Torrey v. State, 2003-KA-01931-SCT.
| Citation | 891 So.2d 188 |
| Decision Date | 18 November 2004 |
| Docket Number | No. 2003-KA-01931-SCT.,2003-KA-01931-SCT. |
| Parties | Clifton T. TORREY, Sr. v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Gus Grable Sermos, Summit, attorney for appellant.
Clinton T. Torrey, Sr., appellant, pro se.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
EN BANC.
EASLEY, Justice, for the Court.
PROCEDURAL HISTORY
¶ 1. Clifton T. Torrey, Sr., was indicted by the Franklin County Grand Jury during its 2002 term on 3 counts of sexual battery of a child under eighteen years of age, in violation of Miss.Code Ann. § 97-3-95(2), committed against Torrey's stepchildren, his older stepdaughter who was born on June 27, 1987; his stepson who was born on August 3, 1988; and his younger stepdaughter who was born on September 24, 1990. ¶ 2. Following a jury trial in the Circuit Court of Franklin County, the jury found Torrey guilty on all 3 counts. After the jury returned its verdict, the State presented evidence that Torrey was a habitual offender. After adjudicating Torrey to be a habitual offender pursuant to Miss.Code Ann. § 99-19-81 (Rev.2000), the trial court sentenced Torrey as a habitual offender to serve 30 years on each count to be served consecutively, as a habitual offender, without benefit of reduction, suspension, parole or probation.
¶ 3. Torrey's attorney filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial which the trial court denied. Torrey now appeals to this Court.
FACTS
¶ 4. Torrey was charged in Count I of the indictment with committing sexual battery in and upon his older stepdaughter in May and/or June 2002. Count II charged Torrey with committing sexual battery in and upon his stepson, in 2002 and/or 2001. Count III charged Torrey with committing sexual battery in and upon his younger stepdaughter, in June and/or July 2002. As two of the issues raised on appeal address the legal sufficiency and the weight and credibility of the witnesses's testimony at trial, we will address the testimony of each of the witness.
¶ 5. On July 6, 2002, the 3 stepchildren ran away from home due to the events of sexual battery. The girls ran to Rhonda Fauver's house. She transported them to the house of Craig Fraiser. Fraiser knew the children from driving them to church for the past couple of years. They told Fraiser about the abuse, and he called the "law." The children were visibly upset and crying. The boy had stayed behind. When Fraiser did speak with the boy, he was very upset and crying. He told Fraiser about what Torrey had done to them.
¶ 6. A Franklin County Deputy Sheriff, Officer Blackwell, came out to Fraiser's house. The girls told the deputy what happened, and the deputy went and picked the boy up and brought him back to Fraiser's house. The Department of Human Services was notified. Jim O'Brien, a social worker at the Franklin County DHS, was called to speak with the children.
¶ 7. O'Brien spoke with the children and took the children into DHS custody. O'Brien arranged for the children to be interviewed at the Children's Advocacy Center in McComb. O'Brien monitored the interviews conducted of the children from another location. The children were interviewed separately. O'Brian testified that what the children told the interviewer was consistent with what the children has previously told him. The girls were examined by Dr. Harriet Hampton, a forensic gynecologist at the University Medical Center. Appropriate foster care was arranged, and the children evaluated by a psychologist and provided counseling.
¶ 8. The boy testified at trial that in 2000 and 2001, at least twice a week, Torrey forced him to put his mouth on Torrey's penis. He stated that, "[h]e would put his hand on the back of my neck and force my mouth onto his penis." The boy testified that the events occurred in his house where he lived with Torrey in Smithdale, Franklin County.
¶ 9. The younger girl testified as to events that led up to her and her sister's running away on July 6, 2002. In her testimony, she stated that she and her sister ran away because their stepfather was sexually abusing them. They ran to his ex-wife's house and called their deacon, Fraiser, for help. According to the girl's testimony, their stepfather made her take off her clothes and got on top of her. He forced his penis into her mouth and vagina.
¶ 10. The older girl testified that her stepfather had sexually abused her by forcing his penis into her mouth and vagina. She stated that her "stepdad had raped [her] several times in the past 5 years." She testified that she and her sister ran away because she "was tired of it."
