Niles Maxey PETERSON
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*650 J. Niles McNeel, McNeel & Ballard, Louisville, David E. Bane, Jr., Clarksdale, for appellant.
Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Attorney General, Jackson, for appellee.
En Banc.
BANKS, Justice, for the Court:
The matter before the court involves an appeal from a conviction of rape and sexual battery on a two count indictment. Peterson received a sentence of twenty years for each count to be served concurrently. We reject most claims of error assigned by the appellant and affirm the trial court's ruling as to the rape conviction of the defendant. We conclude, however, that the indictment which charged the defendant for sexual battery was insufficient under Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice and this Court's line of jurisprudence and reverse that conviction.
I.
On September 1, 1991, Wendy Wright and a friend Christy Hitt were riding around Louisville in Wright's car when they happened upon the defendant Niles Peterson in the parking lot of Walmart. Wright and Peterson were both eighteen at this time. Having decided to go to the house of a mutual friend, Mike Quinn, Wright and Hitt followed Peterson to Quinn's home. Soon thereafter, Quinn joined the group, and the four of them went to Cooper's, a local convenience store, to park Wright's car.
After leaving Wright's car at Cooper's the group went riding around town, stopping at various points to smoke marijuana, drink alcohol and sniff the gas from the aerosol cans of whipped cream they had bought from the store. It is disputed as to who was smoking the marijuana, drinking the alcohol, or sniffing the gas from the cans of whipped cream. Throughout the evening, Wright and Peterson had encounters involving kissing and grabbing where it remains in dispute whether consent was given. The group eventually returned to Quinn's home and ate sandwiches later that evening.
Around 1:00 a.m., Wright decided to leave Quinn's home. Peterson agreed to give her a ride to her car at Cooper's. Wright testified that when they arrived at her car, Peterson proceeded to let her seat back, crawl on top of her, and lift her shirt out of her pants. Wright testified that after this incident she grabbed her purse and got out of the car. While Wright walked toward the back of the car Peterson was driving, Peterson began to push her toward the building. After pushing her toward the building, Wright testified that Peterson picked her up and slammed her on the ground. After screaming and begging him not to hurt her, Peterson allegedly ordered her to lay down or he would "knock the hell out of ... [her]."
Wright testified that she initially refused to lay down, and as a result he hit her and knocked her down. The two continued to struggle and Peterson struck her again. Wright testified that Peterson ripped her clothes off and threatened to slice her throat with a knife. Fearing for her life, Wright testified that she ceased struggling and Peterson began to rape her. She testified in brutal detail that she was raped and forced to perform oral sex four times before she was able to escape. While running away wearing no more than her socks and a blouse with all the buttons ripped off, she fell down several times and jumped a ditch. She further testified that she eventually stopped at a house *651 down the road from Cooper's and knocked on the door for help.
Peterson disagrees with Wright's testimony. Peterson testified that when the two of them arrived at Cooper's, they began kissing and fondling in the car until it became too small and crowded. Peterson stated that they then got out of the car and went over to the building and had consensual sex. He testified that they consensually had sexual relations once, and she consensually performed oral sex upon him. He also testified that they had not finished when she told him to "[h]old on" and ran toward Mike Quinn's home.
Peterson was indicted by a grand jury in Winston County, Mississippi, during the October term of 1991 on two counts. The first count was for the rape of Wendy Wright, a female human being above the age of fourteen years without her consent in violation of the provisions of Miss. Code Annotated 1972 § 97-3-65(2), as amended. The second count was for sexual battery consisting of the unlawful engagement in sexual penetration with Wright, a female human being above the age of fourteen years, by placing his penis into her mouth, constituting the act of fellatio, in violation of Miss. Code Annotated 1972 § 97-3-95 through § 97-3-103 (Supp. 1991).
The defense made several pre-trial motions concerning issues raised before this Court. The defense filed a demurrer to Count II of the indictment on the grounds that the indictment did not state that the sexual penetration occurred "without her consent" as required by Miss. Code Ann. § 97-3-95 (1972). After hearing arguments from both parties on this issue, the trial court overruled the demurrer based on this Court's ruling in Hines v. State,
The defense also stated that he intended to question Wright about a previous instance where Wright and the defendant were kissing as evidence of past behavior going to the defense of consent. The trial court ruled that the evidence of kissing and fondling was in fact "part of sexual behavior ... and part of a sexual relationship." However, he sustained the prosecution's motion in limine to preclude admission of the evidence based on Rule 412 of the Mississippi Rules of Evidence.
