Paul West v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-00432-COA

PAUL WEST APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/13/2022
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DANIELLE LOVE BURKS
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/01/2023
MOTION FOR REHEARING FILED:

EN BANC.

SMITH, J., FOR THE COURT:

¶1. A Leflore County Circuit Court jury found Paul West guilty of one count of sexual

battery while in a position of trust or authority under Mississippi Code Annotated section

97-3-95(2) (Rev. 1994 & Supp. 1995) (Count I) and one count of gratification of lust while

in a position of trust and authority under section 97-5-23(2) (Rev. 1994) (Count II). The

court sentenced West to serve thirty years for sexual battery and fifteen years for gratification

of lust, with both sentences to run consecutively in the custody of the Mississippi Department

of Corrections (MDOC). On appeal, West argues the following: (1) there was insufficient

evidence to support his sexual-battery conviction, and (2) the circuit court committed plain
error by failing to sua sponte declare a mistrial or admonish the jury after certain witness

comments. Finding no reversible error, we affirm West’s convictions and sentences.

FACTS

¶2. During the 1990s, West worked as a teacher and principal at St. Francis of Assissi

School (St. Francis) in Greenwood, Mississippi. In 2019, the Mississippi Attorney General’s

Office (the Attorney General’s Office) began investigating West after St. Francis reported

allegations that West had committed sexual abuse during his tenure at the school. The

investigation led to West’s indictment during the August 2020 term for the abuse of a former

student, Logan.1 Count 1 of West’s indictment stated that

on or about and between the years of 1994 and 1996, . . . Paul West, . . . did
willfully, unlawfully, and feloniously engage in sexual penetration with
[Logan], a child of fourteen (14) years but less than eighteen (18) years, while
in a position of trust or authority over [Logan], all in violation of Section
97-3-95(2) of the Mississippi Code of 1972.

Count 2 of the indictment stated that West, “for the purpose of gratifying his lust[,] . . .

handled, touched[,] and/or rubbed . . . upon [Logan], a child under the age of eighteen (18)

. . . while in a position of trust and authority over [Logan,] all in violation of [section]

97-5-23(2) of the Mississippi Code.”

¶3. The circuit court held West’s trial on April 12-13, 2022. Gypsi Ward, an investigator

with the Attorney General’s Office, testified about the abuse Logan had reported to her

1
To protect the victims’ identities, we use pseudonyms throughout our opinion in
place of their real names.

2
during her investigation. Logan told Ward that the abuse “started by touching and

masturbating [Logan] and . . . then led to anal penetration.” Ward stated that “[Logan] did

disclose that [West] obviously sexually assaulted him, sodomized him anally in the process

of the sexual assault.” She testified Logan had reported that the abuse started when he was

“in the third grade and went through about sixth grade,” starting at age “9 or 10-ish.” Ward

further testified Logan had reported that the abuse “occurred about four to five times a

week.”

¶4. Logan also testified. He explained that he had attended St. Francis from

pre-kindergarten through the eighth grade, which began “sometime in the [n]ineties” while

living with his grandmother. Logan also worked at the school during the summer and

continued to work there after he transferred to another school in the eighth grade. West

oversaw Logan’s summer employment. During his time at St. Francis, Logan failed the

fourth grade twice and the fifth grade once.

¶5. Logan stated that West began to sexually abuse him when he was in the fourth grade.

According to Logan, the abuse continued until he was in the eighth grade and occurred

“probably more” than three or four times a week. Logan testified that West had initiated the

abuse by inappropriate touching and groping. The abuse then progressed to West showing

Logan pornography on his computer and encouraging the touching of each other’s penises.

Logan also testified about one specific event where West performed oral sex on him during

Logan’s summer employment at the school. Logan’s testimony also indicated that anal

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penetration occurred as part of the abuse.

¶6. The State did not ask about, and Logan did not identify, any specific dates or ages for

the sexual abuse that involved penetration, which was the only abuse disclosed that fell under

Count I of the indictment for sexual battery. Although Logan testified that he was thirty-nine

years old at the time of the trial in April 2022, the State did not ask for his date of birth or

elicit specific frames of reference regarding the dates he attended St. Francis beyond his

statement about “the [n]ineties.” Logan volunteered, however, that the last time he had seen

West was approximately 1999 or 2000 during a trip to New York.

