IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-KA-01617-COA
FREDRICK EUGENE BLISS A/K/A FREDRICK APPELLANT E. BLISS A/K/A FREDRICK BLISS A/K/A FREDERICK EUGENE BLISS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/25/2017 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/22/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. A Harrison County grand jury indicted Fredrick Bliss for one count each of
kidnapping, robbery, and sexual battery. A jury found Bliss not guilty of kidnapping or
robbery but convicted him of sexual battery. The Harrison County Circuit Court sentenced
Bliss to serve twenty-five years in the custody of the Mississippi Department of Corrections
(MDOC) without eligibility for parole or early release. On appeal, Bliss argues the circuit court erred by (1) giving jury instruction S-6, which instructed the jury on the uncorroborated
testimony of a sex-crime victim, and (2) admitting into evidence a photograph that showed
the victim’s cervical injuries. Finding no error, we affirm Bliss’s conviction and sentence.
FACTS
¶2. On the evening of October 15, 2015, J.R.1 attended a bachelorette party at the Beau
Rivage Resort and Casino (the Beau Rivage) in Biloxi, Mississippi. J.R. left the Beau
Rivage around 2 a.m. on October 16, 2015. The Beau Rivage’s video footage showed that
J.R. and Bliss entered the same elevator and then exited the elevator on the same floor of the
parking garage. J.R. testified at trial that as she got into the elevator, Bliss asked what floor
she needed. J.R. responded that the button for her floor had already been pushed. Other than
this quick exchange, J.R. testified that she did not converse with Bliss.
¶3. According to J.R., she neither noticed another vehicle following her home nor had a
conversation with any other drivers as she drove home. Upon reaching her apartment
complex, J.R. testified that she had to circle around the parking lot before finally finding a
spot in an unlit section of the parking lot. After she parked her vehicle, J.R. texted her
friends from the bachelorette party to let them know that she had arrived home. J.R. testified
that she had exited her vehicle and walked several feet away when someone grabbed her
from behind in a choke hold. J.R. testified that the man who grabbed her also shoved an
object behind her ear. At the time of the attack, J.R. thought the assailant had a knife. J.R.
1 We use initials to protect the victim’s identity.
2 stated that she tried to scream but was unable to make any noise. The assailant told J.R.
multiple times to shut up. J.R. urinated on herself as she struggled with the assailant. As the
assailant dragged her to the ground between two vehicles, J.R. stated that she tried to grab
onto a vehicle to catch herself. J.R. testified that the assailant was very strong and seemed
considerably larger than her. The assailant shoved J.R.’s face sideways into the ground and
covered her eyes with his hand. J.R. testified that the assailant positioned himself on top of
her and pushed her legs away from each other. The assailant rubbed his hand on the outside
of J.R.’s underwear, which he noted was already wet.
¶4. At some point during the attack, the assailant pulled J.R.’s underwear down to her
ankles. J.R. testified that she begged for the assailant to stop and told him that she had
children. J.R. stated that the assailant stuck his finger inside her vagina and commented that
she was already wet and that he could understand why she had several children. The
assailant also touched J.R.’s breasts and asked whether she had implants. J.R. testified that
the assailant asked her where the pen was. At the time of the question, J.R. thought the
assailant wanted the personal identification number, or PIN, to her debit card.
¶5. J.R. testified that the assailant suddenly stopped what he was doing, stood up, and
threatened to kill her if she turned around to look at him. Although her underwear was still
around her ankles and she was missing her car key and phone, J.R. ran toward the apartment
complex’s elevators. When she reached her apartment, J.R. testified that she woke up her
husband and told him about the attack.
3 ¶6. J.R.’s husband testified that he was asleep on the couch when J.R. ran into their
apartment. J.R.’s husband further testified that his wife was frantic as she told him about the
attack and that her underwear was still around her ankles. J.R.’s husband retrieved a
flashlight and his pistol, and he called 911 as he walked toward the parking lot. J.R.’s
husband quickly searched the parking lot for the assailant and J.R.’s missing car key and
phone. After failing to find either the assailant or the missing items, J.R.’s husband returned
to the apartment and remained there while J.R. told the 911 operator about the attack.
¶7. The police arrived and searched the area. During their investigation, the police
discovered fingerprints on the windows and side door of a Jeep parked in the parking lot.
Officer Bryan Wallace with the Biloxi Police Department testified that he photographed the
handprints on the Jeep. Officer Wallace further testified that he observed a black
government-issued Skilcraft ink pen on the ground by the Jeep’s rear tire. Officer Wallace
stated, however, that he forgot to collect the ink pen after he was asked to take some
photographs of J.R.’s vehicle. Officer Wallace testified that the police never recovered J.R.’s
missing car key or phone.
