David Alan Ringer v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-01805-COA

DAVID ALAN RINGER A/K/A DAVID A. APPELLANT
RINGER A/K/A DAVID RINGER

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/30/2014
TRIAL JUDGE: HON. MICHAEL H. WARD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, SEXUAL
BATTERY, AND COUNT II, SEXUAL
BATTERY, AND SENTENCED ON COUNT
I TO THIRTY YEARS, AND SENTENCED
ON COUNT II TO TWENTY YEARS, WITH
BOTH SENTENCES TO RUN
CONSECUTIVELY TO EACH OTHER WITH
TEN YEARS SUSPENDED, ALL IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REMANDED-
05/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ.

FAIR, J., FOR THE COURT:
¶1. While on a camping trip with a friend, nine-year-old Abby1 went off by herself to

sleep in the back of a sport utility vehicle. She awoke to find David Ringer touching her

vagina with his fingers and rubbing his penis between her buttocks. Abby reported the

incident immediately. Ringer was indicted for two counts of sexual battery in violation of

Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2006). The first count alleged that

Ringer penetrated Abby’s vagina with his fingers; the second that he penetrated her anus with

his penis.

¶2. Convicted of both counts, Ringer appeals, arguing that the evidence was insufficient

to support Count II. After reviewing the victim’s testimony, her accounts as relayed by

others, and the medical evidence, we agree that there is insufficient evidence of anal

penetration. We therefore reverse Ringer’s second sexual battery conviction and render a

judgment on the lesser included offense of gratification of lust. We also reverse the sentence

on Count I, as the sentences on the two counts were inextricably linked. We remand for

resentencing on both counts.

DISCUSSION

1. Sufficiency of the Evidence

¶3. In evaluating the sufficiency of the evidence, this Court must decide whether it allows

a jury to find “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; and where

1
This Court uses a fictitious name to protect the victim’s identity.

2
the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State,

895 So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 315 (1979)). “Penetration is the very essence of the crime

of sexual battery.” Johnson v. State, 626 So. 2d 631, 632 (Miss. 1993).

¶4. Abby was eleven years of age at trial. She initially testified that Ringer had “touched”

her. When prompted to clarify, she stated that it had been “in the back and the front.” From

there, the prosecutor was able to elicit unambiguous testimony that Ringer had touched the

inside of Abby’s vagina with his fingers. Abby had similarly described digital penetration

to her mother, a police investigator, and a sexual assault nurse examiner; and the account was

corroborated by medical evidence – an enlarged hymen and inflammation and minor tearing

of Abby’s vagina – and by the presence of Y-DNA matching Ringer’s on her underwear.

¶5. But the case for the second count did not come so easily. On direct examination, the

prosecutor elicited only that the “back” Ringer had “touched” referred to Abby’s “butt” and

that Ringer had touched it with his penis. At one point on cross-examination, Abby stated

that Ringer “stuck his private area into [her] butt.” But she also repeatedly agreed that

Ringer’s penis was only “on” it. On redirect, the prosecutor apparently attempted to elicit

testimony of penetration, but she limited her questions to what Ringer had “tried” to do:

Q. Now, when you were saying that he was trying to stick [his penis] in
your butt, was he trying to stick it where you wipe when you go potty?

3
 A. Yes.

Q. Okay. And is that what you call your butt?

A. Yes.

Q. Okay. And when he was trying to stick it on your butt, was he getting
in between? Do you know what I mean by the crack of your butt?

A. Yes.

Q. Okay. All right. You have the crack of your butt, correct?

A. Correct.

Q. And you have the place that you have to wipe when you go potty,
correct?

A. Correct.

Q. Okay. When you said he was trying to stick his private part in your
butt, did he stick it in the crack?

A. Yes.

Q. Okay. And then tried to put it where you wipe?

A. Correct.

¶6. The prosecutor then asked whether Ringer had put his fingers “inside” Abby’s “front

private part,” which she confirmed (the same question had been asked and answered in the

affirmative previously). Abby was never asked a similar question with regard to whether

Ringer’s penis penetrated her anus.

¶7. Other witnesses for the prosecution failed to establish penetration, and, in fact,

suggested the opposite. Abby’s mother testified that after speaking with Abby, her

4
understanding was that Ringer had placed his penis between Abby’s buttocks, but that he had

never penetrated her anus. The sexual assault nurse examiner testified that Abby confirmed

that Ringer’s penis was rubbed against her, but in her opinion, Abby was unsure of

penetration because she had little familiarity with anatomy and no experience with the

sensation of penetration. The nurse noted physical evidence of injury to Abby’s vagina, but

she said nothing comparable with regard to Abby’s anus. On cross-examination, the nurse

admitted that her written report stated that Abby had denied anal contact or penetration.

