                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-CT-00756-SCT

JAMES ROBERT GOODIN

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                            02/09/2006
TRIAL JUDGE:                                 HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                   LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      PRO SE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: BILLY L. GORE
DISTRICT ATTORNEY:                           JOHN RICHARD YOUNG
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 THE JUDGMENTS OF THE COURT OF
                                             APPEALS AND THE CIRCUIT COURT OF
                                             LEE COUNTY ARE AFFIRMED IN PART
                                             AND REVERSED AND REMANDED IN
                                             PART - 03/20/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The defendant was convicted of rape and sexual battery. The Court of Appeals

affirmed both convictions, and the defendant filed a petition for certiorari review. Although

the Court of Appeals correctly affirmed the rape conviction, we granted certiorari to address

the trial court’s jury instructions on the charge of sexual battery. Because the trial court gave
an incorrect jury instruction concerning the elements of the crime, we must reverse and

remand for a new trial on the charge of sexual battery.

                  STATEMENT OF FACTS AND PROCEEDINGS

¶2.    James Robert Goodin was indicted on two counts of forcibly raping T.L. Count I

alleged that Goodin had forcibly inserted his penis inside her vagina, and Count II alleged

that Goodin had forcibly inserted his penis inside her rectum.

¶3.    T.L. is a twenty-four-year-old woman who took special education classes in high

school. She is unable to read and write. T.L. testified that, on numerous occasions, Goodin

made her take off her clothes. Goodin then stuck his penis in her mouth, inside “between her

legs,” and inside her “behind.” T.L. stated that when these incidents occurred, she could not

get away from Goodin. Additionally, T.L. testified that she told Goodin to stop but he did

not respond to her instruction.

¶4.    Chris Hopkins testified that he twice caught Goodin “messing with T.L.” Hopkins

explained that the first time, Goodin was alone in a shed with T.L. When Hopkins opened

the shed, Goodin was buttoning his pants and buckling his belt. The second time, he caught

Goodin “laying in bed with T.L. messing with her.”

¶5.    V.H., T.L.’s twenty-year-old sister, testified that when Hopkins told their mother

about what happened between Goodin and T.L., Goodin beat Hopkins with a baseball bat.

V.H. also testified that on five or six occasions, Goodin came into the bedroom that she

shared with T.L. and took T.L. to his bedroom.

¶6.      Goodin and his wife, Nancy Goodin, testified that the alleged incidents of sexual

misconduct did not occur.

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¶7.    After the state and defense finally rested, the court heard objections to jury

instructions. The court sua sponte raised an issue with Count II of the indictment. Count II,

which charged Goodin with rape, stated that he had inserted his penis into the rectum, not the

vagina, of T.L. The state agreed that, under Mississippi law, the act of rape requires

penetration of the vagina, while the penetration involved in sexual battery is not limited to

the vagina. Over objection of defense counsel, the court allowed the state to amend Count

II of the indictment to charge Goodin with sexual battery.

¶8.    The jury found Goodin guilty of Counts I and II. He was sentenced to life in prison

for Count I and to thirty years in prison for Count II, with both sentences to run concurrently.

Goodin’s appeal was assigned to the Court of Appeals, which affirmed both convictions.

Goodin filed a Petition for Writ of Certiorari, arguing that he was wrongfully convicted on

both counts. Although we found no reversible error as to the rape conviction, we granted

certiorari to review the conviction for sexual battery.

                                         ANALYSIS

¶9.    The only issue this Court will address is whether the trial court erred by giving an

improper jury instruction on sexual battery. All other issues were fully and correctly

addressed by the Court of Appeals and we adopt herein the Court of Appeals’ analysis on

those issues. See Goodin v. State, 2007 Miss. App. LEXIS 298 (2007).

¶10.   Jury instructions are not read in isolation, but must be read as a whole. Rushing v.

State, 911 So. 2d 526, 537 (Miss. 2005). When reading the instructions as a whole, this

Court must determine if the jury was properly instructed. Burton ex rel. Bradford v.

