                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-KA-00081-SCT

GREGORY BOONE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          11/08/2005
TRIAL JUDGE:                               HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JOHN R. McNEAL, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOHN R. HENRY
DISTRICT ATTORNEY:                         ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 01/24/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


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

       RANDOLPH, JUSTICE, FOR THE COURT:

                             STATEMENT OF THE CASE

¶1.    Gregory Boone, a/k/a Cameo Barnes, (“Boone”), was indicted by a grand jury in the

Circuit Court of the First Judicial District of Hinds County for gratification of lust with a

child under the age of sixteen in violation of Miss. Code Ann. Sect. 97-5-23 (Rev. 2006).

After trial on November 7-8, 2005, Boone was found guilty by a jury. Boone was sentenced

to fifteen years, with ten suspended and five to serve, and two years probation.
¶2.    Subsequent to the jury verdict and sentencing, Boone filed a Motion for Judgment

Notwithstanding the Verdict, or in the Alternative, a New Trial, which the trial court denied.

Boone timely filed this appeal and presents the following issues to the Court:

       I.       Whether the court erred as a matter of law in denying Boone’s Motion
                for Continuance based on the substitution of counsel.
       II.      Whether the court erred in failing to grant Boone’s Motion for Directed
                Verdict.
       III.     Whether the court erred in failing to grant Boone’s Motion for
                Judgment Notwithstanding the Verdict or in the Alternative a New
                Trial.
       IV.      Whether the verdict of the jury was against the overwhelming weight
                of the evidence.

                                           FACTS

¶3.    On the weekend of March 13th and 14th, 2004, AB, who was eleven years of age at

the time, was at home, along with her sister, BB, age ten.1 The two girls were watched by a

baby-sitter, as their mother did not get off work until 11:15 p.m. on March 13, 2004. When

their mother arrived home around 11:30 p.m., AB and BB were in their brother’s bedroom,2

because it had a television, which was left on while the girls went to sleep.

¶4.    Their mother testified she received a call from Boone that evening asking if he could

spend the night at her home. She told Boone he could spend the night because he had no

place to go, as his home had recently burned. Boone spent the night at the house “from time

to time” as he and the girls’ mother were “intimate friends.” Soon after the call, Boone

arrived at her home. They talked for a few minutes, and Boone made sexual advances



       1
       Alias initials are used as the victim and her sister were minors at the time of the
crime and at the time of trial.
       2
           He was not at home this weekend.

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toward her, which she rebuffed. Boone continued to make advances. She then fell asleep on

the couch in the living room.

¶5.    AB testified she and BB were in the bed with the television on. AB said she was

awakened in the middle of the night because someone was rubbing her breasts and buttocks

and was rubbing his penis against her legs, with his legs wrapped around her. AB testified

she did not see the person who was rubbing and touching her.

¶6.    After this person left the room, AB went into the living room where her mother was

sleeping on the couch. She woke her mother and told her what happened. Her mother

testified AB was “shaking like a leaf on a tree,” saying, “somebody is in my room. . .I’m

scared. Somebody is in my room. They’re touching me. . . .” Her mother then turned on the

lights and searched the bedroom, including the closet. She also verified that the bedroom

window was locked. No intruder was found. She then went to her own bedroom and, seeing

Boone asleep in her bed, then climbed into bed. She testified nothing “went on between” her

and Boone that night. Boone was wrapped in a comforter. When she awoke the next

morning, she discovered Boone was naked.

¶7.    AB testified after her mother searched the bedroom that night, she went back in the

bedroom and roused BB. AB relayed to her sister that someone had been in the room

touching her. BB testified AB was acting “scared and terrified” and “was shaking” when she

informed BB of what happened. AB testified that she then turned on the light and the sisters

stayed up the entire night.

¶8.    BB testified that she awoke during the night and saw Boone in the bedroom, but that

she was not scared of him because she had known him for two or three years and “because


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that’s my mama’s friend and I didn’t think he was going to do anything.” BB stated she saw

him when she “turned over and opened her eyes” and because “he walked across the TV. I

could see because the light on the TV showed.” BB confirmed it was Boone, because “I

could see him because his ears and his head shape” and his “ears are pointed at the top.”

