IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-KA-00445-SCT

JOHN WILLIAMS a/k/a JOHN L. WILLIAM

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/24/1997

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.

COURT FROM WHICH APPEALED: CARROLL COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: K. ELIZABETH DAVIS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS, JR.

DISTRICT ATTORNEY: DOUG EVANS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 9/9/1999

MOTION FOR REHEARING FILED: 09/30/99;Denied 11/18/99

MANDATE ISSUED: 11/29/99

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

BANKS, JUSTICE, FOR THE COURT:

¶1. This case challenges the conviction and sentence imposed for sexual battery. We conclude that the

conviction is supported by the evidence. We further conclude that the sentence imposed is neither excessive

nor disproportionate to the crime of sexual battery. Accordingly, we affirm the conviction and sentence

imposed by the trial court.

I.

¶2. John Williams was indicted in a multi-count indictment on six counts of sexual battery and two counts of

fondling in the Carroll County Circuit Court. Prior to trial, the two counts of fondling were severed by the

trial court.

¶3. Testifying for the State during trial on the matter were four children, all of whom testified that John

Williams sexually abused them. In Counts I and II of the indictment, Williams was charged with "unlawfully,

willfully, and feloniously" engaging in sexual penetration with the first child by inserting his finger into her

vagina. The first child, age 10 at the time of trial, testified that on two visits to Williams's home to watch

movies and play with his pets, Williams put his hands between her legs and inserted his finger inside her

vagina.
¶4. Count III charged Williams with the sexual penetration of the second child by inserting his penis into the

child's mouth. The second child, age 7, testified that on several occasions, he went to Williams's home with

his brother, the third child, to watch movies. On one occasion, the second child testified that Williams

promised him $5 to "suck his weiner", referring to Williams's penis. The second child later told his parents

what Williams had done, despite Williams's warnings not to tell.

¶5. In Count IV, Williams was charged with sexual penetration of the third child. The third child, age 9 at

trial, testified that during the summer of 1997, he also visited with Williams several times. His testimony was

that during one visit, he and Williams went into the bathroom where Williams made the third child play with

his "weiner" and suck it. The third child also stated that Williams promised him $5 if he allowed Williams to

do these things to him.

¶6. Counts V and VI charged Williams with sexual penetration of the fourth child by inserting his finger into

her vagina. The fourth child, who was 11 at the time of trial, testified that during a visit to Williams's home to

watch movies with her younger brothers, sister and cousins, Williams put his fingers inside her "cat",

referring to her vagina. She also testified that she never told anyone because Williams threatened to hurt her

if she did. She stated that Williams inserted his finger into her vagina on another occasion while she was

visiting with him also. Her cousin, a 12-year-old child, testified she walked in on Williams while he had his

hands in the fourth child's pants.

¶7. Dr. Billy Boldon, a pediatrician, testified that he took a medical history of the fourth child after she was

brought in by her mother, who believed the fourth child had been molested by Williams. The child informed

Dr. Boldon that Williams had inserted his finger into her vagina on more than one occasion, referred to by

Dr. Boldon as "digital molestation." Dr. Boldon completed a physical examination of the child but found no

physical evidence of sexual abuse. Dr. Boldon, testified, however, that such was common in cases like the

fourth child's where examination was conducted long after the digital penetration may have occurred and

that usually within 72 hours, any evidence, such as redness, bruising or irritation, is not found. There was no

record of medical examinations of any of the other children.

¶8. Williams presented the testimony of Rita Bennett, mother of the second, third and fourth children and

the first child's aunt. Her testimony was that she was not aware of any allegations of sexual abuse until after

an argument ensued between her son, Rex, and Williams. Williams rested without testifying or calling any

other witnesses on his behalf.

¶9. Based on the evidence before it, the jury convicted Williams of all six counts of sexual battery. Williams

was subsequently sentenced to serve a term of imprisonment in the Mississippi Department of Corrections

as follows:

Count I: thirty years;

Count II: thirty years, concurrent to Count I;

Count III: thirty years, concurrent to Counts I and II;

Count IV: thirty years, consecutive to Count I, II, III;

Count V: thirty years, concurrent with Count IV;
Count VI: thirty years, concurrent with Count IV.

¶10. Aggrieved, Williams appeals to this Court.

II.

