The opinion of the court was delivered by: Herring, J.
DATE OF JUDGMENT: FEBRUARY 12, 1996
TRIAL JUDGE: HONORABLE JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LYNDA CAROL ROBINSON (WITHDRAWN) MARK T. FOWLER
TRIAL COURT DISPOSITION: CAPITAL RAPE: SENTENCED TO SERVE A TERM OF 6 YRS IN THE CUSTODY OF THE MDOC WITH 1 YR SUSPENDED & THE REMAINING 5 YRS TO BE SERVED WITHOUT BENEFIT OF PAROLE
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 12/18/1998
¶1. Calvin Winston was convicted of rape by the carnal knowledge of a female under the age of fourteen years in the Circuit Court of Yazoo County, Mississippi, and was sentenced to a term of six years in the custody of the Mississippi Department of Corrections, with one year suspended and the remaining five years to be served without the benefit of parole. Winston now appeals to this Court alleging (1) the evidence was insufficient to support the judgment and the verdict was against the overwhelming weight of the evidence; (2) the trial court erred in its instructions to the jury concerning the uncorroborated testimony of the child and alleged victim in this case; and (3) the attorneys for the Appellant did not render effective assistance of counsel to him. After a review of the record and applicable law, we affirm Winston's conviction but remand to the trial court for proper sentencing.
¶2. Calvin Winston, age sixty-seven, was indicted by the Yazoo County Grand Jury on November 30, 1994, for the crime of rape by the carnal knowledge of a female under the age of fourteen years, in violation of Mississippi Code Annotated Section 97-3-65 (Rev. 1994). The alleged victim was thirteen years old on June 17, 1994, the date when the incident occurred that resulted in the charges against Winston.
¶3. According to the record, the minor child was supposed to be baby-sitting on June 17 for her sister but left her sister's child with a friend and went to Winston's home to eat pizza. All witnesses agree that Winston had been a friend of the victim's family for a number of years and at one time had been their next-door neighbor. The evidence is also undisputed that the victim and other children in the area would frequently visit with Winston, who would often give them something to eat and occasionally lend them money. The minor child testified that, on the day in question, she went to Winston's home because he was supposed to get her a pizza. When she arrived at approximately 12:00 p.m., she found Benita Cage, a twenty-six-year-old beautician from across the street already there. After the three of them engaged in conversation for a little while, Benita Cage left to go home but the child remained. Winston then proceeded to cook spaghetti, which they both ate.
¶4. The child testified that after eating the spaghetti, Winston came over and began touching her breasts. When she tried to leave, he grabbed her and took her to a bedroom, took off her clothes, had oral sex with her, and then had intercourse with her as well. At some point, the victim's mother, sister, and brother-in-law came to Winston's home looking for the child. Winston went to the front door and first denied that the child was still at the home. A short while later, after hearing the child's low voice from the back of the house, Winston returned to the door with the child, who was crying. Her clothes were in disarray. After first denying that she had been molested, the child then admitted that Winston had "messed" with her and was ultimately taken to a local hospital for an examination. The child also testified that Winston locked her in a bedroom when he first went to the front door of his house to see the child's mother. The child's mother testified that she slapped the child when she came to door with Winston.
¶5. Officer Tim Jones of the Yazoo City Police Department came to Winston's home after being called by the victim's family. He confirmed that the child's clothing was in disarray, that her shirt and short pants were open and her breasts were exposed. She was not wearing a bra. Officer Jones took the child to the hospital and was accompanied in the vehicle by the child's mother. His description of the child's condition and the disarray of her clothing was corroborated by the testimony of the child's brother-in-law, who accompanied his wife to Winston's home on June 17.
¶6. Dr. Patrick McCain, the emergency room physician at the hospital, saw the child at approximately 2:00 p.m. on the day in question and performed what he called a "typical rape examination." He was of the opinion that the child had engaged in intercourse within a period of approximately two hours prior to his examination because of (1) the condition of the child's perineal area and (2) a small amount of seminal fluid was taken from the child's vagina, which is a self cleaning organ. However, the doctor observed no bruises, lacerations, or other obvious trauma in his examination of the child. The doctor based his opinion in this case, not only upon his objective findings, but also on his thirty-five years of experience as an emergency room physician.
¶7. Calvin Winston testified in his own behalf and categorically denied engaging in any sexual or other improper activity with the child. He did state that the child came to his home and was with him alone prior to the child's mother coming to the door looking for her daughter. However, he testified that the child had been at his home with him on numerous occasions and came on this occasion wanting to eat pizza. According to Winston, the child wanted to hide from her mother when she learned that her mother was at the front door of the house. Moreover, he said that he was just joking with the mother when he denied that the child was present in his home, that he had been a neighbor and friend of the family for years, and had lent the family money to pay utility bills in the past. He further denied that he had locked the child in a back room of the house and stated that she could easily have gone out a back door or window if she had truly believed herself to be a captive.
¶8. As stated, the jury found Winston guilty as charged. B. THE ISSUES
¶9. On appeal, Winston raises the following issues, which are taken verbatim from his brief:
I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AND THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S INSTRUCTION D-11 REGARDING THE UNCORROBORATED TESTIMONY OF A CHILD.
III. THE ATTORNEYS FOR DEFENDANT AT TRIAL DID NOT RENDER EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THEY APPARENTLY DID NOT UNDERSTAND THE ELEMENTS OF THE CHARGE AGAINST THE DEFENDANT.
I. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE VERDICT AND WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
¶10. Our standard of review in cases involving an objection to a jury verdict based on the argument that the verdict was against the overwhelming weight of the evidence has most recently been explained by the Mississippi Supreme Court in Herrington v. Spell, 692 So. 2d 93, 103-04 (Miss. 1997), wherein the court stated:
In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable inJustice will this Court disturb it on appeal.
(citations omitted). Although Herrington was a civil case, the standard of review is the same in criminal cases. See Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989); Benson v. State, 551 So. 2d 188, 193 (Miss. 1989) ...