IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01704-COA LESLIE DANIELLE DEWITT A/K/A LESLIE D. DEWITT APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/17/2016 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS, JR. COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM L. DAVIS, III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 05/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Leslie Danielle Dewitt appeals her conviction f o r two counts of touching a child f o r lustf ul purposes pursuant to Mississippi Code Annotated section 97-5-2 3 ( 2 ) (Rev. 1998). Dewitt argues that a new trial is w arranted because of t he service of a n unqualif ied juror who withheld disqualif

y i ng inf o rm ation, t he trial court incorrectly denied a m otion to prevent the adm ission of a recorded c onversation involving the appellant, and the trial court com m itted reversible error i n deny i ng the introduction of a lesser-included jury instruction. W e f ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY¶2. L e s l i e Danielle D ewitt, a f em ale and once junior high a nd high school girls’ basketba l l coach at Hancock High School, was convicted of t wo c ounts of touching a c h ild f or lustf ul
purposes. The child, B ethany Foster, 1 also f em a le, was a tenth-grade b asketball play er under Dewitt at Hancock. ¶3. Foster testif

ied a t trial that her and Dewitt’s play er-coach relationship, which began in junior high school a nd throu g h basketball, d eveloped over tim e d uring her high school

y ears. Foster would routinely practice with D ewitt af ter school-hours and baby sit her son at Dewitt’s hom e. The two m aintained a close relationship f or y ears prior to trial. ¶4. Foster also testif

ied that while in h igh school in Decem ber 2009, s he was sixteen y e a rs old and s p ending the night at Dewitt’s h o u s e w ith a team m ate. Foster stated that af ter
every one else had gone t o sleep, Dewitt com m itted s e xual acts against her. Foster testif ied that Dewitt kissed Foster, placed her hand o n Foster’s vagina, and plac e d h e r f i n gers in
Foster’s vagina. Foster testif ied that the phy sical aspect of their relationship was repeated

on m o re than twenty occasions f rom Decem

b e r 2 0 0 9 u n til July 2010. It becam e routine.
Foster also testif

ied that during this tim e Dewitt placed h er m outh on Foster’s vagina and also used a sex toy

on Foster’s genitals. Dewitt denies that any sexual conduct ever occurred. ¶5. Foster did n ot t ell any one about the nature of the relationship. She t estif ied that it was

too em barrassing and that she was concerned what her f riends and f

am ily would think given their religious background and the im pact it could have on Dewitt. However, despite their best ef f orts, som e sem

blance of a r elationship b etween the two becam e evident to others, and

1 F o r p riv a cy

p u rp o ses, w e su b stitu te f i ctitio u s n am es f

o r m in o r ch ild r en . 2af

ter repeated f

ailed a ttem

pts by Hancock school adm inist r a t ors to get D ewitt to distance herself f rom Foster, Dewitt was f

orced to resign. Foster and Dewitt rem ained in contact. ¶6. In J anuary 2013, Foster r eturned hom e f rom c ollege, struggling with depression and anxiety that she testif

ied stem m ed f

rom her past relationship w ith Dewitt and t he subsequent conf usion it caused h er. W hile hom e , Foster told her m other, Mon i q u e , about the sexual relationship between her and Dewitt f or the f irst tim e. ¶7. Moni q u e t h en took Foster to the police station to report the m isconduct. Monique testif i ed at trial that s h e later decided to conf ront Dewitt about t he a ccusations and record the conversation on her cell phone. A f ter letting the police know o f her intentions, the police asked i f s h e w ould be willing to use their recording device, i nstead of her cell phone, to record the conversation. Monique agreed. The police provided Monique with a recording device and f

ollowed her to m eet Dewitt and observe the encounter f rom a distance. The police did not of

f er Monique any advice f

or techniques to use d u r ing the conversation or assistance in carry ing out the act. ¶8. Monique c onf

ronted Dewitt in the par k i n g l o t o f P e a r l R iver High School where Dewitt had just f

inished coaching a basketball gam e. W hile Monique d id not phy sically
f orce Dewitt into her car, Monique threatened to “m ake a scene” if Dewitt did not agree to get in the car and speak with her. Dewitt and Monique g ot into D ewitt’s car and Monique recorded the conversation unbeknownst to Dewitt. In the recording, Dewitt m ade allegedly incrim inating statem ents without i nstruction regarding Miranda r ights. 2 Af ter the encounter,

