      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-00878-COA

EUGENE WASHINGTON                                     APPELLANT

v.

STATE OF MISSISSIPPI                                   APPELLEE


DATE OF JUDGMENT:              05/06/2013
TRIAL JUDGE:                   HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:     WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:       OFFICE OF STATE PUBLIC DEFENDER
                               BY: W. DANIEL HINCHCLIFF
                               EUGENE WASHINGTON (PRO SE)
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:             WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I, SEXUAL
                               BATTERY, COUNT II, SEXUAL BATTERY,
                               COUNT III, STATUTORY RAPE, COUNT
                               IV, SEXUAL BATTERY, COUNT V,
                               ATTEMPTED SEXUAL BATTERY, COUNT
                               VI, STATUTORY RAPE, AND COUNT VII,
                               FAILURE TO REGISTER AS A SEXUAL
                               OFFENDER, AND SENTENCED TO LIFE
                               ON COUNTS I-IV AND VI, TEN YEARS ON
                               COUNT V, AND FIVE YEARS ON COUNT
                               VII, ALL TO BE SERVED
                               CONSECUTIVELY TO EACH OTHER AND
                               IN THE CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS, AND
                               TO PAY A $5,000 FINE
DISPOSITION:                   AFFIRMED: 08/25/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE LEE, C.J., ISHEE, CARLTON AND FAIR, JJ.
       FAIR, J., FOR THE COURT:

¶1.    Eugene Washington was convicted of six counts related to the sexual abuse of Abby,1

his stepdaughter, over the course of about six months, with the last occurring on Abby’s

thirteenth birthday. Washington was also convicted of failure to register as a sexual offender.

On appeal, Washington’s attorney filed a Lindsey2 brief certifying that he had reviewed the

record and found no arguable issues for appeal. Washington submitted his own appeal brief

contending that the State presented perjured testimony and that his convictions are

unsupported by the evidence. We no find error and affirm.

                                         DISCUSSION

¶2.    At trial, the prosecution primarily relied on the testimony of the victim, who recounted

the incidents resulting in a criminal charges, each with significant detail and specificity.3 Her

mother also testified to how, a few weeks before Abby confessed the abuse to her, she had

found Abby and Washington awake around 5 a.m., which was unusual, and their

explanations of what they had been doing were suspicious. Abby claimed to have gotten up

to use the restroom, but not the one she usually used; and Washington claimed to be



       1
           This Court uses a fictitious name to protect the victim’s identity.
       2
           Lindsey v. State, 939 So. 2d 743 (Miss. 2005).
       3
         When she testified at trial, the victim omitted the sexual intercourse forming the
basis of count three, but she did describe the incident and testified to digital penetration
(count four). The evidence of sexual intercourse during that incident came from admissible
hearsay from an attending nurse practitioner, who testified that Abby had told her
Washington penetrated her vagina with both his fingers and his penis during that incident.

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preparing a lunch for work, but no food was out. Abby confessed the abuse to her mother

after her mother threatened to take her to be examined by a doctor.

¶3.    Pursuant to Derouen v. State, 994 So. 2d 748 (Miss. 2008), the prosecution offered

the testimony of “Betty,” another stepdaughter who had suffered similar abuse at

Washington’s hands several years before. Betty’s testimony was offered to show motive and

a common plan or scheme.

¶4.    Washington testified in his own defense. He admitted he had not registered as a sex

offender in Mississippi, after moving here from Tennessee about six months before his arrest.

He otherwise denied the allegations. The jury convicted him on all counts.

¶5.    On appeal, Washington’s attorney has filed a brief pursuant to Lindsey v. State, 939

So. 2d 743 (Miss. 2005), certifying that he had diligently reviewed the record and was unable

to find any issue that could be presented in good faith for appellate review. The attorney

indicated that he had examined: (a) the reason for the arrest and circumstances surrounding

the arrest of Washington; (b) any possible violation of Washington’s right to counsel; (c) the

entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct;

(f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible

misapplication of the law in sentencing; (i) the indictment and all the pleadings in the record;

(j) any possible ineffective assistance of counsel issues; (k) jury selection; (l) limitation of

defense character witness testimony; (m) sentencing issues; (n) whether evidence of other

sex crime evidence was properly admitted; and (o) any other possible reviewable issues.


