                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-KA-02165-SCT

DEWAYNE GRAHAM a/k/a DEWAYNE
DAL’ANGLE GRAHAM a/k/a DEWAYNE
DEANGLO GRAHAM a/k/a DEWAYNE
DEANGELO GRAHAM

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          12/19/2013
TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: JUSTIN TAYLOR COOK
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                         BILBO MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 02/25/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    On August 2, 2012, a Lauderdale County grand jury returned a multiple-count

indictment against Dewayne Graham which alleged kidnapping, forcible rape, and sexual

battery. The trial court reset the trial date five times over the next sixteen months. After a

two-day trial, the jury returned a guilty verdict and the Circuit Court of Lauderdale County
sentenced him to thirty years’ imprisonment in the custody of the Mississippi Department of

Corrections as a habitual offender. Aggrieved, Graham appeals.

                               FACTUAL BACKGROUND

                                         The Incident

¶2.    The victim testified against Graham at trial. According to her testimony, she became

acquainted with Graham’s co-aggressor, Jamonious Inge, while visiting her mother and

children in December of 2011. On December 22, 2011, she and Inge met at her mother’s

home. They talked there for a period of time, until Inge offered the victim some cocaine and

they went to his house. Inge’s and the victim’s testimony conflict as to why they left Inge’s

later that evening: The victim testified that the cocaine never arrived and Inge offered her a

ride back, whereas Inge testified1 that the cocaine did arrive and, after consuming it, they

went to buy cigarettes. In either case, Graham met them outside Inge’s apartment. The three

walked toward a nearby Cefco convenience store and then down a pathway behind the Cefco.

¶3.    The victim believed the car was at the other side of the trees because she “could see

through the path . . . so [she thought] it[ was] just like a crossover to get somewhere, like

something was on the other side.”2 Once within the trees, Inge abruptly turned around and


       1
      As a part of his guilty plea resulting from the incident, Inge agreed to testify against
Graham.
       2
          What the path was, and whether the area could really be described as “woods,” re-
emerges from time to time within witness testimony. Inge said that it was “the pathway to
the Winn-Dixie” from Oak Manor, the apartments in which he and the victim had been using
cocaine and drinking. Officer David Creel later testified that “the little crumple of trees [that
is] not truly a wooded area” sits between the back parking lot of the Cefco and the Winn-
Dixie. Lieutenant John Griffith stated at trial that the area is “[p]robably 100 yards long and
maybe five to ten yards wide” between Oak Manor and Winn-Dixie.

                                               2
punched her in the eye, and then told her to pull her clothes down. The impact knocked her

hairpiece from her head and one of her earrings out of its piercing.

¶4.    The victim testified that she was scared, and Inge testified that he knew she didn’t

want to pull her pants down. The victim also testified that she was crying, that she was in

shock throughout the encounter, and that Inge and Graham were “blocking [her]. . . . One

was behind [her] where [she] couldn’t go back through the entryway, and he was in [her]

face.” Both Inge3 and the victim testified that Graham participated in the sexual assault.

Graham unzipped his pants and told her to perform oral sex on him. The victim complied

“because [she] was scared,” but she testified that her actions were not voluntary. The victim

began to talk to Inge and Graham, “saying things, just talking to try to get them to feel guilty

to not do it. So [she] was just talking as much as possible so that [she] wouldn’t have to do

the actions.”

¶5.    At first, Inge attempted to penetrate the victim vaginally while standing behind her,

but he was unable to achieve an erection. At that point, Graham and Inge switched positions,

with Inge forcing the victim to perform oral sex while Graham forcibly raped her from

behind. When Graham and Inge decided to take the victim somewhere else, she pulled her

clothing into place and ran to the Cefco they had passed earlier. Inside the store, she asked

the clerk to call the police and then ran behind the counter. According to the victim, Inge and

Graham then entered the Cefco and began a show of concern over the victim, asking her

       3
         Inge’s testimony at trial was at points inconsistent with his statement to the police.
The State presented him with that statement to refresh his recollection. His account of
particular details varies but, overall, his testimony corroborates the victim’s basic allegation
that the two men took her into the wooded area and demanded sex from her.

                                               3
what was wrong and who had hurt her. The clerk testified at trial that the victim looked

“scared . . . nervous, upset.” Detective Joe Hoadley reviewed the Cefco video footage after

the incident and noted two black males having an “adversarial” confrontation with one of the

females behind the counter.

¶6.    Officer David Creel arrived at the Cefco after receiving a call from dispatch. The

victim went to the hospital via ambulance, where a designated registered nurse performed

a rape kit. The next morning, the victim visited the police station and was interviewed by

Detective Hoadley.

                                     Procedural History

¶7.    The grand jury returned a three-count indictment on August 2, 2012. Count III of the

indictment, the subject of the first part of Graham’s appeal, states in pertinent part that “on

or about the 23rd day of December, A.D., 2011, [Graham] did then and there wilfully,

unlawfully and feloniously engage in sexual penetration, as defined in MCA Section 97-3-97

. . . by performing fellatio on [the victim].” Graham then was arraigned, and the trial court

set the case for trial on October 10, 2012.

¶8.    The trial court granted a total of five continuances over the next sixteen months, until

trial began on December 9, 2013. The court granted the first two continuances after joint

motions from the State and Graham. First, on October 10, 2012, the court granted a

continuance until December 5, 2012, so that plea negotiations could continue. Second, on

December 5, 2012, the court granted a continuance, though the joint motion states only

“trial” as the reason for a resetting. A later continuance hearing revealed that the judge



                                              4
granted the continuance after seeing that counsel for both parties had signed the motion. The

judge at that hearing noted for the record that Graham had refused to sign the joint motion

because he did not want to waive his right to a speedy trial.

¶9.    Third, on February 6, 2013, the State made an ore tenus motion for a continuance

because the victim was living in Arkansas. The State’s Victim Assistance Coordinator

testified at the hearing that the victim was “essentially a homeless person” and that he was

having trouble locating her.       Graham’s counsel opposed the motion.              The judge

acknowledged Graham’s assertion of his right to a speedy trial but still granted the

continuance until April 8, 2013.

¶10.    Fourth, on April 8, 2013, the State moved for another continuance because the victim

had been located at an Arkansas prison, and the State was still in communication with prison

authorities in an effort to move her to Mississippi for Graham’s trial. The trial court granted

the continuance and released Graham on a personal recognizance bond.

¶11.   Fifth, on August 5, 2013, the trial court issued the final continuance, resetting the trial

date for December 9, 2013. The State had moved for the continuance because of absent

material State witnesses, and Graham’s counsel joined the motion because she was ill and

because Graham had been injured during a recent shooting.

¶12.    Trial commenced on December 9, 2013. The State produced seven witnesses in the

following order: Inge; the victim; Shannon Campbell, the Cefco employee who called the

police; Kristen Hayes, R.N., the sexual assault nurse examiner who conducted the victim’s

rape kit; David Creel and John Griffith, two police officers who had been involved in the



                                               5
initial response to the 911 call; and Joe Hoadley, the detective who had investigated the

crime. The defense then moved for a directed verdict on Count III of the indictment, which

alleged that Graham had sexually battered the victim by fellating her, arguing that there was

not “a scintilla of evidence that that occurred.” The State opposed the motion, and after a

contentious discussion outside the presence of the jury regarding the language of the

indictment, the court sided with the State and denied the motion. After the State rested,

Graham produced one witness: Melvin Graham, the defendant’s brother.