2 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ). 3Monique returned the recording and recording device to the police. Later that night, Dewitt

went to the police station on her own accord where she was i nf orm ed of her Miranda rights bef ore giving a statem ent. She was a r rested about two m o nths l ater in March 2013. Prior

to trial, Dewitt f

iled a m otion in lim ine to exclude the recording. T h e mo t i o n w as denied, and the recording was play ed f o r the jury

over Dewitt’s objection. ¶9. Af ter jury d eliberations b egan, but bef ore the j ury reached a v erdict, t he circuit clerk discovered t hat one of the jurors, Sim m ons, was not a registered v oter of Hancock County and had only lived in t he county f or two m onths p rior to trial. As the trial judge stated, Sim m ons appeared in c ourt because he was responding to a jury s um m ons that was issued

to his address in Hancock County

. Although it i s believed that t he sum m ons was m eant f or

a prior o c cupant of the sam e address, Sim m ons received the sum m ons, appeared in c ourt, and went through all of the juror qualif ication process. ¶10. Bef

ore trial, the trial judge, the State, and the def ense couns e l a l l a g r e e d that to the best of their knowledge the trial court properly i m p aneled and swore in the j ury , a com plete and p roper v oir d i re w as conducted, and all o f the jurors were accepted in accordance with the com petent juror qualif

i cations under Mississippi Code Annotated section 13-5-1 (Rev. 2012). The trial judge states in the record t hat he “ s pecif ically ask[ ed] the question, y ou m ust be either a qualif

ied elector o r resident f

reeholder of t he [ county ] f o r m o re than one y ear.” However, there is n o evidence of t his actual line of q uestioning of the jurors by the trial judge or the jurors’ responses to the questions in the record. ¶11. W h ile the inf

orm ation regarding how lon g S i mmo n s h a d l ived in the c ounty was

4available to each side’s counsel prior to t r i a l o n t he juror’s i nf orm ation card, his voter registration status was n o t. Dewitt alleges t h a t S i mmo n s withheld inf orm ation that would have a llowed her to strike h im f or cause. Again, according to the record, the parties at trial

seem to agree that the jury

was properly questioned during voir dire, but there is no record of the actual questioning or responses f rom the jurors. Upon hearing of the clerk’s d iscovery , and bef ore a verdict w as reached, Dewitt quickly m oved f or a m istrial b ased on Mississippi
C o d e A n n o t ated section 13-5-1. However, a c cording to the trial judge, S im m ons did not i n t e n t i o n ally d o any

t hing wrong. He responded to a sum m ons issued to his address, wa s subjected to voir dire by both sides, and was accepted by e ach. Accordingly , t he m otion was denied. ¶12. The jury rendered the verdict of guilty of Counts III and IV f or touching of a child f

or lustf ul purposes. Dewitt was subsequently sentenced to the m axim

u m s of f if t een y ears f

or Count III and f

if teen y ears f

o r Count IV to run consecutively f or a total of thirty y ears in the custody of the Mississippi Departm ent o f Corrections. T he sentence i s set to be served day

to-day w ithout the p o ssibility of p ardon, parole, early release, o r s u spension. Dewitt was f urther ordered to register as a sex of f ender.
ANALYSIS
I. W hether the trial court correctly denied Dewitt’s Motion for New Trial despite the service of an unqualified juror. ¶13. Dewitt argues that Juror 3-26, Sim m ons, was a n incom petent juror because he was not

a registered voter in Hancock C o u n t y a t the t im e o f t rial and had only lived in Hancock County f or two m onths prior t o trial. She a lleges tha t S im m ons withheld this inf orm ation

