BARNES, J., for the Court:

¶ 1. Mark Fortune was convicted of fondling his brother's eleven-year-old stepdaughter and sentenced to two years in the custody of the Mississippi Department of Corrections (MDOC). He appeals the conviction, claiming the circuit court erred in denying his jury instruction for "legal unconsciousness due to involuntary intoxication." Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Fortune, a United States Marine, was deployed to Iraq in 2006. Four months later, he was injured by an improvised explosive device and suffered a concussion and injuries to his back, lower abdomen, and left arm. He was diagnosed with "traumatic brain injury, post-traumatic stress and memory loss" and granted a medical discharge from service. Fortune returned home to Columbus, Mississippi, and resided with his wife, Nikki, at his stepfather's home. As a result of his injuries, Fortune suffered short-term memory loss and migraines. He took various medications for his symptoms, including Ambien to help him sleep.1

¶ 3. On December 12, 2008, the two stepchildren of Fortune's brother had a sleep-over at Fortune and Nikki's home. "Chris" (age six) had visited with the couple numerous times; however, "Alice" (age eleven) had only been over at their house a couple of times prior to this occasion.2 Late that evening, Fortune and the two children sat down in the living room to watch a movie. Right before the movie started, Fortune took Gabapentin, a muscle relaxant, for a migraine and back pain. He also took Ambien, as he had been suffering from insomnia for a couple of days.

¶ 4. Chris, who was lying alone on the loveseat, quickly fell asleep after the movie started. Alice was lying on the couch, and Fortune proceeded to lie down behind her. He later explained that he did so because he was "groggy from the medication[.]" Alice closed her eyes in an attempt to sleep. Fortune took off Alice's eyeglasses and put them on the nearby table. According to Alice, Fortune began to touch her breasts over her clothing. Alice, who was not asleep, kept her eyes closed and remained still. Fortune lifted her shirt and training bra and resumed touching her breasts. Opening her eyes slightly, she saw Fortune looking at her breasts. She noted that Fortune would occasionally stop and take sips from his tea, which was on the nearby table. He eventually moved her hand down to the outside of his pants near his genitals. Alice moved her hand away, but Fortune kept moving her hand back. She said the fondling ceased when the movie ended and Fortune went to bed.

¶ 5. Alice said nothing about the incident to Fortune or Nikki. However, the next day, she told her mother what had happened. Alice's mother immediately contacted law enforcement and filed a complaint against Fortune, who was arrested. Investigator James Ferris with the Lowndes County Sheriff's Department interviewed Fortune, who did not deny touching Alice, but said: "When I take my medication[,] I don't remember a lot. I could have probably confused her for my wife because she is about the same size. I don't remember if I touched her, because when I am on my medication[,] I do things I don't remember."

¶ 6. Fortune was indicted for fondling. At trial, Fortune testified on his own behalf. He stated that, initially, he and Alice were sitting on the couch, but when the medication he had taken before the movie made him "groggy," he suggested that they "lay down." Fortune claimed that the influence of the medication made him unable to remember what happened that night, stating:

Later, he contradictorily stated that he did not believe that he touched her. Upon further questioning, when asked if he thought Alice was lying, he admitted that although he would like to say she was, he could not "because [he] cannot remember the exact details of that evening." Fortune continued to assert that the medication rendered him unconscious of his actions.

¶ 7. Nikki, his wife, claimed that Fortune had occasional memory lapses. However, she also testified that she did not believe that Fortune touched Alice, even under the influence of medication. Nikki stated that she was constantly present in or near the living room during the movie, although she later admitted to folding laundry in the adjacent bedroom for part of the evening. Alice testified that Nikki was not present in the living room; in fact, Alice thought Nikki had gone to bed.

¶ 8. To advance Fortune's claim that the medication rendered him unconscious of his actions, the defense submitted into evidence the "medication guide" regarding Ambien use and its possible side effects, one of which includes performing acts without being aware of one's actions. Specifically, the medication guide noted that a "serious side effect" of Ambien is that a person "may get up out of bed while not being fully awake and do an activity that [he] do[es] not know [he is] doing." Reported activities include "driving a car," "having sex,"3 and "sleep-walking." The State objected to the admission of this evidence "on the basis that voluntary intoxication is not a defense." The State also argued that the evidence was "misleading" and "irrelevant." Over the State's objection, the circuit court allowed Fortune to submit the medication guide regarding Ambien's side effects into evidence.4

¶ 9. During the jury-instruction phase of the proceedings, the issue of Fortune's alleged unconsciousness was addressed further. Fortune submitted Jury Instruction D-2A, which instructed the jury on the defense of "legal unconsciousness." The proposed instruction stated:

The judge denied the instruction and also denied Jury Instruction S-3, which concerned voluntary intoxication.5 The circuit court, however, did grant Jury Instruction D-3 over the State's objection. The instruction stated:

The circuit judge explained his reasoning for denying Jury Instruction D-2A and S-3:

¶ 10. Fortune was convicted and sentenced to two years in the custody of the MDOC. He was also fined $1,000. Fortune filed a motion for a new trial, which the circuit court denied. Fortune now appeals, claiming that it was error for the circuit judge to deny Jury Instruction D-2A. Finding no error, we affirm.