¶13.   The jury returned guilty verdicts on all three indictments. The Circuit Court of

Lauderdale County sentenced Graham to serve three concurrent sentences of thirty years’

imprisonment in the custody of the Mississippi Department of Corrections as a habitual

offender.

                                        ANALYSIS

¶14.   Graham asserts four issues on appeal:

       I.     Whether the trial court erred when it denied Graham’s motion for
              a directed verdict as to Count III, when the State presented no
              evidence that Graham had performed fellatio on the victim.

       II.    Whether the State impermissibly amended Count III of the
              indictment when it issued jury instruction S-3.

       III.   Whether the State presented insufficient evidence to convict
              Graham.

       IV.    Whether Graham’s speedy trial rights were violated when the
              court reset the date of trial five times over sixteen months.

All four issues are without merit, as discussed below.

       I.     The trial court did not err when it denied a motion for a directed


                                             6
              verdict as to Count III of the indictment because Graham was
              sufficiently on notice regarding the nature of the charge against
              him.

¶15.   “This Court reviews a trial court’s grant or denial of a motion for a directed verdict

de novo.” Solanki v. Ervin, 21 So. 3d 552, 556 (¶ 8) (Miss. 2009). “Requests for a directed

verdict and motions [for] JNOV implicate the sufficiency of the evidence.” Franklin v.

State, 676 So. 2d 287, 288 (Miss. 1996). When reviewing the sufficiency of the evidence,

the Court does not ask itself whether “the evidence at trial established guilt beyond a

reasonable doubt,” but asks instead “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.” Bush v. State, 895 So. 2d 836, 843 (¶ 16) (Miss.

2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315; 99 S. Ct. 3781; 61 L. Ed. 2d 560

(1979)) (internal citations omitted). If facts and inferences considered by the Court “point

in favor of the defendant on any element of the offense with sufficient force that reasonable

men could not have found beyond a reasonable doubt that the defendant was guilty,” the

Court must reverse and render. Bush, 895 So. 2d at 843 (citing Edwards v. State, 469 So.

2d 68, 70 (1985)) (internal citations omitted).

¶16.   Graham argues that the trial court should have granted his motion for a directed

verdict on Count III of the indictment because the State did not present sufficient evidence

to satisfy the elements of the offense. However, we hold that the State provided Graham

with sufficient notice of the charges against him when the indictment charged him with

sexual battery by engaging in sexual penetration involving the act of fellatio.



                                               7
¶17.   Count III of the indictment states that, on or about December 23, 2011, the defendant

Graham

       did then and there wilfully, unlawfully and feloniously engage in sexual
       penetration, as defined in MCA Section 97-3-97, with [the victim.] a female
       person, without her consent, by performing fellatio on [the victim], . . . [i]n
       violation of Section 97-3-95 . . . and against the peace and dignity of the State
       of Mississippi.

(Emphasis added.) Graham states that dictionaries define fellatio as oral stimulation of the

penis, and therefore the plain reading of the indictment requires the victim to have a penis.

A review of the testimony offered at trial makes it clear that the State intended to prove that

Graham forced the victim to perform fellatio upon him.

¶18.   Both Inge and the victim testified that, during the assault, Graham had forced the

victim to perform oral sex. At the end of the State’s case, defense counsel moved for a

directed verdict on Count III, stating to the court that “[the victim] testified that [Graham]

didn’t perform fellatio on her which obviously would make sense because she doesn’t have

a penis.” The State responded that the act of “performing” fellatio can be either the action

of fellatio or the receiving of fellatio, because “it requires two people to do that unless you’ve

got somebody with a very limber back.”

¶19.   Counsel argued back and forth about which definition was correct, and the trial court

decided to deny the motion for a directed verdict:

       I think . . . a jury issue is made as to whether Mr. Graham was involved in an
       act of fellatio involving [the victim] as set out in the indictment. I think he
       knew that that was what was charged. He certainly knew essentially what
       fellatio is and as – and sexual penetration involved his penis and her mouth,
       and I think that the indictment is sufficient for that purpose.



                                                8
The trial court did not err in its decision and the typographical error in the indictment does

not vitiate Graham’s conviction.

¶20.     Rule 7.06 of the Uniform Rules of Circuit and County Court Practice states that an

indictment “shall be a plain, concise and definite written statement of the essential facts

constituting the offense charged and shall fully notify the defendant of the nature and cause

of the accusation.” An indictment that contains the essential elements of the charges against

the defendant sufficiently places the defendant on notice of the nature of the charges against

him. Morgan v. State, 741 So. 2d 246, 251 (¶ 11) (Miss. 1999). Further, regarding the

question of who had to have fellated whom, the Court has clarified that “[w]hether there was

penetration ‘of’ or penetration ‘with’ [the victim] is not an essential element of the crime [of

sexual battery] and is not relevant.” Hennington v. State, 702 So. 2d 403, 408 (¶ 20) (Miss.

1997).

¶21.     In Hennington, the indictment had charged Hennington with engaging in “sexual

penetration of A.R., . . . by then and there . . . putting his mouth and hands on the penis of the

said A.R.” in violation of Mississippi law. Id. at 407 (¶ 12) (emphasis in original).

Mississippi Code Section 97-3-95 uses the word “with,” not “of,” and so Hennington moved

for a directed verdict at trial. Further, because Hennington had fellated A.R., and not the

other way around, Hennington argued on appeal that “the State did not meet its burden of

proof that A.R. was penetrated by the act of fellatio. Id. We did not agree, holding that

“[w]hile it is true that the indictment did not use the exact language of the statute, the

essential elements for the crime of sexual battery were contained in the indictment,” and that



                                                9
the State had proven the elements beyond a reasonable doubt. Id. at 408 (¶ 20).

¶22.   In Burrows v. State, 961 So. 2d 701 (Miss. 2007), a father appealed the denial of a

directed verdict for the sexual battery of his seven-year-old daughter in violation of

Mississippi Code Section 97-3-95. The indictment alleged that he had digitally penetrated

the child’s vagina, but the child’s testimony at trial was ambiguous at best regarding whether

vaginal penetration in fact had occurred. Id. at 704-05 (¶¶ 7, 10). However, the child had

testified without the same ambiguity that her father had inserted his penis into her anus, and

that he had used a vibrator to molest her further. Id. at 704 (¶ 7). We affirmed the father’s

conviction, holding that “[t]he variance between the language of the indictment . . . and the

proof present at trial was not a fatal error” because the indictment gave Burrows “sufficient

notice that he was being charged with the crime of sexual battery.” Id. at 706 (¶ 14). The

alteration had not affected Burrows’s defense, which was that the assault did not occur at all

and that the child’s mother had fabricated the whole story. Id. at 706 (¶¶ 14-15). Because

his defense would have been the same even if the indictment had tracked the proof adduced

at trial, the variation between the two was “immaterial.” Id. at 706 (¶ 16).

¶23.   Graham now finds himself in a similar situation. The indictment stated that Graham

had been charged with violating Sections 97-3-97 and 97-3-95 of the Mississippi Code.