¶7. Logan’s cousin John also testified that he had attended St. Francis during the 1990s

and that West had abused him as well. John lived with Logan when both boys were children.

John stated that West began abusing him when he was about twelve or thirteen years old.

John described a pattern of abuse similar to what Logan had described. According to John,

the abuse continued until he was expelled from St. Francis around age thirteen. In response

to the State’s question of whether John was sure that West was the perpetrator, the following

exchange ensued:

A. No, I don’t have any doubt. Then there was another [friar] out there
that got killed. He told me Brother Paul [West] was going to kill him.
And so he dead.

Q. If you would, just please answer my question.

A. Okay, yeah.

Q. Is there any doubt that this is the man that did that to you?

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A. Yeah. He’s a child molester and killer.

....

Q. . . . Was anybody else around?

A. No. But Brother Don, he’s deceased.

Q. Okay.

A. Brother Don Lucas. Yeah, he was murdered, or maybe suicide.

¶8. The defense made no contemporaneous objection to John’s testimony, and the circuit

court issued no comments regarding the statements. John testified that after he was expelled

from St. Francis, West began abusing his younger brother. John stated that West was

“prey[ing] on my family.” Both Logan and John testified that they never told each other

about the abuse when they were children. Following John’s testimony, the State rested.

¶9. After West declined to testify, the defense also rested. During the jury-instruction

conference on the following day, West’s attorney realized that the defense had never moved

for a directed verdict. With the circuit court’s permission, the defense made its motion for

a directed verdict. The entirety of the motion for a directed verdict was as follows: “I would

move for a directed verdict that the crimes charged of sexual abuse and gratification of lust

have not been proven, and it’s not been proven that [West] is the one who committed the

crime.” After the circuit court denied the motion, the defense also unsuccessfully requested

that the circuit court give the jury a peremptory instruction that the verdict would be “not

guilty” as to Count I for sexual battery.

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¶10. After closing arguments, the jury returned a guilty verdict for both counts of the

indictment. The circuit court sentenced West to serve in MDOC’s custody thirty years for

Count I for sexual battery and a consecutive fifteen-year term for Count II for gratification

of lust. West filed a timely motion for judgment notwithstanding the verdict (JNOV) or,

alternatively, for a new trial. Relevant to the present appeal, West’s post-trial motion simply

asserted “[t]hat the verdict of the [j]ury is contrary to the law and the evidence and is the

result of bias and prejudice, and the verdict is against the overwhelming weight of the

evidence.” Aggrieved by the circuit court’s denial of his post-trial motion, West appeals.

DISCUSSION

¶11. On appeal, West argues (1) there was insufficient evidence of Logan’s age to support

the conviction for sexual battery in Count 1 of the indictment; and (2) the circuit court

committed plain error by failing to sua sponte declare a mistrial or to admonish the jury after

John’s trial testimony implied that West was involved in another man’s death.

I. The Sufficiency of the Evidence as to Count I for Sexual Battery

¶12. For Count I, West was indicted under Mississippi Code Annotated section 97-3-95(2)

(Rev. 1994), which was the version of the statute in effect at the time of the ongoing abuse

reported by Logan. The applicable version of section 97-3-95(2) provided as follows:

A person is guilty of sexual battery if he or she engages in sexual penetration
with a child of fourteen (14) but less than eighteen (18) years if the person is
in a position of trust or authority over the child including without limitation the
child’s teacher, counselor, physician, psychiatrist, psychologist, minister,
priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt,
uncle, scout leader or coach.

6
Miss. Code Ann. § 97-3-95(2) (Rev. 1994) (emphasis added). Subsection 2 of the statute

was later amended to include all children under the age of eighteen. 1998 Miss. Laws ch.

