                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2015-KA-01417-SCT

HOWARD LINDSEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         08/17/2015
TRIAL JUDGE:                              HON. EDDIE H. BOWEN
TRIAL COURT ATTORNEYS:                    STEPHANIE BRELAND WOOD
                                          CHRIS HENNIS
                                          OTTOWA E. CARTER, JR.
                                          CATOUCHE J. BODY
COURT FROM WHICH APPEALED:                COVINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   MERRIDA COXWELL
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                                BY: SCOTT STUART
DISTRICT ATTORNEY:                        DANIEL CHRISTOPHER JONES
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 01/26/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    On July 23, 2015, a Covington County jury found Howard Lindsey guilty of two

counts of gratification of lust and two counts of sexual battery. On appeal, Lindsey argues

that the jury’s verdict is contrary to the overwhelming weight of the evidence. Finding no

issue with the verdict, we affirm Lindsey’s convictions and sentences.

                        FACTS & PROCEDURAL HISTORY
¶2.    This case involves a total of four alleged sexual offenses committed by Howard

Lindsey against two minor female victims. On January 13, 2015, Lindsey was indicted for

one count of gratification of lust and one count of sexual battery against his granddaughter

M.L, as well as one count of gratification of lust and one count of sexual battery against

M.L.’s cousin T.P.1 The alleged offenses against M.L. occurred “during and about 2013

through and about 2014,” and the alleged offenses against T.P. occurred “during and about

December 2013.” At the time of these offenses, M.L. was between eleven and twelve years

old, and T.P. was fourteen years old.

¶3.    Lindsey’s trial commenced on July 22, 2015. M.L. and T.P. were the State’s only

witnesses. By the time of trial, M.L. was thirteen years old, and T.P. was fifteen years old.

Lindsey called three witnesses in his defense: M.L.’s older brother Antiquez Lindsey, M.L.’s

uncle Sedrick Lindsey, and M.L.’s cousin Sedrianna Lindsey. At the conclusion of trial, the

jury returned a verdict finding Lindsey guilty on all counts. After the trial court denied his

post-trial motions, Lindsey filed a timely notice of appeal with this Court. Lindsey’s sole

issue on appeal is whether the jury’s verdict is against the overwhelming weight of the

evidence.

                                STANDARD OF REVIEW

¶4.    “When 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



       1
       We will refer to the minor victims by their initials to protect their identities.

                                              2
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (Miss. 2005) (citation omitted).

The evidence must be weighed in the light most favorable to the jury’s verdict. Id. If the

verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a

new trial, but this remedy should be used only in exceptional cases where the evidence

“preponderates heavily against the verdict.” Id. (citing McQueen v. State, 423 So. 2d 800, 803

(Miss. 1982)).

                                         DISCUSSION

¶5.    Lindsey was charged with two counts of gratification of lust and two counts of sexual

battery. To find Lindsey guilty of gratification of lust, the jury was required to find (1) that

Lindsey touched M.L. and T.P. with any part of his body or with any object “for the purpose

of gratifying his . . . lust or indulging in his . . . depraved licentious sexual desires,” (2) that

Lindsey was above the age of eighteen, and (3) that M.L. and T.P. were under the age of

sixteen. Miss. Code Ann. § 97-5-23(1) (Rev. 2014). To find Lindsey guilty of sexual battery,

the jury was required to find (1) that Lindsey engaged in sexual penetration with M.L. and

T.P., (2) that Lindsey was at least thirty-six months older than T.P., and (3) that he was at least

twenty-four months older than M.L. Miss. Code Ann. § 97-3-95(1)(c), (d) (Rev. 2014). The

State relied on the testimonies of M.L. and T.P. to prove the elements of these crimes.

¶6.    At trial, M.L. testified that Lindsey had molested her on several occasions, but she was

unsure when this abuse began or how many times it had occurred. However, she was able to

describe at least two particular incidents of abuse. She testified that, while she was living in

Hattiesburg with her mother, Lindsey touched her breast with his hand. She also stated that



                                                 3
Lindsey had touched her vagina and breasts with his hands and mouth, put his penis in her

vagina, and put his mouth on her vagina.

¶7.    The second incident occurred at Lindsey’s house near Seminary. At this point, M.L.

was twelve years old and was living in Collins. Lindsey asked M.L.’s mother if M.L. could

go to a football game with him. M.L. did not want to go by herself, so she asked her cousin

Sedrianna to go with her. Sedrianna and her father Sedrick, who is Lindsey’s son, live next

door to Lindsey. M.L. testified that she waited at Lindsey’s house while Sedrianna got ready.

At some point, Lindsey put his mouth on M.L.’s vagina. He then put his penis in her vagina

and put his mouth on her breasts. M.L. said she was alone in the house with Lindsey at this

time. Lindsey told M.L. not to tell anyone about what had happened. M.L. also testified that

Lindsey offered her money and a cell phone if she did not tell anyone about these incidents.

¶8.    M.L. testified that she did not tell anyone about Lindsey’s abuse because she was afraid

that Lindsey would stop providing financial support to her mother. She finally decided to say

something when her aunt asked her why she was afraid to visit Lindsey’s house one night.