Section 97-3-95 alerted Graham that he had been charged with sexual battery (“sexual

penetration with another person without his or her consent”) and Section 97-3-97 further

defined “penetration” for Graham’s defense preparations. Though the language of the

indictment does not precisely track the evidence produced at trial, the difference did not



                                             10
affect his defense strategy of consent. The Court of Appeals handled a similar case in

Faulkner v. State, 109 So. 3d 142 (Miss. Ct. App. 2013). Therein, the indictment charged

the defendant, David R. Faulkner, with, inter alia, violating Mississippi Code Section 97-1-6

by directing a minor child to commit sexual battery upon another minor child. Id. at 146 (¶

11). The indictment charged “forced fellatio between the two children – specifically, that

Faulkner had directed A.F. to ‘put his mouth on the penis of J.P.’” Id. However, the jury

instruction given at the end of the trial allowed the jury to find Faulkner guilty if the roles

were reversed – if Faulkner had forced A.F. to put his penis in the mouth of J.P. Id.

Although in the case sub judice, Graham’s attorney objected, and in Faulkner, the issue was

analyzed for plain error, the following reasoning of the Court of Appeals is persuasive:

       Considering whether Faulkner’s substantial rights were violated, we note not
       all variances between an indictment and jury instructions are fatal. To
       properly categorize an instruction as error, its “variance from the language of
       the indictment ‘must be material[.]’” Nix, 8 So. 3d at 145 (¶ 16) (quoting
       Williams v. State, 445 So. 2d 798, 806 (Miss. 1984)). While trial judges
       should generally strive to craft jury instructions that track the indictment's
       language, an instruction is not necessarily fatally defective for failure to do so
       if the instruction “accurately follow[s] the requisite elements of the crime.”
       Duplantis v. State, 708 So. 2d 1327, 1344 (¶ 76) (Miss. 1998)).

       Count VII alleged Faulkner had directed A.F. to “put his mouth on the penis
       of J.P.,” but the jury was instructed it could convict Faulkner on this count if
       it found he had directed A.F. to “put his penis in the mouth of [J.P.]”
       Assessing the effect of this variance on the integrity of Faulkner’s trial, we
       point out that while the language differed, the essence of the charged offense
       remained unchanged, as none of the requisite elements were substantially
       altered. The instruction still required the jury to find beyond a reasonable
       doubt that Faulkner, an adult, directed A.F., a minor, to commit sexual battery
       by engaging in fellatio with another child, J.P.

       At trial, both children testified that Faulkner had instructed them to place their
       penises in the other’s mouth. And the jury was privy to the tape and transcript

                                              11
       of Faulkner’s pretrial admission that he had directed A.F. to perform fellatio
       on J.P. Gauging potential prejudice, we find Faulkner’s defense was not
       hampered by the differing language in Instruction 13. Faulkner’s defense did
       not hinge on his insistence that he merely directed A.F. to submit to fellatio
       with J.P. but not perform fellatio on J.P. Rather, Faulkner wholly denied any
       involvement in sexual acts with the children. On these facts, we are unable to
       say any forfeited error in the jury instruction prejudiced Faulkner’s defense or
       otherwise affected his substantial right to a fair trial. At most, the variance
       was a slight flaw in the trial that did not seriously affect the public fairness of
       the judicial proceeding.

Faulkner, 109 So. 3d at 147 (¶¶ 16-18).

¶24.   We hold that the trial court did not err in denying Graham’s motion for a directed

verdict and stating that the State had created a jury question on Count III of Graham’s

indictment. We further hold that rational jury members could have found the essential

elements of sexual battery beyond a reasonable doubt from evidence adduced at trial.

       II.    Jury instruction S-3 did not impermissibly amend Count III of the
              indictment.

¶25.   Graham contends that the trial court constructively amended the indictment against

him when it gave Jury Instruction S-3, which allowed the jury to convict upon a finding that

Graham put his penis in Boyd’s mouth. We pause here to note the difference between a

claim of constructive amendment of an indictment on the one hand and a variance in the

proof and the allegations of the indictment, which we addressed above, on the other.

       A constructive amendment of an indictment occurs when the jury is permitted
       to convict the defendant upon a factual basis that effectively modifies an
       essential element of the offense charged. A constructive amendment of an
       indictment is reversible per se. Reversal is automatic because the defendant
       may have been convicted on a ground not charged in the indictment. Bell v.
       State, 725 So. 2d 836, 855–56 (Miss.1998) (quoting United States v. Adams,
       778 F. 2d 1117, 1123 (5th Cir. 1985)).



                                               12
Bishop v. State, 812 So. 2d 934, 941 (¶ 25) (Miss. 2002). “Not all variances between the

indictment and instructions constitute a constructive amendment. . . .” Bell v. State, 725 So.

2d 836, 855 (¶ 61) (Miss. 1998). The central question the Court must ask when reviewing

an alleged constructive amendment is “whether the variance is such as to substantially alter

the elements of proof necessary for a conviction.” Bell v. State, 725 So. 2d 836, 855 (¶ 61)

(Miss. 1998). As long as the change does not “materially alter facts which are the essence

of the offense on the fact of the indictment as it originally stood or materially alter a defense

to the indictment as it originally stood” in a way that would prejudice the defendant’s case,

then the amendment is permissible.” Miller v. State, 740 So. 2d 858, 862 (¶ 13) (Miss. 1999)

(quoting Greenlee v. State, 725 So. 2d 816, 819 (Miss. 1998) (internal citations omitted)).

The Court also has stated that “determining whether the defendant is prejudiced by the

amendment depends on whether a defense under the original indictment would be equally

available under the amended indictment.” Givens v. State, 730 So. 2d 81, 87 (¶ 20) (Miss.

Ct. App. 1998) (citing Byrd v. State, 228 So. 2d 874, 875-76 (Miss. 1969)).

¶26.   At the close of trial, the court instructed the jury that it could find Graham guilty of

sexual battery if it found beyond a reasonable doubt that Graham “did willfully, unlawfully

and knowingly engage in sexual penetration, to wit: fellatio, with [the victim], a female

person, without her consent, by putting his penis in her mouth.” As discussed above, Count

III of the indictment stated the inverse: that Graham had performed fellatio on the victim.

¶27.   Graham argues that the change was an impermissible constructive amendment of the

indictment. According to Graham, because he was accused of performing fellatio on the



                                               13
victim, but the jury was allowed to find Graham guilty of sexual battery if it found that the

victim had been forced to fellate Graham, his conviction on the count should be reversed.

¶28.   Graham cites Griffin v. State, 584 So. 2d 1274 (Miss. 1991), in support of his

argument. Graham characterizes the amendment at issue in Griffin as one that changed

“assault with a deadly weapon ‘by shooting [the victim] in the head’” to charge “assault by

using a pistol, ‘a means likely to produce serious bodily harm.’” Id. at 1275-76. Graham

argues that the Court had concluded that such a change was substantive in nature because it

changed the charges from an actual shooting to actions that likely would produce harm.

However, the Court elaborated further than Graham proposes: the Griffin Court went on in

its opinion to say that, because of the indictment’s rewording and the undisputed facts

established at Griffin’s trial, Griffin’s “defense that the shooting was an accident had

disappeared.” Id. at 1276. Graham argues that his defense to Count III was that he did not

fellate the victim, so the amendment to the indictment “all but gutted Graham’s theory of

defense.”

