Preview:

IN THE COURT OF APPEALS 12/03/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00978 COA MICHAEL SIMMONS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR. COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALLAN D. SHACKELFORD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN DISTRICT ATTORNEYS: PATRICIA BECKETT AND LAURENCE MELLEN NATURE OF THE CASE: CRIMINAL - RAPE TRIAL COURT DISPOSITION: DEFENDANT CONVICTED OF RAPE AND SENTENCED TO SERVE TERM OF TWENTY-FIVE YEARS IN CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS

BEFORE MCMILLIN, P.J., BARBER, AND COLEMAN, JJ.

BARBER, J., FOR THE COURT:

Michael Simmons was tried and convicted of rape in the Tunica County Circuit Court. He was sentenced to serve a term of twenty-five years imprisonment in the custody of the Mississippi Department of Corrections. Simmons appeals his conviction on the following grounds:

I. WHETHER THE COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY AS TO THE ELEMENTS OF FORCE AND RESISTANCE.

II. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. FACTS On the night of November 5, 1993 at approximately 10:00 P.M., Michael Simmons was in the home of his girlfriend, Pat Johnson, waiting for her to return from work. Also present were Johnson's three nieces. Testimony at trial indicated that after Simmons arrived at the Johnson residence, the three children went to sleep in various locations throughout the home. Johnson's fifteen-year-old niece was asleep by herself in her bedroom when Simmons entered the room. According to her testimony, Simmons awakened her by climbing on top of her and fondling her breasts. Simmons then proceeded to rape the fifteen-year-old niece despite her protests and demands that he get off her. Simmons denied having sexual intercourse with the victim. At trial, the State presented medical testimony indicating that the victim had engaged in sexual intercourse on the night in question. Prior to November 5, 1993, the fifteen-year-old niece was a virgin. The victim testified that she tried to resist Simmons's advances, but was unsuccessful and that her sisters were not awakened by her attempts. The victim also testified that she did not scream or call for help because she was ashamed and embarrassed, and that she did not recall if she scratched or bit Simmons. After the rape was over, the victim took a bath and returned to her bedroom where she cried all night. Simmons left the Johnson residence after he elicited a promise from the victim that she would not tell anyone about the alleged rape. When the victim's mother came home from work she stuck her head into her daughter's room but did not hear her crying. Out of fear, the victim waited until the next morning to inform her mother of the rape, at which time Ms. Johnson summoned the police, who came to the Johnson home to collect evidence. The officers also took the victim to a hospital emergency room where a rape kit analysis was performed on her, and she was examined by Dr. James E. Warrington. ANALYSIS I. WHETHER THE COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY AS TO THE ELEMENTS OF FORCE AND RESISTANCE.

Simmons argues that the trial court committed reversible error in the instructions it submitted to the jury. At trial, the State proposed one instruction for the jury, while Simmons offered five of his own. The trial court refused to charge the jury with any of the instructions offered by Simmons, and instead used the State's instruction. Simmons asserts that the instruction given was erroneous because it failed to charge the jury that the sexual act in question must have been accomplished by force, in order for a rape to have occurred. The State counters this argument by directing this Court to the text of the instruction given to the jury. Section 97-3-65(2) of the Mississippi Code requires that to be guilty of rape the accused must have "forcibly ravish[ed]" the victim. Miss. Code Ann.

Download Michael Simmons v. State of Mississippi.pdf

Mississippi Law