5which would have supported a strike f or cause. Because Sim m o ns served on the j ury despite b e ing u nqualif

ied, Dewitt a rgues f

or a m istrial and that she should be g ranted a new tr i a l

. ¶14. The “standard of review f or the denial of a m otion f or m i strial i s abuse o f

discretion.” Spann v. State , 771 So. 2d 8 83, 889 (¶9) (Miss. 2 000). “[ A] m otion f or a new trial challenges the weight of the evidence.” Jones v. State , 1 54 So. 3d 872, 880 ( ¶24) (Miss. 2014). “W hen reviewing a challenge t o the w eight of the evidence, the C ourt will disturb a jury verdict only when it is so cont r a r y t o the overwhelm ing weight of t he evidence that to allow it to stand would sanction an unconscionable injustice.” Id. ( quotation m arks om itted). The decision

to declare a m istrial is in the s ound d iscretion of t he court

. L o c k r i d g e v. State , 768 So. 2d 331, 337-38 (¶12) (Miss. Ct. App. 2000). T his d ecision should not be disturbed unless it was an abuse of

discretion. B ass v. State , 597 So. 2d 182, 191 (Miss. 1992). ¶15. In order to be q

ualif ied as a com

p etent juror, residency in the county f or at least one

y ear or v oter r e g i stration in the county is required. Mississippi Code Annotated section 13-5-1 (Rev. 2012) provides, in pertinent part: Every citizen not under t he age of twenty -one y ears, who is either a qualif ied elector, or a resident f

reeholder of the county f

or m ore than one y ear, is able to read and write, a nd has not been c onvi c t e d o f a n inf am ous crim e, or the unlawf u l sale of intoxicating liquors within a period of f ive y ears and w ho is not a com m on gam

bler o r habitual drunkard, is a com p etent j uror. N o person who i s or has b een within twelve m onths the overseer of a public r oad or road contractor shall, however, b e com petent t o serve as a grand juror. The lack of any such qualifications on the p art of one or more jurors shall n ot, however, vitiate any indictment or verdict. (Em phasis added). “This C ourt is required to reverse the trial c ourt when this C ourt clearly is of t he opinion that a j uror wa s not com petent.” Langston v. State , 791 So. 2 d 273, 281

6(¶17) (Miss. Ct. App. 2001).

¶16. As conf

irm ed by both sides during oral argum ent, although there is no record of the actual section 13-5-1 questioning of the jurors b y the trial judge, b o t h the S tate’s and the
A p p e l l a n t ’ s counsel stipulated the questions were asked o f the jury

. W hen the trial court asked w h e t her S im m ons w as to be accepted, b oth sides agreed, and neither side objected during t he em

p aneling of the jury

. D ewitt’s attorney did not object to S i m m ons’s participation until af

ter the jury

began deliberating. ¶17. Ty pically , “[ i]f a party f

ails to object to a j uror bef ore t he j ury is em

p aneled, that party waives any

right to com

p lain of the jury ’s com

p osition at a later tim e.” L angston , 791 So. 2d at 281 (¶17). “However, there are certain circum s tances where a juror m ay be excused af ter he has already

been accepted.” Id

. ¶18. A juror m a y be dism issed af ter the jury h a s b e e n e mp a n e l e d in two instances: (1) where the juro r i s unable to perf orm his duties; and (2) w here the j uror is disqualif ied. McNeal v. State , 617 So. 2d 999, 1003 (Miss. 1 993) (citing Miss. Code Ann. § 13-5-1). A juror m ay be d isqualif

i ed if he withholds or m i srepresents inf orm ation upon being asked a “clearly worded” question during voir dire. McNeal , 617 S o. 2d at 1003; see M iss. Code
Ann. § 13-5-67 (Rev. 2012). This is what Dewitt alleges happened. “ I f i n f orm ation is withheld by a j uror and the evidence s hows that a f uller and m ore com

plete r esponse or any
response a t a ll w ould have provided a legitim ate basis f or challenge, the trial court m ust grant

a n e w t r i a l a n d if it does not, this Court m ust reverse on appeal.” Langston , 791 So. 2 d at 281 (¶18) (citing Myers v. State , 565 So. 2d 554, 558 (Miss. 1990)).

