Daniels v. State
| Decision Date | 24 June 1999 |
| Docket Number | No. 06241999.,06241999. |
| Citation | 742 So.2d 1140 |
| Parties | Richard DANIELS, Jr. a/k/a `Bug' v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Azki Shah, Clarksdale, Attorney for Appellant.
Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
BEFORE SULLIVAN, P.J., McRAE AND MILLS, JJ.
MILLS, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Richard Daniels, Jr., A/K/A "Bug", was convicted and sentenced in the Coahoma County Circuit Court for the crime of capital rape in violation of Miss.Code Ann. § 97-3-65 (1994). He was sentenced to serve a term of life imprisonment in an institution under the supervision and control of the Mississippi Department of Corrections.
STATEMENT OF THE FACTS
¶ 2. The victim in this case, whom we will call Cheryl1 from this point forward, lives in Clarksdale, Mississippi, with her mother. She admittedly runs away from home on a regular basis. She testified that Richard Daniels was her boyfriend when she was thirteen years old. She was fourteen at the time of trial. She further testified that they were "going together" for "two or three weeks or months or something". Cheryl testified that she met Daniels through her ex-boyfriend's cousin, Chris. She was walking with two of her friends when Chris and Daniels picked them up. She admitted that she gave him a fake name and told him that she was seventeen years old. She testified that she and Daniels "became boyfriend and girlfriend" that night. She further testified that they began having sex on a regular basis.
¶ 3. On February 13, 1998, Dale Jones, juvenile and gang investigator for the Clarksdale Police Department, went to the home of Richard Daniels, Jr. acting on a tip from a confidential informant. He found thirteen-year-old Cheryl sitting in Daniels's living room. He took both Daniels and Cheryl to the police department for further investigation. Upon questioning both Daniels and Cheryl, Jones discovered that the two were in fact having a consensual sexual relationship. Daniels was twenty nine years old. Both Daniels and Cheryl testified at trial that Daniels was under the impression that Cheryl was seventeen. They also testified that she lived with Daniels for a short period when she ran away from home. Additionally, they testified that during that period of time they engaged in sexual intercourse on a regular basis.
¶ 4. Daniels was tried and convicted of capital rape in violation of Miss.Code Ann. § 97-3-65 and was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. It is from that conviction and sentence that Daniels appeals asserting the following assignments of error which are taken verbatim from his brief:
A. Sufficiency of the Evidence
¶ 5. "When the sufficiency of the evidence is challenged on appeal, this Court properly should review the Circuit Court's ruling on the last occasion when the sufficiency of the evidence was challenged before the trial court." Wetz v. State, 503 So.2d 803, 807 n. 3 (Miss.1987). In the case at bar, the last occasion when the sufficiency of the evidence was challenged before the trial court was when the court overruled the "Motion for Judgment of Acquittal Notwithstanding the Verdict or in the Alternative Motion for New Trial."
¶ 6. This Court's scope of review based on a challenge to the sufficiency of the evidence is well settled. In reviewing the trial court's denial of a motion for a judgment notwithstanding the verdict, we review the sufficiency of the evidence in the light most favorable to the state. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). All credible evidence which is consistent with Daniels's guilt must be accepted as true, and the State is given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. Because matters concerning the weight and credibility of the witnesses are to be resolved by the fact finder, this Court will reverse only where, "with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.
¶ 7. Daniels argues that the State failed to prove (1) penetration and (2) that the intercourse took place on the dates specified in the indictment. The indictment as to Count II, for which Daniels was convicted, reads as follows:
¶ 8. As to his first attack on the sufficiency of the evidence, that the State failed to prove penetration, we find that the jury was presented with sufficient evidence to find otherwise. The victim testified as follows:
From that point the victim went into specific detail in explaining what she meant by "sex". Additionally, Daniels, himself, testified that they had sexual intercourse. As to the issue of penetration, no reasonable, fair-minded, hypothetical juror could have found Daniels not guilty.
¶ 9. Daniels's second argument is that the State failed to prove that the criminal act took place on the dates specified in the indictment. The victim testified as follows:
¶ 10. Certainly "on or about and between February 7, 1998 and February 13, 1998" as charged in the indictment includes the date two days before February 13 as the victim testified was the last date of intercourse between Daniels and herself. Additionally, even had the date alleged in the indictment been incorrect, "an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and, `within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.'" United States v. Cochran, 697 F.2d 600, 604 (5th Cir.1983) (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir.1970)). See also Cooper v. State, 639 So.2d 1320, 1323 (Miss.1994). We find that the State proved both the act of penetration and the date of the act as charged in the indictment with evidence sufficient to support the conviction. The argument that the evidence was insufficient is without merit.
B. Weight of the Evidence
¶ 11. In reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict. Strong v. State, 600 So.2d 199, 204 (Miss. 1992). A motion for a new trial addresses the weight of the evidence and should only be granted to prevent an unconscionable injustice. McClain v. State, 625 So.2d 774, 781 (Miss.1993). Accordingly, we reverse and remand for a new trial only upon reaching the conclusion that the trial court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.1997).
¶ 12. We find no abuse of discretion by the trial court. There was no dispute that Daniels "carnally and unlawfully knew" the child who was under the age of fourteen. The jury was entitled to find sexual penetration "on or about or between February 7, 1998 and February 13, 1998" based on Daniels own testimony, as well as the testimony of the victim. Additionally, the fact that Daniels testified that he was led by the victim to believe that she was seventeen years old is of no consequence to the finding of the jury in the case sub judice because neither consent nor "mistake of age" is a defense to capital or statutory rape. Collins v. State, 691 So.2d 918 (Miss.1997). Daniels's attack upon the weight of the evidence fails.
II. DID THE TRIAL COURT ABUSE IT'S DISCRETION IN FAILING TO SENTENCE APPELLANT ACCORDING TO MISS. CODE ANN. § 97-3-65 AS AMENDED?
¶ 13. At the time of the criminal act, in February of 1998, Miss.Code Ann. § 97-3-65 (1994), the statute prohibiting the act of sexual intercourse by an adult with a child under the age of fourteen provided a mandatory punishment of death or imprisonment for life in the State Penitentiary. The statute was amended effective from and after July 1, 1998. Sentencing took place on August 24, 1998. At the time of sentencing the amended statute provided a sentence of "imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years." Id. § 97-3-65(2)(c) (Supp.1998).
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