¶8. After the police left the apartment complex, J.R.’s husband went back outside to
continue his search for J.R.’s missing key and phone. During his search, he found an ink pen
by the rear tire of a vehicle. J.R.’s husband testified that he sent a picture of the ink pen to
Investigator Ray Akins with the Biloxi Police Department. Investigator Akins asked J.R. and
her husband to deliver the ink pen to the police station. After the police identified Bliss as
4 a suspect in the attack on J.R., Investigator Michael Melasecca obtained and executed a
warrant to search Bliss’s vehicle. Investigator Melasecca testified that he discovered three
“U.S. Skilcraft government[-]style” ink pens in the center console of Bliss’s vehicle.
Investigator Melasecca testified that he had been in the United States Air Force for four years
and that he had used the Skilcraft pens when he was in the military. Investigator Melasecca
further stated that he “associate[d] them [(the pens)] with being a military[-]style pen” and
that they “were common and [found] almost any place in the military where you would have
to write . . . .”
¶9. The same day as the attack, J.R. and her husband went to Singing River Hospital
(Singing River) so J.R. could undergo a sexual-assault examination. Nancy Story, an
emergency-room nurse at Singing River, testified that she had been trained as a sexual-
assault nurse examiner and that she performed J.R.’s examination. The circuit court accepted
Story as an expert in sexual-assault examinations. J.R. described the attack to Story and
provided Story with the clothing she had worn at the time of the attack. Story testified that
the underwear J.R. had worn at the time of the attack was still wet and smelled of urine. The
clothing and evidence that Story collected during the examination were sent to the
Mississippi Forensics Laboratory for analysis.
¶10. Story testified that J.R.’s physical examination revealed bruising to J.R.’s right eye,
a pinpoint bruise behind her right ear, and some bruising to her left leg. Story also stated that
a pelvic examination revealed some redness and bruising to J.R.’s vagina and cervix. Story
5 testified that J.R.’s cervical injuries were consistent with J.R.’s account of the attack and her
statement that the assailant had digitally penetrated her vagina. Story testified that she had
documented J.R.’s injuries by photographing them. Without any objection from the defense,
the State offered into evidence several photographs of J.R.’s injuries, including the
photograph of her cervical injuries. Story testified that the photograph of J.R.’s cervix
documented injuries consistent with a “finger forcefully being inserted into her vagina” that
could “cause the bruising to the cervix” depicted by the photograph. Story further testified
that her findings from J.R.’s physical examination were consistent with the history that J.R.
had provided regarding the attack.
¶11. Investigator Akins testified that during his investigation of the attack, he reviewed
video footage from both the Beau Rivage and J.R.’s apartment complex. The Beau Rivage’s
video footage showed J.R. and Bliss enter the same elevator and then exit onto the same floor
of the parking garage. The video footage from J.R.’s apartment complex showed J.R. arrive
and park her vehicle. Bliss’s vehicle, with the headlights turned off, entered the parking lot
behind J.R.’s vehicle. Investigator Akins testified that the area of the parking lot where J.R.
parked was “pitch dark” and that a person would have been unable to see anything without
a light. The apartment complex’s video footage failed to capture the attack on J.R. but
showed J.R. running toward the elevators with her underwear around her ankles. The video
footage also showed Bliss backing out of his parking spot at the apartment complex with his
headlights still turned off as he began to exit the parking lot. From the video footage, the
6 police identified Bliss as a suspect in the assault on J.R. Investigator Akins testified that he
interviewed Bliss, who waived his Miranda2 rights and provided a statement.
¶12. At trial, Bliss testified on his own behalf. He stated that he had watched the New
Orleans Saints game at his residence the evening of October 15, 2015, before going to the
Beau Rivage. As Bliss left the Beau Rivage on the morning of October 16, 2015, he and J.R.
exited the elevator onto the same floor of the parking garage. Bliss stated that he said,
“[H]ey, little mama,” to J.R. because he “was trying to get her attention.” Bliss further stated
that he made “cat calls” to J.R. and said, “[P]sst, psst, psst, psst, things of that nature.” Bliss
testified that J.R. smiled at him but did not verbally respond as she walked toward her
vehicle.
