Gill v. State, 56123

• Court: United States State Supreme Court of Mississippi
• Citation: 485 So.2d 1047
• Docket Number: No. 56123,56123
• Parties: Jessie Lee GILL v. STATE of Mississippi.
• Decision Date: 05 March 1986

Page 1047

485 So.2d 1047 Jessie Lee GILL
v.
STATE of Mississippi. No. 56123. Supreme Court of Mississippi. March 5, 1986.

Page 1048

Laurie S. Caldwell, Gulfport, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

WALKER, Presiding Justice, for the Court:

Jessie Lee Gill was convicted of attempted sexual battery by the Circuit Court of the First Judicial District of Harrison County and sentenced to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections.

The appellant is the father of the prosecutrix, Lynn Gill. Also living in appellant's home were his wife Mary and son Joshua.

Lynn's testimony was that her father came into her bedroom while she and her brother Joshua were playing and told Joshua to go to his room. The appellant then tried to take her clothes off. Lynn resisted but the appellant kept putting his hands inside her clothes and tried to penetrate her vaginal opening with his hand. Lynn managed to get to the living room where appellant pushed her to the floor and tried to get her to touch his penis. The appellant got off her when he heard his wife drive up. Lynn ran to a neighbor's house; the neighbor called the police.

Joshua corroborated his sister's testimony that he left her bedroom when told to by his father. He said he heard things being pushed and hitting the wall in his sister's room. He heard his sister screaming and his father say, "Kiss it, let me have one finger and take your clothes off."

Donna Davis, the neighbor that Lynn ran to, testified that Lynn came to her house hysterical and crying. Lynn told Mrs. Davis that her father had tried to rape her.

Mary Gill testified that when she arrived home she was told by Joshua that Lynn and her father had had a "fuss." Mrs. Gill was asked by defense counsel about an argument she and Lynn had two weeks before the incident. Purportedly, Lynn wanted her mother to divorce her father and when she discovered her father still at home the next morning Lynn promised to "get even" with him. During this argument with her mother Lynn accused her father of raping her on four previous occasions.

Page 1049

On appeal the appellant assigns three errors in the trial below.

I. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN DEFENDANT'S

MOTION FOR DIRECTED VERDICT MISS. CODE ANN. Sec.

97-3-95 (1984 Supp.)

Miss. Code Ann. Sec. 97-3-95, cited by appellant, reads:

A person is guilty of sexual battery if he or she engages in sexual penetration with:

(a) another person without his or her consent;

(b) a mentally defective, mentally uncapacitated or physically helpless person; or

(c) a child under the age of fourteen (14) years.

Attempted sexual battery is a criminal offense by virtue of Miss. Code Ann. Sec. 97-1-7, which reads in part:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: ... [I]f the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

In passing on motions for directed verdicts and requests for peremptory instructions of not guilty, all evidence on behalf of the State is taken as true, together with reasonable inferences that may be drawn therefrom, and, if there is sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled and the peremptory instruction must be denied. Barker v. State, 463 So.2d 1080 (Miss.1985); Shelton v. State, 445 So.2d 844 (Miss.1984); Wilks v. State, 408 So.2d 68 (Miss.1981); Bayse v. State, 420 So.2d 1050 (Miss.1982).

Appellee's attack centers on the credibility of the defense witnesses and the weight to be given their testimony. However, the credibility and weight of the evidence are for the jury and not for this Court to determine.

This record clearly makes out a jury issue. Any conflicts or inconsistencies were for the jury to resolve. This Court does not reverse criminal cases solely on disputed issues of fact. Thornton v. State, 313 So.2d 16, 18 (Miss.1975). As cited in Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979):

... Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or...