                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2005-KA-02345-SCT

JOSHUA PHILLIPSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                             12/14/2005
TRIAL JUDGE:                                  HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                    RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       DAN W. DUGGAN, JR.
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: BILLY L. GORE
DISTRICT ATTORNEY:                            DAVID BYRD CLARK
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  AFFIRMED - 11/30/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE WALLER, P.J., DIAZ AND DICKINSON, JJ.

        DIAZ, JUSTICE, FOR THE COURT:

¶1.     This case presents the question of whether a defendant accused of statutory rape is

entitled to a lesser-included jury instruction regarding fornication.   Because fornication is not

a lesser-included crime of statutory rape, we affirm the ruling of the trial court to exclude the

instruction.

                            FACTS AND PROCEEDINGS BELOW

¶2.     The facts of this case are not in dispute.    Joshua Phillipson was arrested, tried, and
convicted for the statutory rape of B.G., a minor female.1           At the time of the event, May 18,

2004, Phillipson was 20 years old and the minor was 15.              Phillipson was sentenced to 2 ½

years in the custody of the Mississippi Department of Corrections for the crime.

¶3.      The sole issue on appeal is whether the Rankin County Circuit Court committed

reversible error in refusing jury instruction D6, which read:

                 The Court instructs the jury that if you find that the state has failed to
         prove any one the essential elements of the crime of STATUTORY RAPE, you
         must find the defendant not guilty.           You will then proceed with your
         deliberations to decide whether the state has proved beyond a reasonable doubt
         all the elements of the lesser crime of FORNICATION. If warranted by the
         evidence, you may find the defendant guilty of a crime lesser than STATUTORY
         RAPE. However, notwithstanding that right, it is your duty to accept the law as
         given to you by the court. If the facts and the law warrant a conviction for the
         crime of STATUTORY RAPE, then it is your duty to make such a finding,
         uninfluenced by your power to find a lesser offense. This provision is not
         designed to relieve you from the performance of an unpleasant duty. It is
         included to prevent a failure of justice if the evidence fails to prove the original
         charge, but does justify a verdict for FORNICATION.
                 FORNICATION is defined as unlawful sexual intercourse between two
         unmarried persons.

¶4.      Because it was not error to refuse this instruction, we affirm the ruling of the trial

court.

                                        STANDARD OF REVIEW

¶5.      Jury instructions are not reviewed in isolation, but read as a whole to determine if the

jury was properly instructed.         Milano v. State, 790 So. 2d 179, 184 (Miss. 2001).          The

instructions must fairly announce the law of the case and not create injustice. Id. at 184. “In

other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce




         1
             We omit the name of the minor out of respect for her age and the crime involved.

                                                       2
the applicable rules of law, no error results.” Adams v. State, 772 So. 2d 1010, 1016 (Miss.

2000).

                                              DISCUSSION

¶6.      Phillipson argues that he should have received a jury instruction on fornication because

it presented a viable theory of the case. “A defendant is entitled to have jury instructions given

which present his theory of the case, however, this entitlement is limited in that the court may

refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the

instructions, or is without foundation in the evidence.” Adams, 772 So. 2d at 1016 (internal

quotations and citations omitted).        We greatly value the right of a defendant to present his

theory of the case, and “[w]here a defendant’s proffered instruction has an evidentiary basis,

properly states the law, and is the only instruction presenting his theory of the case, refusal to

grant it constitutes reversible error.” Id. (internal quotations & citations omitted).

¶7.      In the case of instructions regarding a lesser-included offense, “the defendant may

request an instruction regarding any offense carrying a lesser punishment if the lesser offense

arises out of a nucleus of operative fact common with the factual scenario giving rise to the

charge laid in the indictment.” Id. (internal quotations & citations omitted).

¶8.      “The crime of statutory rape is committed when . . . [a]ny person seventeen (17) years

of age or older has sexual intercourse with a child who . . . [i]s at least fourteen (14) but under

sixteen (16) years of age; [and] [i]s thirty-six (36) or more months younger than the person;

and . . . [i]s not the person’s spouse.” Miss. Code Ann. § 97-3-65(1)(a) (Rev. 2006). It is

undisputed that Phillipson was 20 years old and B.G. was 15; this is a difference of more than

36 months; and they are unmarried.

