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DOUGLAS WESLEY v. STATE OF MISSISSIPPI

JANUARY 06, 1988

DOUGLAS WESLEY
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRESIDING JUSTICE, ROBERTSON AND GRIFFIN, JJ.

DAN LEE FOR THE COURT:

Douglas Wesley appeals his conviction of rape of a female child under the age of 12. He was tried January 22, 1986, in the First Judicial District of Hinds County, and sentenced to

life in prison. He assigns four errors, but combines them into three arguments on appeal:

 I. THE COURT ERRED IN ADMITTING THE TESTIMONY OF OFFICER WASHINGTON AS PROOF OF THE AGE OF THE APPELLANT OVER THE OBJECTION OF APPELLANT.

 II. THE COURT ERRED IN ADMITTING THE TESTIMONY OF OFFICER ERIKSEN AND THE EXHIBIT OF BLOOD, HAIR AND SALIVA TAKEN FROM APPELLANT SUBSEQUENT TO ARREST WITHOUT MIRANDA WARNINGS.

 III. THE VERDICT OF THE JURY WAS CONTRARY TO AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 I.

 FACTS

 April 26, 1985, T.M., age 11, came home from school and began doing chores. About 4:30 p.m. her stepfather, Douglas Wesley, arrived. Wesley and the child's mother had separated several months before, and Wesley was not living with her, T.M. and T.M.'s two stepbrothers. He said he wanted to talk with T.M. According to T.M., Wesley took her into her mother's bedroom and told her she needed to make her own decisions and she should stop listening to her mother and grandparents. Then, Wesley grabbed her and forced her into her bedroom. He asked her if she wanted to have sex with him and she said it was wrong. With this, he began struggling with T.M. to remove her clothes, and at one point choked her. This scene was briefly interrupted when Wesley went to answer the telephone, but he returned this time and succeeded in removing T.M.'s clothes. He also placed a condom on the bed, but apparently never used it.

 T.M. further testified that Wesley penetrated her vagina, stopped briefly to open a window, then continued intercourse until he heard a car door and discovered that his estranged wife had arrived home. Wesley then put on his clothes and left T.M.'s room and went to his wife's room.

 Laura Wesley, Wesley's estranged wife, testified that when she arrived home from work some time after 5:00 p.m. she found Wesley in her bedroom. She first went into her room and then into her daughter's room. When she saw her daughter, the child was standing near her closet putting on a top. Mrs. Wesley

 asked what she was doing with her clothes off and T.M. replied," Doug had been messing with her. "Mrs. Wesley confronted Wesley with this statement and he replied that he did not know what she was talking about. Mrs. Wesley said at this time he had perspiration on his face and was lying on her bed. Mrs. Wesley also saw a condom on T.M.'s bed which she picked up and later turned over to police.

 Mrs. Wesley then got her two boys and took T.M. to University of Mississippi Medical Center where T.M. was examined.

 Dr. James Tutor testified he examined T.M. that evening and found that her hymenal ring was not intact, and he noticed blood secretions from her vaginal orifice. He concluded that she had been traumatized within a recent period. He prepared a rape pack which he turned over to a police officer. He ...


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