Brady v. State, 97-KA-00151 COA.
| Decision Date | 15 September 1998 |
| Docket Number | No. 97-KA-00151 COA.,97-KA-00151 COA. |
| Citation | 722 So.2d 151 |
| Parties | Brandon Cullen BRADY, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
James L. Davis III, Gulfport, for Appellant.
Michael C. Moore, Attorney General, Pat Flynn, Special Asst. Atty. Gen., for Appellee.
Before BRIDGES, C.J., and COLEMAN and HERRING, JJ.
HERRING, Judge, for the Court:
¶ 1. Brandon Cullen Brady appeals to this Court from his conviction of sexual battery and from a judgment issued by the Circuit Court of Harrison County, Mississippi, which denied his motion for a judgment notwithstanding the verdict or alternatively for a new trial. The appellant was originally indicted on one count of burglary of a dwelling and one count of sexual battery. The trial court, at the conclusion of the State's case, granted the defendant's motion for a directed verdict on Count I of the indictment (burglary) and then denied his motion for a directed verdict on Count II (sexual battery). Although the trial court offered to allow the State, at its option, to continue to prosecute Brady under Count I on the lesser-included offense of trespassing, the State declined. Thereafter the Appellant was convicted, after a two-day trial, of sexual battery and was sentenced to twelve years in the custody of the Mississippi Department of Corrections. We affirm.
¶ 2. During the early morning hours of November 11, 1995, nine-year-old SF1 was at home asleep on the living room sofa where she had fallen asleep watching television the night before. The room was illuminated by the kitchen light and the flickering light from the television set. The sofa on which SF was sleeping was located in front of the kitchen so that the light from the kitchen came over the back of the sofa and illuminated the living room. SF testified that she was awakened by the sound of tape being torn from a spool by Brandon Cullen Brady, who placed the tape over her mouth. SF stated that she was wearing only a shirt and underpants and "he sat at the end of the couch and pulled up my underwear, and then he licked my private, and then I made sounds, and he said I will kill you unless you shut up." On cross examination, SF was asked about what her assailant did to her. The record reflects that SF then responded:
¶ 3. When SF made sounds, moans and groans, he told her "I will kill you unless you shut up." Nevertheless the sounds that SF made awoke her sixteen-year-old sister, Laura, who came into the living room. Upon seeing a man on top of her little sister, Laura turned and ran to get help. The assailant then fled through the sliding glass door which led outside, fell on the steps, and disappeared into the darkness. Law enforcement officers were summoned, and upon their arrival both SF and Laura identified the appellant as SF's assailant. They both knew Brady, who was a neighbor that lived down the street from their home. SF testified that she could see Brady because the light from the kitchen and the television set fully illuminated his face. She stated that she was also able to observe her assailant during the assault.
¶ 4. Patricia Brady picked up her son, Brandon Brady, from work at approximately 5:00 p.m. on Friday November 10, 1995. They went to a local bank, cashed Brandon's paycheck, and then returned to the Brady home where Patricia Brady began to prepare supper. Soon after arriving at home, Brandon informed his mother that he was going for a walk. He left the residence without eating supper and headed to Mallini's, a local bar, to drink. At trial, Brady testified that he spent approximately $120 at Mallini's on November 10, 1995, consuming Wild Turkey shots with beer chasers. Patricia Brady testified that Brandon returned home after the 10:00 p.m. news programs on television. Both she and Brandon testified that when he returned home, she loudly scolded him because he was drunk. Thereafter, they watched television programs together for about one-half hour and they both went to bed.
¶ 5. Sleeping arrangements were crowded at the Brady house because Mike Brady (Brandon's father), Patricia Brady (Brandon's mother), Brandon's niece, his grandmother, and Brandon himself lived in the Brady family's three-bedroom house. Brandon Brady usually slept on the sofa in the living room. His grandmother normally slept in the first bedroom and his niece normally slept in the bedroom next to his parent's bedroom. On November 10, 1995, however, Brandon's father fell asleep on the sofa where Brandon usually slept, and Brandon's niece was spending the night at SF's home with SF's sister, Laura. When Patricia Brady retired to her bedroom, she told her son to sleep in his niece's bedroom because Michael Brady was still asleep on the sofa where Brandon normally slept.
