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08/07/95 JOHNSON v. STATE

August 07, 1995

JOHNSON
v.
STATE



Before Thomas, P.j., Herring, And Hinkebein, JJ.

The opinion of the court was delivered by: Hinkebein, J., For The Court

TERRY T. JOHNSON A/K/A TERRY TYRONE JOHNSON, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT L. GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

BY: JEAN SMITH VAUGHAN

DISTRICT ATTORNEY: EDWARD PETERS

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: RAPE: SENTENCED TO SERVE A TERM OF 50 YRS IN THE MDOC

DISPOSITION AFFIRMED - 1/27/98

Terry Johnson was convicted in the Hinds County Circuit Court of the rape of a child under the age of 14 years. The Court ordered Johnson to serve fifty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Johnson appeals to this Court on the following grounds:

I. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO PRESENT PROOF OF THE DEFENDANT'S AGE AFTER THE STATE HAD FINALLY RESTED FOLLOWING REBUTTAL.

II. THE TRIAL COURT ERRED IN ALLOWING STATE WITNESSES ERICA COUSINS, EDNA COUSINS AND GLADYS JEAN VERSELL TO TESTIFY AS TO HEARSAY STATEMENTS MADE BY THE VICTIM TO THEM IN DIRECT VIOLATION OF THE MISSISSIPPI RULES OF EVIDENCE.

III. THE TRIAL COURT ERRED IN ALLOWING DR. WILLIAM SOREY TO TESTIFY AS TO HEARSAY STATEMENTS MADE TO HIM BY THE VICTIM DURING THE COURSE OF HIS DIAGNOSIS AND TREATMENT AT WHICH TIME THE VICTIM IDENTIFIED JOHNSON AS THE PERPETRATOR OF THE ALLEGED SEXUAL ASSAULT.

IV. THE TRIAL COURT ERRED IN ORDERING THE DEFENDANT TO SERVE A SENTENCE OF FIFTY YEARS IN THE MDOC AS SUCH SENTENCE WAS IN EXCESS OF THE DEFENDANT'S LIFE EXPECTANCY AND WAS THEREFORE, TANTAMOUNT TO A SENTENCE GREATER THAN LIFE.

Holding these assignments of error to be without merit, we affirm the judgment of the circuit court.

FACTS

On July 3, 1994, twelve-year-old "Connie" [a ficticious name] spent the evening with her Aunt Edna and cousins preparing for a Fourth of July holiday celebration planned for the next afternoon. The child was asleep in a room with her young cousin Erica, when Aunt Edna's live-in boyfriend, our appellant, sexually abused her. Johnson first attempted to manually stimulate the child, ceasing in response to her protests. Moments later, he returned to have vaginal intercourse with her. However, when he was unable to penetrate Connie's immature body, he temporarily exited the room a second time. Thereafter, he returned yet again, this time attempting to stimulate the child orally. Following his third attack, he ...


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