                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2007-KA-01831-SCT

GEORGE LEE MASSEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        10/05/2007
TRIAL JUDGE:                             HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  MISSISSIPPI OFFICE OF INDIGENT
                                         APPEALS
                                         BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                       BILBO MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 10/23/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

      EASLEY, JUSTICE, FOR THE COURT:

¶1.   George Lee Massey was indicted on one count of lustful touching of a child pursuant

to Mississippi Code Annotated Section 97-5-23 (Rev. 2006). On September 11-12, 2007,

Massey was tried by a jury in the Circuit Court of Lauderdale County, the Hon. Robert W.

Bailey presiding. Massey was convicted by the jury. He was sentenced to serve a term of

ten years in the custody of the Mississippi Department of Corrections with five years
suspended and five years probation. Thereafter, the trial court denied Massey’s post-trial

motions. From that conviction and sentence, Massey appealed to this Court.

                                          FACTS

¶2.    G.T., a fourteen-year-old minor, testified that she often visited the home her

grandparents shared with her great-uncle, Massey. G.T. testified that, on or about June 29,

2006, she was in Massey’s room using the computer while Massey was asleep on the bed,

wearing boxer shorts. Massey woke up and smoked a cigarette. After using the bathroom,

Massey returned to the bedroom and began to rub lotion on his feet. Massey then began to

rub lotion on G.T.’s feet. Next, he began to rub lotion on G.T.’s leg and then moved to her

vaginal area, touching her with his whole hand. G.T. testified that she did not know what to

do. She said she spun around in her chair, Massey got up, and G.T. ran into the living room

to her grandmother.

¶3.    Later, G.T. went back to the room, and Massey said that he had an ant bite on his

“private area” and tried to show it to her. G.T. told him “No,” and Massey said, “Does that

offend you or something?” G.T. returned to her grandmother. When her grandmother told

her that Massey was calling her, G.T. stated that she wanted to stay with her grandmother.

¶4.    G.T. testified that she was scared and did not tell her grandmother what had happened.

G.T. never again returned to the home her grandparents shared with Massey after the events

of June 29, 2006. Three weeks later, G.T. spoke to her grandfather on the telephone. He

asked her why she had not been to the house to visit them. G.T. told her grandfather what

had happened at the house after saying she was afraid her father might hurt Massey.

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¶5.    Massey testified in his own defense.          He said that he never touched G.T.

inappropriately. In addition, Massey testified that he did not own a pair of boxer shorts, and

that G.T. had asked him to rub lotion on her.

                                      DISCUSSION

       I.     JNOV.

¶6.    Massey argues that the trial court erred by denying his motion for judgment

notwithstanding a verdict (JNOV) because G.T.’s testimony suggested grave doubt as to

Massey’s guilt. Massey bases this argument on the fact that G.T. delayed three weeks in

reporting the alleged incident. Massey also contends that the allegations were made after her

grandfather questioned her about not visiting. Further, Massey argues that G.T.’s testimony

differed from her written statement to police.

¶7.    A motion for JNOV challenges the legal sufficiency of the evidence. McIntosh v.

State, 917 So. 2d 78, 84 (Miss. 2005). "This Court properly reviews the ruling on the last

occasion the challenge was made in the trial court." Id. (quoting McClain v. State, 625 So.

2d 774, 778 (Miss. 1993)). The final occasion when the legal sufficiency of the evidence

was challenged was when the trial court denied Massey's motion for JNOV.

¶8.    In Jones v. State, 904 So. 2d 149, 153-154 (Miss. 2005), this Court set forth the

standard of review for JNOV:

       To determine 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

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       the evidence fails to meet this test it is insufficient to support a conviction."
       Carr v. State, 208 So. 2d 886, 889 (Miss. 1968). 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. Jackson v. Virginia, 443 U.S. 307,
       315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

¶9.    Massey was indicted pursuant to Mississippi Code Annotated Section 97-5-23 (Rev.

2006). In Ladnier v. State, this Court stated:

       To sustain a conviction under to Miss. Code Ann. [97-5-23], the State must
       prove beyond a reasonable doubt that (1) the defendant was over the age of
       eighteen; (2) the child was under the age of 16; and (3) that the defendant
       touched the child with either his hands or another part of his body for the
       purpose of gratifying his lust.

Ladnier v. State, 878 So. 2d 926, 929 (Miss. 2004). See also Miss. Code Ann. § 97-5-23

(Rev. 2006).

¶10.   The record reveals that Massey was more than eighteen years old, and that G.T. was

fourteen years old on the day that Massey rubbed lotion on G.T. and touched her. G.T.

testified that Massey asked her if he could rub lotion on her. She said he put lotion on her

feet and legs, and then began to rub her vaginal area with his whole hand. G.T. testified that

she was scared and left the room. G.T. also testified that when Massey later called her back

to the room, she refused to look at an ant bite that he claimed was on his private area.

