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[T] Allen v. State

May 12, 1998

JEFF ALLEN, MARTY CARITHERS AND LYNWOOD CANNON, APPELLANTS
v.
STATE OF MISSISSIPPI, APPELLEE



Before Bridges, C.j., Herring, And Southwick, JJ.

The opinion of the court was delivered by: Bridges, C.j., For The Court:

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

DATE OF JUDGMENT: 02/05/96

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CARITHERS & CANNON: EACH: SEXUAL BATTERY 10 YRS & AGGRAVATED ASSAULT 12 YRS; $1,000 CRIME VICTIMS' FUND; ALLEN: AGGRAVATED ASSAULT 12 YRS; $500 CRIME VICTIMS' FUND; EACH DEFENDANT PAY VICTIM'S MEDICAL BILLS

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Jeff Allen, Marty Carithers, and Lynwood Cannon were convicted in the Circuit Court of Lincoln County on January 16, 1996, of aggravated assault under Mississippi Code Section 97-3-7 (2)(b) (Rev. 1994). In addition, Carithers and Cannon were convicted of sexual battery under Mississippi Code Section 97-3-95 (1)(a) (Rev. 1994). Each was sentenced to a term of twelve years in the custody of the Mississippi Department of Corrections for the aggravated assault. Carithers and Cannon were also sentenced to a term of ten years for sexual battery, and ordered to pay $1,000 to the Crime Victims' Fund and attorney's fees. Allen was ordered to pay $500 to the Crime Victims' Fund, and required to obtain his GED. Aggrieved, Allen, Carithers, and Cannon appeal the following issues: 1) that the court erred in refusing to instruct the jury of the lesser-included-offense of simple assault, 2) that the court erred when it allowed a fact witness to give expert opinion testimony, 3) that the verdict was against the overwhelming weight of evidence, and 4) that the court erred in denying a motion for mistrial. Finding no merit to the issues raised, we affirm the jury's verdict and the court's sentences.

FACTS

On the evening of October 26, 1995, Betty Porter was walking down a road from her mother's house when a truck with three men drove by. Porter testified that the truck backed up, and one of the defendants, Allen, started talking to her. Porter admitted knowing Allen by the name "Chad." Porter testified that she had had consensual sex with "Chad" a few months ago. The other two defendants, Carithers and Cannon, were passengers in the car. Porter testified that as she was talking to "Chad" (Allen), Carithers jumped out of the truck, put a knife to her back, and demanded that she get in the truck. Porter testified that all three had been drinking. Porter stated that she got into the truck and was taken to a secluded location where she was sexually assaulted by all three men.

As Allen was sexually assaulting Porter, Carithers put the knife to her throat. Porter stated that Allen said, "[M]an, you don't have to do this, I ain't gonna get into this." Porter testified that Carithers removed the knife. Porter stated that after Allen sexually assaulted her, he left. Porter stated that Cannon jumped into the truck, hit her in the head with his fist, and stated, "[C]ome on, come on, come on." Porter refused to have sex with him, and Cannon held the knife up. As Cannon sexually assaulted Porter, Carithers forced her to engage in oral intercourse. Carithers got mad and demanded that Porter give him her money. Porter refused and attempted to walk away. Porter stated that at that point Cannon hit her on the head twice, she fell to the ground, and "saw stars." Porter stated that as Cannon attempted to hit her a third time, she grabbed her umbrella and hit him with it. Porter stated that Cannon then ran into the woods. Porter also ran into the woods and hid. She then heard the truck drive away. Porter testified that she got up and walked to a trailer nearby where an ambulance and the police were called.

Dr. Robert Visintine testified that Porter had two large lacerations approximately four inches long that required suturing on her scalp and one superficial laceration on her back approximately an inch and a half in length. Dr. Visintine stated that Porter had a seizure while the initial X-Rays were being administered, and that because of the seizure and her head injuries, he felt Porter should be transferred to Jackson where she could be treated by a neurosurgeon. Allen, Carithers, and Cannon were later arrested and charged on a five count indictment.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE COURT ERRED IN REFUSING A JURY INSTRUCTION OF THE LESSER-INCLUDED-OFFENSE OF SIMPLE ASSAULT.

Allen, Carithers, and Cannon argue that the court's refusal to allow a jury instruction for the lesser-included-offense of simple assault constituted serious and clear error. Specifically, they argue that there was evidence at trial that warranted the instruction because the requisite intent to cause serious bodily injury was not proven. The State contends that the facts adduced at trial failed to support the ...


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