Shive v. State, No. 56929

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtGRIFFIN; WALKER
Citation507 So.2d 898
PartiesJerry Ward SHIVE v. STATE of Mississippi.
Decision Date20 May 1987
Docket NumberNo. 56929

Page 898

507 So.2d 898
Jerry Ward SHIVE
v.
STATE of Mississippi.
No. 56929.
Supreme Court of Mississippi.
May 20, 1987.

Page 899

William O. Townsend, Pearl, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and SULLIVAN and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

I.

Jerry Ward Shive appeals the judgment of the Circuit Court of the First Judicial District of Hinds County in which he was convicted of the crime of gratification of lust and sentenced to serve a term of eight years in the Mississippi Department of Correction, with five years suspended on supervised probation. As error he assigns the trial judge's failure to allow him to amend his indictment to read a lesser charge of simple assault; the state's failure to prove his intent to gratify his lust or indulge his depraved, licentious sexual desires; and finally that the verdict of the jury was contrary to the overwhelming weight of the evidence.

However, for the reasons stated below, we affirm the lower court decision.

II.

Appellant was indicted on July 9, 1985, for "gratifying his lust and indulging his depraved licentious sexual desires ... [on] the private parts of a certain child under the age of fourteen (14) years, to-wit: R.H."

Testimony at trial showed that on March 28, 1985, R.H., a nine-year-old female, was sitting on her bed doing her homework when the appellant entered her room. Despite her denial to his request that he be allowed to "rub her bottom", Shive proceeded to do it anyway. Further testimony showed this had occurred on numerous occasions over the course of one to two years. The child used a doll to demonstrate to the jury what she termed her "bottom": this proved to be the vaginal area.

Appellant's visit at the time in question was confirmed by the child's mother, and she did recall as well Shive having been in R.H.'s bedroom on that date.

Shive's testimony was that, while he did in fact touch her as alleged, it was to check for pin worms and/or to determine whether the child had suffered any abuse at the hands of her mother.

Shive stated he believed R.H. was being physically and mentally abused by her mother, so his "searches" were in an attempt to obtain evidence that she was an unfit mother. However, while he found no evidence of either kind of abuse, Shive continued to check anyway.

Following his indictment and trial, the jury returned a verdict of guilty. Shive filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative,

Page 900

motion for a new trial. These motions were overruled, and Shive subsequently perfected this appeal.

III.

We address the issues presented to us in turn, and find that none merit any lengthy discussion.

As to the trial judge's failure to permit appellant to amend his indictment for...

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53 practice notes
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1992
    ...R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Shive v. State, 507 So.2d 898 (Miss.1987); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Pate v. S......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...(Miss.1983); Groseclose v. State, 440 So.2d 297 (Miss.1983). See also, Russell v. State, 506 So.2d 974, 977 (Miss.1987); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Johnson v. State, 511 So.2d 1360, 1367 Since the evidence basically presented a question of whether or not the victim was ......
  • Peterson v. State, No. 92-KA-00648-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 22, 1996
    ...Brown v. State, 534 So.2d 1019, 1023 (Miss.1988), cert. denied 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989); Shive v. State, 507 So.2d 898 (Miss.1987). In the absence of such support, this Court is under no obligation to address an assignment of error. Barnes v. A Confidential Part......
  • Dycus v. State, No. 1998-DP-01094-SCT.
    • United States
    • Mississippi Supreme Court
    • April 15, 2004
    ...the assignment. See McClain v. State, 625 So.2d 774, 781 (Miss.1993); Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982).875 So.2d 170 19. Did the prosecution improperly refer to the characterist......
  • Request a trial to view additional results
53 cases
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1992
    ...R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Shive v. State, 507 So.2d 898 (Miss.1987); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Pate v. S......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...(Miss.1983); Groseclose v. State, 440 So.2d 297 (Miss.1983). See also, Russell v. State, 506 So.2d 974, 977 (Miss.1987); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Johnson v. State, 511 So.2d 1360, 1367 Since the evidence basically presented a question of whether or not the victim was ......
  • Peterson v. State, No. 92-KA-00648-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 22, 1996
    ...Brown v. State, 534 So.2d 1019, 1023 (Miss.1988), cert. denied 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989); Shive v. State, 507 So.2d 898 (Miss.1987). In the absence of such support, this Court is under no obligation to address an assignment of error. Barnes v. A Confidential Part......
  • Dycus v. State, No. 1998-DP-01094-SCT.
    • United States
    • Mississippi Supreme Court
    • April 15, 2004
    ...the assignment. See McClain v. State, 625 So.2d 774, 781 (Miss.1993); Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982).875 So.2d 170 19. Did the prosecution improperly refer to the characterist......
  • Request a trial to view additional results

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