Lee v. State

944 So. 2d 56, 2005 WL 3111989
Court of Appeals of Mississippi·Decided November 22, 2005·No. 2004-KA-00542-COA·Published·Cited by 3 cases

Opinion

944 So.2d 56 (2005)

Vessie Lynn LEE, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-00542-COA.

Court of Appeals of Mississippi.

November 22, 2005.
Rehearing Denied April 11, 2006.

*59 Matthew W. Kitchens, James W. Kitchens, attorneys for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before LEE, PJ, GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. Vessie Lynn Lee was convicted of two counts of statutory rape, four counts of sexual battery and three counts of gratification of lust. He was sentenced to life in prison for each count of statutory rape, thirty years for each count of sexual battery, and fifteen years for each count of gratification of lust. On appeal, Lee asserts the following errors: (1) the trial court erred in allowing the State to amend the indictment, (2) the trial court erred in denying his motion to suppress items seized from his residence, (3) the trial court erred in denying his motion for a medical and forensic examination of J.R.G., (4) the trial court erred regarding the testimony of Connie Evans, (5) the trial court erred regarding the testimony of Jeri Weaver, (6) he received ineffective assistance of counsel, (7) the verdict was against the overwhelming weight of the evidence, and (8) the cumulative effect of these errors denied him his fundamental right to a fair trial.

FACTS

¶ 2. On August 11, 2001, J.R.G., who was fourteen years old at the time of trial, accused Lee of sexually abusing her over an approximate nine month period. At the time the alleged offenses began, J.R.G. was only twelve years old. J.R.G. claimed that Lee forced her to perform oral sex on him and forced her to engage in sexual intercourse on two separate occasions. Based on J.R.G.'s allegations, Lee's home was searched, his personal items were seized, and his genitals were photographed. Subsequently, Lee was arrested.

*60 ¶ 3. Lee was indicted on ten counts of various sex crimes including, Counts I and II statutory rape, Counts III, IV, V, and VI sexual battery, and Counts VII, VIII, IX, and X gratification of lust. The State filed a motion to nolle prosequi Count VIII of the indictment, which was granted by the trial court, leaving only nine counts (Counts I-VII and IX-X). The jury convicted Lee on all counts. He was sentenced to serve life in prison for Counts I and II, with said sentences to run concurrently, thirty years for Counts III, IV, V, and VI, with said sentences to run concurrently with each other but consecutive to the sentences imposed in Counts I and II, and fifteen years for Counts VII, IX, and X, with said sentences to run concurrently with each other but consecutive to the sentences imposed in Counts I and II and Counts III, IV, V, and VI.

¶ 4. Lee filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied by the trial court. Lee now appeals to this Court.

ANALYSIS

I. Did the trial court err in allowing the State to amend the indictment?

¶ 5. Counts III, IV, V and VI of the indictment state the following:

Count III
On or about the 3rd day of April, 2002, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was thirteen (13) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was forty (40) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(1)(d), (1972), as amended.
Count IV
On or about the 6th day of March, 2002, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was thirteen (13) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was forty (40) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(1)(d), (1972), as amended.
Count V
On or about the 28th day of October, 2001, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was twelve (12) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was thirty-nine (39) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(1)(d), (1972), as amended.
*61 Count VI
On or about the 30th day of August, 2001, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was twelve (12) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was thirty-nine (39) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(1)(d), (1972), as amended.

(emphasis added).

¶ 6. Mississippi Code Annotated Section 97-3-95(1)(a) (Rev.2000) states that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with another person without his or her consent." (emphasis added). Section 97-3-95(1)(d), under which Lee was indicted, states that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child." Lee contends that the language of Section 97-3-95(1)(a), "without her consent," which was included in the indictment, created confusion for the defense by not providing notice as to what portions of the statute under which he was charged. Lee argues that the indictment was confusing since it was unclear under which subsection to defend, 97-3-95(1)(a) or 97-3-95(1)(d). As a result, Lee filed a motion to quash the indictment as to Counts III, IV, V and VI. The trial court denied the motion and granted the State's motion to amend. Lee now argues that the trial court erred in allowing the State to amend the indictment since the amendment materially altered a defense that the defendant had under the original indictment. See Griffin v. State, 584 So.2d 1274, 1275 (Miss.1991).

¶ 7. Lack of consent is not an element of this variety of sexual battery. A child under the age of fourteen has no legal ability to consent to such an act. In this context, the language "without her consent" had no legal meaning. Its removal did not deprive Lee of a valid defense.

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Lee v. State, 944 So. 2d 56, 2005 WL 3111989 (Mich. Ct. App. 2005).

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