      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2015-KA-00214-COA

DANIEL ROLLINGS A/K/A DANIEL ROLLING                 APPELLANT
A/K/A “PEANUT”

v.

STATE OF MISSISSIPPI                                  APPELLEE

DATE OF JUDGMENT:              11/19/2014
TRIAL JUDGE:                   HON. MARGARET CAREY-MCCRAY
COURT FROM WHICH APPEALED:     LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        K. ELIZABETH DAVIS
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: BILLY L. GORE
DISTRICT ATTORNEY:             WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I, BURGLARY OF
                               A DWELLING HOUSE, AND SENTENCED
                               TO SERVE TWENTY YEARS IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS, WITH
                               FIVE OF THOSE YEARS ON
                               POSTRELEASE SUPERVISION; AND
                               COUNT II, RAPE, AND SENTENCED TO
                               SERVE TWENTY-FIVE YEARS IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS, WITH
                               FIVE OF THOSE YEARS ON
                               POSTRELEASE SUPERVISION, WITH THE
                               SENTENCES TO RUN CONCURRENTLY
                               AND THE TIME ON POSTRELEASE
                               SUPERVISION TO RUN CONSECUTIVELY
DISPOSITION:                   AFFIRMED: 05/31/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ.

     GRIFFIS, P.J., FOR THE COURT:
¶1.    This appeal arises from Daniel Rollings’s convictions of burglary of a dwelling house

and rape. Miss. Code Ann. §§ 97-17-23 & 97-3-65 (Rev. 2014). Rollings now challenges

the sufficiency and weight of the evidence and argues that he was indicted under the wrong

statute for the crime of forcible rape.

                                          FACTS

¶2.    A.J.1 is a senior citizen who resides in Greenwood, Mississippi. She met Rollings

through her pastor and hired him to perform demolition work on a dilapidated structure

located on her property. Rollings worked for about a month on the project before he broke

into A.J.’s home and raped her.

¶3.    On June 18, 2013, A.J. and her sister, E.H., arrived at A.J.’s house. E.H. regularly

picked A.J. up from her work as a baker at a local restaurant and brought her home. E.H.

testified that the door was locked when they arrived at the house. The two sisters entered the

house and talked for a few more minutes before E.H. departed.

¶4.    A.J. then began to walk through the house to her bathroom, where she intended to take

a bath. As she was walking through the hallway, she was grabbed from behind. After a

struggle through multiple rooms of the house, A.J. was raped. The attacker left A.J.’s house,

and A.J. called the police. The attacker returned several minutes later while A.J. was on the

phone with the police department, and A.J. closed the door on him.

¶5.    When the police arrived, A.J. told them that “Peanut” (Rollings’s nickname) raped



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        To protect the identity of victims of sexual crimes, this Court uses aliases for the
victim and close family members.

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her. She was taken to the hospital, where a sexual-assault evidence collection kit was

completed. A.J. later identified Rollings in a photographic lineup. He was arrested the day

after the burglary and rape.

¶6.    Rollings told officers that he had consensual sexual relations with A.J. and that she

allowed him to have sex with her because they were friends. DNA was taken from Rollings.

This DNA matched the DNA gathered during the completion of the sexual-assault evidence

collection kit.

¶7.    At trial, the State presented eleven witnesses. Following the State’s case-in-chief,

Rollings made a motion for a directed verdict, which was denied by the trial court. Rollings

presented no witnesses of his own, and the jury returned a verdict convicting him of both

charges – burglary and rape. Rollings made a posttrial motion for a new trial or, in the

alternative, a judgment notwithstanding the verdict (JNOV), which was denied. He now

appeals.

                                          ANALYSIS

¶8.    Rollings contends that the trial court erred in denying his motions for a directed

verdict and for a new trial or, in the alternative, a JNOV, and that the trial court erred in not

granting a peremptory jury instruction. He claims that the jury verdict was against the

overwhelming weight of the evidence and was not supported by sufficient evidence. Lastly,

he argues that the trial court erred in finding Mississippi Code Annotated section 97-3-65

was the proper statute for the indictment of forcible rape.

       I.         Whether the trial court erred in denying Rollings’s motion for a
                  directed verdict, his motion for a JNOV, and his proposed peremptory


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              jury instruction because the evidence was insufficient to support the
              convictions of rape and burglary.

¶9.    Rollings claims that the trial court should have granted his motion for a directed

verdict because the State failed to prove the elements of burglary of a dwelling, namely the

element of intent. Rollings further argues that the trial court erred in denying his motion for

a JNOV. He also contends that the trial court erred in denying his proposed jury instruction

D-1, a peremptory instruction.

¶10.   “A motion for a directed verdict or a JNOV or a request for a peremptory instruction

attacks the legal sufficiency of the evidence.” Magee v. State, 966 So. 2d 173, 179 (¶13)

(Miss. Ct. App. 2007). “In determining whether the evidence was sufficient to sustain a

conviction, the relevant question is whether the evidence was such that a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Id. at

(¶14). In making this determination,

       [This Court] view[s] the evidence in the light most favorable to the
       prosecution. We must reverse and render if the facts and inferences “point in
       favor of the defendant on any element of the offense with sufficient force that
       reasonable [jurors] could not have found beyond a reasonable doubt that the
       defendant was guilty.” The evidence will be found sufficient if a reasonable
       jury, applying the beyond a reasonable doubt standard, might reach different
       conclusions on each element of the offense.

Id.; Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005).

¶11.   At trial, E.H. testified that when she and A.J. arrived at A.J.’s house, the door was

locked. A.J. testified that she did not invite Rollings inside her home and that she did not

know of his presence in the home until the altercation began. In Rollings’s statement given

to the police, he admitted that he entered the home but claimed that the door was unlocked.