¶ 6. Patricia Brady testified that she is a light sleeper and that she was awakened twice during the evening. The first time she awoke, she rose to find her son standing in the middle of his niece's bedroom. He informed her that he had just gone to the bathroom. She was awakened on the second occasion by the police officers knocking at the front door of her home. She testified that she was certain that her mother (Brandon Brady's grandmother) had not arisen during the night. She testified that when the police officers arrived, she woke her husband, who had arisen during the night and come to bed, to answer the door. It is noteworthy that Patricia Brady testified that she did not remember her husband coming to bed, and both Mike and Patricia Brady testified that Mike Brady was in his own bed with his wife and not on the sofa when the police officers arrived.
¶ 7. Laura, SF's older sister, testified that she was awakened at her home before dawn on November 11, 1995, by the sound of someone crying. She got up and went into the living room, where she saw a man on top of her sister. She then turned and ran to wake up her older sister. The assailant heard her and fled from the house. Laura testified that at first she did not recognize Brandon Brady as SF's assailant because she did not see his face. However she did recognize his build and the moles on his back, because she had spent time around him. She also testified that she and her mother heard the assailant fleeing through the woods next to their house.
¶ 8. Mike Brady testified that when he arrived home on Friday evening, he ate dinner and sat down on the sofa to watch television. He ultimately fell asleep and did not recall the loud discussion between his wife and his son over the latter's drunken state. Mr. Brady further testified that he awoke during the night and then retired to his own bedroom. He was awakened the next morning by his wife to answer the door when the police arrived.
¶ 9. Officer Pickle, of the Pass Christian Police Department, testified that after he received the call for assistance, he proceeded to the victim's home. SF described her assailant to Officer Pickle as a white male, thirty years old, who was wearing blue jeans and who was not wearing a shirt. He was also described as having a mustache and a beard. SF stated that her assailant was Brandon Brady. Laura also identified Brandon Brady as SF's assailant. Officer Pickle then went to the Brady residence and Michael Brady answered the door. Officer Pickle asked to speak with Brandon Brady and when he appeared, the Appellant, a white male, was wearing blue jeans with no shirt, and he had a beard (goatee) and mustache. At that time, Officer Pickle noticed that Brandon Brady had cuts on his feet and arms and an abrasion on one shoulder. According to Officer Pickle, these wounds appeared to him to be bleeding. Furthermore, the blue jeans worn by the Appellant appeared to be wet. At trial, Officer Pickle identified State's Exhibits 2 through 6 as photographs which he had taken of Brandon Brady on the date and at the time of his arrest and identified those wounds which he contended were bleeding. He also identified the tape which had been used to cover the mouth of SF during the attack, which was in substantially the same condition as when it was recovered from the SF's home. No fingerprint analysis was conducted because no fingerprints were recovered from the front door of SF's home due to weather conditions.
¶ 10. On December 5, 1996 a jury convicted Brandon Brady of sexual battery. As stated, he was sentenced to twelve years in the custody of the Mississippi Department of Corrections.
¶ 11. Brady presents us with the following issues to consider, which are taken verbatim from his brief.
I. WHETHER THE LOWER COURT ERRED IN NOT DIRECTING A VERDICT OF NOT GUILTY AT THE CLOSE OF THE STATE'S CASE FOR THE SEXUAL BATTERY CHARGE WHICH WAS RENEWED AT THE CLOSE OF THE ENTIRE CASE BY PEREMPTORY JURY INSTRUCTION D-2.
II. WHETHER THE EVIDENCE AT TRIAL WAS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION.
III. WHETHER THE VERDICT AT TRIAL WAS CONTRARY TO THE EVIDENCE OR STRONGLY AGAINST THE WEIGHT OF THE EVIDENCE.
IV. WHETHER THE LOWER COURT ALLOWED INAPPROPRIATE STATE JURY INSTRUCTIONS.
V. WHETHER THE LOWER COURT ERRED IN NOT DECLARING A MISTRIAL.
VI. WHETHER THE LOWER COURT ERRED IN NOT ALLOWING AN UNLAWFUL TOUCHING INSTRUCTION.
¶ 12. Assignments of error "I" and "II" address the sufficiency of the evidence presented at trial by the State. Assignment of error "III" addresses the weight of the evidence presented and whether the State sufficiently proved its case. In assignment of error "IV", the Appellant asserts that the State's Instructions, S-2, S-3, and S-5 should not have been granted by the trial court. These four assignments of error are related and will be discussed together. ¶ 13. The Appellant's argument on the first four...
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