McCullough v. State
| Docket Number: | 2009-KA-01645-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-23-2010 Opinion Author: Myers, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Gratification of lust - Weight of evidence - Ineffective assistance of counsel - M.R.A.P. 22(b) Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-22-2009 Appealed from: UNION COUNTY CIRCUIT COURT Judge: Robert Elliott Disposition: CONVICTED OF COUNT IV, GRATIFICATION OF LUST, AND SENTENCED TO FIFTEEN YEARS; AND COUNT V, GRATIFICATION OF LUST, AND SENTENCED TO FIFTEEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: BENJAMIN F. CREEKMORE Case Number: CR2008-192-73 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Johnny McCullough |
GREG E. BEARD |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS | ||
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: | Gratification of lust - Weight of evidence - Ineffective assistance of counsel - M.R.A.P. 22(b) |
| Summary of the Facts: | Johnny McCullough was convicted of two counts of gratification of lust. He was sentenced to fifteen years for each count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence McCullough argues that the jury’s verdict is against the overwhelming weight of the evidence. He argues that the victim was induced to falsely accuse him by his two sons’ ex-wives. He simply points out that there was conflicting testimony as to whether he committed the alleged acts. This is insufficient, as the jury is the sole judge of the weight of the evidence and the credibility of the witnesses. McCullough also argues that the jury’s verdicts were inconsistent. Each of the girls testified to separate events, and each was subjected to thorough cross-examination regarding her particular allegations. The State’s theory may very well have been that each victim was telling the truth, but it would not be inconsistent for the jury to find that the victim’s testimony credible while it harbored reasonable doubts as to whether the State had proved every element of the offense regarding allegations but two other girls. All that is required to support an inconsistent or contradictory verdict is that the evidence was sufficient to support the counts on which a conviction was returned. That is beyond dispute in this case. Issue 2: Ineffective assistance of counsel McCullough argues that he received constitutionally ineffective assistance of counsel at trial, because his attorney failed to use a recording at trial. McCullough placed a compact disc containing this recording in his record excerpts, and he attached an affidavit executed by his son that describes the circumstances of the recording and its use at trial. But McCullough admits that the recording and the affidavit are not actually part of the record on appeal. McCullough cannot make them part of the record by simply attaching copies to his appellate briefs. Under M.R.A.P. 22(b), where the record is insufficient to support a claim of ineffective assistance, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief. McCullough can raise the issue in a motion for post-conviction relief, if he chooses to do so. |
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