Ivy v. State, 2005-KA-02303-SCT.

• Decision Date: 22 February 2007
• Docket Number: No. 2005-KA-02303-SCT.,2005-KA-02303-SCT.
• Citation: 949 So.2d 748
• Parties: Michael IVY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

949 So.2d 748

Michael IVY v. STATE of Mississippi.

No. 2005-KA-02303-SCT.

Supreme Court of Mississippi.

February 22, 2007.

Steven Carl Wallace, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before SMITH, C.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Michael Ivy (Ivy) was indicted in a two-count indictment—Count I: engaging in the sexual battery of A.B., a child under the age of fourteen and/or twenty-four months younger than Ivy, in violation of Miss.Code Ann. § 97-3-95, and Count II: fondling A.B., in violation of Miss.Code Ann. § 97-5-23.¹ Ivy received a jury trial in the Circuit Court of Lowndes County, Mississippi. Ivy was convicted of Count I: sexual battery and Count II: fondling. As to Count I, Ivy was sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections and fined $10,000. As to Count II, Ivy was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections to run consecutively with the sentence in Count I and fined $5,000. The trial court ordered that the sentences in Count I and Count II shall not be reduced or suspended, nor shall the defendant be eligible for parole or probation. Ivy now appeals to this Court, raising the following assignment of error: whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On June 2, 2004, A.B., age 13, awoke at approximately 3:00 a.m. to find her stepfather, Ivy, with his head between her legs. A.B. testified that Ivy tried to stick his thumb inside her, but she rolled over when he tried. She stated that the pain caused by Ivy trying to stick his thumb in her caused her to wake up. Ivy stuck his tongue inside her vagina.

¶ 3. Ivy had pulled her panties off of her, and the panties were on the floor. Ivy pulled up A.B.'s shirt and licked her chest. At the time, A.B. was in the bedroom that she shared with her younger sister, who was asleep. A.B. testified that she did not scream because she was afraid of Ivy becoming violent. A.B. testified that Ivy had been violent with her mother in the past. A.B. also testified that she was positive that it was Ivy who licked and touched her, because she could see his face. When he was licking her, she could see the top of his face and the back of his head. A.B.'s television was on in her room at the time. Ivy was wearing only his boxers (underwear).

¶ 4. Ivy told A.B. not to tell her mother what happened. A.B. testified that she pulled her covers over her head and started crying. A.B. testified that after Ivy left her room, he went to the bathroom, and she heard him running water. Ivy then went to her mother's room. A.B. testified that when her mother came into her room, she did not tell her what had happened. Instead, A.B. told her mother that she had a bad dream about her grandmother. After her mother left, A.B. fell asleep.

¶ 5. The next morning, A.B. again told her mother that nothing was wrong. A.B.'s grandmother took her to Bible school. After Bible school, A.B., her grandmother, and her younger cousin, T.R., all went to the grocery store.² A.B. confided in her cousin what had happened to her. T.R. told A.B.'s uncle what had happened, and he told A.B.'s grandmother. A.B.'s grandmother told her mother. A.B. subsequently spoke to a police officer about what had happened.

¶ 6. On cross-examination, the defense inquired as to how A.B. knew that it was 3:00 a.m. when Ivy came into her room and began licking her. A.B. clarified that she had an alarm clock in her room and she saw that it was 3:00 a.m. when she woke up.

¶ 7. Ivy testified that he was 37 years old at the time of the trial. Ivy had two prior felony convictions in Monroe County, Mississippi, for the sale of cocaine and served five years in prison on those convictions. Ivy testified that A.B. made the allegations to get him out of the house. Ivy testified that he was using drugs a few months before he married A.B.'s mother. Ivy testified that the marriage was unhappy. Ivy testified that he stayed away from the house so as not to be around his stepchildren while he was using drugs. He stated that on June 2, 2004, he was not using drugs and did nothing to A.B.

¶ 8. Ivy testified that on June 2, 2004, he came home around 2:30 a.m. He stated that he went through the house and checked on the "kids" and rubbed them on their heads. He testified that he got into bed at approximately 2:36 a.m. and had sex with his wife. He stated that he then went to sleep and slept until his wife woke him up as she was going to work.

¶ 9. A.B.'s mother, C.D., testified that Ivy moved in with her in April, and they were married in May.³ They lived in Caledonia, Lowndes County, Mississippi. However, C.D. stated that Ivy was hardly there even after they got married. At night, Ivy was usually not at home. Ivy stayed in Amory, Mississippi, primarily, even after they were married. C.D. testified that on June 2, 2004, Ivy came into the bedroom at 2:36 a.m. and woke her up. C.D. stated that the room was dark when Ivy woke her up so she looked at the clock. Ivy wanted to have sex, so they had sex.

¶ 10. After he finished, she went into her daughters' bedroom. A.B. was sobbing. A.B. told her that she had a bad dream about her grandmother. C.D.'s other daughter was still asleep. The next morning, C.D. went to work from 7:00 a.m. until 9:00 a.m. When she came home, C.D. cooked breakfast and saw her children. Ivy was still there asleep. A.B. told her that nothing was wrong. C.D. had to be back at work at 11:00 a.m. and did not return home until close to 8:00 p.m. C.D. found no one at home when she arrived. C.D. then received a telephone call from her brother. After speaking to her brother, C.D. called Ivy and asked what he did to A.B. Ivy denied doing anything to A.B.

¶ 11. Investigator Tony Perkins of the Lowndes County Sheriff's Department investigated the allegations. Investigator Perkins spoke with A.B.'s uncle and his son, T.R. Investigator Perkins spoke to A.B. with her uncle present. A.B.'s mother already had been transported to the hospital by ambulance. C.D. had become upset upon learning what had happened to her daughter. A.B. provided a written statement. Three weeks later, Ivy was located in Monroe County. Ivy was transported back to Lowndes County.

¶ 12. Before questioning Ivy, Investigator Perkins advised him of his rights, and Ivy signed a waiver of his rights. Investigator Perkins testified that Ivy told him that he had done "a lot of drugs" that night and he did things he normally would not do. He stated that "he may have done what he was accused of and just not remember it, because of the drugs." However, Investigator Perkins testified that Ivy did not want those things in his written statement. Investigator Perkins typed the statement that Ivy signed. In the signed statement, Ivy stated in pertinent part:

I got married on May 10th of this year. Shortly after that, I got on drugs. I was really doing drugs about a month before I got married. I was on crack and cocaine.

I did not do anything out of the way to my stepdaughter. I may not remember everything that happened that night, but I do know that I did not do anything wrong with my stepdaughter.

DISCUSSION

I. J.N.O.V. and Weight of the Evidence

¶ 13. Ivy made a post-trial motion for J.N.O.V., or alternatively, a new trial. The trial court subsequently entered its order denying Ivy's motion for J.N.O.V., or alternatively, a new trial. On appeal, Ivy raises only the issue of whether the verdict was against the overwhelming weight of the evidence. However, Ivy briefly discusses the sufficiency of the evidence in the context of his discussion of the weight of the evidence. Since this Court has tried to distinguish the two issues, we will address the two as separate and distinct assignments of error.

A. J.N.O.V.

¶ 14. Ivy made a post-trial motion for J.N.O.V. The trial court subsequently entered its order denying Ivy's motion for J.N.O.V. A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). "[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court." Id. at 778. Here, this occurred when the trial court denied Ivy's motion for J.N.O.V.

¶ 15. In Bush v. State, 895 So.2d 836, 843 (Miss.2005), this Court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction."

The Court stated:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss. 2004). However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.

Bush v. State, 895...