REPLY BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Sep :02: KA COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAVID ALAN RINGER APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF THE APPELLANT Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: mmcmi@ospd.ms.gov Counsel for David Alan Ringer

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii INTRODUCTION REPLY ARGUMENT I. PENETRATION OF THE GROOVE BETWEEN THE BUTTOCKS IS NOT SUFFICIENT TO ESTABLISH PENETRATION OF THE ANUS CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES FEDERAL CASES Commonwealth v. Nylander, 26 Mass. App. Ct. 784 (1988) Commw. v. Nylander, 26 Mass. App. Ct. at ( ) STATE CASES Burrows v. State, 961 So. 2d 701 (Miss. 2007) Jenkins v. State, 101 So. 3d 161 (Miss. Ct. App. 2012) Johnson v. State, 626 So. 2d 631 (Miss. 1993) , 2 OTHER Mississippi Code Annotated section (1)(d) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAVID ALAN RINGER APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF APPELLANT INTRODUCTION By this Reply Brief, no attempt is made to set forth a response to each of the State s contentions, most of which are fully covered by the opening brief. Only those points requiring additional comment will be raised to assist this court in resolving the applicable issue. REPLY ARGUMENT I. Penetration of the groove between the buttocks is not sufficient to establish penetration of the anus. In Count II, Ringer was accused of violating Mississippi Code Annotated section (1)(d) by inserting his penis into the anus of a minor child. (C.P. 8). Section (1)(d) makes it a crime to engage in sexual penetration with a child under the age of fourteen (14) if the person is twenty-four (24) months or more older than the child. Sexual penetration includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person s body by any part of a person s body, and insertion of any object into the genital or anal openings of another person s body. Miss. Code Ann (a) (emphasis added). Penetration is the very essence of the crime of sexual battery. Jenkins v. State, 101 So. 3d 161, 166 ( 14) (Miss. Ct. App. 2012) (citing Johnson v. State, 626 So. 2d 631, 632 (Miss. 1993)). In order to establish the 1

5 penetration element of sexual battery, only slight penetration must be shown. Burrows v. State, 961 So. 2d 701, 706 ( 17) (Miss. 2007) (citing Johnson, 626 So. 2d at 633). The evidence at trial is clear that Ringer s penis touched the child s buttocks. What was not sufficiently established at trial was whether his penis penetrated the anus of the child, which is what is required for a conviction of sexual battery as alleged in the indictment. The State argues: If slight penetration to the vulva or labia is sufficient for sexual battery of the vagina, slight penetration of the buttocks should be sufficient for sexual battery of the anus. (State s brief, p. 9). Ringer submits that it is not sufficient. Undersigned counsel was unable to locate any Mississippi cases on this particular point. However, the Massachusetts Appeals Court has addressed the issue of whether the space between the buttocks is part of the anus for the purposes of establishing the element of penetration. In Commonwealth v. Nylander, 26 Mass. App. Ct. 784 (1988), the Massachusetts Appellate Court addressed a similar issue. In that case, where the defendant was charged with unnatural intercourse, which, like Mississippi, required penetration of the anal opening of another person s body, the trial court instructed the jury that it could convict if the Commonwealth proved beyond a reasonable doubt some penetration of the defendant s penis into that area between the alleged victim s buttocks, no matter how slight that penetration might be. Commw. v. Nylander, 26 Mass. App. Ct. at The Massachusetts Appellate Court, relied on a medical definition of anus as the very end the last inch or so of the digestive canal, more specifically of the rectum... In practice, the term anus is often applied to the orifice or opening of the structure, rather than to the structure itself. Id. at 1225 (citing 1 Schmidt s Attorneys Dictionary of Medicine A-273 (1986)). The court then stated that [t]he term anal opening has never been defined as including the buttocks or the groove between the buttocks. Id. The Massachusetts Appellate Court found that the instruction was 2

6 impermissibly vague and that the defendant should be subject to further proceedings in the trial court. Accordingly, Ringer asserts that the space between the buttocks is not part of the anus, and that contact between that space and his penis is not sufficient to find penetration of the anus. CONCLUSION The trial court erred in denying Ringer s motion for JNOV. The State failed to establish that Ringer penetrated the child s anus with his penis; therefore, there is insufficient evidence to sustain the sexual battery conviction in Count II. Ringer respectfully requests this Court reverse his conviction and sentence in Count II and render a not guilty verdict. Respectfully submitted, DAVID ALAN RINGER, APPELLANT /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 3

7 CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for David Alan Ringer, do hereby certify that on this day I electronically filed the forgoing REPLY BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable John R. Henry, Jr. Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable Michael H. Ward Circuit Court Judge Post Office Box 1461 Gulfport, MS Honorable Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS David Alan Ringer, MDOC # South Mississippi Correctional Facility Post Office Box 1419 Leakesville, MS This the 1st day of September /s/ Mollie M. McMillin Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Mollie M. McMillin, Appellant Counsel 4

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