IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-KA-02165-SCT DEWAY NE GRAHAM a/k/a DEWAY NE DAL’ANGLE GRAHAM a/k/a DEWAY NE DEANGLO GRAHAM a/k/a DEWAY NE DEANGELO GRAHAM

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 12/19/2013 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON, JR. COURT FROM W HICH 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. O n A u g u st 2, 2012, a L auderdale C ounty grand jury return e d a mu l t i p l e - c o u n t indictm ent against Deway ne Graham w hich a lleged kidnapping, f orcible r ape, and sexual battery

. The trial court reset the trial date f ive tim es over the next sixteen m onths. Af ter a two-day trial, t he jury r eturned a guilty verdict and the Circuit Court of Lauderdale Countysentenced him to t hirty y ears’ i m prisonm ent in the custody of t he Mississippi Departm ent of Corrections as a habitual of f ender. Aggrieved, Graham appeals.
FACTUAL BACKGROUND
T he Incident ¶2. The victim testif

ied against Graham at trial. According to h er testim ony , she becam e acquainted with Graham ’s co-aggressor, Jam o nious Inge, while v i siting her m other and children in Decem

ber o f 2011. On Decem

ber 2 2, 2011, she and I nge m et a t her m other’s hom e. They talked there f or a period of tim e, until Inge of f ered the victim som e cocaine and they went to his house. Inge’s and the victim ’s testim o ny conf l ict as to why t hey lef

t Inge’s later t hat evening: The v i ctim t estif ied that the cocaine never arrived and Inge of f e red her a ride back, whereas Inge testif ied 1 that the cocaine did a r rive and, af

ter consum ing it, they

went t o b uy cigarettes. In e ither case, Graham m et them outside Inge’s apartm ent. The three walked toward a nearby Cef co convenience store and t hen down a pathway behind the Cef co. ¶3. The victim believed the car was at the other side o f the trees because s he “could see through t he path

. . . s o [ she t hought] it[ was] just l i k e a crossover to get som ewhere, like

som ething was o n the other side.” 2 O nce within the trees, I nge abruptly turned around and

1 A s a p art o f h is g u ilty p lea resu ltin g f ro m th e in cid en t , In g e ag reed to testif y ag ain st G r ah am .

2 Wh at th e p a th w as, an d w h eth e r th e area co u ld really b e d escrib e d as “w o o d s,” reem erg e s f ro m tim e t o tim e w ith in w itn e ss testim o n y . In g e said th at it w as “th e p ath w ay to th e Win n -D ix ie” f

ro m O ak M a n o r, th e ap artm en ts i n w h ich h e an d th e v ictim h ad b een u sin g co cain e an d d rin k in g . O f

f icer D av id C reel l ater testif i ed t h at “th e little cru m

p le o f t rees [ t h at is] n o t tru ly a w o o d ed area” sits b etw een t h e b ack p a r k in g lo t o f th e C ef

co an d th e Win n D i x ie. L ieu t en an t Jo h n G rif f ith stated at trial th at th e area is “[ p ] ro b ab ly 1 0 0 y ard s lo n g an d m ay b e f iv e to ten y ard s w i d e” b etw een O ak M an o r an d W in n -D ix ie. 2punched her in the ey e , and t hen told her t o pull her c l othes down. The im pact knocked her hairpiece f

rom her head and one of

her earrings out of

its piercing. ¶4. The victim testif

ied that she was scared, and Inge t e s t i f i ed that h e knew she didn’t

want to pull her pants down. The victim also t e s tif ied that she was c r

y ing, that she was in shock throughout the encounter, and that Inge and Graham were “blocking [ her].

. . . One

was behind [ h er] where [ she] couldn’t go back through the en t r y w a y , a n d he w a s in [ her]
f ace.” Both I n ge 3 a nd t he victim testif ied that Graham participated i n t he sexual assault. Graham unzipped his pants and told her to p erf orm o r al sex on him

. The victim com plied “because [ she] was scared,” but she testif ied that her a ctions were not voluntary

. The victim began to talk to I nge and Graham , “say ing things, just talking to try to get them to f eel guilty

to not do it. So [ she] was just talking as m uch as possible so that [ she] w ouldn’t have to do the actions.” ¶5. At f

irst, Inge attem

pted to penetrate the v ictim vaginally while standing behind her, but he was unable to achieve an e rection. At t hat point, Graham and Inge s witched positions, with Inge f

orcing the victim to perf orm o r a l s e x while Graham f orcibly raped her f

rom behind. W hen Graham and Inge decided to take t he victim som ewhere else, she pulled her clothing i nto place and ran to t he Cef co they had passed earlier. I nside the store, she asked the clerk to call the police and then ran behind the counter. According to the victim , Inge and Graham t hen entered the Cef co a nd began a show o f c o n c e rn over the v ictim , asking her

3 In g e ’s testim o n y at trial w as at p o in ts in co n sisten t w i th h is s tatem en t to th e p o lice. T h e S tate p resen t ed h im w ith th at statemen t to ref resh h is reco llectio n . H is acco u n t o f p articu lar d e tails v aries b u t, o v erall, h i s testim o n y co rro b o r ates th e v ictim ’s b asic alleg atio n th at th e tw o m en to o k

h er in to th e w o o d ed area an d d em an d ed sex f ro m h er. 3what was wrong a nd who had hurt her. The c lerk t estif ied at trial that the victim looked “scared

. . . nervous, u

pset.” Detective Joe Hoadley reviewed the Cef c o video f ootage af ter the incident and n o ted two black m ales having a n “adversarial” conf rontation with one of the
f em ales behind the counter. ¶6. Of f i c e r D a v i d C r e e l arrived at the Cef co af ter receiving a call f

rom dispatch. The victim went to the hospital via a mb u l a n c e , where a designated registered nurse perf orm ed

a rape kit. The n e x t mo r n i n g , the victim v isited the police station and was interviewed by Detective Hoadley

. Procedural History ¶7. The grand jury returned a three-count indictm ent on August 2 , 2012. Count III of the indictm ent, the subject of t he f irst part of Graham ’s appeal, states i n pertinent part that “on

or a b out t he 23rd day of Decem ber, A.D., 2011, [ Graham ] did t hen a nd there wilf ully , unlawf ully and f eloniously engage in sexual penetration, as def ined in M CA S ection 97-3-97

. . . by perf

orm ing f ellatio on [ the victim ].” Graham then was arraigned, a nd the trial court set the case f

or trial on October 10, 2012. ¶8. The trial court granted a total of f ive continuances over the next sixteen m onths, until

t r i a l b e g a n o n D ecem

ber 9, 2013. The court granted the f irst two c ontinuances af

ter join t

m otions f ro m t h e State a nd Graham

. First, on October 10, 2012, t he court granted a continuance until Decem

ber 5, 2012, so that plea negotiations could continue. Second, on
Decem ber 5, 2012, the c ourt granted a continuance, though the joint m otion states only “trial” as the reason f

or a resetting. A later conti n u a n c e h e a ring revealed that t he judge

4granted the continuance a f ter seeing that counsel f

or both parties had s i gned the m otion. The judge at that hearing noted f or the record that Graham had ref used t o sign the joint m otion because he did not want to waive his right to a speedy trial. ¶9. T h i r d , o n February 6, 2013, the State m ade an ore tenus m otion f or a co n t i n u a n c e because the victim was living in A r k ansas. The State’s Victim Assistance Coordinator testif i ed at the hearing that the victim was “essentially

a hom e less person” and that he was having trouble l ocating her. Graham ’s counsel o pposed the m otion. T h e j u dge acknowledged G raham ’s assertion of his right to a s peedy trial but stil l g r a n t e d the continuance until April 8, 2013. ¶10. Fourth, o n April 8, 2 0 13, the State m oved f o r another continuance because the victim had b een located a t an A rkansas prison, and the State was still in com m unication w ith prison authorities in an ef

f ort to m ove her to Mississippi f or Graham ’s t rial. The t rial court granted the continuance and released Graham on a personal recognizance bond. ¶11. Fif th, on August 5 , 2013, the trial court issued the f i nal continuance, resetting the trial date f or D ecem b e r 9, 2013. The State had mo v e d f or t he continuance because of absent

m aterial State witnesses, and G raham ’s c o u n s e l joined the m otion because she was ill and because Graham

had been injured during a recent shooting. ¶12. Trial com m enced on Decem ber 9, 2 013. The S tate produced seven witnesses in the
f ollowing order: Inge; the victim ; Shannon Cam pbell, the Cef

co e mp l o y ee who called the police; K risten H ay es, R.N., the sexual assault nurse exam i ner who conducted the victim ’s
rape k i t; David C r e el and John Grif f ith, two police of

f icers who had been involved in the

5initial response to t he 911 call; and Joe Hoadley , the de t e c t i v e who had investigated the

crim e. The def

ense t hen m oved f

or a directed verdict on Count III o f the indictm ent, which alleged that Graham had s e xually battered the victim by f ellating her, arguing that there was
not “a scintilla of evidence that that occurred

