RUSHING v. STATE

PAYNE, J., CONCURRING IN PART, DISSENTING IN PART:

¶ 51. I concur with the majority that Rushing's conviction for rape must be sustained. However, I respectfully disagree with regard to the majority's reversal of the aggravated assault conviction. By his own admission, Rushing repeatedly hit M.L. with a pool stick because he was angry over her having misspent money he had given her. The only conflict in the testimony was the position from which Rushing beat M.L. — Rushing never denied striking M.L. with the pool stick. Viewing the instructions as a whole, I find the jury was properly instructed and that Instruction C-7 did not amount to a judicial comment on the evidence and was not prejudicial to Rushing. Accordingly, I find the aggravated assault conviction should be affirmed.

¶ 52. Rushing contends he was charged with the crime of aggravated assault under Miss. Code Ann. § 97-3-7(2)(a) (Rev. 1994) because the words "with a deadly weapon" were not included in the indictment. Rushing argues that Jury Instruction C-7 effectively amended the indictment to charge him with aggravated assault under § 97-3-7(2)(b). In Quick v. State, 569 So.2d 1197 (Miss. 1990), the supreme court held that "the state can prosecute only on the indictment returned by the grand jury and . . . the court has no authority to modify or amend the indictment in any material respect." Id. at 1199. Quick was indicted specifically under § 97-3-7(2)(b) of the aggravated assault statute, which requires purposeful, wilful, and knowing actions on the part of the accused. However, he was convicted under § 97-3-7(2)(a) of the aggravated assault statute, which requires recklessness and extreme indifference to the value of human life. The supreme court reversed and remanded the case finding that the jury instructions clearly contained a "new element which was not contained in the original indictment and . . . it was evidently this part of the instruction upon which the jury returned its verdict. Under these circumstances we have no alternative but to reverse and remand. . . ." Id. at 1200.

¶ 53. Rushing was indicted for aggravated assault under § 97-3-7(2) which alleged that Rushing did "wilfully, unlawfully, knowingly, and feloniously and purposely cause or attempt to cause serious bodily injury to another . . . by hitting her with a broken pool stick and kicking her, in violation of Mississippi Code Annotated Section 97-3-7(2) (1972). . . ." While neither subsection (a) nor (b) was specified, a fair and reasonable reading of the indictment, in my view, evidences that subsection (b) is applicable which provides: "[a] person is guilty of aggravated assault if he . . . attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm. . . ." The broken pool stick could be a deadly weapon, and Rushing's savagely kicking the victim equates to a means likely to produce death or serious bodily harm. Thus, I find the indictment was not so narrowly drawn to preclude the State from arguing the pool stick was used as a deadly weapon.

¶ 54. Accordingly, I find no new element was contained in Instruction C-7 which was not contained in the original indictment:

The Court instructs the Jury that should you find from the evidence in this case beyond a reasonable doubt that

1. On or about February 3, 1997, in Lauderdale County, Mississippi,

2. The Defendant James R. Rushing did purposefully or knowingly cause or attempt to cause bodily injury to [the victim] with a deadly weapon, specifically a broken pool stick, by beating her or other means likely to produce death or serious bodily harm.

then it is your sworn duty to find the Defendant James R. Rushing guilty of Aggravated Assault under Count I of the indictment in this cause.

Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt then you shall find the Defendant James R. Rushing not guilty under Count I of the indictment in this cause.

¶ 55. It is well established that instructions to the jury should not single out or contain comments on specific evidence. Voyles v. State, 362 So.2d 1236 (Miss. 1978); Williams v. State, 354 So.2d 266 (Miss. 1978); Scott County Co-op v. Brown, 187 So.2d 321 (Miss. 1966); White v. Miss. Power Co., 252 Miss. 97, 171 So.2d 312 (1965). Rushing's argument that the jury instruction describing the broken pool stick as a deadly weapon amounted to judicial comment is without merit. Rushing admitted to striking the victim intentionally with a broken pool stick repeatedly about the buttocks, arms and legs. Whether, under the existing circumstances described during the trial, the pool stick was a deadly weapon or a means likely to produce death or serious bodily harm to the victim was a question of fact for the jury to determine. It is clear to me that in deciding whether the State had proven beyond a reasonable doubt the elements of aggravated assault set forth in Instruction C-7, if the jurors had found one or more elements were not sufficiently proven, they would have instinctively turned to Instruction C-9 and C-13.

