Gordon v. State


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Docket Number: 2005-KA-00687-COA
Linked Case(s): 2005-KA-00687-SCT

Court of Appeals: Opinion Link
Opinion Date: 03-18-2008
Opinion Author: ROBERTS, J.
Holding: Affirmed

Additional Case Information: Topic: Statutory rape - Ineffective assistance of counsel - Sufficiency of evidence - Leading questions - M.R.E. 611(c) - Defective indictment
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 03-03-2005
Appealed from: Humphreys County Circuit Court
Judge: Jannie M. Lewis
Disposition: CONVICTION OF COUNTS I - CAPITAL RAPE AND SENTENCE OF TWENTY YEARS; COUNT II - CAPITAL RAPE AND SENTENCE OF TWENTY YEARS; COUNT III - CAPITAL RAPE AND SENTENCE OF TWENTY YEARS; AND COUNT IV - CAPITAL RAPE AND SENTENCE OF TWENTY YEARS. SENTENCES IN COUNT I AND COUNT II TO RUN CONCURRENTLY, AND THE SENTENCE IN COUNT III AND COUNT IV TO RUN CONCURRENTLY, AND THE SENTENCES IN COUNT I AND COUNT II TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNT III AND COUNT IV. SENTENCES TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: James H. Powell, III
Case Number: 5849

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CALVIN GORDON A/K/A CAL




CALVIN GORDON (PRO SE), WHITMAN D. MOUNGER



 
  • Appellant #1 Brief
  • Appellant #2 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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    Topic: Statutory rape - Ineffective assistance of counsel - Sufficiency of evidence - Leading questions - M.R.E. 611(c) - Defective indictment

    Summary of the Facts: Calvin Gordon was convicted of four counts of capital rape and sentenced to forty years. He appeals.

    Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Gordon argues that his trial counsel rendered ineffective assistance of counsel in his representation during trial. The record does not show that Gordon’s trial counsel was deficient in a constitutional sense. Additionally, the parties have not explicitly stipulated that the record is adequate for a determination of such. Thus, the issue is currently without merit; however, any claim of ineffective assistance of counsel is preserved in the event Gordon wishes to raise it in a post-conviction proceeding. Issue 2: Sufficiency of evidence Gordon argues that the weight and sufficiency of the evidence presented at trial was lacking and could not support his conviction. He argues that the measure of evidence presented is lacking because his conviction was based upon the testimony of an incompetent child and a contradictory witness. Gordon waived any issue there may have been concerning the competency of the child because he did not present this claim to the trial court for consideration. He also argues that the most damning portions of the child’s testimony were in response to leading questions. While M.R.E. 611(c) disallows the use of leading questions during direct examination, it qualifies this general prohibition with the phrase “except as may be necessary to develop [the witness’s] testimony.” The Supreme Court has identified that the classic example of a situation ripe for leading questions on direct is where the witness is a child. Thus, there was no error by the court. 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, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. In addition, a doctor testified that she conducted a physical examination of the child based on which it was her opinion that the child had been sexually assaulted. Therefore, the evidence was legally sufficient for the jury to find Gordon guilty of statutory rape. Issue 3: Defective indictment Gordon argues that the court erred in failing to dismiss the charges against him as a result of his indictment being defective. He argues the indictment did not charge him with a valid crime, failed to charge an essential element of statutory rape, and did not state a sufficiently narrow time period for when the rapes allegedly occurred. An indictment’s primary purpose is to inform the defendant of the charges against him so as to allow him to prepare an adequate defense. The indictment at issue labeled each count as “[Capital] Rape,” but Gordon was actually charged with statutory rape. Gordon is correct in his assertion that capital rape was not an element of the crime of which he was charged, but that fact is of no consequence, as the labeling of each count as “[Capital] Rape” was mere surplusage. Gordon also argues that the indictment failed to include language specifying that the child was at least twenty-four months younger than Gordon. The absence of the specific language of the statute is of no moment. In addition to the fact that the specific code section was listed in each of the four counts of Gordon’s indictment, the plain, concise and definite written statement within each count stated that the child was under the age of fourteen and Gordon was over the age of eighteen. With regard to his argument that the vague and uncertain dates produced in the indictment did not give him the proper notice to maintain an adequate defense, Gordon does not put forth any credible claims of unfair surprise or prejudice.


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