. ” T h e S t a t e opposed the m otion, and af ter a contentious discussion o utside t he presence of the j ury regarding the language of the indictm ent, the court sided with the State and denied the m otio n . A f t e r the State rested, Graham produced one witness: Melvin Graham , the def e n dant’s brother. ¶13. The j ury returned g u i l t y v e r d i c t s o n a l l t h r e e i n d i c t ments. The Circuit Court of Lauderd a l e County sentenced Graham to serve three concurrent s entences of t hirty y ears’ im p risonm ent in the custody of the M ississippi Departm ent of Corrections as a hab i t u al of f ender.
ANALYSIS ¶14. Graham

asserts f our issues on appeal:
I. Whether the trial court erred w hen it d enied G raham ’s m otion for a d i r e c t e d verdict as to Count III, w hen the State presented no evidence that Graham had perform ed fellatio on the victim . II. Whether the State im perm issibly am ended C ou n t I I I o f t he indictm ent w hen it issued jury instruction S-3.
III. W h e t her the S tate presented insufficient evidence t o convict Graham . IV. W h ether Graham ’s speedy trial rights w ere violated w hen t he court reset the date of trial five tim es over six teen m onths. All f our issues are without m e rit, as discussed below.
I. The t rial court did not err w hen it denied a m otion for a directed

6verdict as to Count III of the indictm e n t because Graham w as sufficiently on n o tice regarding the nature of the charge against him . ¶15. “This Court reviews a trial court’s grant or denial of a m o tion f

o r a directed verdict de novo .” Solanki v. Ervin , 2 1 So. 3d 552, 556 (¶ 8) (Miss. 2009). “Requests f or a directed verdict and m otions [ f

or] JNOV im

plicate the suf

f iciency of t h e e v i d ence.” Franklin v. State , 676 So. 2d 287, 288 (Miss. 1996). W hen reviewing the suf f iciency of the e vidence, the C ourt does not ask itself w hether “the e v idence a t trial established guilt b ey ond a reasonable doubt,” but asks ins tead “whether, af ter viewing the e vidence in the light m ost f avorable to the p rosecution, any rational trier o f f act could have f

o und the essential elem ents of the crim e bey ond a reasonable doubt.” Bush v . State , 895 So. 2d 836, 843 (¶ 16) (Miss. 2005) (quoting J

a ckson v. V

irgi n i a , 4 4 3 U.S. 3 07, 315; 99 S. Ct. 3781; 61 L. Ed. 2d 560 (1979)) (internal citations om itted). If f acts and inf

erences considered by

the Court “point
in f avor of the def

endant on a ny elem e nt of the of f ense with suf

f icient f orce that r easonable

m en could not have f

ound bey ond a reasonable doubt t hat the def endant was guilty ,” the
Court m ust reverse and r ender. Bush , 895 So. 2d at 843 (citing Edwards v. State , 469 So. 2d 68, 70 (1985)) (internal citations om itted). ¶16. Graham argues that t he trial c ourt s h o u l d h a v e g r a n t e d h i s mo t ion f or a directed verdict o n Count III o f the indictm ent because the State did not present s uf f icient evidence

to satisf y t h e elem e nts of the of

f ense. However, we hold that the State p rovided Graham with suf f icient notice of the c harges against him w hen th e i n d i c t me n t charged him with sexual battery

by engaging in sexual penetration involving the act of f ellatio.

7¶17. Count III of t he indictm ent states that, on or about Decem ber 23, 2011, the def

endant Graham did t hen and t h e re wilf

ully , unlawf

ully and f

eloniously e ngage in sexual penetration, as d ef

ined in MCA Section 97-3-97, with [ the victim .] a f e m ale p e r son, without her consent, by performing fellatio on [ the victim] , . . . [ i ]n violation of S ection 97-3-95

. . . and against the peace and dignity of the State of Mississippi. (Em phasis added.) Graham states that dictionaries d ef ine f ellatio as oral s tim

ulation of the penis, and theref

ore the plain r eading of the indictm ent requires the v ictim to have a penis.
A r eview of the testim ony of f ered at trial m akes it clear that the State i ntended to prove that Graham f orced the victim

to perf orm f ellatio upon him

. ¶18. Bot h I n g e a n d t h e v i c t i m testif ied that, during the assault, Graham had f orced the victim to perf

orm oral s ex. At the end of the State’s case, d ef ense counsel m oved f

o r a directed verdict on C ount III, stating to the court that “[ the victim ] testif ied t h a t [ Graham ] didn’t perf

orm f ellatio on her which obviously would m ake sense because she doesn’t have a penis.” The State responded that the act of “perf orm ing” f ellatio can b e either the action of f ellatio or the receiving of f ellatio, because “it requires two people to do that unless y ou’ve got som ebody

with a very

lim ber back.” ¶19. Counsel argued b a ck a nd f orth about which def

i nition was c orrect, and t he trial court decided to deny

the m otion f

or a directed verdict:
I think

. . . a jury issue is m ade as t o w hether Mr. Graham was involved in an act of f ellatio involvi n g [ the victim ] as s et o ut in the indictm ent. I think he knew that that was what was charged. He c ertainly knew e s senti a l l y w h a t f ellatio is and as – a nd sexual penetration involved h i s p e n i s a nd her m o uth, and I think that the indictm ent is suf f icient f o r that purpose.

8The trial court did not err in its decision and the ty pographical error in the indictm ent does not vitiate Graham ’ s conviction. ¶20. Rule 7.06 o f t he Unif orm Rules of Circuit and County Court Practice states that an indictm ent “ shall be a plain, concise and def inite written s t atem ent o f t h e e ssential f acts constituting the o f

f ense charged and shall f

ully notif y the def e ndant of t he nature a nd cause of the a ccusation.” An i ndictm ent that contains the essential elem ents of the charges against the def e ndant s uf

f iciently places the def

endant on notice of the nature o f the charges against
him

. Morgan v. S

tate , 741 So. 2 d 246, 251 ( ¶ 11) ( M i s s . 1 9 9 9). F urther, regarding the question of who had to h ave f ellated whom , the Court has clarif ied that “[ w]hether there was penetration ‘of ’ or p enetration ‘with’ [ the victim ] is not an essential e l em ent o f t he crim e [ of sexual b attery ] and is not relevant.” Hennington v. State , 702 So. 2d 403, 408 (¶ 20) (Miss. 1997). ¶21. I n H

e n nington , the indictm ent had charged Hennington with engag i n g i n “ s e x u a l penetration of A.R.,

. . . by then and there

. . . p utting his m outh and h ands on t he penis of the said A .R.” in violation of Mississippi law. Id. at 4 07 (¶ 12) (em p hasi s i n o r iginal). Mississippi Code S ection 9 7-3-95 uses the word “ with,” not “ o f ,” and so Hennington m oved
f or a directed verdict at t rial. Further, because Hennington h a d f e l l a t e d A.R., a nd not the other w ay around, Henni n g t o n a r gued on appeal that “the State d id not m eet its b urden of
p r o o f t h a t A .R. was penetrated by the act of f ellatio. Id. W e d id not agree, holding t h a t “[ w]hile i t is true t hat the indictm ent did not u s e t h e exact language of the statute, the essential elem e nts f

or the crim e of sexual battery were c ontained i n t he indictm ent,” and that

9the State had proven the elem ents bey ond a reasonable doubt. Id. at 408 (¶ 20).

¶22. In Burrows v. State , 961 So. 2d 701 (Miss. 2007), a f ather appeal e d t h e d e n ial of a directed v e rdict f

or the sexual battery of h is s even-y ear-old daughter in violation of Mississippi Code Section 97-3-95. The indictm ent alleged that he had digitally penetrated the child’s vagina, but the child’s t estim ony at trial was am biguous at best regarding whether vaginal penetration in f

act had occurred. Id. at 704-05 (¶¶ 7, 10). However, the child had testif i ed w ithout the sam e am

biguity that her f

ather had inserted his p enis into her anus, and that he had used a vibrator to m olest her f urther. Id. at 704 (¶ 7). W e af f irm ed the f

ather’s conviction, holding that “[ t]he variance between the language of the indictm ent

. . . and the proof present at trial was not a f atal error” b ecause t he indictm ent gave Burrows “ suf f icient notice that he was being charged with the crim e of sexual battery

. ” Id. at 706 (¶ 14). The alteration had not a f

f ected Burrows’s def

ense, which was t hat the assault d id not occur at all and that the child’s m other had f abricated the whole story

. I d. at 706 (¶¶ 14-15). Because his def ense w ould have been the sam e even if the indictm ent had tracked the proof adduced at trial, the variation between the two was “im m aterial.” Id. at 706 (¶ 16). ¶23. Graham n ow f

inds him self in a sim i lar situation. The indictm ent 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 Gra h a m t h a t he had been charged with sexual battery (“sexual penetration wit h a n o t h e r p erson without his or her consent”) and Section 9 7-3-97 f urther def ined “ penetration” f

or Graham ’s d e f

e n se preparations. Though t he l anguage of the indictm ent d oes not precisely track the e vidence produced at trial, the d if f erence did not