¶29.   As discussed in our review of Graham’s first argument, the jury instruction did not

alter Graham’s defense, so the alteration is immaterial. In Chandler v. State, 789 So. 2d 109

(Miss. Ct. App. 2001), the defendant was charged with two counts of sexual battery, with

Count II alleging digital penetration of a female child. Count II was amended after the

testimony of the child and the child’s therapist that “pointed to acts of fellatio rather than

digital penetration.” Id. at 11 (¶ 3). Chandler appealed, claiming, like Graham, that the

amendment was substantive and that it interrupted his defense strategy, “requiring him to



                                             14
defend a broader charge of sexual penetration rather than the specific charge of digital

penetration.” Id. (¶ 5). The Court of Appeals rejected Chandler’s argument, stating that

Chandler’s general trial strategy had been one of “general denial that Chandler had sexually

abused the child in any manner” and that Chandler had not offered evidence of a defense

against digital penetration in particular. Id.

¶30.   Graham’s case does differ somewhat from Chandler in that, while Chandler asserted

a complete denial of all sexual contact, Graham admitted to sexual acts while arguing a

general defense of consent. During opening statements, Graham’s counsel told the jury that

Inge and the victim had proceeded to have sex after Inge punched the victim, and “at some

point, my client does join in, but it’s consensual.” Graham’s counsel also told the jury that

the victim “cries rape” after the event, and that “[Graham] had sex, but it was consensual sex,

and there’s nothing wrong with that.” When the victim testified for the State, defense

counsel indeed asked about whether Graham had performed fellatio upon her, but the

remainder of the questions related to whether the sex was consensual:

       So how long before you had sex with him did you meet him? . . . So were you
       drug [into the woods]? . . . Were you handcuffed? Did they tie a rope around
       you?. . . So you went voluntarily into the woods? . . . And you admit you never
       said no? . . . You never said, I don’t want to do this? . . . You never said, Don’t
       rape me?

¶31.   Because the amendment did not alter the factual bases of the offense charged (sexual

battery via penetration without consent) and because Graham’s overarching defense was one

of consent, we hold that Jury Instruction S-3 did not constructively amend Count III of the

indictment and that Graham was not prejudiced by the change. The instant issue is without



                                                 15
merit.

         III.   The State produced sufficient evidence to convict Graham on all
                three counts of his indictment.

¶32.     Graham argues that no reasonable jury could have convicted Graham of kidnapping

or sexual battery under the evidence the State produced at trial. When the Court reviews the

evidence produced at trial to determine whether the State produced legally sufficient

evidence to secure a sound conviction, it must view the evidence in the light most favorable

to the State and ask whether any rational juror could have found that the State had proven,

beyond a reasonable doubt, each element of the crime charged. Bush v. State, 895 So. 2d

836, 843 (¶ 16) (Miss. 2005). “Under this inquiry, all evidence supporting the guilty verdict

is accepted as true, and the State must be given the benefit of all reasonable inferences that

can be drawn from the evidence.” Galloway v. State, 122 So. 3d 614, 665 (¶ 168) (Miss.

2013).

¶33.     Count I of Graham’s indictment charged him with kidnapping the victim in violation

of Section 97-3-53 of the Mississippi Code. As such, the State had to prove that Graham,

“without lawful authority and with or without intent to secretly confine,” forcibly seized and

confined the victim, or inveigled or kidnapped her “with intent to cause [the victim] to be

confined or imprisoned against [her] will. . . .” Miss. Code Ann. § 97-3-53 (Rev. 2014).

Graham argues that, other than the punch that Inge gave to the victim, neither party did

anything that could be construed as a kidnapping. Graham relies on the victim’s testimony

that she never fought back against him and Inge, and that she was never told she was not free

to leave. However, the statute does not require that a victim must attempt to flee or that she


                                             16
be told that she cannot leave for a kidnapping to arise.

¶34.   Graham cautions, however, that if the kidnapping statute were to be interpreted so

broadly, every single rape or assault allegation could be accompanied by a kidnapping

charge. Because of the evidence produced at trial, we are unconvinced by Graham’s parade-

of-horribles argument. The victim testified that the men were blocking her exit when she

realized she was in danger. According to the victim, Inge had hit her, and Inge himself

testified that he did indeed punch her. Inge also testified that they were in the woods, and

that the victim wasn’t familiar with the area. The victim testified that she asked Inge and

Graham if they would “just take [her] somewhere else where [she] could not be shaking so

bad,” and that Inge had told her they would not because they thought that she would run.

And finally, the victim testified that as soon as Inge and Graham had backed away to fix their

clothes, she had fled. The jury heard both the victim’s and Inge’s testimony, and we hold

that a reasonable juror could have found that the evidence supported the victim’s allegation

of having been forcibly confined in violation of Section 97-3-53.

¶35.   Graham makes a similar argument regarding his conviction for forcible intercourse

and sexual battery. The State had to prove that Graham had forcible sexual intercourse with

the victim to convict him of rape under Mississippi Code Section 97-3-65(4)(a)), and that he

had engaged in sexual penetration of the victim without her consent to convict him of sexual

battery under Mississippi Code Section 97-3-95.

¶36.   To support his argument, Graham liberally cherrypicks the victim’s answers to his trial

counsel’s very precise questions and asks the Court to ignore the rest of the testimony



                                             17
produced at trial from multiple witnesses.

       Q: And you admit that you said things like, We could have done this in the
       house; isn’t that right?
       A: Yes, ma’am
       Q: And admit that you never said no?
       A: I was never asked.
       Q: But you never said no?
       A: No.
       Q: You never said, I don’t want to do this?
       A: No.
       Q: You never said, Don’t rape me?
       A: No.

As already discussed, though, Inge admittedly had punched the victim, the victim had cried

throughout the encounter, and the victim already had testified that she had told the men that

they could go elsewhere because she was scared, and that she had tried to make them feel

guilty in the hope they would stop the assault. Where a rape victim’s testimony is

uncorroborated and is not contradicted or discredited by “other credible evidence,” the

defendant may be found guilty of rape. Parramore v. State, 5 So. 3d 1074, 1077 (¶ 12)

(Miss. 2009).

¶37.     Here, though, the victim’s testimony did not stand alone. Inge’s testimony

corroborated the event as the victim had described it. Further, the jury had heard the Cefco

employee’s testimony recounting the moments following the incident, the testimony of the

registered nurse who had performed the victim’s rape kit, and the testimony of three law

enforcement officers involved in the case. Viewing the evidence in the light most favorable

to the State and taking all of the evidence supporting the guilty verdict and the reasonable

inferences flowing therefrom as true, we hold that rational jurors could have found that



                                             18
Graham was guilty of sexual battery and forcible rape in violation of Sections 97-3-95 and

97-3-65(4)(a). See Miss. Code Ann. §§ 97-3-95, 97-3-64(4)(a) (Rev. 2014).

       IV.    The sixteen-month delay between Graham’s arraignment and the
              start of trial did not violate his right to a speedy trial.

¶38.   Graham alleges that the State’s repeated failure to secure the testimony of its own

witnesses denied Graham’s constitutional right to a speedy trial. We disagree. Further, we

note that Graham argues only that the State infringed upon his constitutional right to a speedy

trial. He mentions his statutory right to a speedy trial in a single footnote without further

argument or citation, and so we decline to address whether the State violated that statutory

right as well. See Randolph v. State, 852 So. 2d 547, 558-59 (¶ 33) (the Court generally does

not consider an assignment of error where an appellant has failed to produce a plausible

argument and supporting authority on the issue.)

