Powell v. State
| Docket Number: | 2009-KA-00675-COA Linked Case(s): 2009-KA-00675-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-07-2010 Opinion Author: Myers, P.J. Holding: The motion for rehearing is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor. The judgment of the Circuit Court of Copiah County of conviction of statutory rape and sentence of thirty years in the custody of the Mississippi Department of Corrections is affirmed. |
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| 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, Carlton and Maxwell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| 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 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Randall M. Powell |
ROSS R. BARNETT JR. |
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| 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. |
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| Topic: | Statutory rape - Weight of evidence - Jury instruction - Ineffective assistance of counsel - Sentencing |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Randall Powell was convicted of statutory rape and was 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. He argues that there was no physical evidence of penetration and that the testimony indicated that the victim could have contacted trichomoniasis 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. Likewise, the testimony that Powell had become impotent in late 2005 was contradicted by his own admission on cross-examination that he may have fathered a child born on March 12, 2007. And, while it was conceded that the victim could possibly have contracted trichomoniasis absent vaginal penetration, the victim was unequivocal in stating that Powell had penetrated her. Issue 2: Jury instruction Powell argues that 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. The argument is also without merit. The jury was instructed properly on the elements of statutory rape. Issue 3: Ineffective assistance of counsel Powell argues that he received constitutionally ineffective assistance at trial. 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. 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 argues that the trial court should not have asked him whether he intended to appeal his conviction. 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. The statutory rape of a child by an adult carries with it a statutory maximum penalty of life imprisonment, as well as a statutory minimum sentence of twenty years’ imprisonment, irrespective of whether it is one’s first offense. The rape of one’s own eleven-year-old daughter is a particularly vile and heinous crime, and there is no inference of gross disproportionality in Powell’s thirty-year sentence. |
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