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¶6.    Pursuant to Lindsey, if appellate counsel finds no arguable issues on appeal, it is the

appellate counsel’s responsibility to file a brief showing that counsel has thoroughly

reviewed the record and has found nothing to support an appeal. Lindsey, 939 So. 2d at 748

(¶18). Counsel must then send his client a copy of the brief, informing the client that he

found no arguable issue for an appeal, and he must advise the client of his right to file a pro

se brief. Id. If the appellant himself raises any arguable issue in his pro se brief, or if the

appellate court finds any arguable issues upon its independent review of the record, the court

must, if circumstances warrant, require counsel to file supplemental briefing on the issue.

Id.

¶7.    Washington took the opportunity to file a pro se appeal brief, offering what he submits

are four issues for our consideration, which we have rearranged and consolidated for

analysis. After a thorough review of the record, we find no merit to Washington’s issues and

that no further briefing is warranted.

       1. Perjured Testimony

¶8.    Washington alleges that the prosecutor knowingly presented perjured testimony from

several witnesses. Washington’s former stepdaughter, Betty, testified that Washington had

attempted to rape her when she was thirteen years old. She reported the incident to the police

department in Memphis, Tennessee, where they lived; it resulted in Washington pleading

guilty to sexual battery. Washington was sentenced to house arrest, and he continued to

reside with Betty and her mother. Washington subsequently sexually abused and raped Betty.


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She became pregnant by him, and the pregnancy resulted in a miscarriage. The jury was

given a limiting instruction as required by Derouen, 994 So. 2d at 756 (¶20).

¶9.    Washington contends that the testimony regarding the abuse of Betty after his

conviction for sexual battery was perjured, for several reasons. He claims that Betty did not

report the rape and pregnancy to the authorities in Memphis when she reported the prior

abuse, but this is not a contradiction because she testified that the rape and pregnancy

occurred after the report. Washington also appears to contend that the testimony was

improperly admitted because he was never convicted of a crime for the subsequent abuse of

Betty, but prior bad acts submitted under Mississippi Rule of Evidence 404(b) do not require

a conviction. Mitchell v. State, 990 So. 3d 584, 593 (¶20) (Miss. 2012); see also M.R.E.

404(b) cmt. (“These past acts admitted into evidence may be ones for which the person in

question was either convicted or not convicted.”).

¶10.   Washington also alleges that Betty lied about not knowing whether he had been

charged and convicted of a crime. In fact, she testified that – at the time of her testimony in

the instant case – she knew Washington had been convicted, and that she did not know it

years before. This is not necessarily a contradiction.

¶11.   Finally, Washington argues that Abby’s mother perjured herself when she testified

that she did not know he was a convicted sex offender, yet she had told a nurse attending to

her daughter that he was. Abby’s mother actually testified that she had heard rumors about

Washington and she was uncertain at the relevant times. Again, the testimony cited by


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Washington is not necessarily contradictory, much less shown to have been perjured.

¶12.   We find no error on this point and that no further briefing is required.

       2. Sufficiency of the Evidence

¶13.   Washington also contends that the evidence was insufficient to support his convictions

for sexual battery and statutory rape (he does not challenge the conviction for failure to

register as a sex offender).

¶14.   When the sufficiency of the evidence is challenged, the issue before this Court on

appeal is whether the evidence shows “beyond a reasonable doubt that [the] accused

committed the act charged, and that he did so under such circumstances that every element

of the offense existed.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation

omitted). “[W]here the evidence fails to meet this test it is insufficient to support a

conviction.” Id.

¶15.   But, as the United States Supreme Court has explained, a court should not “ask itself

whether it believes that the evidence established guilt beyond a reasonable doubt.” Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)) (emphasis in original; internal

quotation marks omitted). “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.” Id. (quoting Jackson,

443 U.S. at 315).

¶16.   A reviewing court must reverse the conviction and render a judgment of acquittal if


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“the facts and inferences . . . point in favor of the defendant on any [one] element of the

offense with sufficient force that reasonable men could not have found beyond a reasonable

doubt that the defendant was guilty.” Id. (citation and internal quotation marks omitted).