7¶19. Upon exam ination of a juror’s com petency , “[ i ]t is the duty of t he trial c ourt to assess whether the question asked of the juror was ‘(1) relevant to t he voir dire exam i nation; (2) whether i t w a s u n a m

biguous; and (3) whether the juror had substantial knowledge of the inf orm ation sought to be elicited.’” Langston , 7 9 1 S o . 2d at 281 (¶19) (quoting Odom v. State , 355 So. 2d 1381, 1383 (Miss. 1978)). “ If the c o u r t f i n d s that these i nquiries point unequiv o c ally to the f

a ult of the juror, it then m

ust ask w hether there was prejudice to the def endant resulting f

rom the juror’s f

ailure to respond accurately t o a voir di r e q u e s t i on.” Id. The d ef

e nse, in this case Dewitt, bears the burden of showing s he w as “prejudiced by the jury s elected or that t he jury was biased or less than im partial.” George v. State , 812 So. 2d 1103, 1108 (¶22) (Miss. Ct. App. 2001). Since “there i s no f irm r ule guiding the courts in
every given situation of

voir dire exam ination, these m a tters m ust be determ ined on a case by case basis.” L angston , 791 So. 2d at 281 (¶19). ¶20. W e c ann o t t o d a y k n o w h o w the trial judge would have conducted h is voir dire if Dewitt had objected or raised these issue s i n a tim ely m anner bef ore t he trial judge. According t o a ccounts in th e r e cord b y the trial judge, the State’s attorney , and Dewitt’s attorney , t he trial judge clearly asked the nec e s s a ry and relevant questions to the jury to satisf y Mississippi Code Annotated section 13-5-1— even though the record is void of the actual questioning and juror responses. ¶21. Dewitt argues on appeal that S im m ons’s service on the jury prejudiced her because he h a d not been a resident of Hancock County lo n g e n o u g h to appreciate its close-knit

com m unity f eel. However, Dewitt’ s a t t o rney ’s actions stand in direct contradiction to her

8argum ent. Dewitt’s attorney m ade no objection as to S im m ons’s adm ission d espite his juror

card plainly stating he h ad only l ived in Hancock County f or two m onths. Additionally , two other jurors did not even provide an answer to the term -of -residency

question on their jury cards, one of

whom served on the jury with Sim m ons. Dewitt’s a ttorney also f ailed to ask
any f u r ther questions regarding Sim m ons’s voter registration status. W h en Dewitt and her attorney decided between challe n g i n g S im m ons or another j uror with their last challenge, Dewitt’s attorney chose the other juror and m ade no request f or additional challenges, despite knowing that Sim m ons had only lived in the County

f or two m onths. ¶22. Dewitt states that S im m ons acti v e ly withheld inf orm ation f

rom t he court which would have supported a s trike f

o r cause, but there is no indication in t he record of Sim m o ns giving

m isleading o r incom

plete answers. There is no e vidence of f ault on Sim m ons’s part. By all

accounts he served as a f

air and im partial juror. “ [ A ] p arty who f ails to object to the jury ’s

com position bef

ore it is em

paneled waives any right to com plain thereaf

ter.” Myers , 565 So. 2d at 557. Additionally , “any f l aws in the judge’s exam ination of the panel are m itigated by the leeway allowed def

ense counsel i n his p hase o f t he voir dire.” Bell v
. State , 725 So. 2d 836, 844 (¶10) (Miss. 1998). Dewitt’s attorney did not take advantage of the leeway allowed

to h i m d u r i n g t h e voir dire, so we cannot determ ine that any m issing inf orm ation on Sim m ons’s part was “unequivocally

. . . the f aul t o f the j uror,” nor do we f ind there was adequate prejudice against the def endant. Langston , 791 So. 2d at 281 (¶19). ¶23. Looking at the sim ilar case of Bell : [ h]aving said t his, w e h a v e a lso exam i ned the record of the voir dire by the trial court as to p ossible p l a i n e rror, and although we cannot say that the

