Graham v. State

• Decision Date: 25 February 2016
• Docket Number: No. 2013–KA–02165–SCT.,2013–KA–02165–SCT.
• Parties: Dewayne GRAHAM a/k/a Dewayne Dal'Angle Graham a/k/a Dewayne Deanglo Graham a/k/a Dewayne Deangelo Graham v. STATE of Mississippi.
• Court: Mississippi Supreme Court

185 So.3d 992

Dewayne GRAHAM a/k/a Dewayne Dal'Angle Graham a/k/a Dewayne Deanglo Graham a/k/a Dewayne Deangelo Graham

v.STATE of Mississippi.

No. 2013–KA–02165–SCT.

Supreme Court of Mississippi.

Feb. 25, 2016.

Office of the State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before RANDOLPH, P.J., KING and COLEMAN, JJ.

COLEMAN

, Justice, for the Court:

¶ 1. On August 2, 2012, a Lauderdale County grand jury returned a multiple-count indictment against Dewayne Graham which alleged kidnapping, forcible rape, and sexual battery. The trial court reset the trial date five times over the next sixteen months. After a two-day trial, the jury returned a guilty verdict and the Circuit Court of Lauderdale County sentenced him to thirty years' imprisonment in the custody of the Mississippi Department of Corrections as a habitual offender. Aggrieved, Graham appeals.

FACTUAL BACKGROUND

The Incident

¶ 2. The victim testified against Graham at trial. According to her testimony, she became acquainted with Graham's co-aggressor, Jamonious Inge, while visiting her mother and children in December of 2011. On December 22, 2011, she and Inge met at her mother's home. They talked there for a period of time, until Inge offered the victim some cocaine and they went to his house. Inge's and the victim's testimony conflict as to why they left Inge's later that evening: The victim testified that the cocaine never arrived and Inge offered her a ride back, whereas Inge testified¹ that the cocaine did arrive and, after consuming it, they went to buy cigarettes. In either case, Graham met them outside Inge's apartment. The three walked toward a nearby Cefco convenience store and then down a pathway behind the Cefco.

¶ 3. The victim believed the car was at the other side of the trees because she "could see through the path ... so [she thought] it[ was] just like a crossover to get somewhere, like something was on the other side."² Once within the trees, Inge abruptly turned around and punched her in the eye, and then told her to pull her clothes down. The impact knocked her hairpiece from her head and one of her earrings out of its piercing.

¶ 4. The victim testified that she was scared, and Inge testified that he knew she didn't want to pull her pants down. The victim also testified that she was crying, that she was in shock throughout the encounter, and that Inge and Graham were "blocking [her].... One was behind [her] where [she] couldn't go back through the entryway, and he was in [her] face." Both Inge³ and the victim testified that Graham participated in the sexual assault. Graham unzipped his pants and told her to perform oral sex on him. The victim complied "because [she] was scared," but she testified that her actions were not voluntary. The victim began to talk to Inge and Graham, "saying things, just talking to try to get them to feel guilty to not do it. So [she] was just talking as much as possible so that [she] wouldn't have to do the actions."

¶ 5. At first, Inge attempted to penetrate the victim vaginally while standing behind her, but he was unable to achieve an erection. At that point, Graham and Inge switched positions, with Inge forcing the victim to perform oral sex while Graham forcibly raped her from behind. When Graham and Inge decided to take the victim somewhere else, she pulled her clothing into place and ran to the Cefco they had passed earlier. Inside the store, she asked the clerk to call the police and then ran behind the counter. According to the victim, Inge and Graham then entered the Cefco and began a show of concern over the victim, asking her what was wrong and who had hurt her. The clerk testified at trial that the victim looked "scared ... nervous, upset." Detective Joe Hoadley reviewed the Cefco video footage after the incident and noted two black males having an "adversarial" confrontation with one of the females behind the counter.

¶ 6. Officer David Creel arrived at the Cefco after receiving a call from dispatch. The victim went to the hospital via ambulance, where a designated registered nurse performed a rape kit. The next morning, the victim visited the police station and was interviewed by Detective Hoadley.