The third motion by the defense included an attempt to introduce evidence concerning an incident where Wright was called "a slut and a whore" during an argument with another female. The evidence was offered as relevant to Peterson's state of mind on the night of the offense. The trial court denied the defendant's motion based on irrelevance.
The defendant's fourth motion concerned a proffer of testimony by one Todd Vowell that Wright had told him on a date that she had been raped by a previous boyfriend in Philadelphia some time before moving to Louisville. The defense asserted that this evidence contradicts Wright's previous testimony during a preliminary hearing that she had never charged anyone or made allegations against anyone that she had been the victim of rape or sexual advances. Vowell's testimony was offered as relevant to prove that Wright had made a false allegation of a past sexual offense under Rule 412(b)2(C). The trial court again denied the defendant's motion based on its irrelevance.
After the jury selection process concluded, the trial court heard testimony from Vowell in chambers. Upon hearing this testimony, the trial court renewed its ruling sustaining the prosecution's motion in limine precluding the admission of Vowell's testimony. During the trial proceedings, the prosecution elicited testimony from Wright's mother concerning the emotional trauma and behavior of Wright after the alleged offense. After the direct examination of Wright's mother, the defense, in a hearing in chambers, again renewed its motion to introduce testimony of Todd Vowell concerning allegations of the previous sexual offense, as evidence of an alternative source of injury under Rule 412(b)2(A). The trial court again denied the defendant's motion based on the irrelevance of Vowell's testimony.
After the presentation of each party's case, the trial court informed the opposing counsel of the proposed jury instructions in a hearing in chambers. The defense objected to numerous jury instructions, including jury instruction S-7, which explained the defense of *652 intoxication. In spite of this objection, the trial court gave the instruction. After deliberation, the jury found the defendant guilty of one count of rape and one count of sexual battery. The trial court then sentenced Peterson to twenty years in prison for each count, to be served concurrently. Peterson now appeals to this Court to consider the following issues:
A) WHETHER THE TRIAL COURT ERRED IN DENYING PETERSON'S MOTION TO DEMUR TO COUNT II OF THE INDICTMENT CONCERNING THE SEXUAL BATTERY CHARGE;
B) WHETHER THE TRIAL COURT ERRED IN DENYING PETERSON'S REQUEST TO INTRODUCE EVIDENCE OF A PRIOR INCIDENT OF KISSING BETWEEN THE ALLEGED VICTIM, WENDY WRIGHT, AND PETERSON;
C) WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S ATTEMPT TO INTRODUCE A STATEMENT BY WRIGHT INFORMING PETERSON THAT SHE HAD BEEN CALLED A "SLUT AND A WHORE;"
D) WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE INTRODUCTION OF EVIDENCE THAT ON A PREVIOUS OCCASION WRIGHT MADE AN ALLEGATION OF A PAST SEXUAL OFFENSE;
E) WHETHER THE TRIAL COURT ERRED IN ALLOWING WRIGHT'S MOTHER TO TESTIFY CONCERNING THE "EMOTIONAL OR PSYCHOLOGICAL TRAUMA" ENDURED BY WRIGHT WITHOUT ALLOWING VOWELL'S TESTIMONY AS PROOF OF AN ALTERNATIVE SOURCE OF INJURY; AND
F) WHETHER THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-7 BECAUSE INTOXICATION OF THE DEFENDANT WAS NOT AN ISSUE OR AN ALLEGED DEFENSE IN THE INSTANT CASE.
II.
a.
Section 97-3-95, Mississippi Code 1972 Annotated (as amended) provides, in pertinent part, that a person is guilty of sexual battery if he or she engages in sexual penetration with another person without his or her consent. Peterson asserts that consent is a necessary element of the offense of sexual battery in this case; thus, the indictment on count two, sexual battery is insufficient because it lacked the words "without her consent."
It is a well-settled principle that the Supreme Court is the "ultimate expositor of the law of this state." UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc.,
The indictment on count two states:
That Niles Maxey Peterson, late of Winston County, Mississippi, on or about September 1, 1991, in Winston County, Mississippi, and within the jurisdiction of this Court, did wilfully, unlawfully, knowingly, intentionally, and feloniously engage in sexual penetration with Wendy G. Wright, a female human being above the age of fourteen (14) years, by then and there placing his penis into her mouth, the same constituting the act of fellatio, in violation of MCA § 97-3-103 (Supp. 1991), and against the peace and dignity of the State of Mississippi.
(R. 3). Peterson contends that the trial court erred in not sustaining his motion to demur/dismiss the count of sexual battery for lack of a sufficient indictment. Citing this Court's holding in Hines v. State,
It is a well-established principle of law that in order for an indictment to be *653 sufficient, it must contain the essential elements of the crime charged. May v. State,
In Love, this Court set forth the requirements for the sufficiency of an indictment. This Court stated:
[i]t is fundamental ... that an indictment, to be effective as such, must set forth the constituent elements of a criminal offense; if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient... . Every material fact and essential ingredient of the offense every essential element of the offense must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment. See ibid, secs. 51-63, 79; 42 C.J.S., Indictments and Informations, Sections 130-137-138. (Emphasis added).
Love v. State,
This Court adopted the Uniform Criminal Rules of Circuit Court Practice (hereinafter "the Uniform Criminal Rules") in 1979. A relevant inquiry exists as to whether the adoption of the Uniform Criminal Rules has in any way attenuated the requirements for the sufficiency of an indictment. We hold that it has not.
Rule 2.05 of the Uniform Criminal Rules states:
[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall full notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.
An indictment shall also include the following:
(1) The name of the accused;
(2) The date on which the indictment was filed in each court;
(3) A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
(4) The county and judicial district in which the indictment is brought;
(5) The date and if applicable the time, on which the offense was alleged to be committed. Failure to state the correct date shall not render the indictment insufficient;
(6) The signature of the foreman of the grand jury issuing it; and
(7) The words "against the peace and dignity of the state". (Emphasis added).
*654 The requirements set forth in Rule 2.05 track the language announced by this Court in Love v. State and the numerous cases which followed, and are based upon the well-settled principle that the indictment must contain the "essential elements" of the crime charged. Subsequent to the adoption of the Uniform Criminal Rules, this Court has referenced Rule 2.05 in determining the sufficiency of indictments. See Holloman v. State,
In Harden, this Court examined the sufficiency of an indictment for attempted rape, where the issue was whether the indictment sufficiently alleged that the defendant executed an "overt act" toward the commission of the crime. Harden v. State of Mississippi,
The trial court based its ruling on this Court's holding in Hines v. State, where the Court stated that "an indictment which charges sexual penetration of an identified victim on a specified date in a specified geographical location, including the charge that the acts were committed `unlawfully, wilfully and feloniously' and a typed label at the top reading `SEXUAL BATTERY MCA 97-3-95(a)'" is sufficient to charge the defendant with the crime of sexual battery. Id. at 390. While it is not noted in the above quote, the indictment in Hines also included the "essential fact" that the act was committed "without the consent of ..." the victim. Thus, Hines does not stand for the proposition that an element of the crime may be omitted within the indictment.
The State also relies upon this Court's holding in Harbin v. State,
This Court has yet to hold that the essential elements of the crime charged are not necessary to be included within the indictment. This Court in Roberson held that an indictment which cited a statute, rather than the specific subsection of the statute, was sufficient to "provide the defendant with notification in fact of the nature of the charge against him and out of what transaction or occurrence it arose." Roberson v. State,
In holding that an indictment was sufficient, this Court in Holloman stated that an indictment which includes the seven items enumerated in Rule 2.05 is sufficient to provide the defendant with notice of the charge against him. Holloman v. State,
The State is correct in asserting that this Court has held that an indictment need not use the precise words of the statute. See Allman v. State,
Rule 2.05 cannot be considered apart from the fundamental principle preceding it, that the essential elements of the offense must be alleged in order for an indictment to be sufficient. The right of the accused to be informed of the nature and cause of the accusation against him is essential to the preparation of his defense. King v. State,
Other than sexual penetration with another person without his or her consent, an individual may be guilty of sexual battery in violation of Miss. Code Annotated 1972 § 97-3-95 by: (1) engaging in sexual penetration with a child under the age of fourteen years or (2) engaging in sexual penetration with a mentally defective, mentally incapacitated or physically helpless person. As a result of the indictment's failure to allege lack of consent, Peterson reasonably could have prepared a defense refuting a charge that Wright was not mentally defective, while the prosecution would have prepared a case based on Wright's alleged failure to give consent. Thus, he did not have the actual notice necessary to properly prepare his defense.
The fact that the indictment is integral to the preparation of an individual's defense is also evident from our post 2.05 holdings that once an individual has been indicted by a grand jury, such an indictment can be amended only "if [such an amendment] does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Ellis v. State,
b.
Peterson also argues that the trial court erred in not allowing the defendant to question Wright about a previous incident where Wright and the defendant were kissing at a friend's home a month prior to the alleged incident. Although asserting that the incident may not have been characterized as past sexual behavior, the defendant sought to inquire about the incident as evidence of the parties' familiarity with each other which would presumably support the defense of consent. The trial court stated that such conduct "is a part of sexual behavior ... [and] a part of a sexual relationship." Subsequent to its determination that the kissing between the parties was a part of a past sexual relationship, the trial court denied its admissibility based upon Mississippi Rule of Evidence 412.
Under the Supreme Court's standard of review, the admissibility of evidence rests within the discretion of the trial court. Baine v. State of Mississippi,
Rule 412(b)2(B) of the Mississippi Rules of Evidence provides, in pertinent part, that evidence of a victim's past sexual behavior other than reputation or opinion evidence is not admissible unless such evidence other than reputation or opinion evidence is behavior that occurs with the accused, and is offered by the accused on the issue of whether the victim consented to the alleged sexual offense. The trial court did not consider this provision of Rule 412 before making its determination that the evidence of sexual conduct between Peterson and Wright was inadmissible.
On the contrary, the court merely confirmed that the kissing between the parties was in fact sexual conduct and made no reference to the exceptions to the general rule of inadmissibility of a victim's past sexual behavior. One such exception lies where the past sexual behavior occurs between the parties and it is offered by the accused to support the defense of consent. This exception was sufficiently offered by the defendant, and the issue was properly preserved for review. See Collins v. State of Mississippi,
The mere fact that the trial court committed error in an evidentiary ruling does not by itself warrant a reversal by this Court. See Jackson v. State,
In order to assist this Court in determining whether the evidence of kissing would have had any bearing on a jury's finding of consent, the defense could have defined the nature of the alleged kissing more clearly during its pre-trial motion. The defendant should have also been able to state definitively when the conduct occurred in order to properly assist this Court in determining its relative significance. As it stands now, there is not sufficient evidence before this Court to characterize the trial court's mistake as anything more than harmless error.
There are several facts within this case which are not disputed. Wright and the defendant were previously acquainted. The defendant describes himself as "high" or intoxicated on the night of this incident. During the sexual encounter between Wright and the defendant, Wright received a bruise to her cheek, a vaginal tear and a large bruise to her head. Wright also ran away from the scene where intercourse had taken place in a distraught, frantic manner, wearing nothing more than an open bra, a blouse with the buttons torn off and her socks.
Although the defendant was not allowed to introduce evidence of kissing between Wright and himself to prove the existence of a previous relationship, he was allowed to testify regarding incidents of kissing and fondling on the night of the offense. Furthermore, the defense failed to demonstrate the significance and nature of the previous kissing between Wright and Peterson. Considering this testimony in conjunction with the overwhelming weight of the evidence within the *657 record, we conclude that the denial of the admission of this evidence was harmless error which does not warrant a reversal by this Court.
c.
Peterson contends that the trial court erred in denying the introduction of a statement made by Wright to him that during an argument on the evening of the incident, another female referred to Wright as a "slut and a whore." The evidence was offered by the defendant as proof of the defendant's state of mind prior to the alleged offense. The defense also asserted that the evidence was relevant "on the issue of consent as to any sexual advances that may have been made later in the evening." The trial court held that such a statement "even if she related it to somebody else, is irrelevant to the issue in this case." On appeal, the defense asserts that this evidence, along with the previous "foreplay" engaged in between the parties, formed part of the defendant's state of mind as to what the defendant could expect regarding sexual relations.
Although this evidence is an out of court statement made by the alleged victim, it is offered to prove the defendant's state of mind, rather than the truth of its assertions. Thus, it is not hearsay under the Mississippi Rules of Evidence. However, the trial court was within its discretion in determining that the evidence offered by the defendant was irrelevant. Under Rules 412(c)(2) and 412(c)(3), the trial court may determine on the basis of a hearing that the evidence of the alleged victim's past sexual behavior which the defendant seeks to offer is irrelevant. Miss.R.Evid. 412(c)(2), 412(c)(3); See also, Miss.R.Evid. 401.
In this case, the defendant inquired as to whether or not the trial court understood its basis for offering the evidence, and the court responded by reasserting that the evidence was irrelevant to the proceedings at hand. The court stated:
"How could his state of mind you mean because she said somebody called her a slut that that encouraged him into the act. I think its irrelevant."
It is clear from the record that the court made a determination as to the relevance of the evidence. Thus, the trial court's determination as to the admissibility of the statements in question was well within its discretion and will not be disturbed. Johnson v. State,
d.
The defense attempted to offer evidence that during the preliminary hearing, Wright was specifically asked if she had ever charged or made allegations against anyone in regard to a sexual offense to which she stated that she had not. Subsequently, the defense attempted to offer the testimony of one Todd Vowell who alleged that Wright had informed him during a date that she had been the victim of a previous sexual offense in Philadelphia, Mississippi. The evidence was offered as proof of a false allegation of a past sexual offense under Rule 412(b)(2)(C) of the Mississippi Rules of Evidence. The trial court considered the arguments of the parties and determined "that the issue in this trial is the guilt or innocence of this Defendant of the acts charged at the time ..." and declared the evidence to be irrelevant.
Initially, the relevant inquiry as to the defendant's assertions is whether the cross-examination of Wright during the preliminary hearing was improper. The defense asked Wright whether she had ever charged or made allegations against anyone regarding rape or sexual advances. This question was improper under Rule 412 of the Mississippi Rules of Evidence. Rule 412 prohibits the introduction of evidence of a victim's past sexual behavior unless it falls under one of the three exceptions in Rule 412(b)(2). The question was not whether she had made any false allegations of a past sexual offense admissible under Rule 412(b)2(C), rather it was whether she had made any allegations at all of such an offense and is therefore improper. The purpose of Rule 412 is to prevent the defense counsel from putting the victim on trial or unfairly invading the victim's privacy and deflecting the jury's attention from the true issue. Goodson v. State,
*658 The trial court held that the testimony of Todd Vowell was irrelevant. It is a well-settled principle that it is error to allow a witness to be impeached on a collateral matter, as the defense attempted to do. Johnson v. State,
The defense was not allowed to prove that Wright had made an allegation that she had previously been the victim of a sexual offense under Rule 412 because of its general prohibition against evidence of the victim's past sexual behavior. Todd Vowell would have testified that Wright made an allegation of a previous sexual offense. His testimony would not have been that she made a false allegation of a previous sexual offense. Thus, the testimony would have concerned Wright's past sexual behavior falling under no exception within Rule 412(b)(2). The defendant was not allowed to introduce evidence of the victim's past sexual behavior, thus, the offered testimony of Todd Vowell was collateral and therefore inadmissible to impeach the witness.
As previously expressed, "the relevancy and admissibility of evidence is largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnson v. State,
e.
During trial, the prosecution elicited testimony from Wright's mother concerning the emotional and psychological trauma that her daughter suffered after the alleged rape and sexual battery. Subsequent to this testimony, the defense renewed its motion that Vowell's testimony that Wright had previously been the victim of a sexual offense should be allowed under Rule 412(b)(2)(A) as proof of an alternative source of injury. The trial court again denied the admission of this testimony based on irrelevance.
