Seigfried v. State, 2002-KA-01488-COA.
| Decision Date | 21 October 2003 |
| Docket Number | No. 2002-KA-01488-COA.,2002-KA-01488-COA. |
| Citation | 869 So.2d 1040 |
| Parties | Frank Adam SEIGFRIED, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Jim Davis, Columbia, attorney for appellant.
Office of the Attorney General by John R. Henry, attorney for appellee.
Before McMILLIN, C.J., BRIDGES, THOMAS and LEE, JJ. LEE, J., for the Court
PROCEDURAL HISTORY
¶ 1. On May 7, 2001, Frank Adam Seigfried was indicted by a Harrison County grand jury on the charge of sexual battery without consent. After a jury trial in August 2002, Seigfried was convicted on the charge and sentenced to serve twenty years in prison. His motion for new trial or in the alternative a judgment notwithstanding the verdict was denied. He appeals to this Court arguing that the verdict was against the overwhelming weight of the evidence, that the court erred in denying his requested jury instructions, that the court erred in allowing a video receipt into evidence, and that the cumulative effect of errors deprived him of a fair trial. Having reviewed each issue, we find no merit and affirm.
FACTS
¶ 2. On the evening of November 10, 2000, fourteen-year-old J.M., sixteen-year-old B.V.,1 and B.V.'s forty-nine year-old friend, Frank Adam Seigfried, got together with plans to do yard work at Seigfried's home, then have a sleepover. The three went to a store, Seigfried bought whiskey, then they went to Seigfried's home and drank the liquor. Later, Seigfried and the boys went to a video rental store and rented three movies, including two pornographic movies which Seigfried selected. Once back at Seigfried's home, the three drank more whiskey and watched the movies. Seigfried talked about "gay stuff" and bragged on the number of sexual encounters he had, which made the boys uncomfortable.
¶ 3. The boys left Seigfried's home and went to a casino to play video games for a few hours before returning to Seigfried's home. When the boys returned, Seigfried was in bed, and they went to another room where the television was located to sleep for the night. J.M. was on the floor, and B.V. was on the couch. Later, Seigfried entered the room, laid down next to J.M. and began stroking him. He unzipped J.M.'s pants and performed an act of fellatio on him. No consent was asked for or given. J.M. testified that he did not ask Seigfried to stop because, "I felt very weird, and felt like I was going to die, because I had a lot of things went through my head." J.M. testified that Seigfried next went to B.V., but J.M. did not look to see what happened between them because he was in shock and spent the remainder of the night crying.
¶ 4. The following morning, the three went to a casino for breakfast. Afterwards, the boys told B.V.'s sister what had happened, then told the police the same day.
DISCUSSION
¶ 5. Seigfried first argues that the verdict was against the overwhelming weight of the evidence and that he is entitled to a new trial. We look to our standard of review:
"In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.... Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.
Brady v. State, 722 So.2d 151 (¶ 19) (Miss. Ct.App.1998) (citations omitted).
¶ 6. Seigfried moved for a directed verdict at the close of the State's evidence, arguing that J.M.'s testimony was uncorroborated and contradictory to prior statements he had made, and the State had failed to prove that the act was done without consent. The judge found a directed verdict was not in order since sufficient evidence was presented to allow the jury to decide the case. After the verdict was announced, Seigfried filed a motion for a new trial or in the alternative a judgment notwithstanding the verdict. Therein, he raised the same issues brought in his motion for directed verdict and argued the court erred in denying certain jury instructions, among other things. After a hearing, the motion was denied.
¶ 7. Seigfried's main argument in this issue concerns whether the State proved J.M. failed to consent. Seigfried's indictment lists Section 97-3-95(1)(c) as the charging statute. Under part (c) of section (1), Seigfried is guilty of sexual battery if he sexually penetrates, "[a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child...." Miss.Code Ann. § 97-3-95(1)(c) (Rev. 2000). The language of the indictment, however, charges that Seigfried, "did wilfully, purposely, unlawfully and feloniously commit Sexual Battery upon J.M., without the consent of the said J.M., by engaging in the act of sexual penetration, to wit: by performing fellatio on the said J.M. ...." This language is reflective of section (1)(a) of the statute, not (1)(c). Section (1)(a) fails to mention age but simply states that a person is guilty of sexual battery if he engages in sexual penetration with another person without his or her consent. The State proceeded at trial to prosecute Seigfried on section (1)(a) which includes the consent element.
¶ 8. Seigfried argues that the State failed to prove that J.M. failed to consent and cites the following facts in support of his argument: both boys felt free to come and go from Seigfried's home as evidenced by their trek to the casino arcade; J.M. testified that he did not say no to Seigfried's advances, nor did he try to stop him; J.M. did not act like a fearful or intimidated child, since he openly drank liquor with Seigfried; and no evidence was presented to show that Seigfried threatened J.M. The State rebuts that, although J.M. testified that he acquiesced to Seigfried's actions out of fear, such acquiescence is not consent. Plus, J.M.'s testimony was corroborated by the testimony of his friend, B.V., by J.M.'s act of crying after the event and by J.M.'s reporting of the incident to the police the day after it happened; therefore, the State claims the case was sufficient to submit to the jury.
¶ 9. A rape victim's uncorroborated testimony alone is sufficient where it is consistent with the circumstances. McKnight v. State, 738 So.2d 312(¶ 10) (Miss.Ct.App.1999). Although we recognize that this is a case of sexual battery and not rape, here, J.M.'s testimony was corroborated by B.V., plus it was not discredited nor contradicted. Whether or not J.M. consented was for the jury to determine based on evidence presented to them. Failure to resist a sexual advance out of perceived fear of bodily harm has been shown to negate allegations that such inaction constituted consent. See Hull v. State, 687 So.2d 708, 723 (Miss.1996). ¶ 10. The jury was told how J.M. cried after the fact, how he felt intimidated into submission, and how he was under the influence of alcohol during the episode. Although J.M. failed to show that Seigfried threatened him or assaulted him in any way, save the act at issue, the jury was able to view this evidence and the demeanor of the witnesses in determining whether or not J.M.'s actions constituted consent. Accordingly, we will not disturb the verdict.
¶ 11. Seigfried argues that the court erred in refusing certain of his requested jury instructions and in granting one of the State's instructions which misstated the law.
In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.... The main query is whether (1) the jury instruction contains a correct statement of the law and (2) whether the instruction is warranted by the evidence.
Sanchez v. State, 792 So.2d 286 (¶¶ 6-7) (Miss.Ct.App.2001).
¶ 12. Seigfried first argues that the court erred in refusing his requested instruction D-7 which stated:
¶ 13. Seigfried argued to the trial court that in refusing to give this instruction, the judge effectively took away his ability to defend himself since this instruction reflected the major theory of his case, which was that J.M. consented. The State referred the judge to McKnight v. State, 738 So.2d 312 (Miss.Ct.App.1999). In McKnight, the judge refused to grant the exact same instruction as Seigfried's requested D-7. We affirmed the refusal and quoted the following rules:
[A]n instruction which instructs the jury on the law, according to the facts, is sufficient, and a duplicate instruction in different words, requested by the defendant, is not required. Also, a court is not required to instruct the jury over and over on a point of law, even though some variations are used in different...
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