549, § 3 (H.B. 834) (eff. July 1, 1998). The indictment did not allege any act that occurred

after 1996. On appeal, West contends that the State failed to prove beyond a reasonable

doubt the essential element of age for sexual battery. Specifically, West claims the State

never established that Logan was between the ages of fourteen and eighteen during the one

act of oral penetration Logan described—the oral sex that West performed on Logan during

a summer in the 1990s—or for any acts of anal penetration that occurred. As a result, West

contends that there was insufficient evidence to support his sexual-battery conviction in

Count I.

¶13. “In considering whether the evidence is legally sufficient to sustain a conviction, ‘the

critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused

committed the act charged, and that he did so under such circumstances that every element

of the offense existed.’” Carpenter v. State, 311 So. 3d 1268, 1275 (¶26) (Miss. Ct. App.

2021) (quoting Thompson v. State, 269 So. 3d 301, 308 (¶17) (Miss. Ct. App. 2018)). We

apply de novo review. Id. “The relevant question is whether ‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” Green v. State,

269 So. 3d 75, 79 (¶12) (Miss. 2018) (quoting Hearn v. State, 3 So. 3d 722, 740 (¶54) (Miss.

2008)). We accept all evidence supporting a guilty verdict as true, “and the State must be

given the benefit of all reasonable inferences that can be drawn from the evidence.” Id.

7
(quoting Galloway v. State, 122 So. 3d 614, 665 (¶168) (Miss. 2013)). “Appellate courts

‘should reverse only where, with respect to one or more elements of the offense charged, the

evidence so considered is such that reasonable and fair-minded jurors could only find the

accused not guilty.’” Id. (quoting Boyd v. State, 977 So. 2d 329, 337 (¶28) (Miss. 2008)).

¶14. “In a prosecution for sexual battery, the age of the victim is an essential element of

the offense that must be alleged and proved.” Washington v. State, 645 So. 2d 915, 918

(Miss. 1994). “The State, as prosecutor, is bound by law to prove beyond a reasonable doubt

every element of the crime.” Id. at 919. Here, however, we do not reach the merits of West’s

contention that the State failed to sufficiently prove Logan’s age. As Mississippi caselaw

establishes, “[a] motion for a JNOV in which the sufficiency of the evidence is challenged

must be specific.” Gary v. State, 11 So. 3d 769, 771 (¶8) (Miss. Ct. App. 2009). Our

precedent holds that “[w]ithout specificity as to how the evidence was insufficient, the trial

court will not be determined to be in error for denying the motion.” Id.; see also Easterling

v. State, 306 So. 3d 808, 818 (¶23) (Miss. Ct. App. 2020) (“A motion for a directed verdict

on the grounds that the State has failed to make out a prima facie case must state specifically

wherein the State has failed to make out a prima facie case. Such specificity is also required

in a motion for a JNOV. If not specifically argued before the trial court, it is waived because

issues may not be raised for the first time on appeal.” (citations and internal quotation mark

omitted)).

¶15. The record here clearly reflects, and the separate opinion acknowledges, that although

8
he had multiple opportunities to do so, West never argued before the circuit court the specific

issue he now raises on appeal. Neither in his motion for a directed verdict nor in his motion

for a JNOV did West raise even a general challenge to the sufficiency of the evidence that

supported his sexual-battery conviction in Count I—much less a more specific allegation as

to the essential element of Logan’s age. Only on appeal does West assert for the first time

that the State failed to sufficiently prove the required element of Logan’s age to convict West

of sexual battery. Despite West’s repeated failure before the circuit court to challenge the

sufficiency of the evidence supporting his sexual-battery conviction—and despite our clear

precedent requiring him to do so prior to an appeal—both West and the separate opinion now

urge this Court to overlook well-established caselaw on this matter. Upon careful

consideration, we decline to do so.

¶16. “Precedent mandates that this Court not entertain arguments made for the first time

on appeal as the case must be decided on the facts contained in the record and not on

assertions in the briefs.” McNeer v. State, 307 So. 3d 508, 517 (¶28) (Miss. Ct. App. 2020).

