People v. Mayberry

Nancy B. was walking to the store when Franklin Mayberry (defendant) grabbed Nancy’s arm and accosted her. Franklin followed Nancy to the store and told her in a threatening manner that she was going to leave with him. Nancy left with him after looking in vain for someone to help her, and Franklin told her she was going to go with him and have sex. When Nancy refused, Franklin punched her in her chest. In an effort to gain time, Nancy asked Franklin to let her get cigarettes and entered another store with him. Nancy did not ask the clerk for help because she was afraid. Nancy smoked a cigarette with Franklin while trying to dissuade him, but he demanded she go with him. Franklin took her to an apartment and physically and sexually assaulted her. Nancy did not resist during Franklin’s assault out of fear. Franklin’s brother Booker (defendant) then entered the apartment and assaulted and attempted to rape Nancy. Nancy resisted Booker and Franklin intervened, allowing Nancy to escape. Nancy reported the assault, and the police and other witnesses testified that Nancy was bruised. Franklin and Booker were charged with various counts of kidnapping, assault, rape, and attempted rape and were tried together. At trial, Franklin testified that Nancy had gone with him willingly and consented to have sex with him, and had only become upset after Booker entered the apartment and found her in bed with Franklin, and Booker denied assaulting her. Franklin and Booker requested that the jury be given instructions that they must be acquitted if Franklin reasonably and genuinely believed Nancy had freely consented to go and have sex with him. The trial court refused to give the requested instruction, and Franklin and Booker were found guilty on all counts. The defendants appealed.