¶ 56. Instruction C-9 provided that "a deadly weapon may be defined as any object, article, or means which, when used as a weapon under the existing circumstances, is reasonably capable of producing or is likely to produce death or serious bodily harm to a human being upon whom the object, article, or means is used." Instruction C-13, to which Rushing objected but was overruled by the trial judge, instructed the jury that serious bodily injury is "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protractive loss or impairment of the function of any bodily member or organ." The trial court found the definition given to be the same as that found in the Model Penal Code § 210 (1980) which was cited favorably by the supreme court in Yates v. State, 685 So.2d 715, 720 (Miss. 1996), and Fleming v. State, 604 So.2d 280, 292 (Miss. 1992).

¶ 57. Moreover, if the jury determined that the State failed to prove all of the essential elements of the crime of aggravated assault, a simple assault instruction was given in Instruction C-8. Further, Instruction C-3 directed jurors "not to single out any . . . individual point or instruction and ignore the others." The jury was thoroughly instructed as to the essential elements of the crime of assault, either simple or aggravated. Given the well settled presumption that jurors follow the instructions given them and given the verdict of guilty of the crime of aggravated assault, the jury found beyond a reasonable doubt that Rushing knowingly and purposefully hit the victim with the pool stick, a deadly weapon, causing the victim serious bodily injury.

¶ 58. I find that Instruction C-7, when considered along with all the other instructions given by the trial court, did not create confusion for the jury or prejudice to Rushing. As such, the aggravated assault conviction ought to be affirmed.

¶ 59. Finally, I pause to urge the supreme court to construe § 97-3-7(2)(a) and § 97-3-7(2)(b) similarly to the way that the court has construed § 97-3-19(1)(a) and § 97-3-19(1)(b), our murder statute. As the supreme court has noted in this regard:

[t]here is no question that the structure of the statute suggests two different kinds of murder: deliberate design/premeditated murder and depraved heart murder. The structure of the statute suggests these are mutually exclusive categories of murder. Experience belies the point. As a matter of common sense, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act imminently dangerous to others and evincing a depraved heart, regardless of human life. Our cases have for all practical purposes coalesced the two so that Section 97-3-19(1)(b) subsumes (1)(a).

Catchings v. State, 684 So.2d 591, 599 (Miss. 1996) (citing Mallett v. State, 606 So.2d 1092, 1095 (Miss. 1992)).

¶ 60. Similarly, common sense dictates to me that if an offender employs a "deadly weapon" in the course of an assault (see § 97-3-7(2)(b)), this is necessarily a circumstance "manifesting an extreme indifference to the value of human life." (See § 97-3-7(2)(a)). The effect of such a rule with regard to the aggravated assault statute would overrule the troublesome decision in Quick v. State, which created a huge loophole, in my opinion, for offenders who commit the crime of aggravated assault.

¶ 61. I would affirm the aggravated assault conviction.

BRIDGES AND LEE, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

IRVING, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 62. I concur with the majority's conclusion that Rushing's conviction of aggravated assault must be reversed, but because I arrive at this conclusion via a slightly different route than does the majority, I write separately to express my view of the reasons necessitating the reversal. Additionally, I dissent from the majority's holding that the evidence is sufficient to sustain the jury's verdict as to rape. For the reasons which follow, I would reverse and render on the issue of rape.

Aggravated Assault as Charged in the Indictment

¶ 63. Rushing was indicted under Miss. Code Ann. § 97-3-7(2) (Rev. 1994) which reads in pertinent part as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years.

Inasmuch as Rushing M.L. had a child together, it appears that an indictment under subsection 3, the domestic abuse provision, may have been more appropriate. That section reads as follows:

A person is guilty of domestic violence who commits any assault against a current or former spouse, an individual with whom the defendant has had a child, or a person living in the same household as the defendant and, upon conviction, the defendant shall be punished as provided under subsection (1) or (2) of this section; provided, that upon a third or subsequent conviction of simple assault which would constitute domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years; and upon a third or subsequent offense of aggravated assault which would constitute domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than five (5) nor more than twenty (20) years.