¶39.   “A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution.” Thomas v. State, 48 So. 3d 460,

474 (¶ 38) (citing Hersick v. State, 904 So. 2d 116, 121 (¶ 3) (Miss. 2004)). The United

States Supreme Court established that an appellate court must consider and balance four

factors when reviewing an alleged violation of a defendant’s constitutional right to a speedy

trial: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33

L. Ed. 2d 101 (1972). The Mississippi Supreme Court has applied the balancing test to

Mississippi criminal cases, asserting that no single factor “is necessary or sufficient on its

own to find a deprivation of the right to a speedy trial,” and that all factors “must be


                                              19
considered alongside other relevant circumstances.” McBride v. State, 61 So. 3d 138, 142

(¶ 5) (2011) (applying Barker, 407 U.S. at 533.).

¶40.   Barker refers to the length-of-time factor as a “triggering mechanism.” Barker, 407

U.S. at 530. “Until there is some delay which is presumptively prejudicial, there is no

necessity for inquiry into the other factors that go into the balance.” Id. In Mississippi, eight

months of delay presumptively prejudice the defendant, at which point the reviewing court

must carry out a full Barker analysis. Franklin v. State, 136 So. 3d 1021, 1033 (¶ 44) (2014)

(citing Johnson v. State, 68 So. 3d, 1239 1242 (¶6) (Miss 2011)).

1.     Length of Delay.

¶41.   In the instant case, Graham was arrested a few days after the December 22, 2011,

incident. The grand jury indicted Graham on August 2, 2012. Trial commenced a further

sixteen months later on December 11, 2013. The Court has held that a “delay of eight

months or longer is presumptively prejudicial.” Johnson v. State, 68 So. 3d 1239, 1242 (¶

7) (Miss. 2011) (citing Smith v. State, 550 So. 2d 406, 408 (Miss. 1989)). The Johnson

Court wrote: “[L]et us be clear[:] when the delay is presumptively prejudicial that does not

mean that actual prejudice to the defendant exists. Rather, actual prejudice is determined at

a different point in the Barker analysis.” Johnson, 68 So. 3d at 1242 (¶ 7). With nearly two

years passing between the date of Graham’s arrest and his trial, we must examine the three

remaining Barker factors to determine whether the State violated Graham’s right to a speedy

trial. Now that Graham has shown the presumption of prejudice in the delay to bring him to

trial, “the burden of persuasion must shift to the State to show good reason for the delay.”



                                               20
Franklin v. State, 136 So. 3d 1021, 1033 (¶ 44) (Miss. 2014).

2.     Reasons for Delay.

¶42.   Barker instructs that reviewing courts should assign different weights to reasons the

State assigns to justify the delay. Now that Graham has shown the presumption of prejudice

in the delay to bring him to trial, “the burden of persuasion must shift to the State to show

good reason for the delay.” Franklin v. State, 136 So. 3d 1021, 1033 (¶ 44) (Miss. 2014).

Deliberate attempts to delay trial should weigh heavily against the State, whereas securing

a missing witness should be seen as “a valid reason” for the delay and “should serve to justify

appropriate delay.” Barker, 407 U.S. at 531. Administrative concerns, such as crowded

dockets, may be considered a “neutral” reason for delay, though ultimately attributable to the

State, which bears the “ultimate responsibility for such circumstances” when compared to

the defendant. Id.

¶43.   Under the Barker analysis, three of the five continuances must weigh in the State’s

favor. The February 6, April 8, and August 5, 2013, continuances had been granted so that

the State could locate and secure the victim and other material State witnesses for trial

testimony. Barker, 407 U.S. at 531. While the State bears the burden to bring the defendant

to trial, the October 10, 2012, continuance, allowing time for plea negotiations to continue,

cannot be weighed against the State in a Barker analysis. See Taylor v. State, 672 So. 2d

1246, 1259 (Miss. 1996) (applying the rule that plea negotiations toll the running of the

statutory 270-day speedy trial clock to a constitutional Barker analysis). The record does not

contain a satisfactory answer to the question of why the trial court granted the December 5,



                                              21
2012, motion for a continuance. We also note that Graham himself agreed to join the first

two motions for a continuance presented to the trial court.

¶44.   Reviewing the five continuances, we find that the four granted by the trial court to

secure material witnesses and evidence and to continue plea negotiations constituted valid,

justifiable reasons for delay, and weigh them in favor of the State. See Barker, 407 U.S. at

531.

3.     Whether the Defendant Timely Asserted His Right to a Speedy Trial.

¶45.   A failure to assert his right to a speedy trial does not result in waiver of that right.

However, “failure to assert the right will make it difficult for a defendant to prove that he

was denied a speedy trial.” Barker, 407 U.S. at 532. In making two joint motions for

continuances with the State, Graham agreed to waive his right to a speedy trial. See Guice

v. State, 952 So. 2d 129, 142 (¶ 29) (Miss. 2007) (Defendant may forgo his right to a speedy

trial if, inter alia, he does not object to a delay). However, Graham asserted his desire for

a speedy trial in an early motion for discovery and he refused to sign the December 5, 2012,

joint motion for a continuance because he did not want to waive his right to a speedy trial.

At the hearings on motions for continuances, Graham’s counsel stated that her client desired

a speedy trial. This factor therefore weighs in Graham’s favor.

4.     Whether the Defendant was Prejudiced by the Delay.

¶46.   The United States Supreme Court identified three interests to be contemplated when

evaluating prejudice to the defendant: “(I) to prevent oppressive pretrial incarceration; (ii)

to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the



                                              22
defense will be impaired.” Barker, 407 U.S. at 532. “Generally, proof of prejudice entails

the loss of evidence, death of witnesses, or staleness of an investigation.” Sharp v. State,

786 So. 2d 372, 381 (¶ 19) (Miss. 2001).

¶47.   On the hearings on the State’s motions for continuances, the State demonstrated that

it was making active attempts to secure the testimony of State witnesses and to obtain

evidence for trial. Graham argues that the State’s attempts impaired his defense because had

he been granted a timely trial, the State’s witnesses would have been unable to testify against

him, and that the State therefore “sure[d] [sic] up its case on the back of Graham’s

constitutional rights.” Graham’s own argument is rebutted by Barker, in which the Supreme

Court of the United States instructed that securing absent witnesses for trial in fact justified

a delay in bringing a defendant for trial. Barker, 407 U.S. at 531. In trying to analogize the

State’s efforts to locate witnesses and coordinate with the Department of Corrections of a

neighboring state with the “the inability of a defendant adequately to prepare his case,” id.

at 532, Graham reaches too far.

¶48.   Further, after granting one of the State’s motions for a continuance on April 8, 2013,

the trial court acknowledged Graham’s right to a speedy trial and released him from custody

on his own recognizance. The record indicates that he remained out of custody until his trial

began in early December 2013. Graham has failed to establish that he suffered actual

prejudice from the two-year delay between his December 2011 arrest and his December 2013

trial. The factor cannot weigh in his favor.

¶49.   In balancing the four Barker factors, no single factor is “either a necessary or a



                                               23
sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407

U.S. at 533. Instead, we consider them together in “a difficult and sensitive balancing

process . . . carried out with full recognition that the accused’s interest in a speedy trial is

specifically affirmed in the Constitution.” Id. After evaluating the factors as instructed and

examining the record and arguments presented to us for consideration, we find that Graham’s

right to a speedy trial was not violated by the continuances granted by the trial court.

                                       CONCLUSION

¶50.   Discerning no error in any of the four issues asserted by Graham on appeal, we affirm

his convictions and sentences as imposed by the Circuit Court of Lauderdale County.