Because West failed to preserve his sufficiency-of-the-evidence issue for appellate review,

we conclude this issue is procedurally barred. Accordingly, we find no reversible error.

II. The Circuit Court’s Alleged Failure to Sua Sponte Declare a
Mistrial

¶17. West next argues that the circuit court’s failure to sua sponte admonish the jury or to

declare a mistrial after John’s unsolicited comments rendered the trial fundamentally unfair.

Because West made no contemporaneous objection to John’s statements at trial, he must rely

9
on the plain-error doctrine to raise this issue on appeal. “[P]lain error is reserved for

‘unusual circumstances, as a means of preventing a manifest miscarriage of justice.”’

Donelson v. State, 158 So. 3d 1154, 1161 (¶38) (Miss. Ct. App. 2014) (quoting Goff v. State,

14 So. 3d 625, 655 (¶118) (Miss. 2009)). “To determine if plain error has occurred, this

Court must determine if the trial court has deviated from a legal rule, whether that error is

plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial.”

Williams v. State, 351 So. 3d 482, 487 (¶12) (Miss. Ct. App. 2022) (quoting Grayer v. State,

120 So. 3d 964, 969 (¶15) (Miss. 2013)).

¶18. “Generally, evidence of a crime other than that charged in an indictment is not

admissible against the accused.” King v. State, 857 So. 2d 702, 723 (¶61) (Miss. 2003)

(citing Townsend v. State, 681 So. 2d 497, 506 (Miss. 1996)). Here, John made several

statements on direct examination that implied West was involved in the death of another

man. As the record reflects, John’s comments were unsolicited by the State and were not

responsive to the State’s questions. Even so, West made no objection to John’s comments.

Following John’s comments, the circuit court neither sua sponte declared a mistrial nor

admonished the jury regarding the comments. Instead, the circuit court allowed the trial to

continue after the State’s attorney requested that John “just please answer my question.”

¶19. The Mississippi Supreme Court has held that “[m]istrials should only be declared sua

sponte when manifestly necessary.” Arrington v. State, 267 So. 3d 753, 758 (¶17) (Miss.

2019) (citing Younger v. State, 931 So. 2d 1289, 1291 (¶7) (Miss. 2006)). The supreme court

10
has also provided the following examples to demonstrate when the declaration of a mistrial

“would likely be a manifest necessity: failure of a jury to agree on a verdict; biased or

otherwise tainted jury; improper separation of the jury; where jurors failed to follow

instructions.” Id. (quoting Spann v. State, 557 So. 2d 530, 532 (Miss. 1990)).

¶20. John’s unsolicited and speculative trial comments did not rise to the same level of the

examples provided by the supreme court. “[Caselaw] unequivocally holds that the trial judge

is in the best position for determining the prejudicial effect of an objectionable remark.”

Edwards v. State, 305 So. 3d 1186, 1190 (¶10) (Miss. Ct. App. 2020) (quoting Wilson v.

State, 102 So. 3d 1200, 1205 (¶20) (Miss. Ct. App. 2012)). “The judge is provided

considerable discretion to determine whether the remark is so prejudicial that a mistrial

should be declared.” Id. In addition, “Mississippi law places the burden upon counsel to

request that the court issue such an admonition and conduct . . . a polling after an improper

comment is made . . . .” Lee v. State, 910 So. 2d 1123, 1127 (¶16) (Miss. Ct. App. 2005).

“It is the duty of a trial counsel, if he deems opposing counsel is overstepping the wide range

of authorized argument, to promptly make [an] objection and insist upon a ruling by the trial

court.” Id. at 1127-28 (¶17) (quoting Johnson v. State, 477 So. 2d 196, 209-10 (Miss. 1985)).

“[I]f the lower court rules that a statement was improper, the lower court must then admonish

the jury to disregard the statement, unless the statement caused serious and irreparable

damage; in that case, the trial judge may grant a mistrial.” Id. at 1128 (¶17). From the

outset, however, the duty remains with “opposing counsel . . . to object promptly and to

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‘insist’ that the judge rule on the issue and admonish the jury.” Id. (quoting Johnson, 477

So. 2d at 210).