9m anner of exam ining the jury panel was desirable, i ts def ects do n ot rise to the level of f undam e ntal constitu t i o n a l e rror. W e do note, h owever, that trial judges should exercise caution in perf orm ing their prof

ound duty to select f

air, im p artial and com

p etent j uries. W o rds com in g f rom the judge bear special weight wi t h those citizens who are asked to try the f acts o f cases, both civil and crim inal. Bell , 725 So. 2d at 844 (¶11). W hile we acknowledge that Sim m ons’s apparent status as a

new resident who h a d n ot registered to vote in the county is in conf lict with Mississippi Code Annotated section 13-5-1, “we agree with the case law and f ind that thi s w as not such an

error as to require t he verdict a nd sentence in this c ase to be overturned.” W r ight v. State , 805 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2001). W e do not f i nd that “there was prejudice

to the d ef

endant resulting f

rom the juror’s f

ai l u r e t o respond accurately to a voir dire question” so as to constitute a new trial. Langston , 7 91 So. 2d at 2 8 1 (¶19). Further, as it is stated in section 13-5-1, “[ t]he lack of any such qualif ications on t he part o f o ne or m ore jurors shall not . . . vitiate any indictm e nt or verdict.” ¶24. Based o n our review of the record, we cannot say this was an a buse of discretion. W e f ind no m e rit to this issue.
II. W hether the trial court abused its discretion i n d enying Dewitt’s motion to exclude the recorded conversation between Dewitt and the victim’s mother. ¶25. Dewitt next argues t hat the adm ission o f the recorded conversation between Monique and Dewitt violated Dewitt’s constitutional rights. Dewitt a l leges that M onique was acting

as an agent of law e nf

orcem ent in terrogating Dewitt and h er r ecorded statem e n ts, which were introduced a t t rial, w ere e licited without a Miranda warning. Dewitt f urther alleges that her Fourth and Sixth Am endm ent rights were violated.

1 0¶26. “A trial judge enjoy s a great deal of discretion as to the relevancy and adm issibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse t his ruling.” Hughes v. State , 735 So. 2 d 238, 270 (¶134) (Miss. 1999). “ The applicable standar d f o r determ ining w hether a conf ession is voluntary is whether, t aking into consid e r a t ion the ‘totality of the circum stances,’ the statem ent is the product of the accused’s ‘ f ree and rational’ choice.” U.S. v. Rogers , 906 F.2d 1 89, 190 (5th Cir. 1990). ¶27. “The purpose of M iranda w arnings is to p rotect the individual’s constitutional rights against illegal governm ent intrusion.” DeLoach v
. State , 722 S o. 2d 512, 518 (¶26) (Miss. 1998). “Once proceedings a gainst a def endant reach the accusatory stage, a right to counsel attaches.” Page v. S

tate , 495 So. 2d 436, 439 (Miss. 1986). The accusatory s tage begins at the com m encem ent of prosecution “by b inding over or recognizing the o f f ender to com

pel his appearance to answer the of f ense.” M iss. Code Ann. § 99-1-7 ( Rev. 2000). Alternatively put: [ t]he accusatory stage is reached when the l aw e n f o r c e ment arm of t he state first charges the accused with a crim e . A charge m ay b e f orm ally m a d e when a w arrant is i ssued f

or t he a rrest of the accused. It m ay be m ade less f o rm ally when, acting without a warrant, law enf orcem e nt a

uthorities place an accused under arrest. Tolbert v. State , 511 So. 2 d 1368, 1375 n.5 (Mis s . 1987) (citation and i nternal quotation

m arks o m itted). “ Once the r ight to counsel h as attached, int e r r o g a t i o n m ay not take place absent a knowing and intelligent and voluntary waiver by the accused of h is right to counsel.” Page , 495 S o. 2 d at 440. In other words, police “ ma y n o t , directly or c landestinely ,