1 0a f

f ect his def

ense strategy o f consent. T he Court of Appeals handled a sim ilar case i n Faulkner v. State , 109 So. 3 d 142 (Miss. Ct. App. 2013). Therein, the indictm ent charged the def endant, David R

. Faulkner, with, inter a lia , v iolating Mississippi Code Section 97-1-6 by directing a m inor child to c om m it sexual battery upon another m i nor child. I d. at 146 (¶ 11). T he indictm ent charged “f orced f ellatio betwee n t he two children – specif ically , that Faulkner had directed A.F. to ‘put h i s mo u t h on the penis of J.P.’” Id. H owever, the jury
i n struction given at the end of the trial allowed the jury to f ind Faulkner guilty i f t h e r o l e s

were reversed – if F aulkner had f orced A.F. to put his penis in the m outh of J.P. Id . Although in the case sub judice, Graham ’s attorney objected, and in Faulkner, the issue was analy zed f or plain error, the f

ollowing reasoning of the Court of Appeals is persuasive: Considering whether Faulkner’s substantial rights w ere violated, we note not all variances between an indictm ent a nd jur y i n s t r uctions a re f

atal. T o properly categorize an instruction as e rror, its “variance f rom the language of the indictm ent ‘m

ust be m aterial[ .]’” Nix , 8 S o . 3 d at 145 (¶ 16) (quoting Wil l iam s v . State , 445 So. 2d 798, 806 (Miss. 1984)). W hile t rial judges should generally strive to craf t jury instruc t i o ns that t rack the indictm ent' s language, a n instruction is not necessarily f atally def ective f o r f ailure to do so if the instruction “accurately f ollow[ s] the requisite elem ents of t he crim e.” Duplantis v. State , 708 So. 2d 1327, 1344 (¶ 76) (Miss. 1998)). Count VII alleged Faulkner had directed A.F. to “put his m outh on the penis of J.P.,” but the jury was instructed it could convict Faulkner on this count if it f ound he h ad dir e c t e d A.F. to “put his penis in the m outh of [ J.P.]” Assessing the ef

f ect o f this variance on the integrity o f F a u l kner’s t rial, we point out that w hile the language dif f ered, the essence of the c harged of f ense rem ained unchanged, a s n one of the r e q uisite elem ents were substantially altered. The instruction still required t he jury t o f i n d bey o nd a r easonable doubt that Faulkner, a n adult, directed A .F., a m i nor, t o com m it s exual battery by engaging in f

ellatio with another child, J.P.
At trial, both children testif ied t hat Faulkner had i nstructed t hem to place their penises in t he other’s m outh. And the jury was privy t o the t ape and transcript

1 1of

Faulkner’s pretrial adm ission that he had directed A.F. to perf orm f e llatio on J

. P

. Gauging potential prejudice, we f ind F aulkner’s def

ense was not ham pered by the dif

f ering language in I nstruction 1 3. Faulkner’s def ense did not hinge on his i nsistence that he me r e l y directed A.F. to s ubm it t o f e llatio with J.P. but not perf

orm f ellatio on J.P. Rather, F aulkner w holly denied any involvem ent in s exual acts with the children. On these f acts, we are unable to say any f orf eited e rror i n the jury instruction prejudiced Faulkner’s def ense or otherwise a f

f ected h i s s u b s tantial right to a f air t rial. At m ost, the variance was a slight f

law in the trial that did n ot seriously af f ect the public f

airness of the judicial proceeding.
Faulkner , 109 So. 3d at 147 (¶¶ 16-18). ¶24. W e hold that th e t r i a l c o u r t d i d n o t err in deny ing Graham ’s m otion f or a directed verd i c t a n d s t a ting that the State had created a jury question on Count III of Graham ’s indictm ent. W e f

urther hold that ratio n a l j u r y mem bers could have f

ound the essential elem ents of

sexual battery bey ond a reasonable doubt f rom evidence adduced at trial.
II. Jury instruction S -3 did not im perm i ssibly am end Count III of t he indictm ent. ¶25. Graham contends that the tr i a l c ourt constructively am ended the indictm ent against
him when it gave Jury Instruction S-3, which allowed the jury to convict upon a f inding that Graham put his penis i n Boy d’s m outh. We p a u s e h ere to note the dif f erence between a claim of constructive am endm ent of an indictm ent o n t he o ne h and an d a v a r i a n c e in the proof and the allegations of

the indictm ent, which we addressed above, on the other.
A constructive am endm ent of an indictm ent occurs when the jury is perm itted to convict th e d e f

e n d a nt upon a f

actual basis that ef

f ectively m odif

ies an essential elem e nt of the of f ense charged. A constructive am e n dm ent of an indictm ent is r eversible per se . Reversal is autom atic because the def endant m ay have been convicted on a ground not charged in the indictm ent. Bell v. State , 725 So. 2d 836, 855–56 (Miss.1998) (quoting United States v . Adam s , 778 F. 2d 1117, 1123 (5th Cir. 1985)).

1 2Bishop v. State , 812 So. 2d 934, 941 (¶ 25) (Miss. 2002). “ N o t a l l variances between the

indictm ent and i nstructions c onstitute a constructive am endm e nt.

. . . ” Bell v. S tate , 725 So. 2d 836, 855 (¶ 61) (Miss. 1998). The central question the Court m ust ask when reviewing

an alleged constructive am endm ent is “whether t he variance is such as to substantially alter the elem e n ts o f proof necessary f o r a conviction.” Bell v

. State , 725 So. 2d 836, 855 (¶ 61) (Miss. 1998). As long as the c hange does not “m aterially alter f acts which are the essence of t he of f e nse on t he f

act of the indictm ent as it originally stood or m aterially alter a def ense
to the indictm ent as it originally stood” in a way that would prejudice the d ef endant’s case, then the am endm ent is perm issible.” Miller v. State , 740 So. 2d 858, 862 (¶ 1 3) (Miss. 1999) (quoting Greenlee v. State , 725 So. 2d 816, 819 (Miss. 1998) (internal citations om itted)). The Court also has stated that “determ ining whether the def endant is prejudiced b y t he

am endm ent depends on whether a def ense u n d e r t h e original i ndictm ent would b e equally available under the am ended indictm ent.” Givens v. State , 730 So. 2 d 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 f ind Graham

guilty of sexual battery if it f

ound bey ond a reasonable doubt that Graham “did willf ully , unlawf

ully and knowingly engage in sexual penetration, to w it: f ellati o , w i t h [ t he victim ], a f em ale
person, without her consent, by putting his penis in her m outh.” As discussed a b ove, Count III of the indictm ent stated the inverse: that Graham had perf o rm e d f ellatio on the victim

. ¶27. Graham a rgues that the change was a n i m perm issible constructive am endm ent of the indictm ent. According to Graham , because he was accused of p e rf orm ing f ellatio on the

1 3victim , but the jury was allowed to f

ind Graham

guilty of sexual battery if i t f

ound that the victim had been f

o r ced to f ellate Graham , his conviction on the count should be reversed. ¶28. Graham c ites Griffin v . S t a t e , 5 8 4 S o . 2 d 1 2 7 4 ( M i s s . 1 9 9 1 ) , i n s upport of his
argum ent. Graham characterizes t h e a mendm e n t at issue in Griffin as o ne t hat changed “assault with a deadly weapon ‘by shooting [ the victim ] in the head’” to charge “assault by using a pistol, ‘a m eans l ikely to produce serious bodily harm

. ’ ” I d . at 1275-76. Graham
argues that the Court had concluded that such a change was substantive in n ature because it

c h a n g e d the charges f

rom a n actual shooting to actions that likely would produce harm. However, the C ourt elaborated f urther than Graham proposes: the Griffin Court w ent o n in its opinion to say t hat, b ecause of the i n d i c tm ent’s rewording and the u ndisputed f acts

e stablished at Grif

f in’s trial, Grif

f in’s “def ense that the shooting was an a cc i d e n t h a d disappeared.” Id. at 1276. Graham argues that his def e nse to C ount III was that he did not f ellate the vi ctim , so the am endm ent to the indictm ent “ all b ut gutted Graham ’s theory of def ense.” ¶29. As discussed in our review of Graham ’s f irst a r gum ent, the j ury instructi o n d id not alter Graham ’ s d ef

ense, so the alteration is im m aterial. In C handler v . State , 789 So. 2d 109 (Miss. Ct. App. 2001), the def e n d a n t w a s c harged with two counts o f sexual battery , with
Count II alleging digit a l p e n e t r a t i o n of a f em ale c hild. Count II was am ended af ter the

t e stim ony of the child a nd the child’s t herapist that “pointed to acts of f ellatio r a t h e r t h a n digital penetration.” Id. at 1 1 (¶ 3). Chandler appealed, claim ing, l ike Graham , that the

am endm ent was s u bstantive and that it interrupted his def ense strategy , “requiring him to

1 4def

end a broader charge o f s exual p enetration rather than the specif i c c h a rge o f digital penetration.” Id. (¶ 5). Th e C o u r t of Appeals rejected Chandler’s argum e nt, s tating that Chandler’s g eneral trial s trategy had been one of “general d enial t hat Chandler had sexually abused the child in any m anner” and that Chandler had not of f ered evid e n c e of a def

ense against digital penetration in particular. Id. ¶30. Graham ’s case does dif f e r som ewhat f

rom Chandler in that, while C handler asserted

a com plete denial of all sexual contact, Graham adm i tte d t o sexual a cts while arguing a general d ef

ense of consent. During opening statem ents, G r aham ’s counsel told t he jury that Inge and the victim had proceeded to have sex af ter Inge punched the victim , a nd “at som e point, m y client does join i n, but i t’s consensual.” Graham ’s counsel also t old the jury that the victim “cries rape” af

t er t he event, and that “[ Graham ] had sex, but it was consensual sex, and there’s nothing wrong with t h a t

. ” W hen the victim testif ied f or t he State, def

ense counsel indeed asked about wh e t h e r G r aham had perf orm ed f ellatio upon h er, but the

rem ainder of

the questions related to whether the sex was consensual:
So how long bef

ore y ou had sex with him d id y ou m e et him ?