DISCUSSION

I. Whether the circuit court erred by denying Jury Instruction D-2A, which presented a defense theory of "legal unconsciousness."

¶ 11. Fortune argues that the circuit judge erred in denying Jury Instruction D-2A. In reviewing a circuit court's grant or denial of a jury instruction, we examine the jury instructions "as a whole to determine whether the jury was fully and fairly instructed according to the applicable law." Jackson v. State, 68 So.3d 709, 712-13 (¶ 12) (Miss.Ct.App.2011) (quoting Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010)). "[I]f all [the] instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results." Id. Although a defendant is entitled to jury instructions "which present his theory of the case, ... the [circuit] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Ford v. State, 52 So.3d 1245, 1247 (¶ 10) (Miss.Ct.App.2011) (quoting Hager v. State, 996 So.2d 94, 97 (¶ 9) (Miss.Ct.App.2008)).

¶ 12. On appeal, Fortune claims that he "was operating in a state of automatism or unconsciousness" and that "[t]he jury should have been able to properly consider [his] defense of legal unconsciousness due to his involuntary intoxication." Mississippi has not recognized legal unconsciousness or automatism as a defense. There are only two cases in Mississippi that address the issue of a defendant's involuntary intoxication-neither concerns whether a defendant may make a defense of involuntary intoxication.7 Thus, the issue of whether a criminal defendant may assert a defense of legal unconsciousness or automatism based upon use of a prescribed narcotic is one of first impression for Mississippi courts.

¶ 13. Defense counsel informed the circuit judge that Jury Instruction D-2A was "a model jury instruction from the State of California." In fact, the term "legally unconscious" is confined to California jurisdictions. The California Supreme Court has stated that "[u]nconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge." People v. Halvorsen, 42 Cal.4th 379, 64 Cal.Rptr.3d 721, 165 P.3d 512, 538-39 (2007). "If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense." Id. at 539.

¶ 14. California, however, has a statute directly on point. California Penal Code section 26 (2008) states: "All persons are capable of committing crimes except those... [p]ersons who committed the act charged without being conscious[.]" Model Penal Code article 2, section 2.01 also sets forth the requirements of a "voluntary act." It states that "[a] person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable." Id. A "voluntary act" excludes any "bodily movement during unconsciousness or sleep" or "conduct during hypnosis or resulting from hypnotic suggestion." Id.

¶ 15. Mississippi, however, has no statute similar to either California's statute or the Model Penal Code. Therefore, these authorities that rely on the California Penal Code or the Model Penal Code are not applicable. We are mindful, however, that "[a] criminal defendant is entitled to present his defense to the finder of fact." Jobe v. State, 97 So.3d 1267, 1269 (¶ 9) (Miss.Ct.App.2012) (quoting Keys v. State, 635 So.2d 845, 848 (Miss.1994)).

¶ 16. Automatism is defined as "the state of a person who, capable of action, is not conscious of what he is doing." Wayne R. LaFave, Substantive Criminal Law § 9.4(b) at 33 (2nd ed.2003) (citation omitted).

Id.

¶ 17. We find LaFave's treatment of this issue to be extremely helpful to our analysis. He states: "Although the cases in the United States are not substantial in number, they support the proposition that automatism is a defense." LaFave, § 9.4(b) at 34; see also Haskell v. Berghuis, 695 F.Supp.2d 574, 591 (E.D.Mich. 2010) ("Automatism has been recognized by courts as a valid defense bearing on the voluntariness of an otherwise criminal act." (quoting Haynes v. United States, 451 F.Supp.2d 713, 724 (D.Md.2006))); Riley v. Commonwealth, 277 Va. 467, 675 S.E.2d 168, 175 (2009) ("Where not self-induced, unconsciousness is a complete defense to a criminal homicide."); State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700, 706 (2000) ("Unconsciousness is a complete defense to a criminal charge because it precludes both a specific mental state and a voluntary act."); Fulcher v. State, 633 P.2d 142, 147 (Wyo.1981) (ruling that the defense of unconsciousness "is an affirmative defense"). LaFave continues that while it has been argued that the automatism defense "is best treated as an excuse because `it is not qualitatively different from other excusing conditions[,]'" the more common automatism case might well be categorized as a "failure of proof" defense "since ... modern criminal codes treat the voluntary act requirement as a necessary element of each offense[.]" LaFave, § 9.1(b) at 11 (citation omitted).

LaFave, § 9.4(b) at 36 (emphasis added).

¶ 18. While LaFave disagrees that mens rea is the best rationale for the automatism defense, he acknowledges that it is the "most common[]" rationale utilized by the cases. Id. We find the circuit court properly instructed the jury on the issue of the requisite mens rea and provided Fortune with an opportunity to present his defense that any inappropriate act committed was due to the effects of Ambien ingestion. