Dewayne Graham v. State of Mississippi
185 So. 3d 992
Miss.2016Background
- December 22, 2011: victim met two men (Jamonious Inge and Dewayne Graham); they went behind a convenience store where Inge struck her and both men sexually assaulted her; victim escaped to the store and police were called.
- Graham and Inge both testified at trial; Inge had pleaded guilty and testified for the State; surveillance, nurse exam, store clerk, and officers corroborated aspects of the encounter.
- Grand jury indicted Graham on multiple counts including kidnapping (Count I), sexual battery by "performing fellatio on [the victim]" (Count III), and forcible rape; trial began ~16 months after indictment following five continuances.
- At trial the State’s proof showed Graham forced the victim to perform oral sex on him (inverse of the indictment’s wording), and the court denied Graham’s motion for directed verdict on Count III.
- Jury convicted Graham on all counts; circuit court imposed three concurrent 30-year sentences as a habitual offender; Graham appealed raising four issues.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Graham) | Held |
|---|---|---|---|
| 1. Directed verdict on Count III (fellatio language) | Indictment and evidence gave sufficient notice that Count III alleged sexual penetration via fellatio; testimony supported that Graham participated in fellatio (jury question). | Indictment incorrectly alleged Graham "performed" fellatio on a female (impossible); State failed to prove the precise allegation—directed verdict required. | Denied. Court held indictment gave sufficient notice and evidence supported conviction despite wording variance. |
| 2. Jury instruction S-3 amended indictment | Instruction tracked elements of sexual battery and did not change defendant's defense (consent) or essential elements. | Instruction constructively amended the indictment by changing who performed/received fellatio, prejudicing notice and defense. | Denied. Court found no impermissible constructive amendment; change was immaterial to essential elements and defense. |
| 3. Sufficiency of evidence for convictions | Evidence (victim, Inge, nurse, clerk, officers) corroborated kidnapping, sexual battery, and rape; viewed in State’s favor, a rational juror could convict. | Evidence insufficient: victim’s testimony conflicted on consent and details; convictions should be reversed. | Affirmed. Court held evidence sufficient for kidnapping, sexual battery, and forcible rape. |
| 4. Speedy trial violation (16-month delay) | Many continuances were for valid reasons (plea negotiations, locating/incarcerated victim/witnesses); Barker factors balance against a constitutional violation. | Delay (~16 months) prejudiced defendant; speedy-trial right violated. | Denied. Delay was presumptively prejudicial but Barker factors (reasons for delay, defendant’s assertions, lack of actual prejudice) did not warrant reversal. |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard for reviewing sufficiency of evidence; Jackson v. Virginia test)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (constitutional sufficiency standard for jury verdicts)
- Hennington v. State, 702 So.2d 403 (Miss. 1997) (variance between indictment wording re: "of" v. "with" not fatal to sexual battery charge)
- Burrows v. State, 961 So.2d 701 (Miss. 2007) (variance between indictment and proof immaterial where defendant had adequate notice and same defense)
- Bell v. State, 725 So.2d 836 (Miss. 1998) (constructive amendment doctrine; reversible per se if jury may convict on unindicted ground)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four-factor balancing test for speedy trial claims)
- Stirone v. United States, 361 U.S. 212 (U.S. 1960) (trial court may not amend indictment by instruction to substitute uncharged facts)