Peterson v. State

Decision Date22 February 1996
Docket NumberNo. 92-KA-00648-SCT,92-KA-00648-SCT
Citation671 So.2d 647
PartiesNiles Maxey PETERSON v. STATE of Mississippi.
CourtMississippi Supreme Court

Appeal No. 4382S from Judgment dated May 22, 1992, Clarence E. Morgan Jr., Ruling Judge, Winston County Circuit Court.

J. Niles McNeel, McNeel & Ballard, Louisville, David E. Bane, Jr., Clarksdale, for appellant.

Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Attorney General, Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

The matter before the court involves an appeal from a conviction of rape and sexual battery on a two count indictment. Peterson received a sentence of twenty years for each count to be served concurrently. We reject most claims of error assigned by the appellant and affirm the trial court's ruling as to the rape conviction of the defendant. We conclude, however, that the indictment which charged the defendant for sexual battery was insufficient under Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice and this Court's line of jurisprudence and reverse that conviction.

I.

On September 1, 1991, Wendy Wright and a friend Christy Hitt were riding around Louisville in Wright's car when they happened upon the defendant Niles Peterson in the parking lot of Walmart. Wright and Peterson were both eighteen at this time. Having decided to go to the house of a mutual friend, Mike Quinn, Wright and Hitt followed Peterson to Quinn's home. Soon thereafter, Quinn joined the group, and the four of them went to Cooper's, a local convenience store, to park Wright's car.

After leaving Wright's car at Cooper's the group went riding around town, stopping at various points to smoke marijuana, drink alcohol and sniff the gas from the aerosol cans of whipped cream they had bought from the store. It is disputed as to who was smoking the marijuana, drinking the alcohol, or sniffing the gas from the cans of whipped cream. Throughout the evening, Wright and Peterson had encounters involving kissing and grabbing where it remains in dispute whether consent was given. The group eventually returned to Quinn's home and ate sandwiches later that evening.

Around 1:00 a.m., Wright decided to leave Quinn's home. Peterson agreed to give her a ride to her car at Cooper's. Wright testified that when they arrived at her car, Peterson proceeded to let her seat back, crawl on top of her, and lift her shirt out of her pants. Wright testified that after this incident she grabbed her purse and got out of the car. While Wright walked toward the back of the car Peterson was driving, Peterson began to push her toward the building. After pushing her toward the building, Wright testified that Peterson picked her up and slammed her on the ground. After screaming and begging him not to hurt her, Peterson allegedly ordered her to lay down or he would "knock the hell out of ... [her]."

Wright testified that she initially refused to lay down, and as a result he hit her and knocked her down. The two continued to struggle and Peterson struck her again. Wright testified that Peterson ripped her clothes off and threatened to slice her throat with a knife. Fearing for her life, Wright testified that she ceased struggling and Peterson began to rape her. She testified in brutal detail that she was raped and forced to perform oral sex four times before she was able to escape. While running away wearing no more than her socks and a blouse with all the buttons ripped off, she fell down several times and jumped a ditch. She further testified that she eventually stopped at a house down the road from Cooper's and knocked on the door for help.

Peterson disagrees with Wright's testimony. Peterson testified that when the two of them arrived at Cooper's, they began kissing and fondling in the car until it became too small and crowded. Peterson stated that they then got out of the car and went over to the building and had consensual sex. He testified that they consensually had sexual relations once, and she consensually performed oral sex upon him. He also testified that they had not finished when she told him to "[h]old on" and ran toward Mike Quinn's home.

Peterson was indicted by a grand jury in Winston County, Mississippi, during the October term of 1991 on two counts. The first count was for the rape of Wendy Wright, a female human being above the age of fourteen years without her consent in violation of the provisions of Miss.Code Annotated 1972 § 97-3-65(2), as amended. The second count was for sexual battery consisting of the unlawful engagement in sexual penetration with Wright, a female human being above the age of fourteen years, by placing his penis into her mouth, constituting the act of fellatio, in violation of Miss.Code Annotated 1972 § 97-3-95 through § 97-3-103 (Supp.1991).

The defense made several pre-trial motions concerning issues raised before this Court. The defense filed a demurrer to Count II of the indictment on the grounds that the indictment did not state that the sexual penetration occurred "without her consent" as required by Miss.Code Ann. § 97-3-95 (1972). After hearing arguments from both parties on this issue, the trial court overruled the demurrer based on this Court's ruling in Hines v. State, 472 So.2d 386 (Miss.1985).