¶9.    M.L. also testified about an occasion when Lindsey had molested T.P. In December

2013, T.P. visited M.L.’s family on two occasions. On the first occasion, Lindsey took the

girls to Hattiesburg to go shopping. During this trip, M.L. testified that Lindsey asked her to

“hook him and [T.P.] up.” On the second occasion, M.L. and T.P. went to Lindsey’s house

and hung out in the “club” behind his house. M.L. and T.P. both described the “club” as a

shed with a pool table and kitchen. M.L. had Lindsey’s cell phone at this time. The cell phone

rang, so M.L. asked T.P. to bring it to Lindsey. T.P. was gone for a long time, so M.L. went



                                              4
to check on her. Inside the house, M.L. testified that she saw Lindsey and T.P. in Lindsey’s

bedroom, and Lindsey was putting his penis in T.P.’s vagina. M.L. and T.P. never talked to

each other about this incident.

¶10.   T.P. also testified that she had visited M.L. twice in December 2013. She stated that

during the first trip, Lindsey tried to persuade her to have sex with him, but she refused. On

the second visit, T.P. and M.L. were playing in the “club” behind Lindsey’s house when

Lindsey’s phone rang. T.P. took the phone to Lindsey in his bedroom. Lindsey pulled her into

the room, locked the door and tried to have sex with her. He put his hand over her mouth to

stop her from screaming. He then put his penis in T.P.’s vagina. T.P. also testified that

Lindsey touched her breasts. T.P. stated that she was unsure of Lindsey’s exact age but that

she knew he was over the age of twenty-one at the time of this incident. T.P. said she did not

tell anyone about what had happened because she was afraid that her father would try to kill

Lindsey and would be sent to prison.

¶11.   Lindsey called three witnesses in his defense. The defense witnesses’ testimonies

focused on M.L.’s allegations, particularly the incident before the football game. None of the

defense witnesses testified specifically about T.P.’s allegations. M.L.’s older brother

Antiquez2 testified that he could not remember an occasion on which Lindsey was alone with

M.L. He stated that either he or his mother always were home when Lindsey came to visit.

Antiquez testified that he and M.L. were visiting Lindsey’s house one night when M.L. said

she was scared to sleep by herself, so they decided to go home. He said he did not know why

       2
       Antiquez was eighteen years old at the time of trial. He recently had graduated from
high school.

                                              5
M.L. was scared and that it was her idea to visit Lindsey. On cross-examination, Antiquez

admitted that he was not always around when Lindsey and M.L. were together. He also stated

that he and his mother are disabled and that Lindsey gives his mother financial support. He

gave the following explanation for his belief that M.L.’s allegations against Lindsey were

fabricated: “[Y]ou don’t have to always be there. I mean, if you – I mean, now days girls

grow up different. So a girl is going to do whatever she can or say just to get her way.”

¶12.    Lindsey’s son Sedrick also testified for the defense. Sedrick provided his recollection

of events on the night that Lindsey took M.L. and his daughter to a football game. Sedrick

testified that M.L. came over to his house to ask his daughter Sedrianna if she wanted to go

to the game with her. While Sedrianna was getting ready, M.L. was constantly walking in and

out of the house. After Sedrianna got ready, Lindsey came over and picked them up to go to

the game. On cross-examination, Sedrick admitted that he was unemployed and that Lindsey

gave him money when he needed it. Sedrick admitted that he did not know what M.L. was

doing when she was not at his house.

¶13.    Sedrianna Lindsey testified briefly for the defense and generally corroborated her

father’s testimony. Sedrianna was fourteen years old at the time of trial. She said that M.L.

came over to her house and asked her if she wanted to go to the football game, and she said

yes. M.L. repeatedly left Sedrianna’s room and then returned while Sedrianna was getting

ready. After Sedrianna got ready, Lindsey picked up her and M.L. from her house to go to the

game.




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¶14.   On appeal, Lindsey first argues that a new trial is warranted because the State failed

to present any physical evidence or other testimony corroborating the testimony of the victims.

He also repeatedly points out that no medical evidence of sexual abuse exists in this case. But

this argument is easily dismissed. “Our 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.” Scott v. State, 728 So. 2d 584, 586

(Miss. 1998). See also Allman v. State, 571 So. 2d 244, 250 (Miss. 1990) (finding that the

trial court properly refused defendant’s proposed jury instruction stating that corroboration

of rape victim’s testimony was necessary to sustain a conviction). This principle applies

“especially if the conduct of the victim is consistent with the conduct of one who has been

victimized by a sex crime.” Id. Thus, the relevant inquiry in this case is not whether the

victims’ testimonies were corroborated, but whether they were so discredited or contradicted

by other credible evidence that a reasonable jury could not have believed them.