1 1undertake int e r r o g a t i on in the absence of the accused’s a ttorney without t he a ccused’s

consent.” Id. ( citing Cannaday v. State , 455 So. 2d 713, 722 (Miss. 1984)). ¶28. “ Miranda applies t o c ustodial interrogations or sta t e m e n ts, and it does not apply to
statem ents when [ the of

f ender] is not in custody

and has the liberty

to com e and go as [ he] pleases

. . . .” Fisackerly v. State , 880 So. 2 d 3 6 8, 370 ( ¶11) (Miss. Ct. App. 2004). Still,

even w hen a private party is conducting an independent private investigation, and not as an agent of the governm ent , “ s t a t e ments m ust be f reely and voluntarily g iven in order to be adm issible.” Hopkins v. State , 799 So. 2d 874, 878 (¶7) (Miss. 2001) (citation om itted). ¶29. Dewitt’s case is sim ilar to Fi s a c k e r l y w here conversations w ere secretly recorded between two private parties, and the court determ ined that Fisackerly had not been deprived of his f reedom of action in any signif

i cant way . Like Fisackerly , Dewitt voluntarily spoke with an independently m otivated private party and gave statem ents which were recorded. Although conf

ronted u nexpectedly by Monique, Dewitt’s s t a t e me n t s were f reely and voluntarily

given. Dewitt’s Fourth Am endm ent protections did not apply h ere. ¶30. “Although the Fourth Am endm ent does n o t a p p l y to a search or seizure, even an arbitrary one, ef

f ected by a p rivate pa r t y o n his own initiative, the Am endm ent protects agai n s t s u c h i n trusions if the private party acted as an instrum ent o r agent of the
Governm e nt.” Skinner v. Ry. Labor Executives’ Ass’n , 489 U.S. 602, 614 (1989). In Roberts

v. Louisiana Downs, Inc ., 742 F.2d 221, 2 24 (5 t h C i r . 1984), the Court stated, “f or a

nom inally private i ndividual’s c onduct to m eet t h e s t a t e action requirem ent, there m ust be

a suf f iciently close connection b etween the state and the challenged conduct f or the actor to

1 2be treated as a n agent of the s tate, or the conduct to be a t t r i b u t e d to the state.” This

d e t erm ination “is m ade by sif ting f acts and weighing circum stances case by case to dete r m i n e if there is a suf

f icient nexus betw e e n the state and the particular a spect of the private individ u a l ’ s conduct which is com plained of

.” Id

. (internal quotation m arks om itted). Accordingly , f

or private conduct to turn i nto state action, there m ust be a clear nexus between the state or law enf

orcem ent and a private investigation. ¶31. In o r d e r t o d e t e r mi n e if a private party has reached the level of an agent of the
governm ent, t he c o u r t s h o uld look to t he extent of the governm ent’s participation in the activities of the private party

. Id. However, “[ t ]he presence of law enf orcem ent of

f icers who do not take an a ctive role in encouraging or a ssisting an otherwise private search has been held insuf f icient to i m

plicate f ourth am e ndm ent interests, especially where the private party has had a legitim ate independent m otivation f or conducting t he search

. ” United States v. W alther , 652 F.2d 788, 792 (9th Cir. 1981). ¶32. A s previously discussed, Dewitt’s Fourth Ame n d me n t r i g h t h a d n o t a t t a c h e d

. Likewise, her Sixth Am endm ent rights did not attach either. Dewitt argues that her situation is s im ilar to that of the d e f endant i n Page

. However, in Page the appellant h ad already been indicted and was out on bond when the com m unications were solicited f r om him

. Page’s right t o assistance of counsel h ad t heref ore already a ttached and h a d n o t b een waived. Conversely , Dewitt’s right to a ssistance of counsel had not y e t attached. She h ad not had any
contact with the police at this point and was not y et owed Miranda rights or the right to the assistance of

counsel because she had not reached the accusatory stage.

1 3¶33. Monique had a legitim ate independent m o tivation a ll a long t o conduct this search and

speak with Dewitt about what Foster told her had happened. Even t h ough Monique was asked b y the police to use their equipm ent to record the conversation and police were present, the p ol ice did “not take a n active role in encouraging or assisting” Monique’s search. Accordingly , we do not f

ind that she w as acting as an agent of t he police. Dewitt’s alleged
Co n s t i t u t i onal rights were n o t violated. Additionally , there is nothing in the record to indicate Dewitt’s statem ent was obtained through any m e ans of coercion or f orce. Theref

ore, we f ind that this issue is without m erit.
III. W hether it was error to r efuse Dewit t ’ s p r oposed lesser-includedoffense instructions. ¶ 34. Dewitt argues t hat she was entitled to jury instruction s D

