                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-KA-01643-SCT

GUS WILKINS, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                          09/06/2007
TRIAL JUDGE:                               HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   W. DANIEL HINCHCLIFF
                                           LESLIE S. LEE
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
DISTRICT ATTORNEY:                         FORREST ALLGOOD
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 12/04/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Gus Wilkins, Jr. was indicted for the sexual battery of sixteen-year-old M.B.

Following a jury trial in the Circuit Court of Lowndes County, Mississippi, Wilkins was

found guilty and sentenced to twenty years in the custody of the Mississippi Department of

Corrections (“MDOC”), followed by five years post-release supervision. Following denial

of his post-trial motions, Wilkins filed notice of appeal.
                                           FACTS

¶2.    On July 26, 2006, M.B. was introduced to thirty-year-old Wilkins by his mother,

Gloria Wilkins. According to M.B., Gloria told her that Wilkins was her cousin. The

following evening, at approximately 9:30 or 10:00 p.m., M.B. arrived at Sims Scott Park.

Shortly thereafter, M.B. sent a text message to her cousin, Demetrius Palmer, requesting that

he pick her up. M.B. testified that Palmer “told me he would be there in a minute . . . . But

it took a long time, so I texted him and told him that I would walk.” According to M.B.:

       [w]hen I started to walk, [Wilkins] walked up in the park . . . and it was two
       other guys there. And he was introducing me saying I was . . . his little cousin.
       And he asked me where I was going. I told him I was going to Gerald’s house.
       And he said he was going that way because he was going to his mother’s
       house[1 ] and he will walk with me.

M.B. testified that “I thought I was safe because his mother introduced me as his cousin. .

. . [A]nd I trusted . . . his mother.”

¶3.    According to M.B., as they approached Gerald’s apartment,2 Wilkins “grabbed me by

my neck and told me if I made a sound that he would snap my neck.” M.B. testified that she

did not scream “[b]ecause I was scared” and “I was thinking if I did say anything or if I made

any noises that he probably would snap my neck. And then no one would be able to find




       1
           M.B. testified that Gerald lived in the same apartment complex as Gloria Wilkins.
       2
           M.B. testified that they were approximately twenty feet away.

                                               2
me.” 3 According to M.B., she did not see anyone outside 4 and Wilkins took her to “an old

abandoned house like a block away.” Inside the abandoned house, M.B. testified that

Wilkins removed her clothes, laid her on the glass-laden floor, began licking her body,5

placed his hands around her neck and “made me put my mouth on his private part[,]” and

“[a]fter that . . . took his private part and stuck it between my legs.” M.B. stated that she did

not scream or attempt to get away “[b]ecause he’s bigger than me.” Thereafter, according

to M.B., Wilkins “walked me down the street from the abandoned house to Gerald’s house

and told me to tell my brothers and them that he will be down there in a minute like he didn’t

do anything.”

¶4.    When M.B. arrived at Gerald’s apartment, Palmer testified that “she wasn’t herself.”

According to Palmer, M.B. “was sitting there looking all sad, had little tears in her eyes.”

M.B. then requested that Palmer take her home. While driving, Palmer repeatedly asked

M.B. what was wrong, but only after they were near her home did she discuss the incident.

Upon arriving home, M.B. got in the bathtub because she “felt dirty[,]” and threw her clothes

in the trash because she “didn’t want them any more.” Thereafter, M.B. was taken to the



       3
       M.B. estimated that she was 5'2" and weighed 137 pounds at the time, while Wilkins
was 6'1" and weighed 180 pounds. Officer Louis Alexander of the Columbus Police
Department also testified that Wilkins was much bigger and stronger than M.B.
       4
        M.B. estimated that it was then 10:20 p.m. During Wilkins’s case-in-chief, he
offered the testimony of area resident Diane DeGraffenreid that on summer evenings, even
around 9:30 or 10:00 p.m., there are “[k]ids out riding their bikes, playing, or playing ball,
or somebody . . . usually out doing the yard or just out barbecuing . . . .” However,
DeGraffenreid further testified that “[o]n that particular night, I don’t remember anything.”
       5
           At this point, M.B. testified that Wilkins stated “he had been watching me for a
while.”

                                               3
hospital.6 In the emergency room, M.B. recounted the incident to nurse Amy Riley, who

completed a rape kit, during which a “white substance” was found in M.B.’s vaginal vault.

