Fortune v. State

• Decision Date: 19 March 2013
• Docket Number: No. 2011–KA–01057–COA.,2011–KA–01057–COA.
• Citation: 110 So.3d 831
• Court: Mississippi Court of Appeals
• Parties: Mark Andrew FORTUNE a/k/a “Andy”, Appellant v. STATE of Mississippi, Appellee.

110 So.3d 831

Mark Andrew FORTUNE a/k/a “Andy”, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–KA–01057–COA.

Court of Appeals of Mississippi.

March 19, 2013.

William Paul Starks II, Starkville, Erin Elizabeth Pridgen, attorneys for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before LEE, C.J., BARNES and FAIR, JJ.

BARNES, J., for the Court:

¶ 1. Mark Fortune was convicted of fondling his brother's eleven-year-old stepdaughter and sentenced to two years in the custody of the Mississippi Department of Corrections (MDOC). He appeals the conviction, claiming the circuit court erred in denying his jury instruction for “legal unconsciousness due to involuntary intoxication.” Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Fortune, a United States Marine, was deployed to Iraq in 2006. Four months later, he was injured by an improvised explosive device and suffered a concussion and injuries to his back, lower abdomen, and left arm. He was diagnosed with “traumatic brain injury, post-traumatic stress and memory loss” and granted a medical discharge from service. Fortune returned home to Columbus, Mississippi, and resided with his wife, Nikki, at his stepfather's home. As a result of his injuries, Fortune suffered short-term memory loss and migraines. He took various medications for his symptoms, including Ambien to help him sleep.¹

¶ 3. On December 12, 2008, the two stepchildren of Fortune's brother had a sleep-over at Fortune and Nikki's home. “Chris” (age six) had visited with the couple numerous times; however, “Alice” (age eleven) had only been over at their house a couple of times prior to this occasion.² Late that evening, Fortune and the two children sat down in the living room to watch a movie. Right before the movie started, Fortune took Gabapentin, a muscle relaxant, for a migraine and back pain. He also took Ambien, as he had been suffering from insomnia for a couple of days.

¶ 4. Chris, who was lying alone on the loveseat, quickly fell asleep after the movie started. Alice was lying on the couch, and Fortune proceeded to lie down behind her. He later explained that he did so because he was “groggy from the medication[.]” Alice closed her eyes in an attempt to sleep. Fortune took off Alice's eyeglasses and put them on the nearby table. According to Alice, Fortune began to touch her breasts over her clothing. Alice, who was not asleep, kept her eyes closed and remained still. Fortune lifted her shirt and training bra and resumed touching her breasts. Opening her eyes slightly, she saw Fortune looking at her breasts. She noted that Fortune would occasionally stop and take sips from his tea, which was on the nearby table. He eventually moved her hand down to the outside of his pants near his genitals. Alice moved her hand away, but Fortune kept moving her hand back. She said the fondling ceased when the movie ended and Fortune went to bed.

¶ 5. Alice said nothing about the incident to Fortune or Nikki. However, the next day, she told her mother what had happened. Alice's mother immediately contacted law enforcement and filed a complaint against Fortune, who was arrested. Investigator James Ferris with the Lowndes County Sheriff's Department interviewed Fortune, who did not deny touching Alice, but said: “When I take my medication[,] I don't remember a lot. I could have probably confused her for my wife because she is about the same size. I don't remember if I touched her, because when I am on my medication[,] I do things I don't remember.”

¶ 6. Fortune was indicted for fondling. At trial, Fortune testified on his own behalf. He stated that, initially, he and Alice were sitting on the couch, but when the medication he had taken before the movie made him “groggy,” he suggested that they “lay down.” Fortune claimed that the influence of the medication made him unable to remember what happened that night, stating:

I'd like to say that I didn't [touch Alice], but being on my medication not knowing the exact things that happened, I can't say if I did or not. But me as a person, if I wasn't on it, I kn[o]w for a fact I would not touch her.

....

