                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-KA-01135-SCT


SAMUEL LEE MILEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          06/09/2005
TRIAL JUDGE:                               HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                 SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOHN R. HENRY
DISTRICT ATTORNEY:                         MARK DUNCAN
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 08/10/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., WALLER, P.J., AND DICKINSON, J.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    A jury in the Circuit Court of Scott County, Mississippi, convicted seventy-six-year-

old Samuel Lee Miley of the statutory rape of his girlfriend’s fifteen-year-old daughter

pursuant to Miss. Code Ann. § 97-3-65(1)(a) (Rev. 2000). Miley was sentenced to five

years in the custody of the Mississippi Department of Corrections. Miley appealed the circuit

court’s judgment after the circuit court denied his motions for a directed verdict and for a

new trial or judgment notwithstanding the verdict, and his request for a peremptory

instruction. We affirm the circuit court's judgment.
                                          FACTS

¶2.    Miley lived with his girlfriend who had a fifteen-year-old daughter, K.S. On a

Monday holiday (Martin Luther King, Jr., Day) in 2004, Miley was at home alone with K.S.,

who was home from school. Miley’s girlfriend was at work. According to K.S.’s testimony

at trial, she and Miley were sitting on the couch together when Miley stated, “You don’t take

care of me.” Miley then immediately instructed her to don a white tee shirt. K.S. testified

at trial that she knew from past experience that Miley meant for her to take off all of her

clothing, wear nothing but the white tee shirt, and have sex with him.

¶3.    On the day in question, Miley used a particular brand of lubrication. K.S. told no one

of the incident until Thursday of that same week, when she heard the issue of rape being

discussed on a talk show. She then told her aunt and cousin what had happened. The minor

later apprised her mother of the incident, and the mother believed her daughter because the

brand of lubrication she mentioned was exactly the brand Miley used in his regular sexual

encounters with the mother. The next day, Friday, the Department of Human Services took

custody of the victim.

¶4.    K.S. testified that Miley was the sole disciplinarian in the house and would punish her

regularly, including prohibiting visits to her grandmother for a year when she once

misbehaved in school.

¶5.    Miley did not testify at trial and did not call witnesses to his defense. No medical

evidence of intercourse was offered.

¶6.    Once the State rested, Miley moved for a directed verdict. The circuit court denied

the motion and Miley’s request for a peremptory instruction. The jury found Miley guilty


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of statutory rape, and he was sentenced to five years in the custody of the Mississippi

Department of Corrections. Miley then moved for a new trial or J.N.O.V. After the circuit

court denied this motion, Miley appealed.

                                         DISCUSSION

               I.     WHETHER THE CIRCUIT COURT ERRED BY
                      DENYING MILEY’S MOTION FOR A DIRECTED
                      VERDICT, MOTION FOR A NEW TRIAL/J.N.O.V.
                      OR THE REQUEST FOR A PEREMPTORY
                      INSTRUCTION.

       Sufficiency of the Evidence

¶7.    In considering 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.

However, this inquiry does not require a reviewing court to “ask itself whether it believes

that the evidence at the 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

proven beyond a reasonable doubt. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (citing

Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). 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

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proper remedy is for the appellate court to reverse and render. Bush, 895 So. 2d at 843

(quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). 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. Bush, 895 So. 2d at 843 (quoting Edwards,

469 So. 2d at 70).

¶8.    Under Miss. Code Ann. § 97-3-65 (1)(a) (Rev. 2000), the following elements must

be proven beyond a reasonable doubt: (1) the alleged victim must be at least fourteen at the

time of the rape but under sixteen years of age; (2) the accused must be at least seventeen

years of age and more than thirty-six months older than the victim; (3) the victim must not

be the accused’s spouse; and (4) the two must have engaged in sexual intercourse (meaning

“the penis of the male is inserted into the vagina of the female”). Here, the only element

under dispute is the “sexual intercourse” element.

¶9.    Considering the evidence in the light most favorable to the State, we find that there

was sufficient evidence to convict Miley of statutory rape. K.S. testified that she was alone

in the house with Miley, that Miley was sitting near her on the couch and stated, “You don’t

take care of me.” Immediately after this statement, Miley told K.S. to put on a white tee

shirt. It is undisputed that she also took off everything else and wore nothing but the white

tee shirt. The victim testified that Miley’s penis did penetrate her vagina, and she gave

explicit detail of the incident (including testifying as to the approximate length of time




                                             4
engaged in intercourse and the approximate height above the floor at which her calves were

positioned as they dangled from the bed on which she lay).