¶15.   Lindsey asserts that the victims’ testimonies were self-contradictory and inconsistent

with their prior statements. After M.L. and T.P. came forward with their allegations against

Lindsey, and more than a year before trial, they underwent forensic interviews at the Child

Advocacy Center (“CAC”). Lindsey played the video recordings of these interviews during

his cross-examination of M.L. and T.P. The victims’ statements during their forensic

interviews differ from their testimony at trial and, at times, feature their own internal

inconsistencies. For example, during her CAC interview, M.L. gave two different versions

of her account of Lindsey’s sexual misconduct on the night of the football game. In the first



                                              7
version, M.L. never stated that she left Lindsey’s house prior to the game, while in the second

version she stated that she was at Sedrianna’s house when Lindsey called her and told her to

come over. In the second version, M.L. stated that T.P. witnessed Lindsey molesting her, but

at trial she admitted that T.P. was not there. M.L. also stated during her interview that Lindsey

had picked the lock to her bedroom at her mother’s house and raped her, but later she stated

that Lindsey had raped her in the kitchen. She did not testify directly about either of these

incidents at trial. T.P.’s CAC interview contains fewer inconsistencies. In her interview, T.P.

stated that, on the first night of her second visit with M.L., Lindsey pulled her into a room and

tried to take her clothes off. At trial, T.P. testified that this incident happened on the second

night of her second visit. Lindsey also points out that, at trial, M.L. testified that she saw

Lindsey molest T.P., while T.P. testified that Lindsey had closed and locked the door to his

bedroom when he molested her.

¶16.   While some inconsistencies admittedly exist in the victims’ testimonies, we find that

the material portions of the victims’ testimonies necessary to support the charges against

Lindsey were not contradicted or discredited. The inconsistencies in the victims’ stories, such

as whether M.L. visited Sedrianna’s house on the night of the football game or whether

Lindsey attempted to undress T.P. on the first or second night of her second visit with M.L.,

do not tend to make it less likely that Lindsey committed the alleged offenses against the

victims. “Such inconsistencies are neither unusual nor grounds for the jury to reject all of

their testimony.” Kinney v. State, 336 So. 2d 493, 497 (Miss. 1976). In addition, M.L.’s

testimony corroborated T.P.’s allegations against Lindsey. The proper weight to be assigned



                                               8
to that testimony, based on any alleged inconsistencies, was for the jury to decide. See

McClain v. State, 625 So. 2d 774, 781 (Miss. 1993) (citations omitted).

¶17.   Nor did the testimony of the defense witnesses discredit the victims’ material

allegations. First, none of the defense witnesses provided any testimony discrediting T.P.’s

allegations. As for M.L.’s allegations, Antiquez admitted on cross-examination that he was

not always around when Lindsey was with M.L., and the only basis for his conclusion that

M.L.’s story was untrue was the belief that girls will say or do anything to get what they want.

Sedrick’s and Sedrianna’s testimony provide a general time line of events on the night of the

football game, but neither witness was present when M.L. was alone with Lindsey. And while

Lindsey speculates that the delay by M.L. and T.P. in reporting these alleged crimes is

inconsistent with the conduct of a victim of a sex crime, this Court has found just the opposite

to be true. See Massey v. State, 992 So. 2d 1161, 1164 (Miss. 2008) (finding victim’s three-

week delay in reporting sexual abuse to be “consistent with the conduct of a person victimized

by a sex crime.”).

¶18.   This Court has held that “[t]he jury is charged with the responsibility of weighing and

considering the conflicting evidence and credibility of the witnesses and determining whose

testimony should be believed.” McClain, 625 So. 2d at 781; see also Burrell v. State, 613 So.

2d 1186, 1192 (Miss. 1993). The evidence presented by the State in the instant case is similar

to that presented in Sanders v. State, 586 So. 2d 792, 797 (Miss. 1991), in which this Court

affirmed the defendant’s conviction for sexual battery, even though there was no physical

evidence of the crime and the fourteen-year-old victim’s testimony was vague and inconsistent



                                               9
as the location and particular details of the crime. This Court held that “the jury was there to

evaluate the testimony and it would be difficult to say that the verdict was unreasonable under

the facts in the record.” Id. Similarly, the jury in this case was tasked with judging the

credibility of M.L. and T.P. as witnesses after comparing their trial testimony to their prior

CAC interviews. Ultimately, no evidence in the record contradicts the testimony of M.L. and

T.P. establishing each element of the charged offenses. Lindsey’s argument is without merit.

                                       CONCLUSION

¶19.   The instant case is not one of the exceptional cases where the evidence “preponderates

heavily against the verdict.” Bush, 895 So. 2d at 844. Accordingly, for the foregoing reasons,

we affirm Lindsey’s convictions and sentences.

¶20. COUNT I: CONVICTION OF TOUCHING A CHILD FOR LUSTFUL
PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II:
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE (25)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF TOUCHING A
CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT IV: CONVICTION OF SEXUAL BATTERY AND SENTENCE
OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES ARE TO RUN
CONSECUTIVELY AND ARE TO RUN DAY-FOR-DAY, AND SHALL NOT BE
REDUCED OR SUSPENDED, NOR SHALL THE APPELLANT BE ELIGIBLE FOR
PAROLE, PROBATION OR EARLY RELEASE. THE APPELLANT IS TO
REGISTER AS A SEX-OFFENDER.

   DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




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