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Smith v. State

Court of Appeals of Mississippi

November 18, 2014

ROBERT FITZGERALD SMITH A/K/A ROBERT SMITH A/K/A ROBERT F. SMITH, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/12/2012. TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY. TRIAL COURT DISPOSITION: CONVICTED OF STATUTORY RAPE AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ELEVEN YEARS TO SERVE, NINE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, AND TO PAY $500 TO THE CRIME VICTIMS' COMPENSATION FUND.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH PRIDGEN.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART.

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

OPINION

IRVING, P.J.

¶1. A Washington County jury found Robert Smith guilty of statutory rape. Smith filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, challenging the weight and the sufficiency of the evidence presented against him during trial. The circuit court denied that motion in its entirety. Smith appeals, arguing that the circuit court erred in denying his motion for a new trial.

¶2. Finding no error, we affirm.

FACTS

¶3. During the weekend of May 31, 2008, through June 1, 2008, B.G.[1] visited

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her grandmother, Cathy, at Cathy's house. At the time, Smith; Cathy; Smith's sister, Linda; and Linda's son, Brian, all lived in the house, which consisted of a front room; two bedrooms, one of which belonged to Linda and Brian; a bathroom; and several other rooms.[2] B.G.'s two younger brothers, Joshua and Alex, also visited Cathy that weekend. B.G., Brian, Joshua, and Alex slept in Linda and Brian's room, and Cathy, Smith, and Linda slept in the front room.[3]

¶4. On Sunday, June 1, which was B.G.'s ninth birthday, B.G.'s mother, Tiffany, picked B.G. up from Cathy's house to take B.G. to B.G's birthday party at a local skating rink. According to Tiffany, B.G. behaved normally on that day, although B.G. stated that she did not want to visit Cathy's house again unless her older sister accompanied her.[4]

¶5. Testimony at trial revealed that in December 2008, Tiffany and B.G. visited Dr. Hosan Azomani, a pediatrician, and during that visit, Tiffany informed Dr. Azomani that B.G. had been experiencing irregular menstruation. Dr. Azomani explained to Tiffany that irregular menstruation was normal for a girl B.G.'s age. Dr. Azomani did not examine B.G.'s vagina. Dissatisfied with Dr. Azomani's explanation, on January 27, 2009, Tiffany took B.G. to Karen Fleming, a nurse practitioner. Tiffany informed Fleming of B.G.'s irregular menstruation and of a foul odor coming from B.G.'s vagina. Fleming testified that she questioned B.G. about sexual activity, and B.G. initially indicated that no one had " messed with" her. Fleming stated that she performed a cotton swab of B.G.'s vagina to obtain a specimen for testing. The test revealed that B.G. had contracted trichomoniasis, a sexually transmitted infection (STI), and that B.G. suffered from bacterial vaginosis. On January 29, 2009, Fleming called Tiffany and B.G. back to her office to reveal the test results. According to Fleming, during that office visit, B.G. stated that Smith had " messed with" her the last time she visited Cathy's house--between May 31, 2008, and June 1, 2008. Fleming instructed Tiffany to take B.G. to the Department of Human Services (DHS) to report the incident. During trial, on cross-examination, Fleming testified that trichomoniasis is contracted primarily through sexual intercourse, and that on rare occasions, it can be transmitted from a mother to her fetus.

¶6. Velma Phillips, a DHS counselor, testified that she interviewed B.G. on two separate occasions on January 29, 2009.[5] Phillips stated that during the first interview, B.G. informed her that she was raped by Smith when she last visited Cathy's house. According to Phillips, B.G. stated that Smith entered Linda and Brian's room where B.G., Brian, Joshua, and Alex were sleeping, grabbed B.G. by her legs, and took her to ...


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