. . . So were y ou drug [ into the woods]?

. . . W ere y ou handcuf f ed? Did t hey tie a r ope around y ou?

. . . So y ou went voluntarily into the w oods?

. . . And y ou adm it y o u never said n o?

. . . You never said, I don’t want t o do this?

. . . You never said, Don’t rape m e? ¶31. Because the am endm ent did not alter the f actual bases of t he of

f ense charged (sexual battery via penetration w ithout consent) and because Graham ’ s overarching def ense was one of consent, we hold that Jury Instruction S-3 did not constructively am end Count III of

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

1 5m erit.
III. The State produced sufficient evidence to c onvict Graham on all three counts of his indictm ent. ¶32. Graham argues that no reasonable jury could have c o nvicted Graham of kidnapping

or sexual battery under the evidence the State produced a t t rial. W hen t he C ourt reviews the evidence produced a t trial to determ ine whether the State produced legall y s u f f i c ient evidence t o secure a s ound c onviction, it m ust view t he evidence in the light m ost f avorable to the State and ask whether any rational juror could have f o und that the State had proven, bey ond a reasonable doubt, each elem ent o f the crim e c h a r g e d

. B ush v . S tate , 895 So. 2d 836, 843 (¶ 16) (Miss. 2005). “ Under this inquiry , all e vidence supporting the g uilty verdict is accepted a s true, and the S tate m ust be given the benef

it o f all reasonable inf

erences that

can be drawn f

rom the evidence.” Galloway v. S tate , 122 So. 3 d 614, 665 ( ¶ 1 6 8) (Miss. 2013). ¶33. Count I of Graham ’s i ndictm ent charged him with kidnapping the victim in violation of Section 97-3-53 of the Mississippi Co d e . A s s uch, the State had to prove that Graham , “without lawf

ul authority a nd w ith or without intent to secretly conf ine,” f orcibly seized and conf ined the victim , or inveigled or kidnapped her “with intent to cause [ the v ict i m] t o be conf ine d o r im

prisoned a gainst [ h er] will.

. . . ” Miss. Code Ann. § 9 7-3-53 (Rev. 2014). Graham argues that, other t han the punch that Inge gave to th e v i c tim , neither party did
any thing t hat could be construed a s a kidnapping. G r aham relies on t he victim ’s testim ony that s he never f

ought back a gainst him and Inge, and that she was never told she was not f ree
to l eave. However, the statute does not require that a victim m u st a t tem pt to f lee or that she

1 6be told that she cannot leave f or a kidnapping to arise. ¶34. G r a h a m c a u t i o n s, however, that if the kidnapping statute were to b e interpreted so broadly , every single rape o r assault allegation could be a ccom panied by a k idnapping charge. Because o f the evidence produced at trial, we are unconvinced by Graham ’ s paradeof -horribles a r g u me n t

. T he victim testif ied that the m en were blocking her e xit w hen she realized she was in danger. A c c o r d i n g t o the v ictim , Inge had hit her, and Inge him self testif i ed that he did indeed punch her. Inge als o t e stif ied that they were in the woods, and that the victim wasn’t f

am iliar w ith the area. The victim t e s t i f i e d t h a t she asked Inge and Graham i f they would “

just t ake [ her] som ewhere else where [ s he] could not be s haking so b a d , ” a nd that Inge had told her they would n ot because they thought that she would run . And f inally , the victim testif

ied that as soon as Inge and Graham had backed away to f ix their clothes, she had f

led. The jury heard both the victim ’s and I nge’s t e s tim ony , and we hold that a reasonable j uror c ould have f ound that the evidence supported the victim ’s allegation of having been f

orcibly conf ined in violation of

Section 97-3-53. ¶35. Graham m a kes a sim ilar argu me n t regarding his conviction f or f orcible intercourse and sexual battery

. The State h ad to prove that Graham had f o rcible sexual intercourse with the victim to convict him of rape under Mississippi C ode Section 97-3-65(4)(a)), and that he had e ngaged in sexual penetration of the victim without her consent to convict him of sexual battery under Mississippi Code Section 97-3-95. ¶36. T o s u

p p o r t h is a rgum ent, G raham liberally cherry picks the victim ’s a nswers to h i s t r i a l counsel’s very precise questions and asks the Court to ignore the rest o f t he testim ony

1 7produced at trial f rom m ultiple witnesses. Q: An d y o u a d m i t t hat y ou said things like, W e could have done t his i n the house; isn’t that right? A: Yes, m a’am Q: And adm i t that y ou never said no? A: I was never asked. Q: But y o u 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 m e ? A: No.
As already discussed, though, Inge adm ittedly had p unched the victim , the victim had cried throughout the encounter, and the victim already h ad testif ied that s h e h ad told the m en that

t h e y c o uld go elsewhere because she was scared, and t hat she h ad tried to m ake them f ee l guilty in the hope they would stop the assaul t

. Where a rape victim ’s testim ony is uncorroborated and is not c ontradicted or discredited by “other credible evidence,” the def endant m ay be f

ound guilty of rape. Parram ore v. State , 5 S o. 3d 1074, 1 077 (¶ 12) (Miss. 2009). ¶37. H e r e , t h o u g h , the victim ’s testim o n y d i d n o t s t a n d a l o n e . I n g e ’ s t e s t i mo n y corroborated t he e vent as the victim had described it. Further, the jury had heard the Cef co

em ploy e e’s testim ony recounting the m om ents f ollowing the incident, the t estim o ny of the registered nurse who ha d perf orm ed t he victim ’s rape k it, and the testim o ny of three law enf orcem ent of

f i cers involved i n the case. Viewing the evidence i n the light m o st f avorable

to t h e S t a t e a n d taking all of the evidence s u pporting the guilty verdict and t he r easonable
i n f e rences f lowing theref

rom as true, we hold that rational jurors could have f ound t ha t

1 8Graham w as guilty of s exual battery and f orcible r ape in violation of Sections 97-3-95 and 97-3-65(4)(a). S

ee Miss. Code Ann. §§ 97-3-95, 97-3-64(4)(a) (Rev. 2014).
IV. The six teen-m onth delay b e tw e en Graham ’s arraignm ent and t he start of trial did not violate his right to a speedy trial. ¶38. Graham alleges that the State’s repeat e d f a i l u r e t o s e c ure the testim ony of its own witnesses denied G raham ’s constitutional right to a speedy t rial. W e disagree. F urther, we
note that Graham argues only that the State inf ringed upon his constitutional right to a speedy trial. He m entions his statutory right to a s peed y t r i a l i n a s ingle f ootnote without f

urther
argum ent or citation, and so we decline to address whether the State violated that statutory right a s well. See Randolph v. State , 852 So. 2 d 547, 558-59 (¶ 33) (the Court generally does

not consider an assignm ent of error w h e r e a n appellant has f ailed to produce a plausible
argum ent and supporting authority on the issue.) ¶39. “ A c r i mi nal d ef

endant’s right to a s p e e d y t r i a l i s g u a r a n t e e d b y t h e S i x t h a n d Fourteenth Am endm ents to the United States Constitution.” Thom as v. State , 48 So. 3d 460,
474 (¶ 38) ( citing Hersick v. State , 90 4 S o . 2 d 116, 121 (¶ 3) (Miss. 2 004)). The United
States S uprem e Court established that an appellate co u r t mu st consider and balance f our f actors when reviewing an alleged violation of a d ef endant’s constitutional r ight t o a speedy trial: “[ l]ength of

delay , t he reason f

or the delay , the def

endant’s assertion of his right, and prejudice to the def

endant.” Barker v

. Wingo , 407 U.S. 5 14, 530, 92 S. Ct. 2182, 2192, 33
L. Ed. 2d 101 (1 9 7 2 )

. T h e M ississippi Suprem e Court h as applied the balancing test to Mississippi crim inal cases, asserting t hat no single f actor “is necessary or s uf f icient o n i ts

own to f ind a deprivation of the rig h t t o a s p e e d y trial,” and that all f actors “m ust be

1 9considered alongside other r elevant circum stances.” McBride v. State , 61 So. 3d 138, 142

(¶ 5) (2011) (apply ing Barker , 407 U.S. at 533.). ¶40. Barker ref

ers to the l ength-of

-tim e f actor as a “triggering m echanism

. ” B a rker , 407
U.S. at 530. “ Until there is s o m e delay which i s p resum ptively prejudicial, there is no necessity f

or inquiry into the other f

actors that go into the b alance.” Id. In Mississippi, eight

m onths of delay presum

ptively prejudice the def

endant, at which p oint the reviewing court

m ust carry out a f

u ll Barker analy sis. Franklin v. S tate , 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 i n s t a n t c a s e, Graham was arrested a f ew day s af

ter the Decem

b er 22, 2011, i ncident. The grand jury indicted Graham on August 2, 2012. T rial com m enced a f u r t h e r sixteen m onths later on Decem ber 11, 20 1 3

. T h e Court has held that a “delay of eight

m onths or longer is presum ptively prejudicial.” J

ohnson v. State , 68 S o. 3d 1 239, 1242 (¶ 7) (Miss. 2011) (cit i n g S m i t h v . S tate , 550 So. 2d 406, 4 08 (Miss. 1989)). The Johnson
Court wrote: “[ L ]et us b e clear[ :] when the d elay is presum ptively prejudicial that does not

m ean t hat actual prejudice to t he def endant exists. Rather, actual prejudice is determ ined at

a dif f erent point in the Barker analy sis.” Johnson , 68 So. 3d a t 1242 (¶ 7). W ith nearly two
y ears p assing b etween the date o f Graham ’s arrest and his trial, we m ust exam i ne the three

rem aining Barker f

actors to d eterm ine whether the State violated Graham ’s r ight to a speedy trial. N ow that Graham has s hown the presum ption o f prejudice in the delay to b ring him to trial, “ the burden o f p ersuasion m ust shif t to the State to show g ood reaso n f o r t h e delay .”

2 0Franklin v. State , 136 So. 3d 1021, 1033 (¶ 44) (Miss. 2014).

2. Reasons for Delay

. ¶42. Barker instructs that reviewing courts should assign d if f erent weights to reasons the
State assigns to justif

y the delay

. Now that Graham h as shown the presum ption of prejudice
in t h e delay to bring him to trial, “the burden of persuasion m ust shif t to t he S tate to show good reason f

or the delay .” Franklin v. State , 136 So. 3d 1021, 1033 (¶ 44) (Miss. 2014). Deliberate attem

pts to delay

trial should weigh heavily against the State, whereas securing

a m issing witness should be seen as “a valid r eason” f o r the delay and “should serve to justif y appropriate delay .” B arker , 407 U.S. at 5 31. A d mi n istrative concerns, such as crowded dockets, m ay be considered a “neutral” reason f or delay , though ultim a tely a ttributable to the State, which b ears the “ ultim ate responsibility f o r such circum stances” when co m pared to the def e ndant. Id. ¶43. Under the Barker analy s is, three of the f ive continuances m

ust weigh in the State’s f avor. The February 6, April 8 , and August 5, 2013, continuances had b een g ranted so that the State could locate and secure the victim and other m aterial State witnesses f o r t r i al testim o ny . Barker , 407 U .S. at 5 31. W hile the State bears the burden t o bring the def endant

to trial, the October 10, 2012, c ontinuance, a llowing t im e f or plea negotiations to continue,

cannot be weighed against the S tate in a Barker analy sis. See Taylor v. St a te , 672 So. 2d 1246, 1259 (Miss. 1996) (apply ing the r u l e t h a t plea negotiations toll t he running of the statutory 270-day speedy trial c lock to a constitutional B arker analy sis). The record does not contain a satisf

actory answer to the question of why t he trial court granted the Decem ber 5,

2 12012, m otion f or a continuance. W e also note t hat Graham him self agreed to join the f irst

two m otions f

or a continuance presented to the trial court. ¶44. Reviewing the f

ive continuances, we f

ind that the f

o u r g r a n ted by the trial court to

secure m aterial witnesses and evidence and t o continue plea n egotiations constituted valid, justif i able reasons f

or d elay , and weigh them i n f avor of the State. See Barker , 407 U.S. at 531.
3. W hether the Defendant Timely Asserted His Right to a Speedy Trial

. ¶45. A f

ailure to as s e r t h i s r i g h t t o a speedy trial does not result in waiver of that right.
How e v e r , “ f

ailure t o assert the right will m ake it dif f icult f or a d ef endant to prove that he

w a s d e n i e d a speedy trial.” Barker , 407 U.S. at 532. I n m aking two joint m otion s f o r continuances with the State, Graham agreed to waive his right to a speedy trial. See Guice

v. State , 952 So. 2 d 129, 142 ( ¶ 29) (Miss. 2007) (Def endant m ay f

orgo h is right to a speedy trial if , inter alia , he does not object to a delay ). However, Graham asserted his desire f or

a speedy trial in an e arly m otion f or discovery and he r ef

used to s ign the Decem

ber 5, 2012, joint m otion f

or a continuance because he did not want to waive his r ight to a speedy trial.
At the hearings on m o tions f or continuances, Graham ’s counsel s tated t hat her client desired a speedy trial. This f

actor theref

ore weighs in Graham ’s f a v or. 4. W hether the Defendant was Prejudiced by the Delay

. ¶46. The United States Suprem e Court identif ied t hree interests to be contem p lated when evaluating prejudice t o the def endant: “(I) to prevent o p p r e ssive pretrial incarceration; (ii)

to m inim ize anxiety and concern of the accused; and ( i i i ) t o l i mi t the p ossibility that the

2 2def

ense will be i m

paired.” B arker , 407 U.S. a t 5 32. “Generally , proof of prejudice entails the loss of evidence, death of witnesses, or staleness o f an investigat i o n.” Sharp v. State , 786 So. 2d 372, 381 (¶ 19) (Miss. 2001). ¶47. On the hearings on the State’s m otions f o r continuances, the State dem onstrated that it w a s ma k i ng active attem pts to secure the testim ony of State witnesses and to obtain evidence f

or trial. Graham argues that the State’s a ttem p ts im paired his def

ense because had he been granted a tim ely trial, the State’s witnesses would have been unable to testif y against
him , and that t he S tate theref o re “sure[ d] [ sic] u

p its case on the bac k o f G r a h am ’s constitutional rights.” Graham ’s o wn argum ent is r ebutted by Barker , in which t he Suprem e Court o f the United States instructed that securing a bsent witnesses f

or t rial in f

act justif ied

a delay in bringing a def

endant f or trial. Barker , 407 U.S. at 531. In try i ng to analogize the
State’s ef f orts to locate witnesses and coordinate with the Departm en t o f C o r r ections of a neighboring state with the “the inability of a d ef endant adequately to prepare his case,” id. at 532, Graham

reaches too f

ar. ¶48. Further, af

ter granting one of the S tate’s m otions f or a continuance on A p ril 8, 2013, the trial court acknowledged Graham ’s right to a speedy trial and released him f rom custody

on his own recognizance. The record indicates that he rem ained out of c ustody until his trial began in early D ecem

b er 2013. Graham has f ai l e d t o e s tablish that he suf f ered actual prejudice f

rom the two-y e ar delay between his Decem b er 2011 arrest and h is Decem ber 2013 trial. The f

actor cannot weigh in his f avor. ¶49. In balancing the f our Barke r f

a c t o r s , n o s i n g l e f

a c t o r i s “ either a necessary or a

2 3suf

f i cient condition to the f

inding of a deprivation of the right of speedy trial.” B arker , 407
U.S. at 533. I nstead, we consider them together in “a dif f icul t a n d s e n s itive b alancing
process . . . carried out with f ull r ecognition that the accused’s interest in a s peedy t r i al is specif ically af f irm ed in the Constitution.” Id. Af ter evaluating the f

actors as instructed and

exam ining the record and argum e nts presented to us f or consideration, we f

i nd 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 o f the f our issues asserted by Graham on appeal, we af f irm his convictions and sentences as im posed by the Circuit Court of