The defense also stated that he intended to question Wright about a previous instance where Wright and the defendant were kissing as evidence of past behavior going to the defense of consent. The trial court ruled that the evidence of kissing and fondling was in fact "part of sexual behavior ... and part of a sexual relationship." However, he sustained the prosecution's motion in limine to preclude admission of the evidence based on Rule 412 of the Mississippi Rules of Evidence.

The third motion by the defense included an attempt to introduce evidence concerning an incident where Wright was called "a slut and a whore" during an argument with another female. The evidence was offered as relevant to Peterson's state of mind on the night of the offense. The trial court denied the defendant's motion based on irrelevance.

The defendant's fourth motion concerned a proffer of testimony by one Todd Vowell that Wright had told him on a date that she had been raped by a previous boyfriend in Philadelphia some time before moving to Louisville. The defense asserted that this evidence contradicts Wright's previous testimony during a preliminary hearing that she had never charged anyone or made allegations against anyone that she had been the victim of rape or sexual advances. Vowell's testimony was offered as relevant to prove that Wright had made a false allegation of a past sexual offense under Rule 412(b)2(C). The trial court again denied the defendant's motion based on its irrelevance.

After the jury selection process concluded, the trial court heard testimony from Vowell in chambers. Upon hearing this testimony, the trial court renewed its ruling sustaining the prosecution's motion in limine precluding the admission of Vowell's testimony. During the trial proceedings, the prosecution elicited testimony from Wright's mother concerning the emotional trauma and behavior of Wright after the alleged offense. After the direct examination of Wright's mother, the defense, in a hearing in chambers, again renewed its motion to introduce testimony of Todd Vowell concerning allegations of the previous sexual offense, as evidence of an alternative source of injury under Rule 412(b)2(A). The trial court again denied the defendant's motion based on the irrelevance of Vowell's testimony.

After the presentation of each party's case, the trial court informed the opposing counsel of the proposed jury instructions in a hearing in chambers. The defense objected to numerous jury instructions, including jury instruction S-7, which explained the defense of intoxication. In spite of this objection, the trial court gave the instruction. After deliberation, the jury found the defendant guilty of one count of rape and one count of sexual battery. The trial court then sentenced Peterson to twenty years in prison for each count, to be served concurrently. Peterson now appeals to this Court to consider the following issues:

A) WHETHER THE TRIAL COURT ERRED IN DENYING PETERSON'S MOTION TO DEMUR TO COUNT II OF THE INDICTMENT CONCERNING THE SEXUAL BATTERY CHARGE;

B) WHETHER THE TRIAL COURT ERRED IN DENYING PETERSON'S REQUEST TO INTRODUCE EVIDENCE OF A PRIOR INCIDENT OF KISSING BETWEEN THE ALLEGED VICTIM, WENDY WRIGHT, AND PETERSON;

C) WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S ATTEMPT TO INTRODUCE A STATEMENT BY WRIGHT INFORMING PETERSON THAT SHE HAD BEEN CALLED A "SLUT AND A WHORE;"

D) WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE INTRODUCTION OF EVIDENCE THAT ON A PREVIOUS OCCASION WRIGHT MADE AN ALLEGATION OF A PAST SEXUAL OFFENSE;

E) WHETHER THE TRIAL COURT ERRED IN ALLOWING WRIGHT'S MOTHER TO TESTIFY CONCERNING THE "EMOTIONAL OR PSYCHOLOGICAL TRAUMA" ENDURED BY WRIGHT WITHOUT ALLOWING VOWELL'S TESTIMONY AS PROOF OF AN ALTERNATIVE SOURCE OF INJURY; AND

F) WHETHER THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-7 BECAUSE INTOXICATION OF THE DEFENDANT WAS NOT AN ISSUE OR AN ALLEGED DEFENSE IN THE INSTANT CASE.

II.
a.

Section 97-3-95, Mississippi Code 1972 Annotated (as amended) provides, in pertinent part, that a person is guilty of sexual battery if he or she engages in sexual penetration with another person without his or her consent. Peterson asserts that consent is a necessary element of the offense of sexual battery in this case; thus, the indictment on count two, sexual battery is insufficient because it lacked the words "without her consent."

It is a well-settled principle that the Supreme Court is the "ultimate expositor of the law of this state." UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987). Therefore, this Court conducts de novo review on questions of...

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