¶51. COUNT I: CONVICTION OF KIDNAPPING AND SENTENCE OF THIRTY
(30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY
AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV:
CONVICTION OF FORCIBLE RAPE AND SENTENCE OF THIRTY (30) YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. THE SENTENCES OF COUNTS I, III, AND IV ARE TO RUN
CONCURRENTLY WITH EACH OTHER AND CONSECUTIVELY TO THE
UNSERVED SENTENCES IN ANY PRIOR CONVICTIONS. SAID SENTENCES
SHALL NOT BE REDUCED OR SUSPENDED; NOR SHALL THE APPELLANT BE
ELIGIBLE FOR EARLY RELEASE, PAROLE, PROBATION OR HOUSE ARREST.
UPON RELEASE, APPELLANT SHALL PAY COURT COST IN THE AMOUNT OF
$420 AND AN AB FEE IN THE AMOUNTS OF $500 AND $10. ANY POSTED CASH
BOND WILL BE FORFEITED AND APPLIED TO THE ABOVE REFERENCED
AMOUNTS DUE. APPELLANT SHALL RECEIVE NO JAIL CREDIT.

      WALLER, C.J., RANDOLPH, P.J., LAMAR, KING, MAXWELL AND BEAM,
JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

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


                                              24
¶52.   Although appalled by the heinous acts of which Graham was convicted, I am unable

to join the majority’s decision to affirm all three of his convictions. As the majority concedes,

Count III of Graham’s indictment incorrectly recited the material facts constituting the

offense of sexual battery. This was a glaring error that deprived Graham of his federal and

state constitutional right to notice of the crime charged, and it cannot be disregarded. Because

the State failed to prove the facts actually alleged in Count III, on that count Graham was

entitled to a directed verdict in his favor. Further, the trial court constructively amended

Graham’s indictment in violation of Uniform Rule of Circuit and County Court Practice 7.06

by granting a jury instruction that conformed to the evidence adduced at trial, rather than to

the indictment. Finally, because Graham’s confinement of the victim was merely incidental

to his crime of forcible rape, the evidence was insufficient to support Graham’s kidnapping

conviction. I would reverse and render Graham’s convictions of sexual battery and

kidnapping. I would affirm Graham’s conviction of forcible rape.

       A. Graham was entitled to a directed verdict because the State did not prove
       the facts alleged in the indictment.

¶53.   The Sixth Amendment to the United States Constitution guarantees that “the accused

shall enjoy the right . . . to be informed of the nature and cause of the accusation.” U.S.

Const. amend. VI. Under the Mississippi Constitution, “the accused shall have a right . . . to

demand the nature and cause of the accusation.” Miss. Const. art 3, § 26. Uniform Rule of

Circuit and County Court Practice 7.06 safeguards these constitutional protections by

requiring that an indictment contain a “definite written statement of the essential facts



                                               25
constituting the offense charged.” It must fully notify the defendant of the offense charged.

URCCC 7.06. “[A]n indictment must contain (1) the essential elements of the crime charged,

(2) sufficient facts to fairly inform the defendant of the charge which he must defend, and

(3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution

for the same offense.” Young v. State, 119 So. 3d 309, 313 (Miss. 2013). While the trial

court has the power to amend an indictment as to matters of form, only the grand jury that

returned the indictment may amend the indictment to change the substance of the charge.

URCCC 7.09; Spann v. State, 771 So. 2d 883, 898 (Miss. 2000); Quick v. State, 569 So. 2d

1197, 1199 (Miss. 1990) (stating that “[i]t has been the law since 1858 that the court has no

power to amend an indictment as to the matter of substance without the concurrence of the

grand jury by whom it was found, although amendments as to mere informalities may be

made by the court”).

¶54.   The pertinent part of Graham’s sexual battery indictment alleged that Graham “did

then and there willfully, unlawfully and feloniously engage in sexual penetration, as defined

in MCA Section 97-3-97, with [the victim], a female person, without her consent, by

performing fellatio on [the victim], . . . In violation of Section 97-3-95 . . . .” (Emphasis

added.) Under Mississippi Code Section 97-3-95(a), one is guilty of sexual battery if “he or

she engages in sexual penetration with . . . [a]nother person without his or her consent.”

Miss. Code Ann. § 97-3-95(a) Rev. 2014). Mississippi Code Section 97-3-97(a) defines

“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



                                              26
insertion of any object into the genital or anal openings of another person’s body.” Miss.

Code. Ann. § 97-3-97(a) (Rev. 2014).

¶55.   The indictment charged that Graham committed sexual battery by performing fellatio

on the victim. “Fellatio” is defined as “oral stimulation of the penis.” Fellatio, Webster’s

Ninth New Collegiate Dictionary 455 (1983). Because the indictment states that the victim

on whom Graham performed fellatio was “a female person,” it cannot be said that the

indictment charged a crime. Even assuming that the indictment sufficiently charged Graham

with sexual battery, the problem with Graham’s sexual battery conviction is that the material

facts alleged in the indictment were not what was proven at trial. The State’s evidence was

that Graham forced the victim to perform fellatio on him. Accordingly, after the State had

rested, Graham moved for a directed verdict on the sexual battery charge, arguing that the

State had failed to prove the allegations in the indictment. The State responded that “fellatio”

can be either the act of receiving fellatio or performing fellatio. The trial court agreed,

finding that the indictment sufficiently notified Graham that he was charged with forcing the

victim to perform fellatio on him.

¶56.   The trial court’s reasoning was faulty. Even if the term “fellatio,” by itself, might refer

either to receiving or performing fellatio, the grand jury specified in the indictment that

Graham performed fellatio on the victim. Thus, the State was required to prove that act to

secure a conviction.

¶57.   An accused has a federal and state constitutional right to notice of the “nature and

cause of the accusation,” and an indictment must contain sufficient facts to inform the



                                               27
defendant fairly of the charge. U.S. Const. amend. VI; Miss. Const. art 3, § 26; URCCC 7.06.

Constitutionally sufficient notice is not achieved by providing the accused incorrect or

approximate facts. A corollary to these principles is that, if the State cannot prove the facts

alleged in the indictment beyond a reasonable doubt, then the accused is entitled to a directed

verdict. Griffin v. State, 540 So. 2d 17, 20 (Miss. 1991). Here, the State was unable to prove

the facts charged in the indictment. Unless the court permissibly could have allowed

amendment of the indictment to conform to the proof, Graham was entitled to a directed

verdict. See id. As it stood, the indictment utterly deprived Graham of his state and federal

constitutional rights to notice of the nature and cause of the accusation.

       B. Jury instruction S-3 constructively amended Count III of the indictment.

¶58.   As stated, Graham’s indictment charged him with performing fellatio on the victim.

Over Graham’s objection, the trial court instructed the jury that it could find Graham guilty

of sexual battery if it found beyond a reasonable doubt that Graham “did willfully, unlawfully

and knowingly engage in sexual penetration, to wit: fellatio, with [the victim], a female

person, without her consent, by putting his penis in her mouth.” Graham argues that, with this

jury instruction, the trial court constructively and impermissibly amended the indictment.