¶17.   Washington bases his argument almost entirely on a medical examination of the

victim, conducted some weeks after the final assault, which found that her anus and hymen

were “normal,” showing no scarring or injury. However, the nurse practitioner who

performed the exam testified that this was not unusual or inconsistent with the acts alleged,

which included statutory rape, sexual battery by mouth-to-vagina contact, digital insertion,

and attempted sexual battery by attempted insertion of the penis into the anus. Washington

also notes that Abby testified that the acts Washington performed on her did not hurt or cause

her to bleed, and he questions whether she sufficiently described penetration when testifying

to incidents where Washington performed oral sex on her.

¶18.   Where penetration is a required element of rape or sexual battery, only slight

penetration is required. Bateman v. State, 125 So. 3d 616, 623 (¶19) (Miss. 2013). The

supreme court has also held that, for sexual battery, “proof of contact, skin to skin, between

a person's mouth, lips, or tongue and the genital opening of a woman's body, whether by

kissing, licking, or sucking, is sufficient proof of ‘sexual penetration’ . . . .” Id. The acts

required to support Washington’s convictions would not necessarily injure the victim’s

hymen or anus.

¶19.   Washington next argues that Betty’s testimony regarding the prior misconduct was


                                              7
perjured, but we have already rejected that argument. He also contends that her testimony

was highly prejudicial to him, but this is not an argument regarding the sufficiency of the

evidence. Nonetheless, we note that the trial judge acknowledged the prejudicial nature of

Betty’s testimony, but he also found it to have significant probative value; and the testimony

was admitted only after balancing the probative value against the prejudicial impact. See

M.R.E. 403. The trial court also properly gave a limiting instruction to mitigate the

prejudice. See Derouen, 994 So. 2d at 756 (¶20).

¶20.   After our own review of the record, we are satisfied that each of Washington’s

convictions is supported by sufficient evidence, and this issue requires no further briefing.

       3. Weight of the Evidence

¶21.   Finally, Washington argues that the verdict is against the overwhelming weight of the

evidence, which is distinct from the sufficiency argument we have previously addressed. A

challenge to the weight of the evidence will be successful 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.” Bush, 895 So. 2d at 844 (¶18). “[T]he evidence must be

viewed in the light most favorable to the verdict[.]” Jenkins v. State, 131 So. 3d 544, 551

(¶23) (Miss. 2013).

¶22.   A new trial based on the weight of the evidence should be granted “only in

exceptional cases in which the evidence preponderates heavily against the verdict.” Bush,

895 So. 2d at 844 (¶18) (citation omitted). And because the trial judge had a firsthand view


                                              8
of the trial, “reversal is warranted only if the trial court abused its discretion in denying [the]

motion for a new trial.” Waits v. State, 119 So. 3d 1024, 1028 (¶13) (Miss. 2013).

¶23.   Washington’s argument on this point is largely a rehashing of his prior arguments

above. He notes also, however, that Betty agreed on cross-examination that Washington

“cannot be punished enough” and that she was still angry with him for what he had done to

her.   He makes further attacks on the credibility of the witnesses against him, but

“[c]onflicting testimony does not evince overwhelming evidence; where the verdict turns on

the credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty

to resolve the conflict.” Brown v. State, 995 So. 2d 698, 702 (¶13) (Miss. 2008) (citation and

quotation omitted).

¶24.   After reviewing the record, we find that the verdict is not against the overwhelming

weight of the evidence, and that no further briefing is required on this issue.

                                        CONCLUSION

¶25.   After examining Washington’s pro se brief and thoroughly reviewing the record in

this case, we agree with Washington’s appointed counsel that there are no arguable issues

on appeal. We therefore affirm Washington’s conviction and sentence.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY
OF CONVICTION OF COUNT I, SEXUAL BATTERY, COUNT II, SEXUAL
BATTERY, COUNT III, STATUTORY RAPE, COUNT IV, SEXUAL BATTERY,
COUNT V, ATTEMPTED SEXUAL BATTERY, COUNT VI, STATUTORY RAPE,
AND COUNT VII, FAILURE TO REGISTER AS A SEXUAL OFFENDER, AND
SENTENCES OF LIFE ON COUNTS I-IV AND VI, TEN YEARS ON COUNT V,
AND FIVE YEARS ON COUNT VII, ALL TO BE SERVED CONSECUTIVELY TO
EACH OTHER AND IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

                                                 9
CORRECTIONS, AND TO PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, JAMES AND WILSON, JJ., CONCUR.




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