¶8. The State argues on appeal that vaginal tearing noted by the nurse examiner could

have been caused by penetration of the anus. But this was never suggested or argued below;

the nurse examiner stated only that the tearing was caused by “blunt trauma.” The State’s

argument on this point is speculative and beyond the realm of legitimate inference.

¶9. Apparently recognizing the paucity of evidence of penetration of the anus, the State

also contends that penetration of the cleft between the buttocks should suffice, just as slight

penetration of the labia or vulva amounts to sexual penetration of the genital opening. But

the State presents no authority and little argument in support of this contention. The rule that

penetration of the vulva amounts to sexual penetration is well established in the law. See

Jackson v. State, 452 So. 2d 438, 441 (Miss. 1984) (listing authorities). And it is consistent

with the statutory definition of sexual penetration as “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

5
another person's body.” Miss. Code Ann. § 97-3-97(a) (Rev. 2006) (emphasis added). The

vulva is the external part of the female genitalia, but the cleft between the buttocks is not

regarded as part of the anus or anal opening. Medical dictionaries define the anus as the

“lower opening of the digestive tract, lying in the cleft between the buttocks . . . .”

Stedman’s Medical Dictionary 107 (27th ed. 2000); see also PDR Medical Dictionary 114

(3d ed. 2006). The anus is synonymous with the anal orifice or anal opening. See id.

¶10. After reviewing the record, we conclude that the prosecution failed to present

evidence sufficient to support a finding of anal penetration beyond a reasonable doubt. Abby

did make statements that suggested penetration – she said that Ringer put his penis “into her

butt,” but what she meant was not clear; and she said he had put it in the “crack” and “tried”

to put it “where she wipes,” but she did not say how far Ringer progressed in the attempt or

testify to anything else that suggested penetration, such as pressure or pain. Viewed in the

context of Abby’s entire testimony, the accounts of her mother and the attending nurse, and

the lack of supporting physical evidence, we conclude that these ambiguous statements do

not suggest penetration to the extent that a reasonable juror could find it proven beyond a

reasonable doubt.

¶11. Because there is insufficient evidence to find penetration of the anal opening, we must

reverse Ringer’s conviction for sexual battery in Count II.

¶12. We next consider whether to apply the direct remand rule, which allows an appellate

court to remand for sentencing on a lesser included charge when the greater charge is

6
reversed due to the insufficiency of evidence. See Shields v. State, 722 So. 2d 584, 585 (¶7)

(Miss. 1998). This may be done even when the jury is not instructed on the lesser charge,

as occurred here. Id. at 587 (¶17).

¶13. At the time of the offense in the instant case, the gratification of lust statute,

Mississippi Code Annotated section 97-5-23(1) (Rev. 2006), made it a felony for any person

above the age of eighteen years, “for the purpose of gratifying his or her lust, or indulging

his or her depraved licentious sexual desires,” to “handle, touch or rub with hands or any part

of his or her body or any member thereof, any child under the age of sixteen (16) years, with

or without the child’s consent.”

¶14. In Friley v. State, 879 So. 2d 1031 (Miss. 2004), the Mississippi Supreme Court

considered whether gratification of lust was a lesser included offense of sexual battery in the

specific case where the defendant was convicted of sexual battery, but there was insufficient

evidence of penetration. The supreme court employed the test from Sanders v. State, 479 So.

2d 1097, 1108 (Miss. 1985):

Whether applied for the benefit of the state or defense, in order to authorize
such instruction the more serious offense must include all the elements of the
lesser offense, that is, it is impossible to commit the greater offense without at
the same time committing the lesser included offense. Also, there must be
some evidence to support the lesser included offense.

Friley, 879 So. 2d at 1034 (¶13). The court noted the overlap of elements: gratification of

lust included the elements of touching, which was necessary to achieve penetration when

7
alleged to have been done with a part of the defendant’s body;2 and that the touching was for

the gratification of the defendant’s lust or “indulging his or her depraved licentious sexual

desires,” which although not an element of sexual battery, was the only explanation for the

actions the defendant was alleged (and found by the jury) to have committed. Id. at 1034-35

(¶¶14-17).

¶15. Our supreme court reaffirmed the Friley decision less than three years ago in Jenkins

v. State, 131 So. 3d 544, 550 (¶19) (Miss. 2013). The court again noted that lustful intent

could be inferred “from the circumstances of the situation.” Id.

