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Nix v. State

Supreme Court of Mississippi, En Banc

November 21, 2013

Lee Darrel NIX a/k/a Lee Darryl Nix a/k/a Lee D. Nix a/k/a Lee Darrel Nix a/k/a Lee Nix a/k/a Lee Darrell Nix
v.
STATE of Mississippi.

Page 41

Lee Darrel Nix, appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice.

¶ 1. On writ of certiorari, Lee Darrell Nix appeals a Court of Appeals judgment affirming the Circuit Court of Harrison County's denial of his motion for post-conviction relief (PCR). Nix v. State (" Nix II " ), 126 So.3d 46, 2012 WL 4875013, *1 (Miss.Ct.App. Oct.16, 2012). Nix was convicted of touching a child for lustful purposes and kidnapping. His conviction was unanimously affirmed by this Court on direct appeal. Nix v. State (" Nix I " ), 8 So.3d 141 (Miss.2009). On PCR, Nix argues that the State failed to prove beyond a reasonable doubt an essential element of touching a child for lustful purposes— the victim's age at the time of the offense. As with all post-conviction petitions, Nix bore the burden to show that he was entitled to relief. He failed to do so. As such, the trial court did not err in denying his petition. Finding no error, we affirm the judgment of the Court of Appeals and the Circuit Court of Harrison County denying post-conviction relief.

FACTS

¶ 2. For an account of the crime, review this Court's opinion on direct appeal. See Nix I, 8 So.3d at 142-43. The pertinent procedural history of the case will be discussed infra.

ANALYSIS

¶ 3. " On post-conviction relief, we will not disturb the trial court's findings unless they are found to be clearly erroneous." Jackson v. State, 965 So.2d 686, 688 (Miss.2007) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)). However, questions of law are reviewed de novo. Id.

¶ 4. Nix was indicted by a grand jury for touching a child for lustful purposes and kidnapping. As to the charge of touching a child for lustful purposes, the grand jury was required to find that probable cause existed, inter alia, that the " child ... was at the time in question under the age of sixteen (16) years." Through its indictment, the grand jury found that sufficient facts existed to establish probable cause that the child was under sixteen.

¶ 5. At trial, the police officer who responded to the crime testified that, " [w]hen I first arrived, I spoke to [the victim], ... a 14 or 15-year-old ... female...." [1] The officer's testimony did not conflict with that of the victim— who testified that she was seventeen at the time of trial (more than fifteen months after the crime). The officer testified without objection, and his testimony regarding her age was not challenged or refuted.

¶ 6. Following the close of the State's case-in-chief, Nix moved for a directed verdict. He argued that " the State ha[d] failed to prove beyond a reasonable doubt each and every material element of the charges against [him]." The victim's age is an essential element of the crime of touching of a child for lustful purposes, yet

Page 42

Nix did not argue that the victim was sixteen or older. The trial court ...


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