape statute which the legislature approved in April, 1977 changing the old rape statute from a single section format to a statute having two distinctive subsections. Subsection (1) addresses the rape of a child under the age of twelve and sets forth the punishment for such crime, subsection (2) sets forth the statutory penalty for rape of a female over the age of twelve. Under the statutory scheme, however, a person such as Curtis Winters, a 15 year

 old, subjects himself to the same potential penalty - a term of imprisonment for life or less (Section 97-3-65 (1) authorizes in the case of defendants aged 13-17 "such term of imprisonment as the court, in its discretion, may determine" which grammatically and therefore legally authorizes a term of imprisonment for life or less) - regardless of the age of his victim. The discriminatory vice counsel would have us find in the statute is, to say the least, evasive.

 In the final analysis, defining crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional law. "[T]he authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety a legislative question. . ." Gabriel v. Brame, Sheriff, 200 Miss. 767, 773, 28 So. 2d 581, 582 (1947). See also McBrayer v. State, 467 So. 2d 647, 648 (Miss. 1985).

 As Curtis Winters was not classified in a manner that burdened his rights within the criminal justice system, there is no equal protection violation present and this assignment of error is without merit.

 The allegation of youth court jurisdiction is also without merit. As this offense is one that is potentially punishable by life imprisonment, it is expressly excepted from youth court jurisdiction under Miss. Code Ann. 43-21-105(j). See generally Carter v. State, 334 So. 2d 376 (Miss. 1976); Davis v. State, 204 So. 2d 270 (Miss. 1967); Bullock v. Harpole, S St. Penitentiary, 233 Miss. 486, 102 So. 2d 687 (1958).

 The motion to quash the indictments was properly overruled.



 Prior to trial Winters filed a motion for change of venue, asserting that there was sufficient adverse prejudgment of the case against him and ill will toward him generally so that he could not receive a fair trial in Grenada County. At the pretrial hearing on the motion, the State offered thirteen witnesses drawn from various segments of the Grenada County community each of whom in substance offered his opinion that Winters could receive a fair trial in that county. Winters called only two witnesses to show otherwise, one of whom was Winters' original attorney, Kenneth O'Neal, the Grenada County Public Defender, who had testified that he sought leave to withdraw as counsel for Winters because of threats he had received and because of the substantial prejudice in the

 community against Winters. It should be noted that the motion for change of venue was heard on January 27, 1983, some 200 days after the commission of the offense charged in the indictment. The evidence reflected that there was quite a bit of talk in the few days after the offense (and three other similar and relatively contemporaneous crimes with which Winters was also charged) but that interest had dissipated substantially in the ...

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