¶59.   “A constructive amendment of the indictment occurs when the proof and instructions

broaden the grounds upon which the defendant may be found guilty of the offense charged

so that the defendant may be convicted without proof of the elements alleged by the grand

jury in its indictment.” Bell v. State, 725 So. 2d 836, 855 (Miss. 1998). “Amendments to an

indictment are permissible if they do not prejudice the defendant by (1) materially altering



                                              28
the essential facts of the offense or (2) materially altering a defense under the original

indictment.” Lee v. State, 944 So. 2d 35, 40 (Miss. 2006) (emphasis added). Defects of

substance may be corrected only by the grand jury that returned the indictment, and cannot

be corrected by the trial court. Spann, 771 So. 2d at 898.

¶60.   It is beyond question that the jury instruction materially altered the essential facts of

sexual battery as charged in the indictment. The indictment charged Graham with performing

fellatio on the victim, but the trial court instructed the jury to find guilt if it determined that

Graham had forced the victim to perform fellatio on him. The majority finds that, because

Graham’s defense of consent was not altered after the amendment, the amendment was not

substantive. However, the test is not whether the defense employed by the accused is

available after the amendment, but whether the amendment materially altered any defense

that was available under the original indictment. Lee, 944 So. 2d at 40. A defendant always

has available the defense that he or she did not perform the acts alleged in the indictment.

Here, the defense that Graham did not perform fellatio on the victim was no longer available

to him after the amendment. Because the amendment materially altered the facts alleged in

the indictment, the amendment was a matter of substance, and it could have been

accomplished only by the grand jury that returned the indictment. Spann, 771 So. 2d at 898.

¶61.   It is not the proper role of this State’s trial courts or of this Court to correct substantive

errors in indictments to conform to the proof adduced at trial. In Stirone v. United States,

361 U.S. 212, 213, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), the defendant was indicted for

interfering with interstate commerce in violation of the Hobbs Act by causing sand to be



                                                29
moved into the State of Pennsylvania. The Court found that the trial court had amended the

indictment by granting a jury instruction allowing the jury to find that Stirone had violated

the Hobbs Act by interfering with steel shipments from Pennsylvania into other states. Id. at

217, 80 S. Ct. 270. The Court found that the amendment was beyond the power of the trial

court to make and could have been made only by the grand jury. Id. The Court stated that

“The grand jury which found this indictment was satisfied to charge that Stirone’s conduct

interfered with interstate importation of sand. But neither this nor any other court can know

that the grand jury would have been willing to charge that Stirone’s conduct would interfere

with interstate exportation of steel . . . .” Id.

¶62.   The facts of Stirone are analogous to the facts before the Court today. Here, the grand

jury charged certain facts underlying Graham’s sexual battery charge, but the trial court

granted to the State, over defense objection, a jury instruction stating different facts. The jury

instruction constructively amended the indictment in violation of Graham’s constitutional

rights to notice of the nature and cause of the accusation against him. We cannot know

whether the grand jury would have been willing to charge Graham with the conduct set out

in the jury instruction. As the Court stated in Stirone,

              “If it lies within the province of a court to change the charging part of
       an indictment to suit its own notions of what it ought to have been, or what the
       grand jury would probably have made it if their attention had been called to
       suggested changes, the great importance which the common law attaches to an
       indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime,
       and without which the constitution says ‘no person shall be held to answer,’
       may be frittered away until its value is almost destroyed.

       ...



                                                    30
              Any other doctrine would place the rights of the citizen, which were
       intended to be protected by the constitutional provision, at the mercy or control
       of the court or prosecuting attorney . . . .”

Id. at 216-17, 80 S. Ct. 270 (quoting Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849

(1887), overruled in part on other grounds by United States v. Cotton, 535 U.S. 62, 122 S.

Ct. 1781, 152 L. Ed. 2d 860). Because the trial court constructively amended Graham’s

indictment, I would reverse and render his sexual battery conviction.

       C. The evidence was insufficient to support Graham’s kidnapping conviction.

¶63.   Graham argues that the evidence was insufficient to support his conviction of

kidnapping. He challenged the sufficiency of the evidence with his motion for a directed

verdict and his request for a peremptory instruction, which were denied. “The standard of

review for a trial court’s denial of a motion for directed verdict, peremptory instruction or

judgment notwithstanding the verdict (JNOV) is identical.” Brown v. State, 176 So. 3d 1, 11

(Miss. 2015). These motions challenge the sufficiency of the evidence, and this Court

“reviews the ruling on the last occasion the challenge was made in the trial court.” Id. “[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.” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting

Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If the facts

and inferences, so considered, “point in favor of the defendant on any element of the offense

with sufficient force that reasonable men could not have found beyond a reasonable doubt

that the defendant was guilty,” then we must reverse and render. Bush, 895 So. 2d at 843



                                              31
(quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).

¶64.   The crime of kidnapping is proscribed by Mississippi Code Section 97-3-53, which

provides that:

       Any person who, without lawful authority and with or without intent to
       secretly confine, shall forcibly seize and confine any other person, or shall
       inveigle or kidnap any other person with intent to cause such person to be
       confined or imprisoned against his or her will, . . . upon conviction, shall be
       imprisoned for life in the custody of the Department of Corrections if the
       punishment is so fixed by the jury in its verdict. If the jury fails to agree on
       fixing the penalty at imprisonment for life, the court shall fix the penalty at not
       less than one (1) year nor more than thirty (30) years in the custody of the
       Department of Corrections.

Miss. Code Ann. § 97-3-53 (Rev. 2014). Graham challenges the sufficiency of the evidence

that he forcibly seized and confined the victim or inveigled or kidnapped her with intent to

cause her to be confined or imprisoned against her will. He argues that, if “the kidnapping

statute [were] to be interpreted as broadly as it is in this case, every single rape or assault

allegation could be accompanied by a kidnapping charge.”

¶65.   Graham essentially argues that the evidence was insufficient because it showed that

his confinement of the victim was merely incidental to his sexual assault of the victim. In

Cuevas v. State, 338 So. 2d 1236, 1238 (Miss. 1976), this Court articulated the following

rule applicable to Graham’s argument:

       If forcible detention or movement is merely incidental to a lesser crime than
       kidnapping, such confinement or movement is insufficient to be molded into the
       greater crime of kidnapping. An illustration might well be a strong-armed
       robbery where the victim is detained and perhaps moved a few feet while
       being relieved of his wallet. The detention and movement would not support
       kidnapping albeit with force and unlawful. On the other hand, if the
       confinement or asportation be not merely incidental to a lesser crime, but a
       constituent part of the greater crime, the fact of confinement or asportation is

                                               32
       sufficient to support kidnapping without regard to distance moved or time of
       confinement.

Id. (emphasis added). Like Mississippi, a majority of states have recognized that the crime

of kidnapping “does not include conduct involving a restraint that is merely incidental to the

commission of some other crime against the victim.” State v. Salamon, 949 A. 2d 1092,

1119 (Conn. 2008), overruled in part on other grounds by State v. Sanseverino, 969 A.2d

710 (Conn. 2009). The reason for the rule is that “a literal reading of the kidnapping statutes

can lead to overzealous enforcement, with the result that ‘persons who have committed such

substantive crimes as robbery or assault – which inherently involve the temporary detention

or seizure of the victim – will suffer the far greater penalties prescribed by the kidnapping

statutes.’” State v. Goodhue, 833 A. 2d 861, 864-65 (Vt. 2003).