I was flabbergasted with the whole ordeal that was going on. I was trying to put in my mind the best way to explain it. The possible way that it could only happen.Later, he contradictorily stated that he did not believe that he touched her. Upon further questioning, when asked if he thought Alice was lying, he admitted that although he would like to say she was, he could not “because [he] cannot remember the exact details of that evening.” Fortune continued to assert that the medication rendered him unconscious of his actions.

Q. And are you saying that the medication made you do something?

A. Possibly, yes.

Q. Do you know if the medication made you do anything?

A. I do not know.

....

Q. Were you conscious when she says you were touching her?

A. When she says that I've touched her that night?

Q. Yes.

A. No, I was not conscious.

¶ 7. Nikki, his wife, claimed that Fortune had occasional memory lapses. However, she also testified that she did not believe that Fortune touched Alice, even under the influence of medication. Nikki stated that she was constantly present in or near the living room during the movie, although she later admitted to folding laundry in the adjacent bedroom for part of the evening. Alice testified that Nikki was not present in the living room; in fact, Alice thought Nikki had gone to bed.

¶ 8. To advance Fortune's claim that the medication rendered him unconscious of his actions, the defense submitted into evidence the “medication guide” regarding Ambien use and its possible side effects, one of which includes performing acts without being aware of one's actions. Specifically, the medication guide noted that a “serious side effect” of Ambien is that a person “may get up out of bed while not being fully awake and do an activity that [he] do[es] not know [he is] doing.” Reported activities include “driving a car,” “having sex,” ³ and “sleep-walking.” The State objected to the admission of this evidence “on the basis that voluntary intoxication is not a defense.” The State also argued that the evidence was “misleading” and “irrelevant.” Over the State's objection, the circuit court allowed Fortune to submit the medication guide regarding Ambien's side effects into evidence. ⁴

¶ 9. During the jury-instruction phase of the proceedings, the issue of Fortune's alleged unconsciousness was addressed further. Fortune submitted Jury Instruction D–2A, which instructed the jury on the defense of “legal unconsciousness.” The proposed instruction stated:

The defendant is not guilty of fondling if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. Someone may be unconscious even though able to move. Unconsciousnessmay be caused by certain conditions such as epileptic seizures, blackout, sleepwalking, or by certain medicines.

The State must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have reasonable doubt that he was conscious, you must find him not guilty.

The judge denied the instruction and also denied Jury Instruction S–3, which concerned voluntary intoxication.⁵ The circuit court, however, did grant Jury Instruction D–3 over the State's objection. The instruction stated:

The word[ ] “willfully,” as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with [a] bad purpose either to disobey or disregard the law.⁶

The circuit judge explained his reasoning for denying Jury Instruction D–2A and S–3:

[Fortune] says that he lacked the intent to do that which the State is charged him with doing. But more importantly, I think the real theory is that if I did it, I don't know I did it because I was under the influence of a prescription drug. That's what I see. It's the willfulness of the act that he's accused of doing. A specific intent. And I've granted your instruction on that issue and defined what the willful conduct of someone that is charged like that is, what the intent is and define[d] what willful is for them.

....

You can argue willful all you want to to the jury, and lack of specific intent, and that he was on medication prescribed by a physician or nurse practitioner, VA, or whomever. Those are all good points that I think you can argue to a jury on the issue of willfulness. I will not comment on the evidence, however, by way of a jury instruction.

¶ 10. Fortune was convicted and sentenced to two years in the custody of the MDOC. He was also fined $1,000. Fortune filed a motion for a new trial, which the circuit court denied. Fortune now appeals, claiming that it was error for the circuit judge to deny Jury Instruction D–2A. Finding no error, we affirm.

DISCUSSION

I. Whether the circuit court erred by denying Jury Instruction D–2A, which presented a defense theory of “legal unconsciousness.”

¶ 11. Fortune argues that the circuit judge erred in denying Jury Instruction D–2A. In reviewing a circuit court's grant or denial of a jury instruction, we examine the jury instructions “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Jackson v. State, 68 So.3d 709, 712–13 (¶ 12) (Miss.Ct.App.2011) (quoting Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010)). “[I]f all [the] instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Id. Although a defendant is entitled to jury instructions “which present his theory of the case, ... the [c...