¶9.    Their mother testified that the next morning, the family was getting dressed for church

and she asked the girls to again relay what happened the previous night. The girls told her

again what happened, but they would not tell her who had touched AB, as Boone was still

present in the family’s home. Their mother stated BB continued to say, “I know what I saw

in the TV.” She confronted Boone and told him she knew her children would not lie to her,

and that she “knew something happened.” Since he was the only male in the house, she said

to Boone, “I know you did something.” She told Boone she was going to call the police.

Boone maintained he did not touch AB.

¶10.   After their mother told Boone she would call the police, he began to gather his things

to leave, but Boone could not find his driver’s license. Their mother stated she found Boone’s

license “a day or two later” on her bedroom floor and turned it in to the Jackson Police

Department.

¶11.   An officer from the Jackson Police Department took an initial statement from the

mother regarding the incident. The officer testified after he met with the mother, he turned

the case over to the sex crimes unit.

¶12.   Boone called one witness in his defense, Lonnie McGill (“McGill”), a rap artist.

McGill testified Boone wanted to get into the music business and that they were recording

the weekend of March 13th and 14th, 2004. McGill testified he and Boone were in the


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recording studio from Saturday afternoon until 3:00 or 4:00 in the morning on Sunday.

McGill testified Boone drove them both to McGill’s house where they spent the night.

McGill testified Boone slept on his couch and they woke up Sunday morning and went back

to the recording studio. McGill testified Boone was in his presence from Saturday afternoon

until Sunday.

                                        ANALYSIS

I.     Whether the trial court erred as a matter of law in denying Boone’s Motion
       for Continuance based on the substitution of counsel.

¶13.   “The decision to grant or deny a motion for a continuance is within the sound

discretion of the trial court and will not be reversed unless the decision results in manifest

injustice.” Ross v. State, 954 So. 2d 968, 1007 (Miss. 2007) (citation omitted).

¶14.   Boone was initially represented by a Hinds County assistant public defender in this

matter, but he subsequently hired an attorney. Boone submits the trial court erred by denying

his Motion for Continuance as he obtained this new counsel a few weeks prior to trial. The

record contains an Agreed Order Allowing Counsel to Withdraw and Substituting Counsel

for the Defendant filed one month prior to trial.

¶15.   However, after thorough review of the clerk’s papers and transcript, this Court did not

find a motion for continuance, written or oral, made by Boone and further did not find the

denial of same. At the start of trial, the State asked to have one extra day to review witness

testimony, but was denied. When asked if the Defense was prepared to go forward, counsel

for Boone responded, “yes.”




                                              5
¶16.   “We have on many occasions held that we must decide each case by the facts shown

in the record, not assertions in the brief, however sincere counsel may be in those assertions.

Facts asserted to exist must and ought to be definitely proved and placed before us by a

record, certified by law; otherwise, we cannot know them.” Barnwell v. State, 1997 Miss.

LEXIS 495, *7-8 (Miss. October 9, 1997).

¶17.   There is no evidence in the record of a motion for continuance. Therefore, this issue

has no merit.

II.    Whether the court erred in failing to grant Boone’s Motion for Directed Verdict.
III.   Whether the court erred in failing to grant Boone’s Motion for Judgment
       Notwithstanding the Verdict or in the Alternative a New Trial.

¶18.   The aforementioned issues presented by Boone have been combined, as their

standards of review are overlapping.

       A motion for a directed verdict and a motion for a judgment notwithstanding
       the verdict challenge the sufficiency of the evidence. Bush v. State, 895 So.
       2d 836, 843 (Miss. 2005). When reviewing a case for sufficiency of the
       evidence, “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.” Id.
       (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d
       560 (1979)). The evidence must show “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.” Id. (quoting Carr v. State, 208
       So. 2d 886, 889 (Miss. 1968)). If, keeping in mind the reasonable-doubt
       standard, “reasonable and 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. Id. (quoting Edwards v.
       State, 469 So. 2d 68, 70 (Miss. 1985)).

       A motion for a new trial, on the other hand, challenges the weight of the
       evidence. Id. at 844. We will disturb a jury verdict only when “it is so contrary
       to the overwhelming weight of the evidence that to allow it to stand would
       sanction an unconscionable injustice.” Id. (citing Herring v. State, 691 So. 2d

                                              6
       948, 957 (Miss. 1997)). This Court acts as a “thirteenth juror” and views the
       evidence in the light most favorable to the verdict. . . . Id. (citing Herring, 691
       So. 2d at 957).