¶5.    Sergeant Gary Moore of the Columbus Police Department subsequently took a written

statement from M.B. and then obtained an arrest warrant against Wilkins for sexual battery.

During processing at the police department, Wilkins asked Moore if he could smoke a

cigarette. According to Moore, “I took him out back . . . behind the police department to let

him smoke. While we were standing out back, [Wilkins] just made the statement to me that

he did not have sex with [M.B.].” Moore then “asked [Wilkins] if he did not have sex with

her, would he submit to a DNA test by drawing . . . blood. And he said that he would.”

¶6.    Wilkins subsequently was indicted for sexual battery pursuant to Mississippi Code

Annotated Section 97-3-95 (Rev. 2006).7 The indictment provided, in pertinent part, that

Wilkins “on or about the 27th day of July, 2006 . . . did unlawfully, wilfully, and feloniously,

engage in sexual penetration with [M.B.], without her consent . . . .” (Emphasis added). On

September 4, 2007, the jury trial commenced. Wilkins’s opening statement framed the major

issue for trial as “whether or not the sexual encounter between [M.B.] and Wilkins was

consensual or not.” The parties stipulated that “upon DNA testing, it was determined that

[Wilkins] was . . . the source of the semen found in [M.B.’s] vaginal vault.” After presenting

the aforementioned facts, see paragraphs 2-5 supra, the State rested and Wilkins moved for



       6
       According to M.B., “on our way to the hospital, we stopped at a card game where we
found [Gloria] and told her about it. She said do what you have to do.” Gloria testified that
M.B. had informed her that the incident occurred at Sims Scott Park.
       7
       Wilkins was also indicted for burglary of a dwelling, which “is not implicated in this
appeal.”

                                               4
a directed verdict, which was denied by the circuit court. Wilkins then presented testimony

from three witnesses, none of whom offered substantive proof on the issue of consent.

Thereafter, the jury found Wilkins guilty as charged. At the sentencing hearing, the circuit

court sentenced him to serve a term of twenty years in the custody of the MDOC to be

followed by five years post-release supervision. On September 7, 2007, Wilkins filed a

“Motion for Judgment Notwithstanding the Verdict or in the alternative for New Trial,”

which was denied by the circuit court. Wilkins then timely filed notice of appeal.

                                           ISSUE

¶7.      This Court will consider:

         (1) Whether the jury verdict was against the sufficiency and weight of the
         evidence.

                                        ANALYSIS

         I.     Whether the jury verdict was against the sufficiency and weight of
                the evidence.

      A. Sufficiency of the evidence.

¶8.      Mississippi Code Annotated Section 97-3-95(1)(a) (Rev. 2006) provides that “(1) [a]

person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another

person without his or her consent . . . .” Miss. Code Ann. § 97-3-95(1)(a) (Rev. 2006)

(emphasis added). As the parties stipulated that Wilkins was “the source of the semen,” the

only disputed element is whether “the sexual encounter between [M.B.] . . . and Wilkins was

consensual or not.”

¶9.      Wilkins made a post-trial motion for judgment notwithstanding the verdict (“JNOV”),

which was denied by the circuit court. “A motion for J.N.O.V. challenges the legal

                                              5
sufficiency of the evidence.” Ivy v. State, 949 So. 2d 748, 751 (Miss. 2007) (citing McClain

v. State, 625 So. 2d 774, 778 (Miss. 1993)). In Bush v. State, 895 So. 2d 836 (Miss. 2005),

this Court set out the standard of review for legal sufficiency, stating:

       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.” [Carr
       v. State, 208 So. 2d 886, 889 (Miss. 1968)]. However, this inquiry does not
       require a court to[:]

              ‘ask itself whether it believes that the evidence at trial
              established guilt beyond a reasonable doubt.’ Instead, the
              relevant question is whether, after viewing the evidence in the
              light most favorable to the prosecution, any rational trier of fact
              could have found the essential elements of the crime beyond a
              reasonable doubt.

       Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
       (1979) (citations omitted) (emphasis in original). 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)) . . . . 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, 895 So. 2d at 843.

¶10.   This Court has stated that:

       [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

                                               6
       conduct of the victim is consistent with the conduct of one who has been
       victimized. The victim’s physical and mental condition after the incident, as
       well as the fact that the incident was immediately reported is recognized as
       corroborating evidence.