¶21. Here, without any contemporaneous objection by West to John’s unsolicited

comments, the circuit court committed no abuse of discretion by failing to sua sponte declare

a mistrial or to admonish the jury. Upon review, we find nothing unusual or manifestly

unjust in how the circuit court addressed John’s statements. We therefore find no plain error

as to this issue.

CONCLUSION

¶22. Because we find no reversible error related to West’s arguments on appeal, we affirm

his convictions and sentences as to Count I for sexual battery and Count II for gratification

of lust.

¶23. AFFIRMED.

CARLTON AND WILSON, P.JJ., LAWRENCE AND McCARTY, JJ.,
CONCUR. BARNES, C.J., McDONALD AND EMFINGER, JJ., CONCUR IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GREENLEE,
J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE
WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND DISSENTS
IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.;
GREENLEE, J., JOINS IN PART.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶24. It aggrieves me greatly that the majority has decided not to give deference to the

procedural and constitutional standards that we are sworn to uphold. West’s charged

offenses are deeply disturbing, but that does not overshadow the fact that this Court must

12
make sure that if a person is going to be convicted—no matter the offense—that every

element is to be proven beyond a reasonable doubt. And when an element is not proven

beyond a reasonable doubt, even though the issue was not properly preserved, our most

reserved standard of review still exists: plain error. Ladd v. State, 87 So. 3d 1108, 1113

(¶¶16-17) (Miss. Ct. App. 2012). In other words, regardless if the error regarding the failure

to prove an element was properly raised by the defendant, our Court has an obligation to

correct certain trial court errors to avoid “an error that result[s] in a manifest miscarriage of

justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Garcia v. State, 300 So. 3d 945, 976 (¶104) (Miss. 2020) (quoting Ambrose v. State, 254 So.

3d 77, 136 (¶193) (Miss. 2018)). In this case, there is no question that the essential element

of age was not proved in this trial for sexual battery while in a position of trust or authority

(Count I). Because of the State’s failure to provide any evidence of the essential element of

age in the sexual-battery conviction, I maintain that this conviction alone should be reversed

and an acquittal rendered after an obligatory plain error review. I agree with the majority’s

decision to affirm West’s conviction of gratification of lust (Count II). Accordingly, I must

respectfully concur in part and dissent in part from the majority’s opinion.

¶25. Paul West was a former Franciscan friar who worked in Mississippi as a teacher and

principal during the 1990s. In 2019, the Mississippi Attorney General’s Office began to

investigate West after abuse allegations were reported to them by the school where he once

worked. This investigation led to the indictment of West for two charges. Count I of the

13
indictment was sexual battery while in a position of trust and authority under section 97-5-

95(2) (Rev. 1994). Count II of the indictment was for the gratification of lust while in a

position of trust and authority under section 97-5-23(2) (Rev. 1994 & Supp. 1995). West

appealed his conviction for sexual battery on the basis of insufficient evidence because the

State failed to put on any evidence of Logan’s age during a penetrative act that would

constitute sexual battery.

¶26. The State argues, and the majority holds, that West did not raise his sufficiency-of-

the-evidence issue regarding the age element in his motion for a JNOV. In his JNOV

motion, West objected to the weight of the evidence, not its sufficiency. And West’s motion

for a directed verdict and peremptory jury instruction generally mentioned “that the crimes

charged . . . have not been proven.” It is true that “[a] motion for a JNOV in which the

sufficiency of the evidence is challenged must be specific.” Gary v. State, 11 So. 3d 769,

771 (¶8) (Miss. Ct. App. 2009) (citing Jordan v. State, 936 So. 2d 368, 372 (¶20) (Miss. Ct.

App. 2005)). And “it is well established that this Court does not entertain arguments made

for the first time on appeal . . . .” Maness v. K & A Enters. of Miss. LLC, 250 So. 3d 402, 410

(¶21) (Miss. 2018) (quoting Weiner v. Meredith, 943 So. 2d 692, 696 (¶17) (Miss. 2006)).