Rule 412(b)(2)(A) of the Mississippi Rules of Evidence provides, in pertinent part, that evidence of a victim's past sexual behavior other than reputation or opinion evidence is not admissible unless such evidence is past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury. The defense cites People v. Garvie,
The more factually similar of these cases is Heflin, where the Court held that it was reversible error in a rape prosecution to exclude testimony given to a physician by the victim that she had last had sexual intercourse with her boyfriend within a week of the offense, that the victim was with her boyfriend two and three days before the alleged rape and wore the same bathing suit in which the seminal fluid was found, and that the victim had the same blood type as the defendant and could therefore have been the source of the sperm found in the bathing suit. Heflin v. State,
The facts in this case do not warrant a similar conclusion. The trial court made a finding that the testimony of Todd Vowell was irrelevant to the instant case, and that its probative value was outweighed by its prejudicial effect when offered to prove that Wright had made a false allegation of a past sexual offense. It cannot be said that the trial court's finding of irrelevance becomes any less legitimate with the introduction of testimony from Wright's mother.
Wright's mother, Dot Anderson, testified that Wright's emotional condition completely changed after the alleged offense occurred on September 1, 1991. She testified as to her daughter's state of withdrawal, unwillingness to leave the house or go anywhere unaccompanied, as well as her treatment by psychologists, all of which occurred after September 1, 1991. The defense alleges that Vowell's testimony may be relevant as evidence of an alternative source of injury. However, Vowell's testimony concerns an event that at the very least would have occurred over five months prior to the present offense, which is substantially longer than the period of time which past between the past sexual behavior offered and the alleged offense in Heflin. The causal relation between the evidence the defense seeks to introduce and the emotional trauma suffered by the victim is remote at best.
f.
The defendant's final assignment of error concerns the trial court's alleged error in giving instruction S-7, which is a standard McDaniel instruction adopted by this Court in McDaniel v. State,
The Court instructs the jury that in order for intoxication to be a defense to a crime, the intoxication must be involuntary on the part of the defendant, and must be to such a degree as to make the person committing the crime unable to know the nature and quality of the act he is committing, or if he did understand them, that he did not know what he was doing was wrong.
The defense contends that the instruction constituted false and misleading information to the jury because the defendant never attempted to use his intoxication as a defense. As a result of this instruction, the Peterson contends that he was prejudiced.
A jury instruction may be improper if it incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions. Murphy v. State,
Peterson fails to cite any authority in support of his position. This Court has held that it is the affirmative duty of an appellant to provide authority in support of an assignment of error. Barnes v. A Confidential Party,
There is ample authority to support the trial court's actions in giving the jury instruction. This Court in Norris v. State,
As in Norris, the defendant in the present case asserts that the trial court committed error in giving the McDaniel instruction because intoxication was not asserted as a defense. However, the defendant did testify that he was both drunk and high at the time the alleged offense occurred. From this testimony, a jury could reasonably infer that the defendant was not aware of his actions, thus not having the requisite intent to commit the crime. Therefore, the defendant made his intoxication an issue in this case, and it was proper for the trial court to give instruction S-7 to the jury.
Furthermore, when read as a whole, it is clear that the jury instructions were proper as to the State's burden of proof and the elements of the applicable crimes. Thus, the defendant was not prejudiced in this case by instruction S-7 even though intoxication was not an alleged defense to the crime. See Id. The jury was fully and fairly instructed by the other instructions. We therefore decline to reverse the trial court's holding on the basis of improper jury instructions.
Peterson's conviction for the charge of rape is affirmed. For the foregoing reasons, however, Peterson's conviction for the charge of sexual battery is reversed based on the insufficiency of the indictment.
COUNT I: CONVICTION OF RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. COUNT II: REVERSED AND RENDERED.
DAN M. LEE, C.J., and PRATHER and SULLIVAN, P.JJ., concur.
McRAE, J., concurs in result only.
JAMES L. ROBERTS, Jr., joins this opinion in part.
PITTMAN, J., dissents as to count II with separate written opinion joined by JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ.