¶ 11. Torrey testified that he had been living in the house with his stepchildren since November 2001. He was unemployed, drawing unemployment benefits. He had been married to his wife for several years, but he previously lived and worked out-of-state. Torrey, his wife and three stepchildren, and his wife's mother lived in the house. Torrey testified that the children resented him making them do chores. He testified that he spanked the children, but did not abuse them. He stated he did not spank them often because he was abused as a child. He testified that his stepson could be defiant and was diagnosed with direct defiant disorder. He testified that he also did not get along with his mother-in-law. Torrey denied having oral sex with his stepson and sex with his two stepdaughters.
¶ 12. Torrey now appeals to this Court. Torrey's counsel raises the following issue:
I. Whether the legal sufficiency of the evidence supported the verdict.
¶ 13. Besides the issue raised by Torrey's counsel to the legal sufficiency of the evidence, Torrey's pro se brief also raises the following issues:
DISCUSSION
I. & II. Legal sufficiency of the evidence and weight and credibility of the evidence.
¶ 14. Torrey argues that the evidence was not legally sufficient to convict him on 3 counts of sexual battery or to prove that a sexual battery was committed under Miss.Code Ann. § 97-3-95(2). Torrey states that he testified that he did not sexually abuse or sexually penetrate his stepchildren. Torrey contends that "(a)ll the State offered the jury were unsupported accusations by each of the three children that their step-father had sexually abused them off and on over the past two years." In effect, Torrey's argument is that the children's testimony was uncorroborated so therefore the evidence is legally insufficient to support the jury's verdict and that the trial court erred in denying his motion for judgment notwithstanding the verdict, or in the alternative a new trial.
¶ 15. In Torrey's pro se brief, he also argues that for the same reasons stated above, the weight and credibility of the evidence does not support the jury's verdict. As to legal sufficiency, this Court held in Pinkney v. State, 538 So.2d 329, 353 (Miss.1988), that reversal can only occur when evidence of one or more of the elements of the charged offense is such that "reasonable and fair minded jurors could only find the accused not guilty." Weeks v. State, 804 So.2d 980, 997 (Miss.2001).
¶ 16. As to the weight of the evidence, this Court held in McFee v. State, 511 So.2d 130, 133 (Miss.1987), that it has limited authority to interfere with a jury verdict. Weeks, 804 So.2d at 997. We look at all the evidence in the light that is most consistent to the jury verdict. Id. When reviewing the weight of the evidence, the prosecution is given "the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. (quoting McFee, 511 So.2d at 133). We held that:
[I]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgement might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.
Weeks, 804 So.2d at 997-98 (quoting McFee, 511 So.2d at 133-34).
¶ 17. The facts of each witness's testimony will not be restated in addressing these issues. The children's testimony was clear and consistent with the 3 counts of sexual battery charged against Torrey. The only evidence presented to contradict the testimony of the 3 children was the testimony of the defendant, Torrey, for which he presented a general denial of the accusations.
¶ 18. In Collier v. State, 711 So.2d 458, 462 (Miss.1998), we stated:
[O]ur case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.
See also Byars v. State, 835 So.2d 965, 970 (Miss.Ct.App.2003)
.
¶ 19. At trial, the 3 children presented a detailed and graphic account of the sexual battery. Furthermore, the testimony from Fraiser and O'Brien was consistent with the account of events provided by the children.
¶ 20. The jury is the sole judge of the credibility of witnesses. Based on all the evidence presented at trial, the jury found Torrey guilty on all three counts of sexual battery. The evidence was legally sufficient, and the verdict was not contrary to the weight of the evidence. Torrey's assignments of error are without merit.
III. Voir Dire
¶ 21. Torrey in his pro se brief argues that the trial court erred to...
To continue reading
Request your trial
-
Derouen v. State
...to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence...." Torrey v. State, 891 So.2d 188, 192 (Miss. 2004) (quoting Collier v. State, 711 So.2d 458, 462 ¶ 10. J.D.'s testimony was corroborated by her prior statements to Ladnier, Hebr......
- Montgomery v. State
-
Wynn v. State
...court has held that an indictment may be amended to charge one as an habitual offender after trial but prior to sentencing. Torrey v. State, 891 So.2d 188, 194-95 (35-39) (Miss.2004). For these reasons this argument lacks 5. Denial of Right to Appeal ¶ 30. In his last assignment of error, W......
-
Wilson v. State
...of an indictment to charge a defendant as a habitual offender even after the jury has returned a guilty verdict. Torrey v. State, 891 So.2d 188, 195 (Miss.2004). Here, Wilson was put on notice the State sought to amend the indictment months before trial. Likewise, the trial court allowed th......