- 1 2 a me n d ed 2 and D-13

am ended 2 f

or sex between a t eacher a nd pup i l p u r suant to Mississippi Code Annotated section 97-29-3 (Rev. 1994), as a lesser-included of f ense of tou c h i n g a child f or lustf ul purposes pursuant to Mississippi Code Annotated 97-5-23(2). ¶35. “This Court reviews the grant or denial of jury instructions f

or an a b use of discretion.”
W indless v. State , 185 So. 3d 956, 960 (¶8) (Miss. 2015). T he Mississippi Suprem e Court has consistently held that jury instructions a re within the sound discretion o f the t rial court. Goodin v. State , 7 87 So. 2d 639, 657 ( ¶ 6 0 ) (Miss. 2001). A trial court i n Mississippi can ref use a jury instruction i f the instruction inac c u r ately states t he law, is covered elsewhere in the instructions, “or is without f oundation i n t he evidence.” T aylor v. State , 137 S o . 3d 283, 286 (¶9) (Miss. 2014) (citing Heidel v. State , 587 So. 2d 835, 842 (Miss. 1991)). ¶36. The suprem e court has repeatedly held that “[ w ]hen jury instructions are challenged

1 4on appeal, we do not r eview them in isolation; rather, ‘we read them as a whole to determ ine

if the jury was properly instructed.’” Rubenstein v
. State , 941 So. 2d 7 35, 7 87 (¶239) (Miss. 2006) (quoting Milano v. State , 790 So. 2d 179, 184 ( ¶14) (Miss. 2 001)). W hen read together, “ if the instructions f airly announce the law of

the case and create no injustice, no reversible error w ill be f

o und

. . . . There is no error if all instructions taken as a whole f airly , but n ot necessarily perf

ectly , announce the applicable rules o f law.” I d. at 785 (¶224) (internal citations and quotation m arks om itted). ¶37. A l esser-included-of f ense instruction should b e ref used only when the court f inds that

no reasonable jury could f i nd the def

endant g u ilty o f the lesser-included of f ense, and, conversely , “not guilty of at least one essential elem ent of the principal charge.” Harper v. State , 478 So. 2d 1017, 1021 (Miss. 1985). In other words, “[ a] l esser-included[ -] o f f ense instruction is authorized if a rational or reasonable jury could f ind the def

endant not guilty of the principal of

f ense in the indictm ent, but guilty of the lesser-included of f e nse.” W hite

v
. State , 842 So. 2d 565, 575 ( ¶30) (Miss. 2003) ( citing Pleasant v. State , 701 S o . 2 d 7 9 9 , 804 (¶19) (Miss. 1 997) (overruled on other g rounds)). Theref o re, “lesser included of

f ense instructions m ay be d e n i e d only where the evidence would justif y a c o nviction on the principal charge only

. ” H arper , 478 So. 2d at 1021. ¶38. Dewitt w as convicted of touching a child f or lustf ul p urposes pursuant to Mississippi Code Annotated section 97-5-23(2), which provides: Any person abo ve the age of eighteen (18) y ears, who, f or the purpose of gratif y ing his or her lust, o r i ndulging h i s o r her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any m em ber thereof

, any child y ounger than him self or herself and under the

1 5age of eighteen ( 18) y ears w ho is not such person’s spouse, with or without the

child' s c onsent, when the person occupies a p osition o f trust or authority over the child shall be guilty of a f elony a n d, upon c onviction thereof , shall be f i ned in a sum not less than One Thousand Dollars ( $1,000.00) nor m ore than Five Thousand Dollars ( $5,000.00), or b e c om m itted to t he custody o f t he State Departm ent of Corrections not less than two (2) y ears nor m o re than f i f teen (15) y ears, or b e punishe d b y b oth such f ine a nd im

prisonm ent, at the discretion of the court. A person in a position o f t rust or a uthority over a child inc l u d e s w i t

h o u t l i m i t a t i o n a c hild’s t eacher, counselor, phy sician, psy chiatrist, psy chologist, m i nister, priest, phy sical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach. Dewitt proposed t hat a lesser-included-of f e nse instruction o f s ex between teacher and pupil also be provided to the jury , which states:
If any teacher and any p upil under eighteen ( 18) y ears o f age of such teacher, not being m arried to each other, shall have sexual intercourse , each with the other, t h ey s hall, f