However, Rushing was not indicted under subsection 3, and this court cannot pass any judgment on the choice of subsection made by the prosecutor.

¶ 64. I disagree with the majority that the giving of instruction C-7 operated to amend the indictment, and I believe the majority's reliance on Quick v. State, 569 So.2d 1197 (Miss. 1990) to support its conclusion in this regard is misplaced. Quick is distinguishable from our case. In Quick, the defendant was charged by indictment with aggravated assault under Miss. Code Ann. § 97-3-7(2)(b) (1972). On the morning of the trial, the State moved to amend the indictment to charge the defendant under Miss. Code Ann. § 97-3-7(2)(a) and (b). No order was contained in the record allowing the amendment, but the jury was instructed as to the elements of aggravated assault under Miss. Code Ann. § 97-3-7(2)(a), the section not charged by the indictment as returned by the grand jury. Id. at 1198.

¶ 65. In the case sub judice, the indictment simply charged Rushing with aggravated assault under Miss. Code Ann. § 97-3-7(2) (1972). No subsection was designated. This is the exact opposite of the charging scheme in Quick. Since Rushing was charged not under a specific single subsection of Miss. Code Ann. § 97-3-7(2), but under the section generally, it necessarily follows that he was charged under both subsections comprising that section. Rushing was therefore put on notice that he was being charged with aggravated assault under both subsections, i.e., by causing injury under circumstances manifesting extreme indifference to the value of human life and by causing bodily injury with a deadly weapon or other means likely to produce death or serious bodily harm. In other words, it seems to me that an indictment which charges the section but does not delineate as to the subsection, charges each of the subsections, limited only by the extent of the language detailing the offense. If the language detailing the offense describes an offense under both subsections, then the charge is laid under both subsections. On the other hand, if the language, detailing the offense, describes a crime proscribed by only one of the subsections, then the charge is laid under that subsection. Of course on a proper motion, a defendant would be entitled to have the State make an election as to the subsection under which the State plans to proceed. The record does not indicate such a motion was made in this case.

¶ 66. In the case at bar, I will concede that reasonable persons could differ as to whether the charging language of the indictment described an offense which may be laid under both § 97-3-7(2)(a) and § 97-3-7(2)(b). What I cannot concede is that the charging language described an offense under § 97-3-7(2)(a) exclusively.

¶ 67. It appears to me that Rushing was placed on notice that he was being charged under both sections. The indictment charged, in pertinent, part that Rushing "did then and there wilfully, unlawfully, knowingly, and feloniously and purposely cause or attempt to cause serious bodily injury to another, M.L., by hitting her with a broken pool stick and kicking her, in violation of Mississippi Code Annotated Section 97-3-7(2) (1972)." I differ with the majority's conclusion that it is readily apparent from a reading of the indictment that the State indicted Rushing pursuant to § 97-3-7(2)(a). Quite the contrary is true. Apparently, the majority reaches this conclusion because the indictment and § 97-3-7(2)(a) both include the modifier "serious" before the phrase "bodily injury" and no such modifier precedes the phrase "bodily injury" in § 97-3-7(2)(b). However, the majority apparently overlooks the rest of both the indictment and § 97-3-7(2)(b). The rest of the indictment says that the serious bodily injury was done " to another, M.L., by hitting her with a broken pool stick and kicking her" while the rest of § 97-3-7(2)(b) says "to another with a deadly weapon or other means likely to produce death or serious bodily harm." It thus seems clear to me that kicking and hitting one with a pool stick can certainly be construed as "other means likely to produce death or serious bodily harm." Moreover, a charge under § 97-3-7(2)(b) of attempting to cause or causing serious bodily injury is not transformed into a charge under § 97-3-7(2)(a) because of the inclusion of the modifier "serious" before the phrase "bodily injury" as long as the indictment also charges the other relevant language of § 97-3-7(2)(b), to wit: "with a deadly weapon or other means likely to produce death or serious bodily harm."

¶ 68. I also can see how one might interpret the charging language — that Rushing did "wilfully, unlawfully, knowingly and feloniously and purposely cause or attempt to cause serious bodily injury to another, M.L., by hitting her with a broken pool stick and kicking her" — to mean that Rushing was being charged with causing or attempting to cause serious bodily injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, which of course would be a charge laid under § 97-3-7(2)(a).

