IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00934-COA JASON BOZ EMAN A/K/A JASON BOZ MAN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/09/2014 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: TUNICA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FONDLING AND SENTENCED TO TW ELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH EIGHT YEARS TO SERVE AND FOUR YEARS SUSPENDED, W ITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, TO PAY A FINE OF $1,000, AND TO REGISTER AS A SEX OFFENDER DISPOSITION: AFFIRMED - 01/17/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. BARNES, J., FOR THE COURT: ¶1. On Decem

ber 15, 2012, eigh t

- y e a r - o l d M

. W. w a s s p ending the weekend with hergrandm other, S .C. 1 T he child inf orm ed S.C. that Jason B ozem a n, her uncle, had inappropriately touched her on several occasions in the past f ew m onths. 2 Bozema n, who

was in hi s t h i r t i es, lived in a cam per o n the s am e property where M.W

. and h er parents resided. S .C. im m ediately inf orm ed the child’s parents, who c ontacted the Tunica County Sherif f ’s Departm ent. A f

orensic interview with the child took place January 24, 2013; no phy sical exam ination of

the child was conducted. ¶2. Bozem an w as indicted f or one count of f

ondling and two counts of s exual battery in violation of Mississippi C ode Annotated sections 97-5-23 a nd 9 7-3-95 (Rev. 2006). During the jury trial, M.W

. testif

ied that Bozem an had touched h er with his hands and his “private parts.” Based on the details provi ded to her by the child, the f orensic interviewer testif

ied that her “f

indings were consistent with that of a child that had been sexually abused.” ¶3. Bozem an was convicted of count one, f ondling, a nd sentenced to twelve y ears in the custody o f the Mississippi Departm ent of Corrections, with eigh t y e a r s t o serve and f our
y ears suspended, w ith the s ente n c e t o run consecutively to any sentences p reviously im posed. He was f ound not guilty

of the other two counts of

sexual battery , and those charges were dism issed. Bozem a n f

iled a m o tion f

or a j u d g me n t notwithstanding the verdict, or in the

a l t ernative, f

or a new trial, which the circuit court denied. Finding n o e rror, we af f ir m

1 D u e to th e v ictim ’s ag e an d th e sex u al n atu re o f th e crim e, in i tials are b ein g u s e d to p ro tect th e v ictim ’ s id en tity

.

2 B o zem an w a s M .W.’s u n cle b y m arriag e; h e w as m arried to t h e s i ster o f M .W.’s f ath e r, an d th e co u p le w as g o in g th ro u g h a d i v o rce. 2Bozem an’s conviction and sentence. DISCUSSION

¶4. Bozem an’s sole argum ent on appeal is that, due to the State’s f ailure to p rovide any phy sical evidence that he touched the child i nappropriately , the verd i c t is a gainst the overwhelm ing weight of the evidence. He notes there w as no m edical exam ination of M.W

. conducted to determ ine if the c hild had been m olested. Theref ore, Bozem an contends he is entitled to a new trial. ¶5. “[ M]atters regarding the weight of the evidence are within the province of the jury .” Jackson v
. State , 154 So. 3d 58, 62 (¶18) (Miss. Ct. App. 2014) (citing Stegall v. State, 765 So. 2d 606, 610 (¶10) ( M iss. Ct. App. 2000)). “A jury ’s v erdict will not b e disturbed unless ‘it is so c ontrary to the o verwhelm ing weight of the evidence that to allow it to s tand would sanction an unconscionable injustice.’” Hernandez v. State , 137 So. 3d 889, 893 ( ¶18) (Miss. Ct. A pp. 2013) (quoting Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005)). W h en asked

at trial w h e t h e r Bozem an had touched her “in places he shouldn’t h ave,” M.W

. replied af f irm atively

. Q. You sai d he touched y ou with what? W as it his hands o r som e thing else? A. W ith his hands. Q. Did he touch y ou in places he shouldn’t have touched y ou? A. Yes, sir.

. . . . 3Q. Did he take any thing besides his hand when he touched y ou? Did he use his private parts or any thing when he touched y ou? A. Yes, sir. The f orensic interviewer corroborated this testim ony , explicitly stating: Based on all the inf

orm a tion that [ M.W

. ] t old m e , that [ Bozem an] put his m outh on her m outh, that he put his m outh inside her vagina, a l l of the sensory inf orm ation that she was a b l e t o provide, the f act that she told m e he put his penis and two f

ingers inside her buttocks, his penis on and i nside her vagina, and that s he had to play w ith his penis or touc h h i s p e nis, m y f indings were consistent with that of

a child who has been sexually abused. ¶6. B o z e ma n t e s t i f

i e d , however, that he never touched M.W

. Durin g h i s c l o s i n g argum ent, def

ense counsel asserted that there was “no proof ” and that the State “didn’t have nothing but the words.” As the Mississippi Suprem e Court has observed, however, “there is ty pically no phy sical evidence of f o ndling.” Derouen v. State , 994 So. 2d 748, 752 (¶10) (Miss. 2 008). In Derouen , the s u prem e court rejected a def endant’s a rg u me n t t hat it was “m erely [ the victim ’s] word against his and that there was no phy sical or ey ewitness evidence of f ondling.” Id . at (¶9). This Court has f

ound that “the testim o ny o f a si ngle uncorroborated witness is suf f icient to sustain a conviction even though there m ay be m ore than one person testif

y i ng to the contrary .” W illia ms v. S

tate, 512 So. 2d 666, 6 70 (Miss. 1 987). F urther,

. . . “[ t]he unsupported word of the victim of a s ex c r i me is suf

f icient to support a guilty v erdict where that testim ony is no t discredited or contradicted by other credible evidence.” Torrey v
. State , 891 So. 2d 188, 192 [ (¶18)] (Miss. 2004) [ (overruled on other grounds)].
Derouen , 994 So. 2d at 752 (¶9); see a lso Grah a m v. S tate , 812 So. 2 d 1150, 1153 (¶9) (Miss. C t. App. 2002) (“[ T]he absence of phy sical evidence does not n egate a c o n v i c t i on

4where there i s testim onial evidence.”). This Court has f urther f ound that “[ p]hy sical evidence is not required t o sustain [ a def enda n t ’s] convictions of statutory rape, sexual battery , or gratif

ication of lust.” Sims v. Sta t e , 1 2 7 S o . 3 d 307, 313 (¶20) ( Miss. Ct. App. 2013). ¶7. W e do not f

ind that the v erdict was against the overwhelm ing weight of the evidence. Accordingly , the c ircuit c ourt d i d not abuse its discretion in d eny ing Bozem an’s m otion f or a new trial, and this issue is without m erit. ¶8. THE JUDGMENT OF THE CIR C U I T C O U RT OF TUNICA C OUNTY OF CONVICTION OF FONDLING AND SENTENCE O F T WELVE YEARS IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF CORRECT I O NS, WITH EIGHT YEARS TO S E R V E AND FOUR YEARS SUSPENDED, W ITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY I MPOSED, TO PAY A FINE O F $1,000, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. A LL COSTS O F THIS A PPEAL ARE ASSESSED TO TUNICA COUNTY. LEE, C .J., IRVING AND GRIFFIS, P . J J . , I S H E E , C A R LTON, FAIR, W ILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

5