¶13. Bliss stated that he saw J.R. again while he was driving on the interstate. Bliss
testified that he pulled up beside J.R.’s vehicle and once again tried to get her attention by
making cat calls, flashing his vehicle lights, and honking his horn. According to Bliss, J.R.
waved her hand at him and indicated that he should follow her. Bliss testified that J.R. did
not roll down her vehicle window but that he could see inside her vehicle because her
windows were not tinted. Bliss stated that after J.R. signaled for him to follow her, he pulled
behind J.R.’s vehicle and followed her to her apartment complex. As he approached the
guard house at the front of J.R.’s apartment complex, Bliss turned off his vehicle’s
headlights. Bliss explained that he had served in the United States Navy and that he always
2 Miranda v. Arizona, 384 U.S. 436 (1966).
7 dimmed or turned off his vehicle headlights when he approached a military base so as not to
blind the guards. As a result, Bliss stated that when he approached J.R.’s apartment complex,
he instinctively turned off his vehicle headlights until he had passed the guard house. Bliss
testified that he parked his vehicle in the first available parking spot he found and then
remained inside his vehicle until he saw J.R. park.
¶14. According to Bliss, he walked up to J.R. after she exited her vehicle, put his hands
around her waist, and again said, “[H]ey, little mama.” Although J.R. was initially startled,
Bliss stated that she “got comfortable, [and] leaned back into [him].” Bliss testified that he
and J.R. touched and caressed until J.R. told him that they could not continue their interaction
because she was married and had children. Bliss stated that after J.R.’s comments, he
stopped caressing her, got into his vehicle, and left the apartment complex. Bliss testified
that he once again kept his vehicle headlights turned off until he passed the guard house at
the front of the apartment complex.
¶15. On rebuttal, the State called J.R. as a witness. Contrary to Bliss’s testimony, J.R.
stated that her vehicle had tinted windows. J.R. further testified that she was certain she had
not rolled down the windows of her vehicle at any point during her drive home from the Beau
Rivage. According to J.R., she never drove with her vehicle’s windows rolled down.
¶16. After considering all the evidence, the jury found Bliss not guilty of kidnapping or
robbery but convicted him of sexual battery. The circuit court sentenced Bliss to serve
twenty-five years in MDOC’s custody with no eligibility for parole or early release. Bliss
8 filed an unsuccessful motion for judgment notwithstanding the verdict or, alternatively, a
new trial. Aggrieved, Bliss appeals.
DISCUSSION
I. Jury Instruction S-6
¶17. Bliss contends the circuit court erred by giving jury instruction S-6, which stated,
“The Court instructs the jury that the uncorroborated testimony of a sex-crime victim is
sufficient to support a conviction if accepted as true by the finder of fact.” Although he
acknowledges that the Mississippi Supreme Court recently upheld an identical instruction in
Pitts v. State, 291 So. 3d 751, 752-53 (¶¶30, 34) (Miss. 2020), Bliss maintains that instruction
S-6 failed to fully instruct the jury. According to Bliss, instruction S-6 “emphasize[d]” and
“provide[d] strong support for” J.R.’s testimony while simultaneously failing to instruct the
jury on the proper “qualifying test” to apply to a sex-crime victim’s uncorroborated
testimony.
¶18. We review the circuit court’s decision to give or deny a proposed jury instruction for
abuse of discretion. Id. at 755 (¶17). We must read the jury instructions “as a whole to
determine if . . . [they] were proper.” Id. at 757 (¶33) (quoting Sharkey v. State, 265 So. 3d
151, 156 (¶19) (Miss. 2019)). Where the given jury “instructions fairly announce the law of
the case and create no injustice, no reversible error will be found.” Id. (quoting Quinn v.
State, 191 So. 3d 1227, 1232 (¶18) (Miss. 2016)).
¶19. In Pitts, the defendant argued that an identical jury instruction “was peremptory in
9 nature, constituted an improper comment on the evidence, was argumentative, and . . .
encouraged circumvention of the [S]tate’s obligation to prove guilt beyond a reasonable
doubt.” Id. at (¶32). Based on precedent, however, the Pitts court held that the complained-
of jury instruction “constitute[d] an accurate statement of the law applicable to th[e] case and
did not improperly comment on the evidence.” Id. at 758 (¶39). Moreover, after reviewing
the jury instructions as a whole, the Pitts court concluded that the circuit court had clearly
given the jury proper instruction on the relevant caselaw. Id. at 759 (¶39).
¶20. As in Pitts, the circuit court here instructed the jury “not to single out one instruction
alone as stating the law but . . . [to] consider these instructions as a whole.” The circuit court
further instructed the jury that as the “sole judge[] of the facts in this case,” the jury held
“exclusive province . . . to determine what weight and what credibility . . . [to] assign[] the
testimony and supporting evidence of each witness in this case.” Also as in Pitts, the circuit
court here instructed the jury “not to single out any certain witness or individual point or
instruction and ignore the others.” Further, the circuit court informed the jury of the elements
required for sexual battery and the State’s burden to prove every element beyond a
reasonable doubt.