¶11. We collectively address Williams's first four assignments. In his first assignment of error, Williams

argues that the trial court erred in not granting his motion for a directed verdict. Williams next argues that the

court erred in not granting Instruction D-1, a peremptory jury instruction. He further alleges that the trial

court erred by denying his motion for new trial.

¶12. Williams's challenge that the State failed to prove beyond a reasonable doubt that he was guilty of

sexual battery goes to the sufficiency of the evidence. He also argues that his motion for new trial should

have been granted because the verdict was against the overwhelming weight of the evidence.

¶13. The standard of review in challenges to the sufficiency of the evidence is one in which all the evidence

is considered in a light most favorable to the verdict. Collier v. State, 711 So. 2d 458, 461 (Miss. 1998).

The credible evidence consistent with the guilt must be accepted as true, and the prosecution must be given

the benefit of all favorable inferences which may be reasonably drawn from the evidence. Collier v. State,

711 So. 2d at 461 (quoting Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987); Coleman v. State, 697

So. 2d 777, 787 (Miss. 1997). Matters regarding the weight and credibility are to be resolved by the jury,

and this Court may reverse only where the evidence so considered is such that reasonable and fair-minded

jurors could only find the accused not guilty. Collier at 461. The standard of review for the denial of a

peremptory instruction is identical to that for denial of a directed verdict. Coleman v. State, 697 So. 2d at

787.

¶14. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court

must accept as true the evidence which supports the verdict, reversing only when convinced the circuit court

has abused its discretion in failing to grant a new trial. Id. at 461 (citing Herring v. State, 691 So. 2d 948,

957 (Miss. 1997). Only in cases where the verdict is so contrary to the overwhelming weight of the

evidence will the Court disturb it on appeal and grant a new trial. Id.

¶15. Miss. Code Ann. § 97-3-95 (1994) stated in pertinent part that " [a] person is guilty of sexual battery

if he or she engages in sexual penetration with another person without his or her consent. . . .or a child

under the age of fourteen (14) years." This Court has held that the parameters of the definition of sexual

penetration are logically confined to activities which are the product of sexual behavior or libidinal

gratification. Roberson v. State, 501 So. 2d 398, 400 (Miss. 1987). Contact between a person's mouth,

lips, or tongue and genitals of a person's body, whether by kissing, licking, or sucking, is sexual penetration.

Hennington v. State, 702 So. 2d 403, 408 (Miss. 1997).

¶16. The crux of Williams's argument is that there is no physical evidence of sexual penetration of any of the

children. He also relies on the fact that some of the children could not remember exact dates and that

because the children continued visits to his home, despite alleged incidents of abuse, their allegations are

suspect. Williams further asserts that the testimony elicited from the children is inconsistent and

uncorroborated, making their testimony unreliable. There is also the argument that the children concocted

the allegations of abuse after one of their family members, Rex Bennett, got into an argument with Williams.

¶17. While there was no physical evidence presented by the State in this case, this Court has 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. Collier v. State, 711 So. 2d 458, 462 (Miss.

1998) (citing Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)). Dr. Bolden, the State's expert who

examined the fourth child, testified that any physical finding of sexual penetration by digital molestation, the

type presented in this case, would usually be found within the first 24 hours of penetration, and that it would

be an exception to find anything in cases involving just digital molestation. This Court has also held that it is

in the province of the jury to determine the credibility of witnesses. Collier at 462 (citing Pleasant v.

State, 701 So. 2d 799, 802 (Miss. 1997)). Any questions regarding the weight and worth of witness

testimony or witness credibility are for the jury to resolve. Eakes v. State, 665 So. 2d 852, 872 (Miss.

1995).

¶18. Considering all the evidence favorable to the State, we conclude that the verdict of the jury is

supported by the evidence and that the trial court did not err in refusing to grant Williams's request for

peremptory instruction or new trial. Nor is the verdict against the overwhelming weight of the evidence.

While there may be minor inconsistencies in the children's testimony, they were all in accord on one thing

they suffered sexual abuse at the hands of Williams. The jury was presented with the evidence and, as trier

of fact, chose to return a verdict of guilty. Accordingly, we will not disturb the verdict in this case.

III.

¶19. Williams alleges that the sentences imposed are excessive and violative of the eighth amendment to the

United States Constitution and article 3, § 28 of the Mississippi Constitution.

¶20. Williams fails to cite any authority in support of this assignment as well. As such, the Court is not

obligated to address his argument. Turner v. State, 721 So. 2d 642, 648 (Miss. 1998). Addressing the

merits, however, Williams argues that thirty years is the maximum sentence he could have received for a

conviction of sexual battery, making the term imposed excessive and disproportionate.