Lauderdale County

. ¶51. COUNT I: CONVICTION OF KIDNAPPING AND SENTENCE O F THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF C O R R E C T I ONS, AFFIRMED . C O U N T I I I : C O N V I C T I O N O F S E X U A L B A T T E R Y AND S ENTENCE OF THIRTY (30) YEA R S I N T HE CUSTODY O F THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED . COUNT IV: CONVICTION OF FORCIBLE RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY O F THE M ISSISSIPPI DEPARTMENT OF CORR E C T I O N S, A F FIRMED. T HE SENTENCES OF C OUNTS I, I I I, AND I V ARE TO RU N CONCURRENTLY WI T H EACH O T HER AND CONSECUTIVELY TO THE UNSERVED SENT E N C E S IN ANY PRIOR CONVICTIONS. S AID SENTENCES S H A L L N O T B E REDUCED OR SUSPENDED; N OR SHALL THE APPELLANT BE E L I G I B L E F O R E A R L Y RELEASE, PAROLE, PROBATION O R H O U S E A R R E S T . UPON RELEA S E , A P P E L L A N T SHALL PAY COURT C O ST IN THE AMOUNT OF $420 AND AN AB FEE IN THE AMOUNTS O F $500 AND $10. ANY POSTED CASH BOND W ILL BE FORFEITED AND APPLIED TO THE ABOVE REFE R E NCED AMOUNTS DUE. APPELLANT SHALL RECEIVE NO JAIL CREDIT. WALLER, C.J., RANDOLPH, P.J., LAMA R , K I N G , M A X WELL AND BEAM, JJ., CONCUR. DIC KINSON, P.J., CONCURS IN PART AND IN RESULT WITHOUT S E P A R

A T E W R I T T E N O P I N I O N . K I T C H E N S , J . , C ONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. KITCHENS, JUSTICE, CONCURR I NG IN PART AND D ISSENTING IN PART:

2 4¶52. Although a ppalled by the h einous acts of which Graham was convicted, I a m unable

to j oin the m ajority ’s decision t o af f irm all three of his convictions. As the m ajority concedes,
Count I I I o f G r aham ’s indictm e nt incorrectly recited the m aterial f acts c onstituting the of f ense of sexual battery

. This was a glaring error t hat deprived Graham of his f ederal and

state constitutional right to notice of the crim e c harged, and it cannot be disregarded. Because the State f

ailed to prove the f

acts actually alleged in Count I II, on th a t c o u n t G r a h a m was entitled to a directed v e r dict i n h is f avor. Further, the trial court constructively am ended Graham ’s indictm ent in violation o f Unif orm Rule of C ircuit and County C ourt Practice 7.06 by granting a jury instruction that conf orm ed to the evidence adduced at t rial, r ather than to the indictm e nt. Finally , because Graham ’s conf i nem e nt of the victim w as m erely incidental

to h is crim e of f

orcible rape, the evidence was insuf f icient to support Graham ’s k idnapping conviction. I would r everse and ren d e r G r a ham ’s convictions of sexual b attery and kidnapping. I would af

f irm Graham ’s conviction of

f orcible rape.
A. Graham was entitled to a directed verdict because the State did not prove the facts alleged in the indictment. ¶53. The Sixth Am endm ent t o the United States Constitution guarantees that “the accused shall e n j o y t h e r ight

. . . t o be inf orm ed o f t he nature a nd cause o f the accusation.” U.S.
Const. am end. VI. Under the Mississippi Constitution, “the accused shall have a right

. . . to dem and the nature and cause of the accusation.” Miss. Const. art 3, § 2 6. U nif orm Rule of Circuit and County C ourt Practice 7.06 saf eguar d s t h e s e c onstitutional protections by requiring that an indictm ent contain a “def inite wr i t t e n s t a t em ent of the essential f acts

2 5constituting the of f ense charged.” It m

ust f ully notif y the def endant o f t he of

f ense charged.
URCCC 7.06. “[ A]n indictm e nt m ust contain (1) the essential elem ents of the crim e charged, ( 2) suf f icient f acts t o f airly inf orm the def

endant of the charge w hich he m ust def end , a n d (3) suf f icient f acts to enable him to plead double jeopardy in t he e vent of a f u ture prosecution
f or the sam e of

f ense.” Y o u n g v . S t a t e , 119 So. 3d 309, 313 (Miss. 2013). W hile the trial

court has the power to am end an indictm ent as to m atters of f or m, only t he grand jury that returned the indictm ent m ay a m e nd the indictm ent to cha n ge the substance of the charge.
URCCC 7.09; Spann v. State , 771 So. 2d 883, 898 (Miss. 2000); Q uick v. State , 569 So. 2d 1197, 1199 (Miss. 1990) (stating that “[ i]t has been t he law since 1858 that the court has no
power to am end an indictm ent a s to the m a tter of substance without the concurrence of the
g r a n d jury by whom it was f ound, although a m endm ents a s to m ere inf orm alities m ay b e

m ade by the court”). ¶54. T h e p e rtinent part of Graham ’ s sexual battery indictm ent alleged that Graham “did then and there willf

ully , unlawf

ully and f eloniously engage in sexual penetration, as def ined
in MCA S ection 97-3-97, w ith [ the victim ], a f e m ale person, without her c o n s e n t , by performing fellatio on [

the v ictim] , . . . In violation of Section 97-3-95

. . . .” (Em phasis added.) Under Mississippi Code Section 97-3-95(a), o ne is g uilty o f sexual b attery if “he or she engages in s e x u al penetration with

. . . [ a]nother person without h is or her consent.” Miss. Code Ann. § 97-3-95(a) Rev. 2014). Mississippi Code Section 97-3-97(a) def ines “sexual penetration” as “cunnilingus, f ellatio, buggery

or pederasty , any

penetration of

the genital or anal openings of another person’s bod y b y a n y part of a person’s body , and

2 6insertion of an y o b j ect into the genital or anal openings of a nother person’s b ody .” Miss. Code. Ann. § 97-3-97(a) (Rev. 2014). ¶55. The indictm ent charged that Graham com m itted sexual battery b y perf orm ing f ellatio

on the v ictim

. “Fellatio” is def i ned as “ oral stim

ula t ion of the penis.” Fellatio, W ebster’s Ninth New C

ollegiate Dictionary 455 (1983). Because the indictm e nt states that the victim

on whom Gr a h a m perf

orm e d f ellatio was “a f

em ale person,” i t cannot be said that the indictm ent charged a c rim e. Even a ssum ing that the indictm e nt suf f iciently charged Graham with sexual battery , the problem with Graham ’s sexual battery conviction is t hat the m aterial
f acts alleged in the indictm ent were not what was proven a t trial. The S tate’s evidence was that Gr a h a m f

orced t he victim to perf

orm f ellatio o n him

. Accordingly , af ter the State had

r ested, Graham m oved f

or a directed verdict on the sexual battery charge, a rguing t h a t t h e State had f

ailed to prove the allegations in the indictm ent. The State r esponded that “f ellatio”

can b e e i t h e r t he act of r e ceiving f e llatio o r perf

o rm i ng f ellatio. The trial court agreed,
f inding t hat the indictm ent suf f iciently notif

ied Graham that h e was charged with f orcing the victim to perf orm f ellatio on him

. ¶56. The trial c ourt’s reasoning was f aulty

. Even if the term “f

ellatio,” by i tself

, m ight ref

er either to receiving o r perf ormi n g f e l l a t io, the grand jury specif ied in the i ndictm ent that Graham performed fellatio on t he victim

. Thus, the State was required to pr o v e t h a t act to secure a conviction. ¶57. An accused has a f ederal and state constitutional right t o no t i c e o f t h e “nature and

cause of t he ac c u sation,” and an indictm e n t m ust c ontain suf

f i cient f acts to inf

orm the

2 7def

endant f airly of the charge. U.S. Const. am end. VI; M iss. Const. art 3, § 26; URCCC 7.06. Constitutionally suf

f icient notice is not achieved by providing t h e accused incorrect or approxim a te f

a cts. A corollary to these principles is that, if t he State cannot prove the f acts alleged in the indictm ent bey ond a reasonable doubt, then the accused is e ntitled to a directed verdict. Griffin v. State , 540 So. 2d 17, 20 ( Miss. 1991). Here, the State was unable to prove the f a cts charged in the indictm ent. Unless t he court p erm issib l y c o u ld h ave allowed

a me n d m ent of t he indictm ent to c onf orm t o t he proof

, G raham was entitled to a directed verdict. See id. As it stood, t he indictm ent utterly deprived Graham of

his state and f

ederal 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 indictm ent charged him with perf orm ing f ellatio o n the victim