¶10.   Miley argues that since K.S. is the only eyewitness to the alleged penetration, and

since the victim was not fond of Miley’s disciplining methods and admitted that she had no

affinity for Miley, her testimony as to sexual intercourse was suspect and therefore

insufficient for conviction. However, 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. Collier v. State, 711 So. 2d 458, 462 (Miss. 1998) (citing

Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)); Inman v. State, 515 So. 2d 1150, 1152

(Miss. 1987); Doby v. State, 532 So. 2d 584, 591 (Miss. 1988); Ragland v. State, 403 So. 2d

146, 147 (Miss. 1981). See also Williams v. State, 512 So. 2d 666 (Miss. 1987) (where

nudity, in the totality of the circumstances, was an indicator of rape despite the victim’s

inability to communicate anything directly to the court).

¶11.   Here, although Miley attacks the victim’s credibility, her testimony was not

sufficiently discredited to warrant overruling the verdict. Miley reiterated on appeal that “the

possibility exists that . . . [K.S.] conducted a deception to accuse Appellant falsely for [her]

own purpose.” Deception might be a possibility but it is not a probability in this case.

¶12.   There is evidence of difficulties between Miley and the victim not emanating from his

sexual activity with her. However, her prior disagreements with him on other matters are not

strong indications of falsehood about sexual intercourse with Miley, especially when coupled

with the totality of the circumstances, particularly Miley’s sexually suggestive ritual of

instructing the victim to wear a certain type of garment.

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          Weight of the Evidence

¶13.      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

unconscionable injustice. Bush, 895 So. 2d at 843 (citing Herring v. State, 691 So. 2d 948,

957 (Miss. 1997)). 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.” Bush, 895 So. 2d at 843

(quoting Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)). However, the

evidence should be weighed in the light most favorable to the verdict. Bush, 895 So. 2d at

843 (citing Herring, 691 So. 2d at 957). A reversal on the grounds that the verdict was

against the overwhelming weight of the evidence, “unlike a reversal based on insufficient

evidence, does not mean that acquittal was the only proper verdict.” Bush, 895 So. 2d at 843

(quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)). Rather, as the “thirteenth

juror,” we simply disagree with the jury's resolution of the conflicting testimony. Id. This

difference of opinion does not signify acquittal any more than a disagreement among the

jurors themselves. Id. Instead, the proper remedy is to grant a new trial. Bush, 895 So. 2d

at 843.

¶14.      Sitting as a limited “thirteenth juror” in this case, we cannot view the evidence in the

light most favorable to the verdict and say that an unconscionable injustice resulted from this

jury's rendering of a guilty verdict.

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¶15.   Miley argues that the verdict resulted in an unconscionable injustice. He claims on

appeal that there was no proof beyond a reasonable doubt that he committed statutory rape

because “[s]eventy-six year old men simply do not have that drive, except in very

extraordinary circumstances.” However, Miss. Code Ann. § 97-3-65(1)(a) & (6) (Rev. 2000)

do not require proof of sexual drive for conviction of statutory rape; mere penetration,

regardless of libido, suffices.

¶16.   In determining the minimum proof necessary to prove penetration, we turn to Lang v.

State, 230 Miss. 147, 87 So. 2d 265 (1956), where this Court found that proof of penetration

may be established by circumstantial evidence. Id. at 158-60, 87 So. 2d at 268-69; see also

Gray v. State, 728 So. 2d 36, 61 (Miss. 1998) (affirming Lang’s stance on proof of

penetration). In Lang, the twenty-year-old victim was raped by an intruder in her house.

Although there was no medical testimony and the victim never said on record the exact, or

similar, words that she was raped, the Court affirmed Lang’s conviction, holding that (1) a

reasonable jury could have deduced through the graphic detail of the victim’s story that she

was testifying that the accused raped her; (2) the victim identified the accused in court by

sight and by an odor distinct to the accused; (3) the police found evidence to corroborate the

victim’s story that she attempted to disinfect herself afterwards; (4) the victim’s wallet,

which was taken by the perpetrator or his accomplice, was found near Lang’s place of

employment; and (5) Lang had no credible alibi. Lang, 230 Miss. at 152-57, 87 So. 2d at

266-68.