¶21. The general rule is that a sentence cannot be disturbed on appeal so long as it does not exceed the

maximum term allowed by statute. Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992). This Court will

review a sentence where it is alleged that the penalty imposed is disproportionate to the crime charged. Id.

The factors to consider when conducting a proportionality analysis include (1) the gravity of the offense and

the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3)

the sentences imposed for commission of the same crime in other jurisdictions. Id at 302-03 (citing Solem

v. Helm, 463 U.S. 277, 292 (1983)).

¶22. Under Miss. Code Ann. § 97-3-101, the maximum sentence which can be imposed for the crime of

sexual battery is 30 years. Smith v. State, 569 So. 2d 1203, 1205 (Miss. 1990). Williams was convicted

of six counts of sexual battery, with the maximum sentence in each being thirty years. The trial judge

sentenced Williams to a term of thirty years on each count, with two of the sentences running consecutively

and four running concurrently, making the term which Williams would have to serve sixty years. Under

Miss. Code Ann. § 99-7-2 (3) (1994), "when a defendant is convicted of two (2) or more offenses

charged in separate counts of an indictment, the court shall impose separate sentences for each such

conviction." Id. The Court concludes that the trial court sentenced Williams within the limits of § 99-3-101

and did not abuse its discretion. This claim is without merit.

¶23. Addressing Williams's argument on proportionality, this Court has held that a sentence of thirty years is
not disproportionate for sexual battery. Davis v. State, 510 So. 2d 794, 797 (Miss. 1987). Turning to the

Solem factors to be evaluated in a proportionality analysis, the Court should first consider the gravity of the

offense and the harshness of the penalty. Here, Williams enticed young children, aged 7-11, to his home

with movies and animals in efforts to sexually abuse them in various ways. He did this on several occasions,

with at least four children over the course of about two months. Williams also threatened physical harm to

some of the children if they reported his actions to anyone. In light of these facts, the harshness of the

penalty in this case is justified by the gravity of the offenses.

¶24. We next consider sentences imposed on other criminals in the same jurisdiction. Davis, 510 So. 2d at

797. This Court has upheld thirty year sentences for sexual battery in Davis and in Smith v. State, 569

So. 2d 1203 (Miss. 1990). While Williams was sentenced to serve more than thirty years, the Court notes

that he was convicted on six counts of sexual battery. As to each sexual battery count, he was sentenced to

the maximum term of thirty years. Thus, Williams's sentence is similar to other sentences imposed in this

jurisdiction for sexual battery.

¶25. The last factor to be considered is sentences imposed for the commission of the same crime in other

jurisdictions. Davis, at 797. Under Florida Statute § 794.011(2)(a), a person 18 years or older who

commits sexual battery upon a person less than twelve years of age commits a capital felony, which can

result in a punishment of life imprisonment. See Leduc v. State, 448 So. 2d 32, 33 (Fla. Dist. Ct. App.

1984). In Tennessee, Williams's conduct is classified as aggravated sexual battery. Tenn. Code. Ann. § 39-

13-504(4). As a Class B felony in Tennessee, aggravated sexual battery is punishable by a term of not less

than eight nor more than thirty years. Tenn. Code Ann. § 40-35-111(2). In assessing the thirty-year

sentence imposed in Davis for sexual battery, this Court found that the sentence was not so dissimilar to

sentences for the same crime in other states. Davis, at 797. Therefore, we conclude that Williams's sixty

year term for six counts of sexual battery is not disproportionate to the crime. Williams's contention is

without merit.

IV.

¶26. For the foregoing reasons, the conviction and sentence imposed by the trial court are affirmed.

¶27. COUNTS I-VI: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY

YEARS EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE IN COUNT II SHALL

RUN CONCURRENTLY WITH SENTENCE IN COUNT I. SENTENCE IN COUNT III

SHALL RUN CONCURRENTLY WITH SENTENCES IN COUNTS I AND II. SENTENCE IN

COUNT IV SHALL RUN CONSECUTIVELY WITH SENTENCE IN COUNT I. SENTENCE

IN COUNT V SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT IV.

SENTENCE IN COUNT VI SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNTS

IV AND V.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE, SMITH,

MILLS, WALLER AND COBB, JJ., CONCUR.