PITTMAN, Justice, dissenting:
Justice Banks in his majority opinion attempts to return this Court to a standard that since 1979 has been modified. Prior to the enactment of the Uniform Rules of Circuit Court, this Court did hold that an indictment must contain the elements of the crime. We held indictments to a strict standard of review. The statement that "[i]t is a well-established principle of law that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged" strays from this Court's holdings since 1979. Except for one, all the cases Justice Banks cites to uphold this bold statement are dated prior to 1979. He specifically cites to Love v. State for the proposition that "[e]very material fact and essential ingredient of the offense every essential element of the offense must be alleged with precision and certainty," Love v. State,
In Harden v. State, we examined the sufficiency of an indictment.
[s]ince the adoption in 1979 of the Mississippi Uniform Criminal Rules of Circuit Court Practice, all questions regarding the sufficiency of indictments have been determinable by reference to Rule 2.05 thereof. This rule articulates seven elements that shall be included in any indictment (and with respect to which there is here no issue) and then directs that
the indictment upon which the defendant is to be tried shall be a plain, concise *661 and definite written statement of the essential facts constituting offense charges and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.
Rule 2.05 requires notification in fact of the nature of the charge against the defendant and out of what transaction or occurrence it has arisen. If an indictment reasonably provides the accused this actual notice and includes the seven specific items enumerated in the rule, it is sufficient.
Harden,
The lower court held that the indictment in the present case was sufficient based upon our ruling in Hines v. State,
The Court then said:
In the final analysis, our inquiry is whether the indictment contains
a plain, concise and definite written statement of the essential facts constituting the offense charged and ... fully (notifies) the defendant of the nature and cause of the accusation against him.
Rule 2.05, Unif.Crim.R.Cir.Ct.Prac.
We hold that an indictment which charges sexual penetration of an identified victim on a specified date in a specified geographical location, including the charge that the acts were committed "unlawfully, wilfully and feloniously" and a typed label at the top reading "SEXUAL BATTERY MCA 97-3-95(a)" charges the accused with the criminal offense of sexual battery with such force that his demurrer will be unavailing. See Harden v. State,
Hines,
an indictment which charges sexual penetration of an identified victim on a specified date in a specified geographical location, including the charge that the acts were committed "unlawfully, wilfully and feloniously" and a typed label at the top reading "SEXUAL BATTERY MCA 97-3-95(a)" charges the accused with the criminal offense of sexual battery with such force that his demurrer will be unavailing.
Hines,
We have held consistently since the adoption of the rules that the only requirement of the indictment is that it provide notice to the defendant and include the seven enumerated *662 items in Rule 2.05 of the Uniform Rules of Circuit Court. The majority would return the Court to the strict standard of the pre-rules cases without overruling those cases.
In Jones v. State,
Our Uniform Criminal Rules of Circuit Court Practice were formally adopted August 15, 1979. The rules were in effect at the time of the return and filing of the original indictment in this cause on February 20, 1981. The sufficiency under Mississippi law of the form of that indictment, accordingly, is determined according to Rule 2.05.
Jones' reliance upon Section 99-17-20, an enactment of the Legislature of the State of Mississippi, is ultimately without merit for reasons we trust are obvious and accepted at this point in time. The form of an indictment being a matter purely procedural, it is this Court's prerogative and responsibility to adopt rules regulating the same. Rule 2.05 provides for a full and fair protection of the rights of accused. The rules fully regard the due process rights of the accused to reasonable advance notice of the charges against him.
Jones,
In Roberson v. State,
Rule 2.05 of the Unif.Crim.R.Cir.Ct. Prac. has as its object to provide the defendant with notification in fact of the nature of the charge against him and out of what transaction or occurrence it arose. If it reasonably provides the accused with actual notice and includes the seven enumerated items then the indictment is sufficient. Armstead v. State,503 So.2d 281 , 283 (Miss. 1987).
Roberson,
The bottom line is that we refer to Rule 2.05 to determine whether the indictment is sufficient to give notice. In Holloman v. State,
For the foregoing reasons, I must respectfully dissent. I am of the opinion that the indictment was sufficient to give the defendant notice as required by this Court.
JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., join this opinion.