Brown v. State, 2007 Miss. LEXIS 576, *5-7 (Miss. October 18, 2007).

¶19.   Boone asserts the trial court erred in denying his Motion for Directed Verdict made

at the close of the State’s case-in-chief, and that it further erred in denying his Motion for

Directed Verdict, and his Motion for Judgment Notwithstanding the Verdict or in the

Alternative, Motion for new Trial. Boone claims the evidence was confusing and

contradictory, and that the State failed to make a prima facie case for gratification of lust.3

However, Boone provides no argument as to how the evidence failed to be sufficient to prove

the offense of gratification of lust. In his brief, Boone only states, “the evidence, at best, was

confusing and contradictory and in no way rose to the level of reasonable doubt.”

¶20.   While Boone did in fact present an alibi witness, review of the testimony by this

witness and the witnesses provided by the State does not show that the evidence “so

considered [was] such that reasonable and fair-minded jurors could only find the accused not

guilty.” Bell v. State, 963 So. 2d 1124, 1129 (Miss. 2007). Further, the evidence presented




       3
           Miss. Code Ann. Sect. 97-5-23(1) (Rev. 2006) states: (1) Any person above the
age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging
his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any
part of his or her body or any member thereof, any child under the age of sixteen (16)
years, with or without the child's consent, or a mentally defective, mentally incapacitated
or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony
and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars
($1,000.00) nor more than Five Thousand Dollars ($ 5,000.00), or be committed to the
custody of the State Department of Corrections not less than two (2) years nor more than
fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of
the court.

                                                7
by the State was such that “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Bush, 895 So. 2d at 843. Therefore, the trial court

did not err in denying Boone’s Motion for Directed Verdict or his Motion for Judgment

Notwithstanding the Verdict, or in the Alternative Motion for New Trial.

IV.    Whether the verdict of the jury was against the overwhelming weight of the
       evidence.

       In determining whether a jury verdict is against the overwhelming weight of
       the evidence, this Court must accept as true the evidence which supports the
       verdict and will reverse only when convinced that the circuit court has abused
       its discretion in failing to grant a new trial. Only when the verdict is so
       contrary to the overwhelming weight of the evidence that to allow it to stand
       would sanction an unconscionable injustice will this Court disturb it on appeal.

Herring v. State, 691 So. 2d 948, 957 (Miss. 1997) (internal citations omitted).

¶21.   As stated supra, Boone presented McGill as an alibi witness in order to show he was

not present in AB’s home when the incident occurred. However, the State presented

conflicting testimony from AB, BB and their mother.

¶22.   The jury was presented with testimony from both sides and rendered its decision

accordingly.

       Jurors are permitted, indeed have the duty, to resolve the conflicts in the
       testimony they hear. They may believe or disbelieve, accept or reject, the
       utterances of any witness. No formula dictates the manner in which jurors
       resolve conflicting testimony into findings of fact sufficient to support their
       verdict. That resolution results from the jurors hearing and observing the
       witnesses as they testify, augmented by the composite reasoning of twelve
       individuals sworn to return a true verdict. A reviewing court cannot and need
       not determine with exactitude which witness or what testimony the jury
       believed or disbelieved in arriving at its verdict. It is enough that the
       conflicting evidence presented a factual dispute for jury resolution.




                                              8
Givens v. State, 967 So. 2d 1, 7 (Miss. 2007) (citing Jones v. State, 920 So. 2d 465, 472-73

(Miss. 2006)).

¶23.   Based on the testimony presented, the Court finds that the “verdict is [not] so contrary

to the overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Herring, 691 So. 2d at 957 (emphasis added).

                                       CONCLUSION

¶24.   Issue I has no merit, as there was no Motion for Continuance, whether written or

verbal. Regarding Issues II, III and IV, the State presented evidence which would allow

reasonable and fair-minded jurors to reach the verdict rendered in the case sub judice. The

verdict of the trial court is therefore affirmed.

¶25. CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF
FIFTEEN (15) YEARS, TEN (10) YEARS SUSPENDED, FIVE (5) YEARS TO SERVE
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
WITH TWO YEARS SUPERVISED PROBATION AND TWO (2) YEARS POST
RELEASE SUPERVISION, AFFIRMED.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES,
DICKINSON AND LAMAR, JJ., CONCUR.




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