¶ 69. Based on the foregoing analysis, I would conclude that instruction C-7 did not operate to amend the indictment to add a charge not returned by the grand jury since it seems very plausible to me that at least Rushing was placed on notice that he was being charged under both subsections of 97-3-7(2). I arrive at this conclusion because causing injury to someone by kicking and hitting him/her with a broken pool stick may be viewed both as (1) causing or attempting to cause serious bodily injury under circumstances manifesting extreme indifference to the value of human life, and (2) causing or attempting to cause bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 70. While I do not find that instruction C-7 is at variance with the indictment, I do believe the giving of that instruction was prejudicial error because it told the jury peremptorily that the pool stick, used by Rushing, was a deadly weapon. Further, instruction C-7 had the effect of nullifying Instruction C-8, the lesser-included-offense instruction. For these reasons, I agree with the majority that Rushing's conviction of aggravated assault must be reversed and the case remanded.

The Rape Charge and Evidence in Support of It

¶ 71. The indictment charged that:

JAMES R. RUSHING, a male person over the age of 18 years in said County, on the 3rd day of February, A.D., 1997, did wilfully, unlawfully, and feloniously rape and ravish [the victim], a female person, by forcing her to engage in sexual intercourse with him; in violation of Mississippi Code Annotated Section 97-3-65 (1972), and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of The State of Mississippi.

The applicable portion of Miss. Code Ann. § 97-3-65 (1972) formerly read as follows:

Every person who shall forcibly ravish any person of the age of fourteen (14) years or upward, or who shall have been convicted of having carnal knowledge of any person above the age of fourteen (14) years without such person's consent, by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

The applicable portion of Miss. Code Ann. § 97-3-65 now reads:

Every person who shall have forcible sexual intercourse with any person, or who shall have sexual intercourse not constituting forcible sexual intercourse or statutory rape with any person without that person's consent by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

¶ 72. There is no evidence that Rushing administered any substance or liquid to M.L. without her consent which produced a condition of stupor or imbecility. Hence, if his rape conviction is to stand, it must do so on the basis of his having forcibly ravished (raped) her. There is simply no evidence in this record which will support a finding that Rushing forcibly ravished M.L. It is the province of the jury as the ultimate fact-finder to accord the weight and credibility to the evidence. Neal v. State 451 So.2d 743, 758 (Miss. 1984). We may reverse where the evidence is such that reasonable and fairminded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss. 1987). I believe the evidence is so lacking on the element of force that fairminded jurors could only find Rush not guilty of rape. M.L.'s testimony, along with all favorable inferences which may be drawn from it, just does not make the case. Because I think her testimony argues my point more ably than any words I could choose, I have set forth her testimony in great length.

M.L.'s Direct Testimony

Q. Okay. If you will, tell us what happened when you got back to the trailer on Morgan Road.

A. Well, he was still talking all crazy in the car. And when we got there and parked, I was opening the door to get out and he said, Well I suppose you don't want to f__k now, huh? And I said, Well, you done stomped me, kicked me, beat me and pulled a gun on me, I do not want to have sex with you. And he said, Well, oh, because I kicked you in your p___y, you are too sore to f__k me? And I was about to pass out. I laid on the hood of the car for a minute so I could get myself together. And I went and I made it up the steps and unlocked the door. And when I got in the door, I passed out again. And when I came to, he was pulling me up off the floor. And I made it to the bedroom and I passed out again when I got to the bed. And when I came to, I still had on my blue jeans and it started chaffing my backside, so I pulled them off and put my gown back on.

Q. Why were your blue jeans chaffing your backside?

A. That is where he had done beat me at.

Q. Where were you when you woke up?

A. I was laying across the bed.

Q. Okay.

A. I made it to the bedroom?

Q. I'm sorry.

A. I had made it to the bedroom.

Q. Do you know where he was at that point?

A. He was — he had come in behind. He was in the house.

Q. He was in the house?

A. Uh-huh.

Q. Okay. What did you do after you

A. I was laying down in the bed.

Q. Okay. And how long did you stay in bed, do you know?

A. Well, I stayed there for awhile. Because at first, after I laid down, he put his hands on me and started rubbing on my legs and stuff, I pushed his hand off and told him no.