. Over Graham ’s objection, the trial court instructed the jury that it could f ind Graham guilty of s exual battery if it f

ound bey ond a reasonable doubt that Graham “did willf ully , unlawf

ully and k n o w i n g l y engage in sexual penetration, to wit: f ellatio, with [ the victim ], a f em ale
person, w ithout her consent, b y putting his penis i n her m outh.” Graham a rgues t hat, with this jury instruction, the trial court constructively and im p erm issibly

am e nded the indictm e nt. ¶59. “A constructive am endm ent of the indictm ent occurs when the proof and instructions broaden the grounds upon which the def endant m ay be f

ound g uilty of the o f

f ense charged

so that the def

endant m ay be c onvicted without proof of the elem ents alleged by

the grand jury i n its indictm e nt.” Bell v. State , 725 So. 2d 836, 855 (Miss. 1998). “Am endm ents to an indictm ent are perm issible if t hey do not prejudice the def endant by (1) m aterially

altering

2 8the essential f acts of the of

f ense or (2) ma t e r i a l l y altering a def ense under the original indictm ent.” Lee v. S

tate , 944 So. 2d 3 5, 40 (Miss. 2006) (em phasis added). Def

ects of substance m ay be corrected only by the grand jury that returned the indictm ent, and cannot be corrected by

the trial court. Spann , 771 So. 2d at 898. ¶60. It is bey ond q

u estion that the jury instruction m aterially a l tered the essential f acts of sexual battery as charged in the indictm ent. The indictm ent charged G raham with p erf orm ing
f ellatio o n the victim , but the t rial court instructed the jury to f ind g uilt if it determ ined that Graham had f

orced the victim t o perf

orm f ellatio on him

. The m ajority f inds that, because Graham ’s def

ense of consent was not altered a f ter the am endm ent, the am endm ent was not substantive. However, the t est is not whether the def ense em ploy e d by the a ccus e d is available af

t er the am endm ent, but w h e t h e r t he am e ndm ent m aterially altered any def ense that was available under the original indictm ent. L ee , 944 So. 2d at 40. A d ef endant alway s has available the d e f

ense that he or she did not pe rf orm t he acts alleged i n the indictm ent. Here, t he def

ense that Graham did not perf orm f e llatio on the v ictim was no longer available

to him af ter the am endm ent. Because the am e ndm e nt m aterially altered t he f acts a lleged in the i ndi c t me n t , t h e am endm ent was a m atter of substance, and it c ould have been

accom plished o n ly b y the g rand jury t hat returned the indictm e nt. Spann , 771 So. 2d at 898. ¶61. It is not the proper role of this State’s trial courts or of t his C ourt to correct substantive

errors in indictm ents to c onf orm to the proof adduced at trial. In Stirone v. Uni t e d S tates , 361 U.S. 212, 213, 80 S. Ct. 270, 4 L. Ed. 2 d 2 5 2 ( 1 9 6 0 ) , t h e def endant was indicted f

or interf ering with interstate com m e r c e i n v i o lation of the Hobbs Act by causing s and to be

2 9m oved into t he State of Pennsy lvania. The Court f ound that the t rial court had am ended the indictm ent by

granting a jury instruction allowing the jury to f ind that Stirone had violated the Hobbs Act by interf

ering w ith steel shipm ents f rom P ennsy lvania into other states. Id. at 217, 80 S. Ct. 270. The Court f ound that the am endm ent was bey ond the p ower of the trial

court t o m ake and could hav e b e e n ma de only by the g rand jury

. Id. The Court stated that “The grand jury which f

ound this indictm ent was s atisf ied to charge t hat S tirone’s conduct interf ered with i nterstate im

portation of sand. But neither this nor any other court can know that the grand j ury would have been willing to charge that Stirone’s conduct w ould interf ere with interstate exportation of steel . . . .” I d. ¶62. The f

acts of S tirone are analogous to t he f acts b ef ore the Court t oday

. Here, the grand jury charged certain f

acts underly ing Graham ’s sexual battery charge, but the trial court granted to the State, over def e nse objection, a jury instruction stating dif f erent f a cts. The jury instruction co n s t r uctively am ended the indictm ent in violation of Graham ’s constitutional rights to notice of t he nature and cause of the accusation against him

. We c a n not know whether t he 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 l ies within the province of a c ourt to change t he charging part of an indictm ent to suit its own notions o f what it ought to have been, or what the grand jury would probably have m a d e it if their attention had been called to suggested c hanges, the great im portance which the com m on law a t taches to an indictm ent b y a grand j ury , as a prerequisite t o a p r isoner’s trial f or a crim e, and without which the constitution say s ‘no person shall be h eld t o a nswer,’ m ay be f rittered away

until its value is alm ost destroy ed.

. . .

3 0Any other d octrine would place the rights of the citizen, which were

intended t o be protected by the constitutional provision, at t he m ercy or control of the court or prosecuting attorney . . . .”
Id. a t 2 16-17, 80 S. Ct. 270 (quoting Ex parte Bain , 1 21 U.S. 1, 7 S. Ct. 7 81, 30 L. Ed. 849 (1887), overruled in p art o n other grounds by United States v. Cotton , 535 U.S. 6 2, 122 S.
Ct. 1781, 152 L. Ed. 2 d 860). Because the trial c o urt c onstruct ively am e nded Graham ’s indictm ent, I would reverse and render his sexual battery c o nviction. C. The evidence was insufficient to support Graham’s kidnapping conviction. ¶63. Graham argues t h a t t h e e v i d e n c e w a s i nsuf f icient to support his conviction of kidnapping. He challenged the suf f iciency of the evidence w ith h is m otion f or a directed verdict and his r equest f

or a perem

ptory instru c t i o n , w hich were denied. “The s t andard of review f or a trial court’s denial of a m otion f or d i r e c t e d v erdict, perem p tory instruction or judgm ent notwithstanding the verdict (JNOV) i s identical.” Brown v . State , 176 So. 3d 1, 11 (Miss. 2015). These m ot i o n s c h a l lenge the suf f iciency of t he evidence, and t his Court “reviews the ruling on the l ast occasion t he challenge was m ade in the trial court.” Id. “[ T]he relevant question is whether, af ter viewing the evidence in the l i g h t most f avorable to the prosecution, a ny rational trier of f act could have f

o und the essential elem e nts of t h e c r i m e b e y o n d a r easonable doubt.” Bush v . S tate , 8 95 S o. 2d 8 36, 843 (Miss. 2005) (quoting
Jackson v. V

irginia , 443 U.S. 307, 315, 99 S

. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If the f acts and i nf e r ences, so considered, “point in f a vor o f the d ef

endant on a n y elem ent of the of f ense with suf f icient f orce that reasonable m en could not have f ound bey ond a reasonable doubt that the def

endant was guilty ,” then we m ust reverse and r ender. B ush , 895 So. 2d at 843

3 1(quoting Edwards v. State , 469 So. 2d 68, 70 (Miss. 1985)).

¶64. The crim e of

kidnapping is proscribed by Mississippi Code Section 97-3-53, which provides that: Any person w ho, without l a w f u l authority and with or without intent to secretly conf

ine, shall f

orcibly se i z e and c onf

ine any o ther person, or shall inveigle or kidnap a ny other person w i t h intent to cause such person to be c o n f i ned or i m

prisoned against his o r her will,

. . . upon conviction , s h a l l b e im p risoned f

or l if e in the custody of the Departm e n t of Corrections if the punishm e nt is so f

ixed by the jury in its verdict. If the j ury f a ils to a gree on f ixing the penalty a t im

prisonm ent f

o r lif e, the court shall f

ix the p enalty at not l e ss than one (1) y ear n o r m ore than thirty (30) y ears in the custody of th e Departm ent of

Corrections. Miss. Code A nn. § 97-3-53 ( Rev. 2014). Graham challenges the suf f iciency of the evidence that h e f orcibly seized a nd conf

ined the victim or inveigled or kidnapped her with intent to cause her to be conf

i ned or im

prisoned against h er will. H e argues that, if “the k idnapping

statute [ were] to b e interpreted a s b r o a d l y a s i t is in this case, every single rape or assault allegation could be accom panied by a kidnapping charge.” ¶65. Graham essentially argues that the e v idence was insuf f icient because it showed that his conf inem ent of the victim was m erely incidental to his sexual assault of t he victim

. In Cuevas v. State , 338 So. 2d 1236, 1238 (Miss. 1 9 7 6 ) , t h i s Court articulated the f ollowing rule applicable to Graham ’s argum ent: If forcible d

etention or movement is merely incidental to a lesser crime than k i d n apping, such c onfinement or movement is insufficient to be molded into th e greate r c r i m e of kidnapping. An illustration m ight well be a strong-arm ed robbery w here the vi c t im is detained and p erhaps m oved a f ew f eet while being relieved o f his wallet. The detention and m ovem ent would not support k i d n a p p i ng albeit with f orce and u nlawf

ul. On the other h and, if th e conf inem ent or asportation be not me r e l y i ncidental to a lesser crim e, but a constituent part o f the greater crim e, the f a ct of conf

i nem e nt or asportation is

3 2suf

f icient to support k idnapping without r egard to distance m oved or t im e of conf inem ent. Id. (em phasis added). L ike Mississippi, a m ajority of states have recognized that the crim e of kidnapping “does not include conduct involving a restraint that is m erely i ncidental to the

com m ission of som e other c r i m e against the v ictim .” State v . Salam on , 949 A. 2d 1092, 1119 (Conn. 2008), overruled in part on other grounds by State v. Sanseverino , 969 A.2d
710 (Conn. 2 009). The reason f or the rule is that “a literal reading of the kidnapping statutes

can lead t o overzealous enf orcem ent, with the result that ‘ persons w ho have com m i tted such substantive crim es as robbery or assault – w hich inherently involve the tem porary detention

or seizure of t h e victim

– will suf f er the f ar greater penalties prescribed by t he k idnapping
statutes.’” State v. Goodhue , 833 A. 2d 861, 864-65 (Vt. 2003). ¶66. In Cuevas , a prisoner escaped f rom a county jail and f

l e d t o a n a utom obile agency , where he took an em

ploy ee h ostage and directed h i m a t gunpoint to the agency ’s parts departm ent. Id. at 1237. Cuevas h eld the em ploy ee at gunpoint in the parts departm ent f or alm ost two hours. Id. On appeal, Cueva s c h allenged the suf f iciency of t he evidence of kidnapping. Id. The Court held that the em ploy ee’s detention was not m erely incidental to

som e l esser crim e, and t hat “the conf inem ent a nd m ovem ent of [ t he e m ploy ee] by f

orce f rom the service e ntrance o f the building t o the parts departm ent of the building was suf f iciently proved to support Cuevas’ conviction.” Id. at 1238-39. ¶67. In Salter v. State , 8 7 6 So. 2d 412, 414 ( Miss. Ct. App. 2003), Salter broke into a bank, waited f or the em ploy ees to a rrive, and then f orced three e m

ploy ees at gunpoint into a vault, where he m ade t hem l ie on the f loor. He stole $37,000 f

rom the bank and escaped by stealing

3 3an em

ploy ee’s c ar. Id. Salter was convicted of burglary , two counts of

arm ed robbery , and
f our counts of kidnapping. Id. C iting Cuevas , Salter argued that the kidnappings were m erely incidental to the crim e of arm e d robbery