¶16. In summary, under the law as it existed at the time of the offense in today’s case,

gratification of lust can be a lesser included offense of sexual battery when the penetration

is alleged to have been done with a body part of the defendant and where a lustful purpose

can be inferred from the circumstances of the touching. Friley, 879 So. 2d at 1034-35 (¶¶13-

17).

¶17. Here, while there was insufficient evidence to find penetration of the victim’s anus,

the proof showed that, at the very least, Ringer rubbed his penis between the victim’s

buttocks. This may not have amounted to sexual penetration sufficient to convict for sexual

battery, but it undoubtedly amounted to a touching under the gratification of lust statute.

And, as in Friley and Jenkins, we find that there is “no other reason why” Ringer would do

2
The gratification of lust statute has since been amended to include touching of the
victim with an object, but it did not have such an allowance at the time of Friley or when the
instant offense was committed. See Miss. Code Ann. § 97-5-23(1) (Supp. 2015).

8
this, except for the purpose of gratifying his lust. Friley, 879 So. 2d at 1035 (¶16); Jenkins,

131 So. 3d at 550-551 (¶¶19-20).

¶18. Therefore, we reverse Ringer’s conviction of sexual battery and render a conviction

on the lesser included offense of gratification of lust. We remand the case for the trial court

to resentence Ringer on Count II as rendered.

2. Sentence on Count I

¶19. Ringer raises the suspension of a portion of his sentence as a derivative issue. The

trial judge sentenced Ringer to thirty years in Count I and twenty years in Count II, to run

consecutively. The order added this would be “a total of Fifty (50) Years, [and] the Court

suspends Ten (10) Years leaving Forty (40) Years to serve . . . .” Ringer argues that this

sentence was ambiguous as to whether the ten-year suspension applied to Count I or Count

II. Ringer contends that if Count II is reversed on appeal, the sentencing ambiguity must be

resolved in his favor and the suspension applied to his sentence on Count I. See Anderson

v. State, 288 So. 2d 852, 855 (Miss. 1974).

¶20. Anderson concerned an application of the rule of lenity – a rule of statutory

construction requiring ambiguity to be resolved in favor of the accused – to a sentencing

order, something our courts have occassionally done. See Trainer v. State, 930 So. 2d 373,

380 (¶14) (Miss. 2006) (quoting United States v. Stewart, 205 F.3d 840, 843 (5th Cir. 2000)).

But Anderson concerned sentencing orders with affirmative commands both that the

sentences would be served consecutively and (effectively) that they would be served

9
concurrently; the Court held that the more lenient of the two conflicting orders would control.

Anderson, 288 So. 2d at 854-55. Here, the suspended sentence was not conflicting or

otherwise ambiguous; it was erroneously applied to a cumulative sentence encompassing

both counts. Rule 7.07(D) of the Uniform Rules of Circuit and County Court Practice states

that “[w]hen a defendant is convicted of two (2) or more offenses charged in separate counts

of an indictment, the court shall impose separate sentences for each such conviction.”

¶21. Moreover, even if we agreed that the order must be construed to apply the suspended

sentence to the first count, where the sentence on one count was clearly dependent on the

sentence on another count, which is ultimately reversed, the case should be remanded to the

trial court for resentencing on the remaining count. Commonwealth v. Padden, 483 A.2d

950, 952-53 (Pa. Super. Ct. 1984). Otherwise, a defendant could receive an unintendedly

harsh or lenient sentence based on nothing more than the order in which the counts appeared

on his indictment.

¶22. Consequently, we reverse Ringer’s sentence on Count I and remand for resentencing

on it as well.

¶23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
FIRST JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, SEXUAL
BATTERY, IS AFFIRMED; AND COUNT II, SEXUAL BATTERY, IS REVERSED,
AND A CONVICTION OF GRATIFICATION OF LUST IS RENDERED. THE
SENTENCE IN COUNT I IS REVERSED, AND THE CASE IS REMANDED FOR
RESENTENCING ON COUNT I AND SENTENCING ON COUNT II ON THE
LESSER INCLUDED OFFENSE OF GRATIFICATION OF LUST, IN
ACCORDANCE WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

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 GRIFFIS, P.J., BARNES, ISHEE, WILSON AND GREENLEE, JJ., CONCUR.
JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE
WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY LEE, C.J., AND JAMES, J.; IRVING P.J., JOINS IN PART.

CARLTON, J., DISSENTING:

¶24. I respectfully dissent from the majority’s opinion. The majority finds insufficient

evidence as to Count II of Ringer’s indictment and reverses and renders as to that count.

