DATE OF JUDGMENT: 05/21/96 TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR. COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
Before Pittman, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. Nine year-old C. H. accused Johnny Collier of fondling her. Collier was convicted in the Circuit Court of Bolivar County, Second Judicial District, of touching a child for lustful purposes and was sentenced, as an habitual offender, to serve ten years in the custody of the Mississippi Department of Corrections. Aggrieved by the verdict of the jury, Collier assigns the following as error:
THE TRIAL COURT COMMITTED ERROR IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE ITS CASE AGAINST THE APPELLANT; THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE; AND, THE VERDICT EVIDENCES BIAS AND PREJUDICE AGAINST THE APPELLANT AND WAS BASED SOLELY UPON SUSPICION AND SPECULATION.
¶2. After careful consideration of the above issue, we affirm the judgment below.
¶3. Johnny Collier ("Collier") was indicted on April 19, 1996, by the Grand Jury of Bolivar County for gratification of lust (fondling), pursuant to Mississippi Code Annotated section 97-5-23 (1) (1972), and as an habitual offender pursuant to Mississippi Code section 99-19-81 (1972). Collier had been convicted twice previously of a felony and had been sentenced to two separate terms of one year or more in a penal institution. Collier was tried before a jury in May, 1996.
¶4. Nine year old C.H. ("C.H."), the victim, testified that on September 24, 1996, her mother sent her to Collier's house to ask his girlfriend for some hair gel. According to C.H., she knocked on the door and Collier answered. She stated that she went inside the house and that after she asked him for the gel, he went back into another part of the house and "asked his girlfriend, and then he came back and he felt on my front part and my back." She identified her "front part" as her vaginal area and her "back" as her buttocks. According to C.H., Collier went into another room, came out with a pair of pants in his hand and took out a wadded up bill and put in her hand saying "[d]on't tell nobody about this", adding "[w]hen I come down to your house, you always look beautiful to me." C.H. stated that she then threw the money at him, ran down the road to her house and told her mother what had happened. Additionally, C.H. testified that she did not see any children at Collier's house.
¶5. C.H.'s mother, Dorothy ("Dorothy"), testified that her daughter, upon returning from Collier's, appeared "[w]ild looking and scary like." Upon questioning her as to what was wrong, Dorothy stated that C.H. told her that Collier had "been feeling her all over" and was "feeling all between her legs." Upon receiving that information, Dorothy testified that she called the police. Dorothy, at the Rule 803 hearing, stated that C.H. was "slow" and on cross-examination, she said that C.H. received a disability payment each month for epileptic seizures.
¶6. Detective Ollie White testified that he spoke with Dorothy and C.H. the next day and that C.H. told him what had happened the previous day at Collier's house. He took an oral statement from C.H. in the morning and a taped statement in the afternoon, with the taped statement being taken in the presence of Dorothy and Ms. Cindy Barnes, with Human Services. The statement given to Detective White differed in only one way from the account given by C.H. to Dorothy and to the jury. C.H. told her mother and the jury that the fondling occurred after Collier returned from ...