¶17.   In Wilson v. State, 606 So. 2d 598 (Miss. 1992), this Court reaffirmed Lang and noted

that “[a]ctual medical evidence of penetration . . . is not necessary. . . . In the case at hand

                                               7
[as opposed to the testimony in Lang,] . . . the prosecutrix did specifically testify that her

private parts had been penetrated. . . . The testimony of the prosecutrix as to penetration is

sufficient [to prove penetration].” Id. at 599. Wilson involved a thirteen-year-old girl who

had been repeatedly raped by her stepfather. At trial, there was no medical testimony as to

penetration. Wilson was convicted of capital rape [Miss. Code Ann. § 97-1-7 (attempted and

incomplete rape of one less than fourteen years of age by one older than eighteen years of

age)]. We found the following evidence sufficient to sustain Wilson’s conviction: the

victim’s testimony of penetration and the testimony of Wilson’s wife that Wilson confessed

to her that he had sexual relations with the thirteen year old and that she witnessed Wilson

performing sex on the child in the specific incident that later led to trial. While Wilson did

give a full confession upon arrest and then later appealed on insufficient evidence, we did not

take these facts into consideration when Wilson appealed.

¶18.   In the present case, the evidence consists of (1) testimony from the victim that the

accused’s penis penetrated her vagina, (2) a history of odd instructions from the accused to

the victim to participate in sexual activities (i.e. lying nude except for a white tee shirt), and

(3) testimony from the victim’s mother as to the similarities of the elements of the rape and

the mother’s regular sexual encounters with the accused.

¶19.   The case against Lang contained far less evidence than that presented here. The

record shows that the prosecution established all of the elements of statutory rape under Miss.

Code Ann. § 97-3-65 (1)(a) (Rev. 2000).             Thus, the verdict did not result in an

unconscionable injustice.




                                                8
¶20.   For these reasons, we find that the circuit court did not err in denying Miley’s motion

for a new trial or J.N.O.V, his request for peremptory instruction, or his motion for directed

verdict.

              II.    WHETHER THE CIRCUIT COURT ERRED IN
                     ADMITTING EVIDENCE OF PRIOR ACTS OF
                     INTERCOURSE BETWEEN MILEY AND THE
                     VICTIM.

¶21.   Under Rule 403 of the Mississippi Rules of Evidence, even relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence. Rule 404(b) of the Mississippi

Rules of Evidence dictates that evidence of prior “crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show that he acted in conformity therewith. It

may, however, be admissible for other purposes such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis

added). See also Carter v. State, 450 So. 2d 67, 69 (Miss. 1984).

¶22.   Under Rule 105 of the Mississippi Rules of Evidence, when evidence against a party

is admissible for one purpose but not for another purpose, the trial court must limit the scope

of the evidence and instruct the jury accordingly.

¶23.   The evidence of whether Miley had ever before asked K.S. to don a white tee shirt and

whether he had ever before had sexual relations with her was inadmissible to directly prove

the crime for which he was indicted. However, the circuit court found that the evidence was

more probative than prejudicial, would be helpful to the jury in defining the issues (issues



                                              9
such as why the girl would take off all of her clothes though not specifically instructed to do

so), and was therefore admissible on the condition that the State not delve into the details of

the alleged prior incidents. The circuit court also gave the jury a limiting instruction as to

how this evidence should be used.

¶24.   The circuit court’s ruling met the requirements of Rules 105, 403 and 404(b). There

is no abuse of discretion on this issue; and therefore, there is no reason to overrule the circuit

court’s discretionary decision to admit this evidence of prior acts. Brooks v. State, 242 So.

2d 865, 869 (Miss. 1971) (reaffirming the tenets of Rule 404(b) and stating that in statutory

rape cases evidence of prior sexual acts between the accused and the victim is admissible).

See also Hicks v. State, 441 So. 2d 1359, 1360 (Miss. 1983); Speagle v. State, 390 So. 2d

990, 992 (Miss. 1980); Kolb v. State, 129 Miss. 834, 835, 93 So. 358, 360 (1922) (stating the

relation of the male and female prior to the alleged act may be shown in evidence for the

purpose of showing opportunity and otherwise corroborating the testimony of guilt at the

time of the act).

                                       CONCLUSION

¶25.    For these reasons, we affirm the trial court’s judgment.

¶26. CONVICTION OF STATUTORY RAPE AND SENTENCE OF FIVE (5)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED.

      SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN RESULT ONLY.




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