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But even “the act of opening a closed, unlocked door is sufficient to establish the breaking

element of burglary.” Magee, 966 So. 2d at 180 (¶18).

¶12.   Particularly, Rollings takes issue with the element of criminal intent. He claims that

he entered the home with the intent to have consensual sexual intercourse, not to commit the

crime of rape. This claim is contradicted by A.J.’s testimony that Rollings was hidden in the

home prior to grabbing her from behind. The two then struggled for several minutes in

multiple rooms of the home before the rape occurred. The State presented photographic

evidence of the rooms in the house where the struggle took place – showing furniture and

other items knocked out of place. This evidence tends to prove that Rollings entered the

house with the intent to rape A.J. Further, “[w]hether the accused had a specific intent is a

fact question for the jury.” Id. at 180-81 (¶19). And “[u]nless one expresses his intent, the

only method by which intent may be proven is by showing the acts of the person involved

at the time in question, and by showing the circumstances surrounding the incident.” Id. at

181 (¶19).

¶13.   The evidence presented by the State showed that Rollings did have sexual intercourse

with A.J. The jury then assessed the testimony of A.J. regarding her version of the events.

Sufficient evidence existed for the jury to find that Rollings entered A.J.’s home with

criminal intent and for the jury to find the elements of burglary of a dwelling and forcible

rape proven beyond a reasonable doubt. Accordingly, this issue is without merit.

       II.    Whether the trial court erred in denying Rollings’s motion for a new
              trial because the verdict was against the overwhelming weight of the
              evidence.



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¶14.   Rollings next argues that the trial court erred in denying his motion for a new trial and

that the verdict was against the overwhelming weight of the evidence. “A motion for new

trial challenges the weight of the evidence.” Wilson v. State, 904 So. 2d 987, 994 (¶21)

(Miss. 2004). This Court will reverse “if the trial court abused its discretion in denying a

motion for a new trial.” Id. “A new trial will not be granted unless the verdict is so contrary

to the overwhelming weight of the evidence that an unconscionable injustice would occur

by allowing the verdict to stand.” Id. at (¶22).

¶15.   In response to Rollings’s appeal, the State argues that Rollings’s motion for a new

trial did not contain a “distinct claim” that the verdict was against the overwhelming weight

of the evidence; therefore, this argument is procedurally barred and not properly before this

Court on appeal. If the “[a]ppellant’s contention that the verdict of the jury was contrary to

the overwhelming weight of the evidence was not assigned as a ground for a new trial in the

[trial] court, . . . it may not be raised here for the first time.” Ponder v. State, 335 So. 2d 885,

886 (Miss. 1976). “A trial judge cannot be put in error on a matter which was not presented

to him for decision.” Id.; Wilson, 904 So. 2d at 994 (¶24). However, it appears that the trial

judge did consider the weight of the evidence, as he denied Rollings’s motion for a new trial.

¶16.   Despite this procedural issue, we find that Rollings’s claims lack merit. Rollings fails

to argue any specific error regarding the evidence presented by the State other than the bare

assertion that the verdict was against the overwhelming weight of the evidence. The jury was

presented with evidence through the testimony of A.J., E.H., multiple police officers and

investigators, two experts in forensic science, a nurse who examined A.J., and a nurse who



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took DNA samples from Rollings. The jury also saw photos of A.J.’s home after the attack,

showing furniture and other belongings knocked out of place, indicating a struggle took

place. Rollings’s statement, given the day after the attack, was read to the jury. Rollings

never denied having sexual intercourse with A.J. or entering her house. Rollings then

presented no evidence to rebut that presented by the State. The evidence of Rollings’s guilt

was substantial. The trial court properly denied Rollings’s motion for a new trial.

       III.   Whether the court erred in finding that Mississippi Code Annotated
              section 97-3-65 was the proper statute for Rollings’s indictment of
              rape.

¶17.   Rollings next contends that he was indicted under the incorrect statute, Mississippi

Code Annotated section 97-3-65. He claims that the statute only addresses statutory rape,

spousal rape, and rape related to drugging.

¶18.   Mississippi Code Annotated section 97-3-65(4)(a) reads:

       Every person who shall have forcible sexual intercourse with any person . . .
       shall be imprisoned for life in the State Penitentiary if the jury by its verdict so
       prescribes; and in cases where the jury fails to fix the penalty at life
       imprisonment, the court shall fix the penalty at imprisonment in the State
       Penitentiary for any term as the court, in its discretion, may determine.

Rollings is correct that this section of the statute also addresses “sexual intercourse not

constituting forcible sexual intercourse or statutory rape” that occurs “without that person’s

consent by administering to such person a substance or liquid,” which “prevent[s] effectual

resistance.” Miss. Code Ann. § 97-3-65(4)(a). But Rollings’s contention that his offense is

not included is incorrect, as this section also addresses forcible sexual intercourse. Rollings

was indicted under the proper statute; therefore this issue is without merit.



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¶19. THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, BURGLARY OF A DWELLING HOUSE, AND
SENTENCE OF TWENTY YEARS, WITH FIVE OF THOSE YEARS ON
POSTRELEASE SUPERVISION; AND COUNT II, RAPE, AND SENTENCE OF
TWENTY-FIVE YEARS, WITH FIVE OF THOSE YEARS ON POSTRELEASE
SUPERVISION, WITH THE SENTENCES TO RUN CONCURRENTLY AND THE
TIME ON POSTRELEASE SUPERVISION TO RUN CONSECUTIVELY, ALL IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE
COUNTY.

    LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON AND
GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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