Expose v. State
| Docket Number: | 2010-CT-01256-SCT Linked Case(s): 2010-KA-01256-COA ; 2010-KA-01256-COA ; 2010-CT-01256-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-25-2012 Opinion Author: Waller, C.J. Holding: Court of Appeals reversed; Circuit court reinstated and affirmed. |
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| Additional Case Information: |
Topic: Forcible sexual intercourse - Lesser-included offense instruction - Section 97-3-7(1)(a) - Consent instruction - Section 97-3-65(4)(a) - Post-trial discovery of exculpatory evidence Judge(s) Concurring: Carlson and Dickinson, P.JJ., Randolph, Lamar and Pierce, JJ. Dissenting Author : Kitchens, J. Dissent Joined By : Chandler, J. Dissenting Author : King, J. Dissent Joined By : Kitchens and Chandler, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-21-2010 Appealed from: Stone County Circuit Court Judge: John C. Gargiulo Disposition: The Appellant was convicted of having forcible intercouse. District Attorney: Cono A. Caranna, II Case Number: B6601-2009-93 |
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| Note: | The Supreme Court found that the Court of Appeals erred by reversing and remanding the conviction when it held that the trial court erred in refusing a jury instruction that would have informed the jury that consent is a defense to forcible sexual. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Anthony Mercie Expose |
OFFICE OF THE PUBLIC DEFENDER: W. DANIEL HINCHCLIFF |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Forcible sexual intercourse - Lesser-included offense instruction - Section 97-3-7(1)(a) - Consent instruction - Section 97-3-65(4)(a) - Post-trial discovery of exculpatory evidence |
| Summary of the Facts: | Anthony Expose was convicted of forcible sexual intercourse. He was sentenced to thirty-five years. He appealed, and the Court of Appeals reversed and remanded. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Lesser-included offense instruction Expose argues that the court erred in refusing his instruction which would have informed the jury it could find Expose guilty of forcible sexual intercourse, guilty of simple assault, or not guilty. While a defendant is entitled to have jury instructions given which present his theory of the case, the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without evidentiary foundation. In this case, the court found that the evidence did not support simple assault. Simple assault can be a lesser-included offense to rape in some circumstances, but had no foundation in the evidence in this case. Section 97-3-7(1)(a) defines simple assault as “(i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm. . . .” Expose never asserted that he had physically injured the victim in a separate incident, before or after the two of them had had consensual sex. His testimony was that he and the victim had had consensual sex and that he had never harmed her. Thus, the jury could not have acquitted him of forcible sexual intercourse but found him guilty of simple assault. Issue 2: Consent instruction Expose argues that the court erred in refusing his consent instruction. Expose argued that he was entitled to the instruction because consent was his only defense. Consent is not mentioned with regard to forcible sexual intercourse under section 97-3-65(4)(a). Forcible sexual intercourse is all that is required under the statute. Since force negates consent, the jury in this case necessarily must have considered consent in deciding whether force was used and was properly instructed that it had to find beyond a reasonable doubt that Expose “feloniously, unlawfully, willfully and forcibly . . . [had] sexual intercourse” with the victim. Issue 3: Post-trial discovery of exculpatory evidence Expose argues that the court erred in denying his motion for new trial based on his post-trial discovery of potentially exculpatory evidence, i.e. a domestic-violence conviction of the victim’s boyfriend. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. To determine whether a violation has occurred, a defendant must prove that the government possessed evidence favorable to the defendant; that the defendant does not possess the evidence and could not obtain it with any reasonable diligence; that the prosecution suppressed the favorable evidence; and that a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed. In this case, the domestic-violence conviction might not have been admissible at trial. But even if it were, there is not a reasonable probability that its disclosure would have changed the outcome. Not only did the domestic violence occur nine months after the incident in question, but it did not explain the victim’s numerous ant bites for which Expose never offered a credible explanation. Thus, there is no error on this issue. |
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