Ross v. State
| Decision Date | 20 January 2011 |
| Docket Number | Nos. 2009-KA-00796-COA, 2009-KA-00797-COA.,s. 2009-KA-00796-COA, 2009-KA-00797-COA. |
| Citation | 51 So.3d 977 |
| Parties | Tyshunna Cooper ROSS, Appellant v. STATE of Mississippi, Appellee. Tyshunna Cooper Ross, Appellant v. State of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Leslie S. Lee, Jackson, Phillip Broadhead, Oxford, Bentley E. Conner, Flora, attorneys for appellant.
Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
Before MYERS, P.J., BARNES and MAXWELL, JJ.
MYERS, P.J., for the Court:
¶ 1. Tyshunna Cooper Ross was indicted on one count of gratification of lust and one count of sexual battery by a Madison County grand jury. The indictments stemmed from the thirty-seven-year-old Ross's relationship with a twelve-year-old boy, A.B.1 The State alleged that on July 4, 2007, Ross committed sexual battery by having sexual intercourse with A.B. and that she had touched his penis for the purpose of gratifying her lust.
¶ 2. Ross was subsequently convicted on both counts in the Circuit Court of Madison County. The trial court sentenced Ross to fifteen years on the gratification of lust count and forty years on the sexual battery count, with the sentences to be served consecutively. The sentencing order provided that the final thirty-seven years of the sentence would be suspended, with five years' supervised probation. Ross was also ordered to register as a sex offender. Aggrieved by her conviction andsentence, Ross appeals, arguing that: the jury's verdict is against the overwhelming weight of the evidence; the evidence was insufficient to support the convictions; and she received constitutionally ineffective assistance of counsel at trial. Finding no error, we affirm Ross's convictions and sentences.
FACTS
¶ 3. At trial, A.B., then fourteen years of age, testified for the State. A.B. stated that he knew Ross through her daughter, who A.B. had "dated" for some period of time in the sixth grade.2 Some time later, Ross had bought beer for A.B. and his friends on two separate occasions. Then, on July 3, 2007, Ross invited A.B. and two of his friends, both fourteen years old, to "hang out" with her at the home she shared with a roommate. Ross's home was located approximately one quarter mile from A.B.'s. Ross told the boys that she was locked out, so they sat out on the carport. Ross smoked cigarettes and drank vodka, both of which she shared with the boys. A.B. consumed four or five "shots" of vodka. At Ross's request, the party then went into the nearby woods, where they continued to smoke and drink. A.B. testified that while in the woods, he and Ross kissed and he fondled Ross's breasts. When it started to get dark, C.D., one of A.B.'s friends, sneaked Ross into his bedroom through an outside window. Ross stayed with C.D. for an hour or so before calling her boyfriend, Tom Carter, who picked Ross up from C.D.'s house. Later that evening, A.B., C.D., and two girls aged twelve or thirteen sneaked into A.B.'s bedroom, where they "talked and kissed" for about forty-five minutes before A.B.'s mother abruptly entered the bedroom at approximately 11:00 p.m. and took the other children home.
¶ 4. The next day, July 4, 2007, A.B.'s parents were hosting a party at their home. Ross and A.B. made contact around noon, either by telephone or text message. Later that day, Ross told A.B. that her boyfriend had beaten her and that she needed a place to stay. A.B. offered to let Ross stay with him. She arrived a short time later, at approximately 8:30 p.m., and A.B. helped her sneak into the home through a laundry room window. A.B. and Ross went to A.B.'s bedroom, and A.B. locked the bedroom door. Ross asked for a drink, and A.B. gave her a beer from a case he had taken from his parents' party and hidden in a gun cabinet in his bedroom.
¶ 5. A.B. recounted what happened next as follows:
A.B. then went downstairs with his mother, but Ross initially stayed in the bedroom.
A.B. testified that after he explained to his mother who he had been with, he denied that anything sexual had occurred.
¶ 6. A.B.'s mother testified that she had heard a noise coming from A.B.'s room, and that after the events of the previous night, she decided to investigate. She noticed that A.B.'s door was closed and locked, but she was able to open the door with a toothpick. When she turned on the lights, A.B.'s mother saw A.B. and a woman in the bed. The woman covered her face with the sheets, but A.B.'s mother observed that the woman was wearing scrubs and was not the same girl A.B. had been with the previous night. A.B.'s mother and A.B. went downstairs, where A.B. told his mother that she "didn't understand" and that the woman "had no place to go." After his mother—believing at this time that the woman was a teenager—expressed doubts, A.B. averred that the woman had been beaten by her boyfriend and had been "kicked out." A.B. then called for Ross to come downstairs. A.B.'s mother recognized Ross and stated, "I can't believe it's you." Ross then apologized and averred that she had been locked out by her roommate, who was out on a date, and had no place to go. Ross stated that she had no one she could call to come and get her, but she would try to contact her roommate. A.B.'s mother described Ross as acting "like she was kind of in a trance" and stated that Ross "really didn't say much" and "didn't act like an adult." A.B.'s mother offered Ross the guest bedroom for the night, and she brought A.B. to sleep in his parents' bedroom. At approximately 2:00 a.m., Ross made contact with her roommate, who came and picked Ross up.
¶ 7. A.B. initially denied that anything of a sexual nature had occurred between him and Ross. On July 5, he and his family traveled to Chattanooga, Tennessee, to stay with his aunt and uncle. They returned to Madison the following Sunday. On Monday, A.B.'s mother was contacted by a friend who told her that Ross had given their sons alcohol on July 3. A.B.'s mother took A.B. to the Madison Police Department to give a statement regarding the events of that day. During the interview, A.B. told the investigating officer that after drinking the vodka on July 3, he and C.D. had kissed Ross and fondled her breasts. A.B. also stated that on July 4, while he was in bed with Ross, she had touched his penis and he had fondled her breasts; however, A.B. denied that the two had sexual intercourse. A.B. was then sent for an interview at a Child Advocacy Center (CAC), which was conducted on July 12. At the CAC interview, A.B. again did not disclose the sexual intercourse. On July 13, however, A.B. told his mother the "full truth." She then brought A.B. back to the Madison Police Department for a second interview, where he recounted substantially the same facts that he testified to at trial. An audio recording of the second police interview was introduced into evidence and played for the jury.
¶ 8. Detective Mike Magee of...
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