Powell v. State
| Docket Number: | 2009-KA-00675-COA Linked Case(s): 2009-KA-00675-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 06-22-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Statutory rape - Weight of evidence - Jury instruction - Ineffective assistance of counsel - Sentencing 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 |
|
| Trial Court: |
Date of Trial Judgment: 03-03-2009 Appealed from: Copiah County Circuit Court Judge: Lamar Pickard Disposition: CONVICTED OF STATUTORY RAPE AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Alexander C. Martin Case Number: 2008-0181CR |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Randall M. Powell |
ROSS R. BARNETT, JR. |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Statutory rape - Weight of evidence - Jury instruction - Ineffective assistance of counsel - Sentencing |
| Summary of the Facts: | Randall Powell was convicted of statutory rape and sentenced to thirty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Powell argues that the jury’s verdict is against the overwhelming weight of the evidence, because there was no physical evidence of penetration and the testimony indicated that the victim could have contacted trichomoniasis, a sexually transmitted disease, through contact with bodily fluids and that physical penetration was not required for her to have been infected. The jury’s verdict is not against the overwhelming weight of the evidence. The victim’s testimony was that Powell had raped her, and this testimony was corroborated by medical evidence. Although Powell testified that he had never been infected with trichomoniasis, this was contradicted by his prior admission to police interviewers that he had, in fact, contracted the disease. Issue 2: Jury instruction Powell argues that the jury was improperly instructed on the elements of statutory rape, because the instruction offered by the State failed to define the essential element of penetration. Powell acknowledges that he made no contemporaneous objection; this issue is therefore procedurally barred on appeal. In addition, the argument is without merit. Issue 3: Ineffective assistance of counsel Powell argues that he received constitutionally ineffective assistance at trial, because his trial counsel failed to provide the court with a peremptory instruction within the time required by the rules; request an instruction defining intercourse as including penetration; and renew the defense motion for a directed verdict. Even assuming that counsel failed to offer a timely peremptory instruction or to renew her motion for a directed verdict at the close of all the evidence, these arguments are without merit because Powell has completely failed to show, or even assert, with any specific detail how he was prejudiced by these alleged mistakes of counsel. Counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. Furthermore, the jury was properly instructed on the elements of statutory rape. Issue 4: Sentencing Powell argues that the trial court increased the severity of his sentence because of Powell’s statement prior to the pronouncement of the sentence that he intended to appeal his conviction. Powell also argues that the sentence was unduly harsh and disproportionate because this was Powell’s first criminal conviction. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Powell’s argument that the trial court impermissibly punished him for stating his intention to exercise his constitutional right to appeal his conviction is without merit. The trial court’s question as to whether Powell had decided to appeal appears to be nothing more than a segue into the court’s reminder of the procedural requirements for perfecting that appeal. This is not improper. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