Ladnier v. State, 878 So. 2d 926, 931 (Miss. 2004) (quoting Collier v. State, 711 So. 2d 458,

462 (Miss. 1998)). According to M.B., Wilkins grabbed her and threatened to “snap” her

neck, led her into an abandoned house, and then sexually battered her. Following the

incident, Palmer testified that M.B. “wasn’t herself” and “had little tears in her eyes.” Soon

thereafter, M.B. reported the incident to Palmer. M.B. added that when she arrived home,

she threw away her clothes and took a bath because she “felt dirty.” At the hospital, the

version of the incident which M.B. recounted to Riley was substantively identical to her

testimony. For instance, according to Riley:

       [M.B.] said that she was walking home with a man named Mr. Wilkins, that
       she found out was her cousin. And that he, on the way home, kind of had
       walked behind her and put his arm around her neck and told her to be quiet or
       that he would snap her neck . . . if she was loud.

       So, then he proceeded to take her pants off and continue with the sexual
       assault.

Regarding the lack of consent, this Court finds no “other credible evidence” to discredit or

contradict M.B.’s testimony. Id. While M.B. did not identify Wilkins in the courtroom, the

parties stipulated that he was “the source of the semen . . . .” As such, this and any other

minor inconsistencies between M.B.’s testimony and that of other witnesses were matters of

credibility to be weighed and resolved by the jury. See Ladnier, 878 So. 2d at 931; Collier,

711 So. 2d at 462 (“[o]ur case law is axiomatic on the proposition that the jury is arbiter of

the credibility of testimony.”). While Wilkins attacks M.B.’s credibility, her testimony was



                                               7
not sufficiently discredited to warrant overruling the verdict. Accordingly, “any rational

juror could have found beyond a reasonable doubt that all of the elements had been met by

the State[,]” Bush, 895 So. 2d at 844, in proving sexual battery. Therefore, this Court finds

that the circuit court did not err in denying Wilkins’s motion for JNOV, and this issue is

without merit.

   B. Weight of the evidence.

¶11.   Wilkins made a post-trial motion for new trial, which was denied by the circuit court.

“A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.

2d 123, 127 (Miss. 1999). A reversal is warranted only if the trial court abused its discretion

in denying a motion for new trial.” Ivy, 949 So. 2d at 753 (emphasis added). In Bush, this

Court set out the standard of review for weight of the evidence,8 stating:

       [w]hen reviewing a denial of a motion for a new trial based on an objection to
       the weight of the evidence, we will only disturb a verdict when it is so contrary
       to the overwhelming weight of the evidence that to allow it to stand would
       sanction an unconscionable injustice. Herring v. State, 691 So. 2d 948, 957
       (Miss. 1997). We have stated that on a motion for new trial:

              the court sits as a thirteenth juror. The motion, however, is
              addressed to the discretion of the court, which should be
              exercised with caution, and the power to grant a new trial should
              be invoked only in exceptional cases in which the evidence
              preponderates heavily against the verdict.

       Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000). . . . [T]he
       evidence should be weighed in the light most favorable to the verdict.
       Herring, 691 So. 2d at 957.




       8
      “A motion for a new trial falls within a lower standard of review than does that of a
judgment notwithstanding the verdict or a directed verdict.” Sheffield, 749 So. 2d at 127
(emphasis added).

                                              8
Bush, 895 So. 2d at 844.

¶12.   Viewing the evidence discussed in Issue I. supra “in the light most favorable to the

verdict,” this Court cannot conclude that the circuit court erred in affirming the jury’s verdict,

thus “sanction[ing] an unconscionable injustice.” Id. In short, the evidence does not

“preponderat[e] heavily against the verdict.” Id. (quoting Amiker, 796 So. 2d at 947).

Accordingly, this Court finds that the circuit court did not abuse its discretion in denying

Wilkins’s motion for new trial, and this issue is without merit.

                                       CONCLUSION

¶13.   Based upon the aforementioned analysis, this Court affirms the order of the Circuit

Court of Lowndes County which denied Wilkins’s “Motion for Judgment Notwithstanding

the Verdict or in the alternative for New Trial.”

¶14. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE (5) YEARS POST-RELEASE SUPERVISION, WITH
CONDITIONS, AFFIRMED.

     SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND
LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J.,
NOT PARTICIPATING.




                                                9