Q. What kind of manner was he rubbing on your leg?

A. Sexually, like he was sexually. He was just rubbing on my legs and stuff.

Q. So he went from beating you to making a sexual advance to you?

A. Uh-huh.

Q. And then what happened when he started rubbing on you?

A. I pushed his hand back and told him no, and I had turned over on my stomach, because my backside was hurting, and he rubbed on me again. I told him no. He went to sleep. And I got up, I got up to go to the bathroom and I passed out again. I don't know how long I was out, because when I came to, I was still laying on the floor in front of the bathroom door. So I was still — I crawled to the bed and laid back up in the bed, and I passed back out.

Q. Do you know whether it was daytime or nighttime when you woke up?

A. When I came back to again, it was just, like, daybreak, daybreak, then.

Q. Daybreak?

A. Uh-huh.

Q. Okay. And you did manage to get back in the bed then?

A. Uh-huh.

Q. How were you feeling at that point?

A. I was hurting. I was hurting real bad. I stood up and, like, my legs would not hold me up. So I crawled to the bed.

Q. Okay. Didn't you say that "Devil Catcher" spent the night there?

A. Yeah, he stayed there.

Q. Did he sleep in that bed?

A. Yes, he did.

Q. Did you want him to stay?

A. I didn't want him to stay, but the house was his. He had keys to the house. There was no way I could have kept him out of there.

Q. Okay. When did you next regain consciousness or wake up?

A. It was the next morning; the phone was ringing. The phone woke me up the next morning.

Q. Okay. And this is later in the — you have already said that it was, like, daybreak when you got back in the bed? This is later in the morning?

A. Uh-huh.

Q. What happened then, if anything?

A. Well, the phone, it was my sister. She had called to wish me a happy birthday. And she asked me what was wrong, I just told her nothing, you know, because she wanted, she wanted to come out there. And I said, no, I am all right, and hung up the phone. The phone rang again and it was my sister again. And I told her, she asked me what was wrong, and I told her nothing I was fine. And so I laid back down and the phone rung again. I didn't get to answer it. And it rung again. It was for my son. So I got up. And it was time — went back there and told him it was the phone, because he had to go to work. He was getting ready to go to work.

Q. Where was "Devil Catcher" during that time?

A. He was still in bed.

Q. Okay. Why did your sister ask you about if anything was wrong?

A. Because she said I didn't sound right to her.

Q. Okay. Why didn't you tell her that something was wrong?

A. He was laying right there beside me.

Q. Well, let me ask you this. Was there something wrong?

A. Yes, it was something wrong.

Q. What did you feel like your options were at that point; what could you do?

A. I just told my sister that I was all right. I didn't want her to come out there.

Q. What were you thinking? What were you thinking that you were going to do at that point?

A. I don't know what I was going to do. I don't know. just — like I said, I didn't want nobody to get hurt. I didn't tell her — that's why I told her that I was all right.

Q. You say you didn't want anybody else to get hurt?

A. Uh-huh.

Q. So in addition to being afraid yourself, were you for other people?

A. Uh-huh.

BY MR. JORDAN: Your Honor, we are going to object to leading.

BY THE COURT: Don't lead your witness.

BY MR. MALTA: Yes, sir.

Q. When, if ever, did "Devil Catcher" wake up?

A. He was woke whenever we woke up. He woke up when the phone started ringing. He woke up when the phone started ringing.

Q. Did he say anything to you at that point?

A. At that point, the first time the phone rang, he didn't. It rang again and he asked me who it was. I told him

Q. What, if anything, did he say or do to you?

A. At that point he didn't do nothing, because the phone got to ringing and kept ringing quite, you know, ringing, ringing one behind the other. Okay. And after that, my son got up and got ready to go to work, and that's when he started making sexual advances again.

Q. This is again that next morning?

A. Uh-huh.

Q. Well, what kind of sexual advances?

A. He started messing with me, started rubbing on me again. And I told him no. And so he kept messing with me and stuff, so I just, — you know, he kept on messing me and I told him no. I figured, well, he is not going to leave me alone, so

Q. Let me ask you this question. Did you or did you not —

BY MR. JORDAN: Your Honor, I am going to object to him interrupting his own witness.

