McKnight v. State, 97-KA-01512-COA.
| Decision Date | 20 April 1999 |
| Docket Number | No. 97-KA-01512-COA.,97-KA-01512-COA. |
| Citation | 738 So.2d 312 |
| Parties | Michael Eugene McKNIGHT, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
James R. Hayden, Scott Joseph Schwartz, Hattiesburg, Attorneys for Appellant.
Office of the Attorney General by Pat S. Flynn, Attorneys for Appellee.
BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.
LEE, J., for the Court:
¶ 1. This is a criminal appeal taken from the Circuit Court of Harrison County wherein the defendant, Michael Eugene McKnight, was found guilty of the crime of sexual battery and sentenced to serve twelve years in the custody of the Mississippi Department of Corrections. The defendant assigns eight errors to the lower court, contending that any one would require a reversal or a new trial. Finding no error in the defendant's assignments, we affirm the findings of the Circuit Court of Harrison County, and hold that:
FACTS
¶ 2. Michael Eugene McKnight was convicted of sexual battery for the act of inserting his finger into the vagina of A.M., who was one week past her fourteenth birthday at the time. McKnight worked for A.M.'s father and had previously been married to her aunt. He was spending the night with the girl's family in their mobile home on the night of the incident when he came in drunk around 2:00 a.m. A.M. testified that McKnight went into her bedroom and, while she pretended to be asleep because she was afraid to confront him, began whispering her name. He then "messed with" and kissed her ears and neck and put his finger into her vagina. The victim informed no one until after school the next day when she told her mother's friend, who was also her boyfriend's mother. This person informed A.M.'s mother, who reported it to the sheriffs office, and McKnight was subsequently arrested. Other facts will be discussed as needed throughout the opinion.
DISCUSSION OF THE ISSUES
¶ 3. McKnight asked for three continuances during the trial and claims that the court erred in refusing them. The first two were requested so that his daughter, a defense witness, could be located and brought into court. The third request for a continuance came on the third day of the trial and was requested so that McKnight, the appellant, could be located since he failed to appear in court.
¶ 4. The record shows that McKnight's daughter did show up, prepared to testify, on the third day of the trial. Therefore, the appellant suffered no prejudice from the denial of the first two requested continuances. The record also shows that McKnight was present for the first two days of his trial, and that at the end of the second day of the trial, the trial judge instructed that court would reconvene the next morning at 8:30. At 11:20 a.m. on the third day of the trial, the appellant had yet to appear when defense counsel's request for the third continuance was denied.
¶ 5. The defense argues that McKnight had a right to be present at his trial. This right is undeniable. The question is whether or not he, by his truancy on the third day, waived that right. This issue has been addressed in Sandoval v. State, 631 So.2d 159, 161-64 (Miss.1994) and McMillian v. State, 361 So.2d 495, 496-97 (Miss.1978). Both cases interpret Miss. Code Ann. § 99-17-9 (Rev.1994) which provides as follows:
In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto....
McKnight argues that he was not in custody, as required by the statute, and therefore the court could not waive his presence. McMillian, 361 So.2d at 497, does not support this contention, holding that a defendant "who was present when trial began and the jury examined, selected and sworn, was found that custody at the time he voluntarily left...." Also, the court in Sandoval, 631 So.2d at 164, affirmed the decisions of the Mississippi Supreme Court prior to Samuels v. State, 567 So.2d 843 (Miss.1990), on the facts of this case, stating: These decisions, and the above statute upon which they are based, have one common premise: if the defendant voluntarily absents himself from the trial at any point after the trial begins, the trial can go on in his absence. McKnight was present for the first two days of his trial and then disappeared. He thus waived his right to be present for the rest of his trial and justified the court to proceed.
¶ 6. McKnight's counsel argues that McKnight was prejudiced in his defense, since he was not at the trial on the third day to testify in his own defense and to decide whether or not to call his daughter to testify. This is a specious argument. The record clearly shows that McKnight's counsel told the trial court that he would advise his client, if he were present, that it would not be in his best interest to put his daughter on the stand. There is no merit in this argument that McKnight was prejudiced and did not receive a fair trial.
¶ 7. We do not find that the trial court committed error in denying continuances to assure the presence of a witness who ultimately came to court but whose testimony was not elicited because the defense counsel determined that the testimony would not be in his client's best interest. We also find no error in the court's denial of a continuance to find the appellant, who had voluntarily absented himself from the last day of the trial after having been present for the first two days of the trial. The lower court did not abuse its discretion in declining to grant these continuances.
¶ 8. McKnight claims that the evidence was insufficient to sustain a conviction for the crime of sexual battery since the only evidence offered that showed that sexual penetration had taken place was the uncorroborated testimony of the victim, who admitted to the court that she had committed perjury during her testimony regarding her virginity at the time of the encounter with McKnight. Precedent in this jurisdiction holds that the unsupported word of the victim of a sex crime is sufficient for conviction, unless it is substantially contradicted by other credible testimony or physical facts. In Otis v. State, 418 So.2d 65, 67 (Miss.1982), the court found that the word of a fifteen year old retarded girl who was raped was sufficient for conviction where there was no physical evidence. In Christian v. State, 456 So.2d 729 (Miss.1984), the court affirmed a conviction where there was no evidence of a weapon or a sign of external injury. The word of the prosecutrix was sufficient to prove guilt. Id. at 734.
¶ 9. In this case, there is no material contradiction of the victim's testimony concerning the attack by McKnight, neither is her testimony discounted by physical evidence. Though she did lie on the witness stand regarding her virginal status, she later explained that she did so because her parents were in the courtroom and she did not want them to know that she had been sexually active. Whether she had had consensual sex prior to this incident is not a relevant issue as to the charge that McKnight, without her permission and against her will, inserted his finger into her vagina on the night of February 11, 1996. It is well established in this state that the credibility of a witness is a matter for the jury. Anderson v. State, 461 So.2d 716, 719 (Miss.1984); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Billiot v. State, 454 So.2d 445, 463 (Miss. 1984).
¶ 10. In Allman v. State, 571 So.2d 244 (Miss.1990), the defendant asked for a jury instruction that the uncorroborated word of the child victim was insufficient. The court upheld the trial judge's refusal of that instruction as an incorrect statement of law. Id. at 250. Numerous cases hold that a rape victim's uncorroborated testimony alone is sufficient where it is consistent with the circumstances. Goss v. State, 465 So.2d 1079, 1082 (Miss.1985); Barker v. State, 463 So.2d 1080, 1082 (Miss.1985); Blade v. State, 240 Miss. 183, 126 So.2d 278, 280 (1961); Buchanan v. State, 225 Miss. 399, 83 So.2d 627, 630 (1955).
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