or every such of

f ense, be f ined in an y s u m, n ot m ore t han f ive hundred dollars ($500.00) each, an d t h e t e acher m ay be im prisoned not less than three (3) m onths nor m ore than six (6) m o nths. Miss. Code Ann. § 97-29-3 (em phasis added). ¶39. The test f

or determ ining whether one of f ens e i s a lesser-included of f ense of another is: [ w ]hether applied f or the benef

it of the state or def

e nse, in order to authorize s uch instruction the m ore serious o f f ense m ust include all the ele me n t s of the lesser of

f e nse, that is, it is im

possible to c o m m it t he greater of f e n se without at the s am e t im e c om m itting the l esser-included of f e nse. Also, there m

u st be som e evidence to support the lesser-included of f ense. Friley v. State , 879 So. 2d 1031, 1034 (¶13) (Miss. 2 004) (quoting S anders v. State , 479 So. 2d 1097, 1108 (Miss. 1985)). ¶40. Dewitt argues that the elem ents o f sex betw e e n t e a c h er and pupil c o incide with the elem ents of

touching a child f

or lustf ul purposes and that there is evidence to support such

an instruction. D e w i t t argues t hat because these two elem ents are present, the jury should have been instructed accordingly . W e disagree on both accounts.

1 6¶41. Sex between a teacher and pupil is not a lesser-included of f ense of touching a child
f or lustf u l purposes. It i s possible t o be g uilty of touching a child f or lustf ul purposes without also being guilty of sex between a teacher and pupil. Touching a c h ild f or l ustf ul purposes does not include all of t h e e l e m ents of sex between teacher and pupil. A lesser-included of f e n s e is necessarily i ncluded in the greater of f ense if t he elem ents of the greater of f ense in c l u d e a l l the elem ents of the lesser of f ense, such that the greater cannot be com m itted without also com m itting the lesser. Harper , 478 So. 2d at 1021. That is not the case here. ¶42. Sex between a t eacher and pupil contains elem ents pertaining t o sexual intercourse which requires penetration, and touching a child f or lustf ul purposes does not. In f act, the jury in this case actually acquitted Dewitt of t wo counts of sexual battery , which d oes require

s e x u a l p e netration. I n looking at the rendered verdict, the jury determ i ned t hat Dewitt, a s Foster’s high s chool coach, was in a “position of trust or authority ” o v e r Foster and that Dewitt was guilty of “ handl[ i ng], touch[ ing] or rub[ bing]” F oster “f o r t he purpose of gratif y ing [ her] lust

. . . .” Miss. Code Ann. § 97-29-3. S ince the lesser of f e nse is not necessarily

included in the greater of f ense, sex between a teacher and pupil is not a lesserincluded of

f ense of touching a child f

or lustf ul purposes. Harper , 478 So. 2d at 1021. ¶43. Even if sex between a t eacher and pupil was considered a lesser-included of f ense of touching a child f

or lustf ul purposes, there is not adequate evidence in the record to support it as a lesser-included-of

f ense instruction. Throughout the trial, Dewitt testif i ed and denied allegations of any sexual conduct, m uch less penetration, ever taking place. In f a ct, Dewitt testif i ed that Foster was f

a bricating the entire story and that none of the allegations against

1 7her were true. W hile “[ a] def endant is entitled to have jury instructions given which present [ her] theory of the case . . . ,” Dewitt’s arg u me n t w a s that F oster f abricated all of the allegations. The c rim e of s ex between a teacher and pupil does not support Dewitt’s theory of the case and is not supported by Dewitt’s own argum ents. ¶44. The e lem ents of t he separate of f enses are distinctly dif

f er e n t , a n d n o f

a c t s w e re presented in this case to persuade this Court that t he trial c ourt erred. Theref ore, we f ind no error in the ref

usal of Dewitt’s proposed jury

instructions. ¶45. AFFIRMED.
LE E , C . J . , IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

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