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FRANKLIN D. RUSSELL v. STATE OF MISSISSIPPI

FEBRUARY 11, 1987

FRANKLIN D. RUSSELL
v.
STATE OF MISSISSIPPI



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

Franklin D. Russell was tried and convicted in the

Circuit Court of the First Judicial District of Hinds County, for the crime of gratification of lust, and was sentenced in a separate hearing to serve 10 years in the Mississippi Department of Corrections as an habitual offender and pay a fine of $1,000.

 Russell appeals and assigns the following as error:

 I. The trial court erred in failing to grant a mistrial as a result of prosecutorial misconduct during the state's closing argument;

 II. The trial court erred in refusing to grant a j.n.o.v. or, in the alternative, a new trial, in that the verdict of guilt was against the overwhelming weight of the evidence.

 The evidence adduced at trial established that on October 12, 1983, appellant went to the home of the victim's parents to do some renovative work on the upstairs bedroom. Testimony showed that around 3:15 in the afternoon, the eleven-year-old victim arrived home and watched television for approximately 1/2 hour before appellant discovered her presence downstairs. The victim testified that at his request, she went upstairs to try on a leather vest that Russell had made for her, and proceeded to allow Russell to" size "it for her (a process which apparently involves wetting the vest and stretching it to fit the wearer). Appellant wet the vest in the bathroom sink and then requested that the victim change out of her blue jeans and sweater and into a thinner shirt, and had her stand at the sink in the shirt and her underwear alone for the stated purpose of sizing the vest. Further testimony elicited from the victim showed that she heard a zipper, and then much pushing went on from behind, and that she felt something long, narrow and warm placed between her legs at that time.

 Some five or ten minutes later the telephone rang, and the victim ran to get the phone. Testimony showed it was her mother on the phone. The victim testified as well that, just prior to hearing the phone ring, appellant had requested that she remove her underwear, to which she refused.

 Finally, the victim's seven-year-old sister arrived home from school and saw appellant and the victim in the bathroom. She testified that she saw appellant pushing on the victim from behind as he leaned her sister over the bathroom counter. Her testimony collaborates that of the victim in that both girls allege that appellant's body was pressing against the victim's and was, in fact, pushing

 against her back.

 Appellant left the home and the victim's mother arrived shortly thereafter. The victim's sister informed her mother of what had happened, and after some encouragement the mother managed to make the victim tell her the story of what had occurred.

 Charges were filed the next day, on October 13, 1983, and appellant was arrested in his home.

 I.

 In his first assignment of error, appellant cites numerous instances of what he deems to be prosecutorial misconduct which took place during the course of the trial, and whose occurrence he claims greatly prejudiced his cause in his conviction ...


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