But this Court retains the power under Rule 28(a)(3) of the Mississippi Rules of Appellate

Procedure to notice as plain error the State’s failure to prove to the jury all the essential

elements of the offense charged.

¶27. “[U]nder the Mississippi Rules of Evidence, when a substantial right is affected, plain

14
error may be considered by an appellate court.” Maness, 250 So. 3d at 410 (¶21) (citing

MRE 103(f)). “To constitute plain error, the trial court must have deviated from a legal rule,

the error must be plain, clear or obvious, and the error must have prejudiced the outcome of

the trial.” Keithley v. State, 111 So. 3d 1202, 1204 (¶8) (Miss. 2013). “A review under the

plain-error doctrine is necessary when a party’s ‘substantive or fundamental rights are

affected,’ and the error results ‘in a manifest miscarriage of justice.’” Ladd, 87 So. 3d at

1113 (¶17) (quoting Jenkins v. State, 75 So. 3d 49, 57 (¶22) (Miss. Ct. App. 2011)).

¶28. “The right not to be convicted unless the State proves guilt beyond a reasonable doubt

is a fundamental right . . . guaranteed by our state constitution, as well as the Due Process

Clause of the federal constitution.” McBride v. State, 934 So. 2d 1033, 1038 (¶24) (Miss.

Ct. App. 2006) (citing In re Winship, 397 U.S. 358, 364 (1970)); Evans, 919 So. 2d at 235

(¶15). As such, its violation is noticeable as plain error. Id. This Court has unequivocally

stated, “It is not open to reasonable debate that the right—not to be convicted of an offense

unless the State proves beyond a reasonable doubt each and every element of the offense—is

a fundamental right anchored in our constitution and the jurisprudence of this state.” Ladd,

87 So. 3d at 1113-14 (¶17) (quoting Evans v. State, 919 So. 2d 231, 235 (¶15) (Miss. Ct.

App. 2005)). “It is hornbook criminal law that before a conviction may stand the State must

prove each element of the offense.” Washington v. State, 645 So. 2d 915, 918 (Miss. 1994)

(quoting Neal v. State, 451 So. 2d 743, 757 (Miss. 1984)). Furthermore, “Due Process

requires that the State prove each element of the offense beyond a reasonable doubt.” Id.

15
(citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)). The majority correctly states that the

issue was not raised with specificity in West’s motion for a directed verdict or JNOV before

the majority declines to review West’s sufficiency-of-the-evidence issue on the merits. Ante

at ¶¶14-15. But “a defendant’s failure to object to the State’s failure to prove and present

instructions on an essential element of the offense . . . [does not] waive the State’s failure to

meet its burden.” Evans, 919 So. 2d at 235 (¶15). Given the preceding caselaw, I would

acknowledge as plain error the issue of insufficiency of the proof of the essential element of

age in West’s case.

¶29. The sexual battery statute under which West was indicted stated:

A person is guilty of sexual battery if he or she engages in sexual penetration
with a child of fourteen (14) but less than eighteen (18) years if the person is
in a position of trust or authority over the child including without limitation the
child’s teacher, counselor, physician, psychiatrist, psychologist, minister,
priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt,
uncle, scout leader or coach.

Miss. Code Ann. § 97-5-95(2) (Rev. 1994). A clear reading of the statute lists the following

two concurrent elements the State was required to prove to convict West under the sexual

battery statute: (1) that sexual penetration occurred when Logan was (2) between the ages

of fourteen and eighteen. Like the sexually penetrative act, the age of the victim is an

essential element in this statute. See Ringer v. State, 203 So. 3d 794, 797 (¶10) (Miss. Ct.

App. 2016); Washington, 645 So. 2d at 918. As the majority acknowledges, the Supreme

Court has explicitly stated that “[i]n a prosecution for sexual battery, the age of the victim

is an essential element of the offense that must be alleged and proved.” Washington, 645 So.