Barnett, 615 So. 2d 580, 583 (Miss. 1993).

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¶11.   The trial judge allowed the state to amend the indictment. Allowing an amendment

to the indictment after the close of evidence does not, standing alone, constitute reversible

error. An indictment may be amended without action of the grand jury if the amendment is

one of form and not of substance. Spann v. State, 771 So. 2d 883, 898 (Miss. 2000).

¶12.   In Lee v. State, this Court held:

       Amendments to an indictment are permissible if they do not prejudice the
       defendant by (1) materially altering the essential facts of the offense or (2)
       materially altering a defense under the original indictment. Thus, taken
       together, this authority sets forth the following test for analyzing an
       amendment to an indictment for the purpose of removing surplusage: (1) the
       removal of the surplusage must not change the substance of the offense
       charged; (2) the defendant must be afforded a fair opportunity to present a
       defense and must not be unfairly surprised; (3) the removal of the surplusage
       must not materially alter the essential facts of the offense; and (4) the removal
       of the surplusage must not alter a defense under the original indictment.

Lee v. State, 944 So. 2d 35, 40 (Miss. 2006).

¶13.   So long as the rules above are followed, amended indictments will not violate the

requirement that the original indictment must clearly and correctly state the charge and

include all necessary elements of the offense. Buchanan v. State, 427 So. 2d 697, 698

(Miss. 1983). In this case, amending the indictment resulted in no prejudice or harm to

Goodin’s ability to present a defense. The only change allowed by the trial court was the

name of the crime. The conduct charged against Goodin was clearly set forth in the original

indictment, and it did not change.

¶14.   The jury instruction on the amended charge, however, allowed the jury to convict

Goodin of conduct that is not a crime. The final instruction given to the jury stated, in

pertinent part,



                                              4
       If you find from the evidence in this case beyond a reasonable doubt that the
       defendant, James Robert Goodin, did willfully, unlawfully and feloniously
       commit a sexual battery upon [T.L.], a human being by inserting his penis into
       [T. L.] rectum, then you shall find the defendant, James Robert Goodin, guilty
       of sexual battery as charged in Count II of the indictment.

¶15.   The Mississippi Code defines sexual battery, in relevant part, as “(1) A person is

guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person

without his or her consent.” Miss. Code Ann. § 97-3-95 (Rev.2006).

¶16.   The instruction given to the jury regarding sexual battery did not require the jury to

find that the penetration was without consent, as required by the statute. In other words, the

instruction authorized the jury to find Goodin guilty of sexual battery without finding beyond

a reasonable doubt that the sexual conduct was without the consent of the victim. “Because

the state has to prove each element of the crime beyond a reasonable doubt, then the state

also has to ensure that the jury is properly instructed with regard to the elements of the

crime.” Hunter v. State, 684 So. 2d 625, 635 (Miss. 1996).

¶17.   In this case, it is impossible to know if the jury found that the state proved each

element of the crime beyond a reasonable doubt, because the jury was not informed that one

of the elements of the crime is lack of consent. Because this element was missing from the

jury instruction, the trial court failed to properly instruct the jury on the crime of sexual

battery.

                                      CONCLUSION

¶18.   Finding no error regarding Goodin’s conviction for rape, his conviction and sentence

under Count I of the indictment are affirmed. Because the jury was not properly instructed




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regarding the elements of the crime of sexual battery, Goodin’s conviction for sexual battery

under Count II of the indictment is reversed and we remand for new trial.

¶19. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT
COURT OF LEE COUNTY ARE AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART. COUNT I: CONVICTION OF RAPE AND SENTENCE OF
LIFE IMPRISOMENT IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: REVERSED AND REMANDED.

     SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, RANDOLPH
AND LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS
IN PART WITH SEPARATE WRITTEN OPINION.

       EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶20.   As I would affirm both convictions, I respectfully concur in part and dissent in part

with the majority’s opinion. I concur with the majority’s affirmance of the rape conviction

in Count I. However, I dissent to the majority’s reversal and remand of the sexual battery

conviction in Count II.




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