Thereafter, G.T. returned to the living room and stayed with her grandmother for the rest of

the day. However, G.T. said she did not tell her grandmother what had happened because

she was scared.




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¶11.   Massey testified that G.T. asked him to put lotion on her. In addition, he testified that

he never inappropriately touched G.T. Massey also stated that G.T. was in his room on the

computer at night when this incident allegedly occurred.          Massey stated that G.T.’s

grandfather was present in the house and was trying to get her to go to bed.

¶12.   The jury heard the different versions of events from the witnesses. This Court

consistently has held:

       The jury determines the weight and credibility to give witness testimony and
       other evidence. Johnson v. State, 904 So. 2d 162, 167 (Miss. 2005). We may
       not "pass upon the credibility of witnesses and, where the evidence justifies a
       verdict, it must be accepted as having been found worthy of belief." Davis v.
       State, 568 So. 2d 277, 281 (Miss. 1990).

Moore v. State, 933 So. 2d 910, 922 (Miss. 2006).

¶13.   The jury heard the testimony of both G.T. and her grandfather with regard to his

inquiry about her abrupt cessation of visits to the home. On cross-examination, defense

counsel questioned G.T. in the presence of the jury as to her explanation of alleged

inconsistencies between her testimony and her written statement to the police.

¶14.   As for the delay in reporting, in Miley v. State, 935 So. 2d 998, 1001 (Miss. 2006),

this Court held 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.” See also Price v. State, 898 So. 2d 641, 651 (Miss. 2005); Ladnier v.

State, 878 So. 2d 926, 931 (Miss. 2004); Collier v. State, 711 So. 2d 458, 462 (Miss. 1998).

In addition, this evidence is sufficient “especially if the conduct of the victim is consistent

with the conduct of one who has been victimized by a sex crime.” Collier, 711 So. 2d at 462.

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In Collier, this Court also held that a “victim's physical and mental condition after the

incident” and the immediate reporting of a crime is corroborating evidence. Id. (quoting

Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)).

¶15.   G.T. waited three weeks to report the incident to her grandfather. She told her

grandfather about the incident when he called her and asked why she had not come to the

house to visit them. However, G.T. stated that she was scared and thought her father might

harm Massey if she told her father what had happened to her. G.T. stated, “Because I know

how my daddy is, and I thought it would have been safer if I told my Papaw so my Papaw

can sit down with my daddy so he’ll do the right thing.” Therefore, G.T. told her grandfather

about the incident so he could speak to her father. In addition, G.T. stated that she normally

visited her grandparents often, however, she never returned to the home her grandparents

shared with Massey after he touched her. These actions were consistent with the conduct of

a person victimized by a sex crime.

¶16.   The jury heard all of the testimony and determined the credibility and weight to give

each witness’s testimony. Accordingly, we find that the trial court did not err by denying

Massey’s motion for judgment notwithstanding the verdict.

       II.    New Trial.

¶17.   Massey also argues that, in the alternative, he is entitled to a new trial. A motion for

new trial, in contrast to JNOV, challenges the weight of the evidence. McIntosh, 917 So.

2d at 86. A reversal is warranted only if the trial court abused its discretion in denying a

motion for new trial. Id. In Jones v. State, this Court stated:

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       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. Herring v. State, 691 So. 2d 948, 957
       (Miss. 1997). The evidence should be weighed in the light most favorable to
       the verdict. Id. The standard of review for denial of peremptory instructions
       is the same. Walker v. State, 881 So. 2d 820, 830 (Miss. 2004).

Jones, 904 So. 2d at 154; see also McIntosh, 917 So. 2d at 86.

¶18.   Without reiterating the facts discussed in Section I above, we cannot say that the

jury’s verdict was so contrary to the overwhelming weight of the evidence that to allow it to

stand would sanction an unconscionable injustice. Accordingly, we find that the trial court

did not err by denying Massey’s motion for new trial, and this issue is without merit.

                                      CONCLUSION

¶19.   For the foregoing reasons, we affirm the jury verdict of the Circuit Court of

Lauderdale County.

¶20. CONVICTION OF LUSTFUL TOUCHING OF A CHILD AND SENTENCE
OF TEN (10) YEARS, WITH FIVE (5) YEARS SUSPENDED AND FIVE (5) YEARS
PROBATION WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, PAYMENT OF A FINE OF $1,000.00, AN
APPEARANCE BOND FEE OF $500.00, VICTIMS IMPACT FUND OF $500.00,
AND COURT COSTS OF $295.50, AFFIRMED.

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




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