BY THE COURT: Were you finished with your answer?

BY THE WITNESS No, I wasn't.

BY THE COURT: Go ahead and finish your answer. Sustained. Let her finish her answer.

Q. I didn't mean to cut you off. Finish what you were saying.

A. Okay. And that was at the time I figured out he was not going to leave me alone so I might as well, you know, do what he wanted me to do. All I wanted him to do was leave me alone and leave, but he wouldn't.

Q. Okay. Did you want to have sex with him?

A. No, I did not.

Q. Did you have a favorable response to his sexual advances?

A. I kept telling him no. Well, we did have sex. He kept on messing with me. And he told me, he said, Well, I don't want you half f__king me. And then he said, You really don't want to do this, do you? I said, No, I don't. He said, Well, if I want to f__k, I am going to have to go somewhere else? I said, Yes, you do. I laid down on the bed. And I laid back down on the bed and he told me, he said, Well, you are going to f__k me before I leave here, even if it's the last time.

Q. What did you do at that point?

A. Well, at that point, I couldn't fight him off or nothing and I did what he wanted me to do.

Q. I hate to make you get graphic, but if you will, tell us what happened?

A. Well, at first, I had oral sex, performed oral sex on him.

Q. Did you want to do that?

A. No. Like I say, the man done beat me half senseless. I did not want to have sex with him; no, I did not.

Q. Okay. After that, what happened, if anything?

A. Well, after oral sex, I got on top of him and we had sex the way we usually do.

M.L.'s Cross-examination Testimony

Q. All right. Now, you get to the house and what happens?

A. When I started to get out of the car, he said, I suppose you don't want to f__k me now. And I told him, no, I did not; You done choked me, pulled a gun on me, beat me; No, I do not want to have no sex with you. And he said, Since, I done kicked in your p___y, you too sore to f__k me. Those were his words. That was in the car.

Q. So you weren't in the car — you were in the car when he said that?

A. Yes, we were.

Q. All right. What conversation was between the two of you driving from the club to the house?

****

Q. Did y'all also have a discussion about you had to go, you had to get out of the trailer, wasn't paying the bills?

A. No. He had told me he wanted me to be out by the week, and I told him fine.

Q. Okay. So we had a discussion on the way back to the house that you were — you and he, I presume, your relationship was over with; is that right?