¶21. After reviewing relevant caselaw and the jury instructions as a whole, we find no
abuse of discretion in the circuit court’s decision to give instruction S-6. The supreme court
has held that an instruction identical to S-6 accurately stated the applicable caselaw and
provided no improper comment on the weight of the evidence. Id. at 758 (¶39). Further,
10 when read as a whole, we find that the jury instructions given here “fairly announce[d] the
law of the case and create[d] no injustice . . . .” Id. at 757 (¶33) (quoting Quinn, 191 So. 3d
at 1232 (¶18)). As a result, we conclude that Bliss’s argument lacks merit.
II. Photograph of Cervical Injuries
¶22. Bliss next asserts that the circuit court erred by admitting into evidence the photograph
of J.R.’s cervical injuries. Although the defense raised no objection at trial to the
photograph, Bliss contends that the photograph’s admission amounted to plain error.
Because Story testified about her observations of J.R.’s cervical injuries, Bliss argues the
prejudicial nature of the photograph outweighed any probative value and that the photograph
served only to provoke and inflame the jury.
¶23. Bliss’s “failure to object at trial waives any assignment of error on appeal absent plain
error.” Brisco v. State, 295 So. 3d 498, 509 (¶23) (Miss. Ct. App. 2019). We apply the
plain-error rule only “when a defendant’s substantive or fundamental rights are affected.”
Id. To constitute plain error, there must be an error that “resulted in a manifest miscarriage
of justice.” McFarland v. State, 297 So. 3d 1110, 1119 (¶33) (Miss. Ct. App. 2020) (quoting
Smith v. State, 984 So. 2d 295, 301 (¶14) (Miss. Ct. App. 2007)). The procedural bar
notwithstanding, we address the merits of Bliss’s argument to determine whether the
photograph’s admission prejudiced his defense and resulted in a manifest miscarriage of
justice.
¶24. “[A] court may exclude relevant evidence if its probative value is substantially
11 outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” M.R.E. 403. We review a circuit court’s admission or exclusion of photographs
for abuse of discretion. Ambrose v. State, 254 So. 3d 77, 135 (¶186) (Miss. 2018). “The
discretion of a trial judge to admit photos in criminal cases[] runs toward almost unlimited
admissibility regardless of gruesomeness, repetitiveness, and the extenuation of probative
value.” Id. at (¶187) (quoting Bennett v. State, 933 So. 2d 930, 946 (¶53) (Miss. 2006)).
Even a “gruesome, grisly, unpleasant, or even inflammatory” photograph may still “be
admitted so long as it has ‘probative value and its introduction serves a meaningful
evidentiary purpose.’” Beasley v. State, 136 So. 3d 393, 400 (¶21) (Miss. 2014) (quoting Noe
v. State, 616 So. 2d 298, 303 (Miss. 1993)). A photograph that “supplements or clarifies
witness testimony” possesses “a meaningful evidentiary purpose” and is therefore admissible.
Ambrose, 254 So. 3d at 135 (¶187) (quoting King v. State, 83 So. 3d 376, 378 (¶7) (Miss.
2012)).
¶25. The photograph at issue here contained probative value and possessed meaningful
evidentiary purposes. The photograph not only assisted Story’s explanation of J.R.’s cervical
injuries but also aided the jury’s understanding of the nature and extent of J.R.’s injuries.
Furthermore, the photograph supplemented and tended to support J.R.’s testimony regarding
what transpired between her and Bliss in the apartment complex’s parking lot. In addition,
the photograph aided the State in proving sexual penetration, which our statutory law and
12 caselaw define as an essential element of sexual battery. See Miss. Code Ann. § 97-3-95(1)
(Rev. 2014); Gilmore v. State, 282 So. 3d 601, 607 (¶23) (Miss. Ct. App. 2019). Because
the photograph possessed probative value that outweighed any potential prejudice to Bliss,
we cannot say that the admission of the photograph resulted in an abuse of discretion or a
manifest miscarriage of justice. We therefore find this assignment of error lacks merit.
CONCLUSION
¶26. Because we find no error, we affirm Bliss’s conviction and sentence for sexual
battery.
¶27. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.; McCARTY, J., JOINS IN PART. SMITH, J., NOT PARTICIPATING.
WESTBROOKS, J., SPECIALLY CONCURRING:
¶28. I agree with the majority’s resolution of issue II. I write separately to discuss jury
instruction S-6. The Mississippi Supreme Court has approved such instructions, Pitts v.