After finding that the sentences for Counts I and II of Ringer’s indictment were inextricably

linked, the majority also reverses the sentence on Count I and remands the matter for

resentencing on both counts.3 However, I submit that, when viewing the evidence in the light

most favorable to the State, the record reflects sufficient evidence to support Ringer’s

convictions for both Counts I and II.4

¶25. Since the record reflects sufficient evidence to support the jury’s verdict finding

Ringer guilty of both Counts I and II, then the majority errs by reversing Count I, reversing

and rendering Count II, and remanding the matter for resentencing on both counts.5 The

3
Both Counts I and II of the indictment charged Ringer with sexual battery in
violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2006).
4
See Johnson v. State, 626 So. 2d 631, 632-33 (Miss. 1993) (finding that, along with
her doctor’s testimony, the victim’s testimony that she felt the defendant’s tongue lick her
private parts provided legally sufficient evidence of sexual penetration in a sexual-battery
prosecution).
5
See Neal v. State, 15 So. 3d 388, 409 (¶57) (Miss. 2009) (recognizing that the
standard of review for sufficiency of the evidence is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational fact-finder could have found the
essential elements of the crime beyond a reasonable doubt and explaining that an appellate

11
circuit court therefore committed no error by denying Ringer’s motion for a judgment

notwithstanding the verdict. As a result, I would affirm Ringer’s convictions and sentences

on both counts.

¶26. A review of our precedent and the evidence in this case reflects sufficient evidence

to support both of Ringer’s convictions. The testimony of the eleven-year-old6 victim,

Abby,7 supplied sufficient evidence of sexual penetration to support the jury’s verdict as to

Count II of Ringer’s indictment. Pursuant to the applicable standard of review, I would

therefore affirm both Ringer’s convictions and the circuit court’s judgment since the record

contains sufficient evidence to support the convictions.8 I will now turn to an examination

of the sufficiency of the evidence supporting Ringer’s conviction on Count II relative to the

degree of penetration required to be legally sufficient to support a sexual-battery conviction.

¶27. The record reflects that Abby testified as follows on direct examination:

Q. What happened?

court is not required to ask itself whether it believes the evidence at trial established guilt
beyond a reasonable doubt).
6
The victim was nine years old at the time of the crimes but eleven years old at the
time of the trial.
7
As noted in the majority opinion, this Court uses a fictitious name to protect the
victim’s identity.
8
See Readus v. State, 997 So. 2d 941, 944 (¶13) (Miss. Ct. App. 2008) (“In reviewing
whether the evidence supporting a jury verdict is legally sufficient, this Court . . . . view[s]
the evidence in the light most favorable to the prosecution and determine[s] whether a
rational juror could have concluded beyond a reasonable doubt that all elements of the crime
were satisfied.” (citing Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005))).

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 A. Someone touched me.

Q. Someone touched you?

A. Yes, ma’am.

Q. Okay. Where did someone touch you?

A. In the back and the front.

Q. Back of what?

A. My butt and my private area.

....

Q. Okay. And you, I think said, you were touched on the back.

A. Yes, ma’am.

Q. What were you being touched with on the back?

A. The private area.

....

Q. Okay. Did you tell [the lady at the police station] that [Ringer] put his
fingers in your private parts?

A. Yes, ma’am.

Q. Okay. Did you also tell her that [Ringer] touched [you] in the back?

A. Yes, ma’am.

¶28. On cross examination, Abby further testified:

Q. Okay. Now, when you woke up, you felt fingers inside of you; is that
correct?

13
 A. Correct.

Q. And you just felt his penis on your behind?

A. Yes. Yes.

....

Q. Okay. And you told your father that when you woke up, . . . Ringer
was touching and placing his fingers into your vagina, correct?

A. Correct.

Q. Okay. And you also told your father that [Ringer] put his penis into
your vagina, correct?

A. No.

Q. Okay. So you’re saying you did not?

A. I didn’t tell him that [Ringer] stuck the private area into mine. I said
that he stuck his private area into my butt.

(Emphasis added).

¶29. Finally, on redirect examination by the State, Abby testified to the following:

Q. Okay. And you heard Ms. Dana asking you about having the private
parts stuck in your butt, correct?

A. Correct.

Q. And she was calling that a penis, correct?

A. Correct.

Q. Okay. Now, when you were saying that [Ringer] was trying to stick it
in your butt, was he trying to stick it where you wipe when you go
potty?