Procedural History

¶ 7. The grand jury returned a three-count indictment on August 2, 2012. Count III of the indictment, the subject of the first part of Graham's appeal, states in pertinent part that "on or about the 23rd day of December, A.D., 2011, [Graham] did then and there wilfully, unlawfully and feloniously engage in sexual penetration, as defined in MCA Section 97–3–97

... by performing fellatio on [the victim]." Graham then was arraigned, and the trial court set the case for trial on October 10, 2012.

¶ 8. The trial court granted a total of five continuances over the next sixteen months, until trial began on December 9, 2013. The court granted the first two continuances after joint motions from the State and Graham. First, on October 10, 2012, the court granted a continuance until December 5, 2012, so that plea negotiations could continue. Second, on December 5, 2012, the court granted a continuance, though the joint motion states only "trial" as the reason for a resetting. A later continuance hearing revealed that the judge granted the continuance after seeing that counsel for both parties had signed the motion. The judge at that hearing noted for the record that Graham had refused to sign the joint motion because he did not want to waive his right to a speedy trial.

¶ 9. Third, on February 6, 2013, the State made an ore tenus motion for a continuance because the victim was living in Arkansas. The State's Victim Assistance Coordinator testified at the hearing that the victim was "essentially a homeless person" and that he was having trouble locating her. Graham's counsel opposed the motion. The judge acknowledged Graham's assertion of his right to a speedy trial but still granted the continuance until April 8, 2013.

¶ 10. Fourth, on April 8, 2013, the State moved for another continuance because the victim had been located at an Arkansas prison, and the State was still in communication with prison authorities in an effort to move her to Mississippi for Graham's trial. The trial court granted the continuance and released Graham on a personal recognizance bond.

¶ 11. Fifth, on August 5, 2013, the trial court issued the final continuance, resetting the trial date for December 9, 2013. The State had moved for the continuance because of absent material State witnesses, and Graham's counsel joined the motion because she was ill and because Graham had been injured during a recent shooting.

¶ 12. Trial commenced on December 9, 2013. The State produced seven witnesses in the following order: Inge; the victim; Shannon Campbell, the Cefco employee who called the police; Kristen Hayes, R.N., the sexual assault nurse examiner who conducted the victim's rape kit; David Creel and John Griffith, two police officers who had been involved in the initial response to the 911 call; and Joe Hoadley, the detective who had investigated the crime. The defense then moved for a directed verdict on Count III of the indictment, which alleged that Graham had sexually battered the victim by fellating her, arguing that there was not "a scintilla of evidence that that occurred." The State opposed the motion, and after a contentious discussion outside the presence of the jury regarding the language of the indictment, the court sided with the State and denied the motion. After the State rested, Graham produced one witness: Melvin Graham, the defendant's brother.

¶ 13. The jury returned guilty verdicts on all three indictments. The Circuit Court of Lauderdale County sentenced Graham to serve three concurrent sentences of thirty years' imprisonment in the custody of the Mississippi Department of Corrections as a habitual offender.

ANALYSIS

¶ 14. Graham asserts four issues on appeal:

I. Whether the trial court erred when it denied Graham's motion for a directed verdict as to Count III, when the State presented no evidence that Graham had performed fellatio on the victim.

II. Whether the State impermissibly amended Count III of the indictment when it issued jury instruction S–3.

III. Whether the State presented insufficient evidence to convict Graham.

IV. Whether Graham's speedy trial rights were violated when the court reset the date of trial five times over sixteen months.

All four issues are without merit, as discussed below.

I. The trial court did not err when it denied a motion for a directed verdict as to Count III of the indictment because Graham was sufficiently on notice regarding the nature of the charge against him.

¶ 15. "This Court reviews a trial court's grant or denial of a motion for a directed verdict de novo. " Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009)

. "Requests for a directed verdict and motions [for] JNOV implicate the sufficiency of the evidence." Franklin v. State, 676 So.2d 287, 288 (Miss.1996). When reviewing the sufficiency of the evidence, the Court does not ask itself whether "the evidence at trial established guilt beyond a reasonable doubt," but asks instead "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (internal citations omitted). If facts and inferences considered by the Court "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the Court must reverse and render. Bush, 895 So.2d at 843 (citing Edwards v. State, 469 So.2d 68, 70 (1985) ) (internal citations omitted).

¶ 16. Graham...