Burrows v. State
| Docket Number: | 2005-KA-01619-SCT Linked Case(s): 2005-KA-01619-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-14-2007 Opinion Author: GRAVES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Sufficiency of evidence - Admission of evidence Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Easley, Carlson, Dickinson, Randolph and Lamar, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-17-2005 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: A unanimous jury found Burrows guilty of Count I - sexual battery. He was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. Burrows plead guilty to Count II - possession of a controlled substance and was sentenced to serve three years to run concurrently with his sentence in Count I - sexual battery, for a total of thirty years. Total of thirty years in the custody of the Mississippi Department of Corrections. District Attorney: Cono A. Caranna, II Case Number: B2402-2004-00531 |
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| Party Name: | Attorney Name: | |||
| Appellant: | HORACE PAUL BURROWS |
AUSTIN R. NIMOCKS |
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| Appellee: | STATE OF MISSISSIPPI | THE OFFICE OF THE ATTORNEY |
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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. |
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| Topic: | Sexual battery - Sufficiency of evidence - Admission of evidence |
| Summary of the Facts: | Horace Burrows was convicted of sexual battery and was sentenced to thirty years. Burrows pled guilty to possession of a controlled substance and was sentenced to three years to run concurrently with his sexual battery sentence. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Burrows argues that the State failed to prove digital penetration of the victim’s vagina as stated in the indictment. Not every variance between the language of the indictment and the proof is material. A variance is material if it affects the substantive rights of the defendant. Sufficient proof was presented at trial to show that Burrows committed the offense of sexual battery. The victim testified that Burrows molested her three times. Additionally, a doctor testified that Burrows tested positive for chlamydia, a sexually transmitted disease. The victim also tested positive for chlamydia. The variance between the language of the indictment, which explicitly stated that Burrows engaged in sexual battery against the victim by inserting his finger into her vagina and the proof presented at trial was not a fatal error. Burrows was provided sufficient notice that he was being charged with the crime of sexual battery. Issue 2: Admission of evidence Burrows argues that the vibrators that were seized by the police during the execution of the search warrant of his house were not probative of the crime charged, sexual battery by digital penetration, and should have been excluded as irrelevant. Tools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence provided that they are relevant and not too remote. The victim in this case testified that Burrows used a vibrator to commit sexual battery against her. The design of the vibrator was such that Burrows’s fingers had to slightly penetrate the victim during his use of the device. Because the vibrator was used during the commission of a felony and corroborated the victim’s testimony, the trial court did not abuse its discretion in refusing to exclude the sexual devices from evidence. |
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