Fortune v. State
110 So. 3d 831
Miss. Ct. App.2013Background
- Fortune, a US Marine, suffered injuries in Iraq (concussion, back, abdomen, left arm) and was medically discharged with memory loss and migraines; he resided with his wife Nikki at his stepfather’s home and took Ambien for sleep.
- On December 12, 2008, Alice (11) and Chris (6) stayed over; Fortune took Gabapentin and Ambien prior to a movie.
- During the night, Fortune touched Alice’s breasts over clothing, removed glasses, and moved her hand to his genitals; Alice observed him looking at her and then the act ceased when the movie ended.
- Alice reported the incident the next day; Fortune was arrested and gave a statement to police acknowledging memory gaps due to medication, but not explicitly denying touching Alice.
- Fortune introduced a medication guide on Ambien’s side effects (including unconscious or semi-conscious activity) to support a defense of legal unconsciousness; the State objected but the circuit court admitted the guide.
- At trial, Fortune sought Jury Instruction D-2A on legal unconsciousness due to involuntary intoxication; the court denied D-2A and gave a standard willfulness instruction (D-3); Fortune was convicted of fondling and sentenced to two years in MDOC with a $1,000 fine; on appeal, the Mississippi Court of Appeals affirmed, finding no error in the denial of D-2A and upholding the weight-of-the-evidence challenge to the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of Jury Instruction D-2A was error. | Fortune argues admin of unconsciousness due to Ambien should be a defense. | State contends no recognized legal unconsciousness defense in Mississippi. | No error; Mississippi lacks this defense and the instructions as a whole properly instructed the jury. |
| Admission of Ambien side-effects guide as evidence. | Guide supports unconsciousness defense; relevant to mens rea. | Guide is misleading/irrelevant to voluntary act; not a defense. | Admissible; did not constitute reversible error; jury properly instructed on voluntariness. |
| Motion for new trial based on weight of the evidence. | Verdict against Fortune given his memory gaps; evidence favored lack of awareness. | Record shows Fortune recalled key aspects and remained conscious; not against weight of evidence. | Not against the overwhelming weight of the evidence; verdict affirmed. |
Key Cases Cited
- Jobe v. State, 97 So.3d 1267 (Miss.Ct.App.2012) (entitles defendant to present his defense if supported by evidence)
- Keys v. State, 635 So.2d 845 (Miss.1994) (limits on permissible jury instructions; fairness in charge)
- Foreman v. State, 830 So.2d 1278 (Miss.Ct.App.2002) (discusses defense theories and instructional issues in Mississippi)
- Kircher v. State, 753 So.2d 1017 (Miss.2000) (involuntary intoxication and voluntariness of confession; evaluates defenses)
- People v. Halvorsen, 64 Cal.Rptr.3d 538; 165 P.3d 512 (Cal.2007) (California recognizes unconscioness automatism defenses; used as comparison)