14
 A. Yes.

Q. Okay. And is that what you call your butt?

A. Yes.

Q. Okay. And when he was trying to stick it on your butt, was he getting
in between? Do you know what I mean by the crack of your butt?

A. Yes.

Q. Okay. All right. You have the crack of your butt, correct?

A. Correct.

Q. And you have the place that you have to wipe when you go potty,
correct?

A. Correct.

Q. Okay. When you said he was trying to stick his private part in you butt,
did he stick it in the crack?

A. Yes.

Q. Okay. And then tried to put it in where you wipe?

A. Correct.

Q. Okay. And he also put his fingers in your front private part?

A. Correct.

Q. Okay. Inside?

A. Correct.

(Emphasis added).

¶30. Thus, Abby’s testimony reflects she testified that Ringer “stuck” his penis in the crack

15
of her butt where she went potty and where she had to wipe when she went potty. She also

testified Ringer put his penis “into” the area where she went potty and had to wipe after

going potty. On redirect, Abby clearly testified that Ringer stuck his private area into her

butt. The nurse examiner also testified that Abby suffered a tear to the back area of her

vagina caused by blunt force trauma. The State asserts that the evidence of this vaginal wall

trauma inflicted by Ringer from behind Abby provided the jury with physical evidence and

logical inferences that corroborated Abby’s testimony and showed that Ringer could have

also penetrated Abby’s anus during the sequence of events in which he penetrated her vagina

from behind. Moreover, in light of precedent, and in accordance with our standard of review,

Abby’s testimony provided legally sufficient evidence of penetration to support Ringer’s

convictions on both counts, including the element of sexual penetration.9

¶31. Mississippi Code Annotated section 97-3-97 (Rev. 2014) defines sexual penetration

to include the following: “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.” In

Burrows v. State, 961 So. 2d 701, 706 (¶13) (Miss. 2007), the Mississippi Supreme Court

found sufficient evidence to prove penetration where the victim testified the defendant

9
See Collier v. State, 711 So. 2d 458, 462-63 (¶¶15-18) (Miss. 1998) (finding that
a nine-year-old girl’s conduct was consistent with that of a fondling victim and that any
inconsistencies in her story were for the jury to consider and failed to render the evidence
insufficient), abrogated in part by Dilworth v. State, 909 So. 2d 731 (Miss. 2005).

16
“touched her butts with his ‘daddy spot[,]’” and the investigator testified that the victim told

him that the defendant “touched the inside of her bottom with his ‘daddy spot.’” The

evidence alleged in Burrows showed that the victim tested positive for chlamydia, whereas

the victim in the present case suffered trauma to her vaginal wall. See id. The Burrows court

also found that the defendant used a vibrator on the victim and that the jury could have

reasonably inferred that some degree of penetration occurred during the defendant’s use of

the device. Id. at (¶17). As the Burrows court acknowledged, Mississippi precedent provides

that “[p]enetration, however slight, is sufficient to establish the penetration element of sexual

battery.” Id. (citing Johnson v. State, 626 So. 2d 631, 633 (Miss. 1993)).

¶32. Applying precedent to the instant case shows that Abby provided legally sufficient

testimony to establish the element of penetration for the crime of sexual battery charged in

both Counts I and II of Ringer’s indictment. Also, as asserted by the State, the details of

Abby’s testimony were corroborated by the evidence of the trauma to the back of her vaginal

wall and by the evidence of DNA on her underwear that was consistent with Ringer’s DNA.10

Moreover, the record reflects that, while Abby used childlike terms instead of anatomical or

medical terms to describe her anus and the penetration, her testimony was consistent and was

not impeached.11

10
See id. at 462 (¶15). See also Goss v. State, 465 So. 2d 1079, 1082 (Miss. 1985)
(stating that a victim’s testimony alone, though uncorroborated, is sufficient when consistent
with the circumstances).
11
See Collier, 711 So. 2d at 462 (¶15) (“[O]ur case law clearly holds that the
unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where

17
¶33. The weight and credibility of Abby’s testimony was a matter solely for the jury to

determine. See Gales v. State, 153 So. 3d 632, 648 (¶54) (Miss. 2014). Based on a review

of the record and applicable caselaw, I would affirm Ringer’s convictions and sentences as

to both counts charged in the indictment. I therefore respectfully dissent from the majority’s

opinion.

LEE, C.J., AND JAMES, J., JOIN THIS OPINION. IRVING, P.J., JOINS THIS
OPINION IN PART.

that testimony is not discredited or contradicted by other credible evidence, especially if the
conduct of the victim is consistent with the conduct of one who has been victimized by a sex
crime.” (citations omitted)).

18