A. Uh-huh.

Q. Okay. By the end of the week?

A. Yeah.

Q. All right. You get out of the car and then what happens?

A. I was getting dizzy. I was about to pass out. I laid up on the hood of the car for a minute or two.

Q. Did you pass out?

A. After I got to the door and got in the trailer.

****

Q. Where inside the house did you pass out?

A. Right inside the front door. As I unlocked — right inside the door.

Q. Where is James while you are passing out?

A. He was behind me.

****

Q. All right. So you passed out. And then what is the next thing you remember?

A. Him helping me up off the floor.

Q. You are in the front of the trailer or porch or where?

A. In the front door.

Q. In the front door. Where does he take you?

A. He don't take me nowhere, I gets up and walk to the bedroom on my own.

****

Q. What did you do?

A. I passed out across the bed.

Q. So now you passed out once at the club, twice at home; is that correct?

A. Uh-huh.

Q. Is that right?

A. That's right.

Q. Okay. Then you are in the bed and then what happened?

A. Well, when I came to after that, I pulled my jeans off and put my gown back on.

****

Q. Okay. You are passed out on the bed, you get up, you take your jeans off and put your robe on?

A. Put my gown on.

Q. Kind of a gown/robe combination thing?

A. No, it's just a gown.

Q. Where is James?

A. James is over there on the bed.

Q. Asleep?

A. Yeah, he was asleep then.

Q. He is asleep then. Did you go see Ray?

A. No, I didn't.

Q. Go talk to Ray?

A. No, I didn't.

Q. Did you call your sister?

A. No, I didn't.

Q. Did you call Terry?

A. No, I didn't.

Q. So James is asleep in the bed?

A. Yes, he is.

Q. Okay. Did you call the police?

A. No, I didn't.

Q. Call the sheriff?

A. No, I didn't.

Q. Call anybody?

A. No, I didn't.

Q. So you get up in the bed, I presume, and go to sleep?

A. I said I didn't — yeah, I passed out in the bed. I didn't go to sleep, I passed out.

****

Q. So I presume you woke up; is that correct?

A. Uh-huh.

Q. Got back in the bed?

A. Uh-huh.

Q. James is still in the bed asleep?

A. Uh-huh.

Q. And I assume you stayed there until about daylight the next morning.

A. On the floor when I passed out, I was on the floor until daybreak the next morning.

****

Q. All right. So the next morning about daylight you say you are on the floor?

A. Uh-huh.

****

Q. Okay. All right. Then I presume you get up off the bathroom floor and go where?

A. I laid back down on the bed.

Q. And you got in the bed with James?

A. I laid on the side. I was in the bed first and he got with me.

Q. I didn't hear what you said.

A. I said — yeah, I laid in the bed.

Q. With James?

A. Uh-huh.

Q. He is still asleep?

A. Uh-huh.

Q. Okay. Then what happens?

A. Well, I laid there until he, when he woke up and —

Q. What time did he wake up?

A. I don't remember.

Q. Give me your best estimate.

A. I would say it was around about, maybe around about 9:30, 10:00

****

Q. Okay. Now, you say that sometime that morning you and James or James wanted to make love, have sexual intercourse. What happened? When did that start?

A. When he woke up.

****

Q. All right. So what time did his sexual advances that you now complain about, what time did they start?

A. That was after my son had left.

Q. After your son had left?

A. Uh-huh.

Q. Okay. And he left about 8:00 or 8:30.

A. Uh-huh.

Q. Is that right?

A. Right.

Q. And the power company man was there around 11:00; is that right?

A. Right.

Q. So whatever had happened had already happened at 11:00, when the power company come by?

A. Right.

Q. So everything was completed?

A. Yes. Right.

Q. You had performed oral sex on him and had sexual intercourse with him; is that correct?

A. Right. Uh-huh.

Q. And I believe the position that you and James used that particular morning was you on top?

A. Right.

M.L.'s Redirect Examination Testimony

Q. Okay. Mr. Jordan asked you about the sexual assault on the morning of February 3rd, and he asked you about the position, sexual position that you were in.

A. Uh-huh.

Q. And I believe you told him that you were on top.

A. Uh-huh.

Q. Who had decided that you were going to be on top?

A. Well, we always had sex that way. I was always on top.

Q. Okay. Was it by choice?

A. No, it wasn't. I did not want to have sex with him.

¶ 73. Based on M.L.'s testimony, the most that can be said is that she apparently reluctantly consented at first but actively participated in the sexual encounter. Reluctantly doing something is not one and the same as being forced to do something. At no point did Rushing ever physically persist after being told "no".

¶ 74. The majority quite properly acknowledges that one of the elements of rape is that it must occur without consent and by force. The majority then attempts to explain that the State's proof satisfied this element. The majority, relying on Stewart v. State, 466 So.2d 906 (Miss. 1985), reasoned that "proof that Rushing used additional contemporaneous force to have sexual intercourse with M.L. is unnecessary if the evidence establishes that she surrendered because of fear arising out of a reasonable apprehension of great bodily harm." I agree that this reasoning comports with the law in cases such as this. However, M.L.'s own testimony establishes that she consented not out of any apprehension of great bodily harm but out of a realization that Rushing would stick around a little longer until she did what he wanted her to do. The sexual intercourse occurred some six or more hours after the beating at the club. In the interim, M.L. and Rush had slept in the same bed without incident. It should be noted that when Rushing and M.L. returned to the trailer from the club, Rushing brought up the subject of having sex. M.L. told him she did not want to do so, and he and she both went to sleep. It was not until later that morning when he awoke and started making advances again that she finally agreed to his entreaties. The only logical conclusion, it seems to me, that a fairminded juror could draw is that these two lovers, with a five year relationship, were simply making up, although M.L. had undeniably suffered what had been an unjustifiable and savage beating a few hours earlier. It is hard to extract any other conclusion from M.L.'s testimony in light of how they had sex and her concluding statements: "Well, after oral sex, I got on top of him and we had sex the way we usually do. Well we always had sex that way. I was always on top."

¶ 75. For the reasons stated, I respectfully dissent.

THOMAS, J., JOINS THIS SEPARATE WRITTEN OPINION.