. Id. at 4 15. The Court of Appe a l s e x a mined “whether Salter’s actions were i ncidental to a lesser crim e or were a constituent part of the greater crim e.” Id. The Court of Appeals held t h a t S a l t e r h a d f ulf illed the elem ents of kidnapping by

f orcing the em

ploy ees into the bank vault at gunpoint and shutting the door

on them as he lef

t. Id. In holding t hat Salter’s actions were not m erely incidental to the crim e of arm ed robbery , the Court o f A ppeals noted t hat “Salter did not m erely m ove the e m ploy ees a f ew f eet as he took the m oney .” Id. ¶68. In State v. G

oodhue , the def

endant, a stranger, e ntered the victim ’s hom e and ordered her into the bathroom

. Goodhue , 833 A. 2d at 862. G oodhue t hrew the victim onto the f loor, got on t op of her, and then u n buttoned and unzipped her pants and t ried to r em ove them

. Id.
A d oor slam m ed and s tartl e d G oodhue, causing him to f lee the s c ene. Id. Goodhue was charged with kidnapping, attem pted sexual assault, and b urglary

. Id. at 863. The trial court denied G oodhue’s m otion f or a j udgm ent of acquittal o n the charges of a t t e mp t e d sexual assault and kidnapping. Id. On appeal, the Suprem e C ourt of V erm ont held that the evidence of attem pted sexual assault was suf f icient to support Goodhue’s conviction. Id. But on the conviction of

kidnapping, the Suprem e Court held that:

t h e movem ent of Caroly n f rom t he kitchen to the bathroom f l oor d id n o t exceed the conf

inem ent or r em oval inherent in t he com m ission of the crim e of sexual assault nor did it increase the danger to the victim o ver and above the danger presented by the attem pted sexual assault. Def

endant’s actions cannot, theref ore, provide the basis f

or a kidnapping conviction.

3 4Id. at 868-69. The Verm ont Suprem e Court t hus recognized t hat the c o n f i n e m ent of the victim was m erely incidental to the attem pted s exual assault, and that “an of f ense such as
rape necessarily c ontem

p lates restrictions on t he victim ’s liberty while the crim e is b e ing

com m itted.” Id. at 868. ¶69. In a case with f

acts sim ilar to those sub judice , the Second District Court of Appeal of Florida reversed a k i dnapping conviction b ecause the m ovem ent and conf inem ent 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 W ilson attacked t he victim as s he crossed a dim ly lit

vacant lot on her way hom e f rom a ba r . I

d . T h e v acant lot w as covered with grass,

u n derbrush, and several large t rees. In the attack, W ilson grabbed the victim and t h e y struggled. Id. Then, he struck her above the ey e, knocked her down, a nd sexually assaulted her. Id. The victim

testif ied that W ilson had held her against her will. Id. ¶70. The appellate c ourt reviewed three f actors to determ ine that W i lson’s conduct did not constitute kidnapping. Id. at 318. First, the court f ound t hat “the evidence established that the m ovem ent was m erely incidental to the crim e of s exual battery because it occurred during

a struggle to restrain the victim by getting her to the g r o u n d

. ” Id. Second, the court f o und that, because W i lson c ould not have com m itted the crim e without restraining the victim , the conf inem ent w as i nherent in the crim e of sexual battery

. I d . And third, the court f

ound that “the m o vem ent did not h ave independent signif i c a n c e because it did not m a k e t he crim e easier or substantially

lessen the risk of

detection.” Id. ¶71. In this case, the m ajority f inds that the evidence was suf f icient to support Graham ’s

3 5kidnapping conviction. The m ajority r e sts t his f i nding on t h e v i ctim ’s testim ony that, as Graham , his codef

endant, I nge, and the victim walked along the p ath toward the convenience store, I nge punched the victim , and then the m en blocked her e x it f r om the wooded area as
t h e y s e x u ally a ssaulted h er. The m ajority also cites the victim ’ s testim ony that she asked Graham a nd Inge to take her som ewhere else, that they ref used, that Inge t old her they would

not take her elsewhere because they thought she would run, and t h a t the victim f led at the earliest o pportunity

. I would f ind that, considering the e v idence in the light m o st f avorable

to the verdict, the evidence shows that Graham ’s conf i nem ent of the victim was m erely incidental to his crim e of

f orcible rape. ¶72. One c om m its f

orcible rape 4 by “hav[ in g ] f orcible sexual i ntercourse with any person.” Miss. Code Ann. § 97-3-65(4)(a) (Rev. 2014). Although phy sically r estraining the victim is

not a necessary elem ent of f orcible rape, M

adere v. State , 794 So. 2 d 2 00, 210-11 (Miss. 2001), t h e c r i me of

t en involves phy sically restraining the victim in one location f or its

accom plishm ent. See , e.g. , Expose v. State , 99 So. 3d 1141, 1 143 (Miss. 2 0 1 2) (the rapist dragged the victim down an e m bankm e nt and restrained h er as she pled f o r h i m to stop).
Here Graham did not m ove the victim , but h e ld h er in one place f or the purpose of
accomp l i shing the f

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

4 C u eva s states th at co n f

in em en t o r m o v em en t o f a v ictim t h a t is m e r ely in cid en tal to a “ l e s s er crim e t h an k id n ap p i n g ” is in su f f i cien t to su p p o rt a k id n ap p in g co n v ictio n . C u eva s , 3 3 8 S o . 2 d a t 1 2 3 8

. B e cau se b o th f o r cib le r ap e an d k id n ap p i n g carry a m ax im u m sen ten ce o f lif

e im p riso n m en t, f

o rcib le rap e i s n o t a “lesser crim e th an k id n ap p in g .” Miss. Code Ann. §§ 97-3-65(4)(a), 97-3-53 (Rev. 2 014). B u t w h eth er k id n ap p in g is a lesser crim e m ak es n o d if

f eren ce to th e an aly sis o f w h eth er co n d u c t is m erely in c id en tal to an o th er crim e an d in s u f f icien t to su p p o rt a k id n ap p i n g co n v ictio n . 3 6victim ’s m ovem ent only to th e e x t e n t necessary t o accom plish another crim e. And as in
Goodhue and Wilson , Graham ’ s conf inem ent of the victim as he s exually a ssaulted her was part and parcel of h is f

orcible rape of the victim

. Considering the evidence and all r easonable
inf erences in the light m ost f avorable to the State, Graham did no m o re t han was necessary
to accom plish the crim e of f

orci b l e r ape a n d his conf inem ent of the victim was m erely incidental to the f

orcible rape. ¶73. T h e ma

j o r i t y ’ s holding that t he e v idence w as suf f icient t o s upport a kidna p p i n g conviction threatens to warrant a kidnapping conviction every tim e a def endant is c onvicted of a f orcible rape that has a f

actual com

ponent o f phy s ical restraint. This c annot h ave been the legislative intent b ehind codif y ing these separate crim es. I would hold that, considering the evidence in the light m o st f avor able to the v erdict, the evidence was insuf f icient to
sup p o r t G r a h am ’s kidnapping c onviction because his acts o f conf i ning t he victim were

m erely incidental to his crim e of f o rcible rape. I would a f

f irm his conviction of f

orcible rape. D. Conclusion ¶74. I would reverse and render Graham ’ s convictions of sexual battery

and kidnapping.
Due to t he f

atal variance be t w e e n t h e proof at trial and the f acts alleged in the indictm ent, Graham w as e ntitled to a directed verdict on the sexual battery charge. The jury i nstruction

on sexual battery was a constructive am endm ent to the indictm ent that violated Graham ’s f ederal and s tate constitutional rights t o notice of the nature and cause of the charge against
him

. And because G raham ’s restraint of the v ictim was m erely incidental to hi s crim e of
f orcible rape, the evidence was insuf f icient to s u

pport Graham ’s conviction of kidnapping.

3 7For these reasons, I respectf ully concur in part and dissent in part.

3 8