State, 291 So. 3d 751, 757-59 (¶¶30-39) (Miss. 2020), and this Court is obligated to follow
Supreme Court precedent. Nevertheless, I cannot ignore the fact that an instruction like S-6
is undeniably problematic because it unfairly highlights a victim’s testimony, potentially
confuses or misleads jurors, and pertains to “a concept . . . that is irrelevant to a jury’s
function as [a] fact-finder.” Ludy v. State, 784 N.E. 2d 459, 460 (Ind. 2003). The better
13 practice would be to prohibit such clearly impermissible comments on the evidence.3
¶29. Even though another instruction directed the jury that it was within their “exclusive
province” to apply weight to each witness’s testimony, instruction S-6 highlighted the
victim’s testimony and said that it was enough to convict Bliss. It was unnecessary to give
instruction S-6 because there is no reason for the jurors to think that the victim’s testimony
would be inadequate unless it is bolstered by other evidence. There is an exceedingly thin
semantic line between instructing the jurors that they can weigh the victim’s testimony more
heavily than any other evidence and instructing them that they must weigh it more heavily.
I cannot conclude that instructions like S-6 in this case are not comments on the evidence
regardless of the prior Mississippi cases that say otherwise. Repeating this improper
conclusion does not make it any less improper. Mississippi should join the jurisdictions that
recognize the fallacy behind such instructions.
¶30. Instruction S-6 also tends to contradict a different instruction that the jurors should
not “single out any witness or . . . instruction” during their deliberations. This is particularly
true since the jurors could have interpreted instruction S-6 “to mean that baseless testimony
should be given credit and that they should ignore inconsistencies, accept without question
3 “The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case.” Miss. Code Ann. § 99- 17-35 (Rev. 2015). “An instruction . . . on the weight of the evidence or [that] singles out and gives undue prominence to certain portions of the evidence is erroneous.” Bester v. State, 212 Miss. 641, 647, 55 So. 2d 379, 381 (1951).
14 the witness’s testimony, and ignore evidence that conflicts with the witness’s version of
events.” Ludy, 784 N.E. 2d at 460. Said differently, the instruction “invites the jury to
believe the victim, explaining that to confirm the authenticity of her statement, the jury need
only hear her speak.” State v. Stukes, 787 S.E.2d 480, 483 (S.C. 2016). As such, “lack of
corroboration [should be] a proper subject of argument, not [a] jury instruction.” Gutierrez
v. State, 177 So. 3d 226, 233 (Fla. 2015). Finally, it is misleading and unnecessary to instruct
the jury that a victim’s uncorroborated testimony is sufficient to sustain a conviction because
the jury is wholly unconcerned with the sufficiency of the evidence. Sufficiency is a legal
question that is subject to a de novo review on appeal. Haynes v. State, 250 So. 3d 1241,
1244 (¶6) (Miss. 2018). In fact, uncorroborated victim instructions appear to stem from
cases that addressed the legal principle at issue solely in the context of sufficiency questions.
Massey v. State, 992 So. 2d 1161, 1164 (¶14) (Miss. 2008) (collecting cases).
¶31. As a final matter, defense counsel in other cases should be cautious that similar
instructions are actually supported by the evidence.4 In this case, the victim’s testimony was
not entirely uncorroborated. See Christian v. State, 456 So. 2d 729, 734 (Miss. 1984) (“This
Court recognizes as corroborating evidence the victim’s physical and mental condition after
the incident, as well as the fact that she immediately reported the rape.”). Bliss admitted that
4 In this case, defense counsel objected to instruction S-6 because it placed a “premium” on the victim’s testimony. I interpret this to be an objection that the instruction was a comment on the evidence. That objection did not preserve a claim that instruction S-6 was unsupported by the proof at trial. See Montana v. State, 822 So. 2d 954, 959 (¶12) (Miss. 2002).
15 he followed J.R. home and turned his headlights off as he entered the parking lot. He was
identified by his car’s license plate. Bliss also admitted that he grabbed J.R. around her waist
and startled her. J.R.’s husband corroborated her testimony that she was frantic and that her
underwear was around her ankles. The treating nurse testified that J.R.’s examination was
consistent with a sexual assault. The nurse also noted that J.R.’s clothes were covered in
urine, which also corroborated J.R.’s account that she lost control of her bladder during the
assault. If defense counsel had objected that the instruction was not supported by the
evidence, I would posit that this case should be reversed and remanded for a new trial. It
appears that such instructions are being given more frequently in Mississippi, but as with any
instruction, the evidence should be there to support it.
McDONALD, J., JOINS THIS OPINION. McCARTY, J., JOINS THIS OPINION IN PART.