¶66.   In Cuevas, a prisoner escaped from a county jail and fled to an automobile agency,

where he took an employee hostage and directed him at gunpoint to the agency’s parts

department. Id. at 1237. Cuevas held the employee at gunpoint in the parts department for

almost two hours. Id. On appeal, Cuevas challenged the sufficiency of the evidence of

kidnapping. Id. The Court held that the employee’s detention was not merely incidental to

some lesser crime, and that “the confinement and movement of [the employee] by force from

the service entrance of the building to the parts department of the building was sufficiently

proved to support Cuevas’ conviction.” Id. at 1238-39.

¶67.   In Salter v. State, 876 So. 2d 412, 414 (Miss. Ct. App. 2003), Salter broke into a bank,

waited for the employees to arrive, and then forced three employees at gunpoint into a vault,

where he made them lie on the floor. He stole $37,000 from the bank and escaped by stealing

                                              33
an employee’s car. Id. Salter was convicted of burglary, two counts of armed robbery, and

four counts of kidnapping. Id. Citing Cuevas, Salter argued that the kidnappings were merely

incidental to the crime of armed robbery. Id. at 415. The Court of Appeals examined

“whether Salter’s actions were incidental to a lesser crime or were a constituent part of the

greater crime.” Id. The Court of Appeals held that Salter had fulfilled the elements of

kidnapping by forcing the employees into the bank vault at gunpoint and shutting the door

on them as he left. Id. In holding that Salter’s actions were not merely incidental to the crime

of armed robbery, the Court of Appeals noted that “Salter did not merely move the employees

a few feet as he took the money.” Id.

¶68.   In State v. Goodhue, the defendant, a stranger, entered the victim’s home and ordered

her into the bathroom. Goodhue, 833 A. 2d at 862. Goodhue threw the victim onto the floor,

got on top of her, and then unbuttoned and unzipped her pants and tried to remove them. Id.

A door slammed and startled Goodhue, causing him to flee the scene. Id. Goodhue was

charged with kidnapping, attempted sexual assault, and burglary. Id. at 863. The trial court

denied Goodhue’s motion for a judgment of acquittal on the charges of attempted sexual

assault and kidnapping. Id. On appeal, the Supreme Court of Vermont held that the evidence

of attempted sexual assault was sufficient to support Goodhue’s conviction. Id. But on the

conviction of kidnapping, the Supreme Court held that:

       the movement of Carolyn from the kitchen to the bathroom floor did not
       exceed the confinement or removal inherent in the commission of the crime of
       sexual assault nor did it increase the danger to the victim over and above the
       danger presented by the attempted sexual assault. Defendant’s actions cannot,
       therefore, provide the basis for a kidnapping conviction.



                                              34
Id. at 868-69. The Vermont Supreme Court thus recognized that the confinement of the

victim was merely incidental to the attempted sexual assault, and that “an offense such as

rape necessarily contemplates restrictions on the victim’s liberty while the crime is being

committed.” Id. at 868.

¶69.   In a case with facts similar to those sub judice, the Second District Court of Appeal

of Florida reversed a kidnapping conviction because the movement and confinement of the

victim was incidental to sexual battery. Wilson v. State, 159 So. 3d 316, 317 (Fla. Dist. Ct.

App. 2015). The evidence showed that Wilson attacked the victim as she crossed a dimly lit

vacant lot on her way home from a bar. Id. The vacant lot was covered with grass,

underbrush, and several large trees. In the attack, Wilson grabbed the victim and they

struggled. Id. Then, he struck her above the eye, knocked her down, and sexually assaulted

her. Id. The victim testified that Wilson had held her against her will. Id.

¶70.   The appellate court reviewed three factors to determine that Wilson’s conduct did not

constitute kidnapping. Id. at 318. First, the court found that “the evidence established that

the movement was merely incidental to the crime of sexual battery because it occurred during

a struggle to restrain the victim by getting her to the ground.” Id. Second, the court found

that, because Wilson could not have committed the crime without restraining the victim, the

confinement was inherent in the crime of sexual battery. Id. And third, the court found that

“the movement did not have independent significance because it did not make the crime

easier or substantially lessen the risk of detection.” Id.

¶71.   In this case, the majority finds that the evidence was sufficient to support Graham’s



                                              35
kidnapping conviction. The majority rests this finding on the victim’s testimony that, as

Graham, his codefendant, Inge, and the victim walked along the path toward the convenience

store, Inge punched the victim, and then the men blocked her exit from the wooded area as

they sexually assaulted her. The majority also cites the victim’s testimony that she asked

Graham and Inge to take her somewhere else, that they refused, that Inge told her they would

not take her elsewhere because they thought she would run, and that the victim fled at the

earliest opportunity. I would find that, considering the evidence in the light most favorable

to the verdict, the evidence shows that Graham’s confinement of the victim was merely

incidental to his crime of forcible rape.

¶72.   One commits forcible rape4 by “hav[ing] forcible sexual intercourse with any person.”

Miss. Code Ann. § 97-3-65(4)(a) (Rev. 2014). Although physically restraining the victim is

not a necessary element of forcible rape, Madere v. State, 794 So. 2d 200, 210-11 (Miss.

2001), the crime often involves physically restraining the victim in one location for its

accomplishment. See, e.g., Expose v. State, 99 So. 3d 1141, 1143 (Miss. 2012) (the rapist

dragged the victim down an embankment and restrained her as she pled for him to stop).

Here Graham did not move the victim, but held her in one place for the purpose of

accomplishing the forcible rape. Thus, unlike in Cuevas and Salter, Graham restricted the



       4
        Cuevas states that confinement or movement of a victim that is merely incidental
to a “lesser crime than kidnapping” is insufficient to support a kidnapping conviction.
Cuevas, 338 So. 2d at 1238. Because both forcible rape and kidnapping carry a maximum
sentence of life imprisonment, forcible rape is not a “lesser crime than kidnapping.” Miss.
Code Ann. §§ 97-3-65(4)(a), 97-3-53 (Rev. 2014). But whether kidnapping is a lesser crime
makes no difference to the analysis of whether conduct is merely incidental to another crime
and insufficient to support a kidnapping conviction.

                                             36
victim’s movement only to the extent necessary to accomplish another crime. And as in

Goodhue and Wilson, Graham’s confinement of the victim as he sexually assaulted her was

part and parcel of his forcible rape of the victim. Considering the evidence and all reasonable

inferences in the light most favorable to the State, Graham did no more than was necessary

to accomplish the crime of forcible rape and his confinement of the victim was merely

incidental to the forcible rape.

¶73.   The majority’s holding that the evidence was sufficient to support a kidnapping

conviction threatens to warrant a kidnapping conviction every time a defendant is convicted

of a forcible rape that has a factual component of physical restraint. This cannot have been

the legislative intent behind codifying these separate crimes. I would hold that, considering

the evidence in the light most favorable to the verdict, the evidence was insufficient to

support Graham’s kidnapping conviction because his acts of confining the victim were

merely incidental to his crime of forcible rape. I would affirm his conviction of forcible rape.

       D. Conclusion

¶74.   I would reverse and render Graham’s convictions of sexual battery and kidnapping.

Due to the fatal variance between the proof at trial and the facts alleged in the indictment,

Graham was entitled to a directed verdict on the sexual battery charge. The jury instruction

on sexual battery was a constructive amendment to the indictment that violated Graham’s

federal and state constitutional rights to notice of the nature and cause of the charge against

him. And because Graham’s restraint of the victim was merely incidental to his crime of

forcible rape, the evidence was insufficient to support Graham’s conviction of kidnapping.



                                              37
For these reasons, I respectfully concur in part and dissent in part.




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