                                                      3
¶9.     Phillipson admitted having sexual intercourse with B.G.,                  while   insisting it was

consensual. Under our laws, a minor that fits the criteria of the statute simply does not have

the legal power to consent. The age of a minor is complete bar to the legal exercise of consent

to sexual intercourse.    “At the heart of [the statutory rape statute] is the core concern that

children should not be exploited for sexual purposes regardless of their ‘consent,’” as “[t]hey

simply cannot appreciate the significance or the consequences of their actions.” Collins v.

State, 691 So. 2d 918, 924 (Miss. 1997).

¶10.    Accordingly, consent is not and cannot be a defense to a charge of statutory rape. Miss.

Code Ann. § 97-3-65(2). Statutory rape is also a “strict liability” crime, and a defendant cannot

maintain a “mistake of age” defense.        Collins, 691 So. 2d at 923.          As a result there are no

lesser-included crimes to statutory rape.

¶11.    Despite our law on statutory rape, Phillipson offers that he should have been able to

present evidence that he committed “fornication,” not statutory rape.               He cites to a legal

dictionary’s definition of the term and asks that we apply “the common law definition of

fornication to the facts in th[is] case.” Our law does not explicitly prohibit “fornication” in and

of itself.   We decline this offer to adopt fornication as a “common law” crime, as the

Legislature is the body that properly defines and prohibits criminal behavior.

¶12.    In addition to his “common law” crime argument, Phillipson suggests his instruction

also fits the Mississippi Code, specifically Section 97-29-1:

                 If any man and woman shall unlawfully cohabit, whether in adultery or
        fornication, they shall be fined in any sum not more than five hundred dollars
        each, and imprisoned in the county jail not more than six months; and it shall not
        be necessary, to constitute the offense, that the parties shall dwell together
        publicly as husband and wife, but it may be proved by circumstances which show

                                                    4
        habitual sexual intercourse.

Miss. Code Ann. § 97-29-1 (Rev. 2006). What Phillipson does not perceive is that this law

is a prohibition on cohabitation that involves adultery or fornication.      There was no evidence

that he and B.G. were cohabitating.      Even if there were, charges under this section are still

separate from a statutory rape charge.     The reasoning behind the prohibition on statutory rape

was discussed infra:       it is to protect against exploitation and vulnerability, not to prevent

cohabitation.

¶13.    The crimes are separate and unrelated, as the trial court found—indeed, as counsel for

Phillipson admitted at trial.   The following discussion was had between the trial court, Rankin

County District Attorney David Clark, Rankin County Assistant District Attorney Jamie

McBride, and counsel for the defense Dan Duggan, regarding Instruction D6:

        MR. McBRIDE: Judge, I think that's a mistake of the law. I mean, it talks about
        a lesser included crime of fornication. And, Judge, I don't believe there is such
        a lesser included crime as statutory rape. In fact, I believe the crime of
        fornication actually involves having to live together, Judge.
        THE COURT: I thought it had to do with something about prohibited within the
        -- created by the incest statute within the degrees of civil kinship or something.
        MR. McBRIDE: It was the only one I could find but I thought it was referring
        to was 97-29-1, it says, ‘Adultery and fornication, unlawful cohabitation. If any
        man and woman shall unlawfully cohabitate whether adultery or fornication . .
        . .’ And, then, it goes on and it talks about habitual, sexual intercourse . . . .
        [. . .]
        Judge, usually those statutes have clear -- for instance, in statutory rape, we had
        the age on it, which is not required under the fornication statute. And under the
        fornication statute, it requires cohabitation. There was just one instance in
        there, of course. The key word is habitual.
        THE COURT: Which fornication statute are you referring to, Mr. Duggan?
        MR. DUGGAN: Well, there are a number of them and --
        THE COURT: Yeah. All right. There's the one I was thinking about, the civil
        kinship. Well, can you point me to one that you're basing the instruction
        on?
        MR. DUGGAN: No.


                                                 5
         THE COURT: I don't see where it fits.
         MR. DUGGAN: It does not, Judge.
         THE COURT: D6 is refused.

(Emphasis added).          As the trial court held, the instruction simply does not fit.   Accordingly,

the sole issue on appeal has no merit.

                                             CONCLUSION

¶14.     The trial court properly refused the instruction detailing a lesser-included crime to

statutory rape as there is no such creature.       Because there was no error, the judgment of the

trial court is affirmed.

¶15. CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWO AND ONE-
HALF (2 ½) YEARS IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CONDITIONS, AFFIRMED.

     SM ITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES,
DICKINSON AND RANDOLPH, JJ., CONCUR.




                                                     6
