Divine v. State
| Docket Number: | 2005-KA-02056-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-30-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Suppression of statement - Lesser-included offense instruction - Improper remarks - Sufficiency of evidence Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Non Participating Judge(s): ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-15-2005 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF PAROLE OR ANY OTHER EARLY RELEASE AS A SEX OFFENSE PLUS PAY $764.80 RESTITUTION TO THE VICTIM AND PAY $1200 AB FEE District Attorney: Bilbo Mitchell Case Number: 594-03 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ABRAHAM DIVINE |
CRAIG ANDREW CONWAY |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DESHUN TERRELL MARTIN |
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| Topic: | Sexual battery - Suppression of statement - Lesser-included offense instruction - Improper remarks - Sufficiency of evidence |
| Summary of the Facts: | Abraham Divine was convicted of sexual battery and was sentenced to serve twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Suppression of statement Divine argues that the court erred in denying his motion to suppress his statement to the police, because they were the result of threats and promises made by the police officer who was questioning him. For a confession to be admissible it must not have been given as a result of promises, threats or inducements. The prosecution meets its burden of proving that the confession was made voluntarily by producing testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward. In this case, the detective who conducted the interview with Divine testified that he made no promises of leniency to Divine. Furthermore, Divine has failed to show by testimony or otherwise that the alleged promises of leniency promised by the detective were the proximate cause of his confession to sexual battery. Issue 2: Lesser-included offense instruction Divine argues that the court erred in denying his jury instruction on the lesser crime of lustful touching of a child. A jury instruction on a lesser-included offense is to be given only when a defendant points to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser-included offense. Divine seems to argue that a slight tear in the victim’s rectum is not enough of a substantial injury to warrant his conviction of sexual battery. However, this evidence clearly indicates that the victim was penetrated, thus meeting the definition of “sexual penetration” pursuant to the sexual battery statute. Thus, the court properly found that there was no evidence or factual basis to support a lustful touching instruction. Issue 3: Improper remarks Divine argues that the court erred in failing to grant a mistrial as a result of improper remarks made by the prosecution that “[t]his man right here is a sexual predator” and that Divine is a child molester. The facts of the case showed that Divine sexually penetrated his nephew; thus, the court did not err in failing to grant a mistrial. Issue 4: Sufficiency of evidence Divine argues that the evidence was insufficient to prove that penetration occurred. The testimony concerning the injuries to the victim’s rectum and the victim’s testimony that Divine assaulted him were sufficient for the jury to draw a reasonable inference that Divine sexually penetrated the victim’s rectum. |
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