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2d at 918. “The State, as prosecutor, is bound by law to prove beyond a reasonable doubt

every element of the crime.” Id. at 919. In crimes that are defined by the ages of the persons

involved, such as this one, “the age of the victim ‘makes or breaks’ the conviction.” Id. The

Supreme Court also has explicitly noted that

[t]he prosecution’s failure to offer proof as to this element [the age of the
victim] in sexual assault cases parallels the situation in which the prosecution
fails to offer proof that an alleged victim of a murder is in fact dead. Such
proof is usually easy to come by. But if the prosecution does not bring it
before the jury, it has not overcome the presumption of innocence.

Id.

¶30. Here, the State failed to put on any proof of Logan’s age at the time of the sexually

penetrative act that qualified as sexual battery. Although Logan’s testimony described

terrible abuse at the hands of West, Logan only described one sexual act involving

penetration in his testimony—oral sex performed on him by West. Logan’s only indication

of a time frame for this penetrative act of oral sex was “during the summertime” in the 1990s.

Logan did not testify about any acts of anal penetration. His testimony only seemed to

acknowledge the act of anal penetration when the defense attorney asked him on cross-

examination, “A man teaching you how to masturbate, a man showing you pornography, a

man entering you by your anus, and you didn’t think that was wrong?” In response Logan

testified, “At the time I didn’t.” Logan made no additional statements about anal penetration

in his testimony. Investigator Gypsi Ward testified that Logan told her during her

investigation that anal penetration was a part of the abuse. But the State did not ask about,

17
and Gypsi and Logan did not name, any date, age, or range of dates regarding anal

penetration that may have occurred. The record itself is devoid of any additional evidence

regarding Logan’s age at the time of a penetrative act.

¶31. While the majority refuses to comment, the State argues that a jury could infer that

Logan was between the ages of fourteen and eighteen for the penetrative acts of abuse

because Logan testified (1) that he was thirty-nine years old in April 2022 at the time of the

trial and (2) that he was abused four to five times a week between the fourth and eighth

grades. An eighth-grade child is usually between ages thirteen and fourteen. But the

calculation of Logan’s age during these school years is complicated by the State’s

inexplicable failure to ask Logan his birthday (although his testimony about his age at the

time of the trial means he must have been born in either 1982 or 1983). This uncertainty is

combined with the vague testimony that stated Logan repeated either two or three grades.

The State failed to present evidence regarding what year Logan started school at St. Francis

or what years he attended the fourth through eighth grade beyond “sometime in the Nineties.”

When asked what year he attended the eighth grade, Logan said, “I wish I knew . . . I was

hoping that y’all pulled those records up.” Understandably, Logan could not recall the exact

dates of his abuse on the stand since approximately thirty years had passed since the events

in question. But the State’s lack of records or adequate witness questions makes Logan’s age

during each grade no more than a guess.

¶32. Even if a jury could infer Logan’s approximate age in eighth grade and that Logan

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was abused in the eighth grade, the State completely failed to identify Logan’s age at the time

the penetrative acts of sexual abuse occurred. Penetrative acts are the only abusive acts that

fall under this sexual-battery charge. The orally penetrative act was only described as having

occurred “during the summertime.” And there is no reference in the record to a date, a year,

or Logan’s age at the time that any possible anal penetration occurred. “There must be in the

record evidence sufficient to establish each element of the crime.” Washington, 645 So. 2d

at 918 (quoting Fisher v. State, 481 So. 2d 203, 211 (Miss. 1985), overruled on other

grounds by Nevels v. State, 325 So. 3d 627, 634 (¶20) (Miss. 2021). Because there is no

evidence of Logan’s age at the time of the penetrative acts that qualify as sexual battery, this

element has not been proven beyond a reasonable doubt as the law requires. Id. at 918-19.

¶33. In the present case, the State has failed to prove an essential element of the crime with

which West was indicted, charged, and convicted. As a result, I maintain that this Court

should follow our caselaw to review this matter under plain error and ultimately reverse and

render on the sexual battery conviction (Count I). Id. at 920. On all other issues, I would

affirm. For these reasons, I must respectfully concur in part and dissent in part from the

majority.

McDONALD, J., JOINS THIS OPINION. GREENLEE, J., JOINS THIS
OPINION IN PART.

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