Ross v. State
| Docket Number: | 2009-KA-00796-COA Linked Case(s): 2009-KA-00796-COA |
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| Oral Argument: | 04-20-2010 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-15-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Gratification of lust & Sexual battery - Weight of evidence - Ineffective assistance of counsel - M.R.A.P. 10 Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-20-2009 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: CONVICTED OF GRATIFICATION OF LUST AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Michael Guest Case Number: 2008-0229 |
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| Consolidated: Consolidated with 2009-KA-00797-COA Tyshunna Cooper Ross v. State of Mississippi; Madison Circuit Court; LC Case #: 2008-0541; Ruling Date: 04/20/2009; Ruling Judge: Samac Richardson | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tyshunna Cooper Ross |
LESLIE S. LEE, PHILLIP BROADHEAD, BENTLEY E. CONNER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR. | ||
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| Topic: | Gratification of lust & Sexual battery - Weight of evidence - Ineffective assistance of counsel - M.R.A.P. 10 |
| Summary of the Facts: | Tyshunna Ross was convicted of one count of gratification of lust and one count of sexual battery. The trial court sentenced Ross to fifteen years on the gratification of lust count and forty years on the sexual battery count. The sentencing order provided that the final thirty-seven years of the sentence would be suspended, with five years’ supervised probation. Ross was also ordered to register as a sex offender. Ross appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Ross argues that the jury’s verdict is against the overwhelming weight of the evidence because of the victim’s initial denials, his staggered disclosure of the sexual contact with Ross over several interviews, and certain inconsistencies in his testimony. It is common for a victim of sexual abuse to be embarrassed and to initially deny that the crimes occurred. The victim testified that he initially denied sexual contact with Ross because he was afraid of what would happen and that he feared he would “get in trouble.” He also testified that Ross had called him on the day after the two were discovered and warned him that if he disclosed the sexual contact, she would be prosecuted and imprisoned. Other than the initial denials, the inconsistencies or apparent contradictions in the victim’s account cited by Ross are relatively minor and of little import. The victim’s testimony was corroborated by the circumstances in which the two were discovered. Furthermore, Ross admitted to giving the victim alcohol, to sneaking into his bedroom, and to being in bed with the victim when the two were found together. With little evidence weighing against conviction, the verdict in this case hinged on the credibility of the State’s witnesses. The jury is the sole judge of the weight of the evidence and the credibility of the witnesses. The victim’s testimony was not inherently implausible, nor was it so seriously impeached that no reasonable juror could find it credible. Issue 2: Ineffective assistance of counsel Ross argues that her counsel at trial was ineffective, but she cites to few specific examples of alleged ineffectiveness. She notes that defense counsel made no pretrial motions or objections during the trial, called no witnesses, and offered no jury instructions. The actions of trial counsel are presumed to be reasonable and strategic. Ross’s only fully substantiated allegation of ineffective assistance of counsel concerns a bench conference and recess called by the trial court during her attorney’s cross-examination of the victim. Ross argues that her attorney was ineffective in failing to object to the trial court’s instruction on the record or to proffer the relevant testimony. However, nothing in the record supports her claims. Had the trial court limited cross-examination during an off-the-record bench conference, as Ross alleges, she could have supplemented the record on appeal under M.R.A.P. 10. Ross has not done so. |
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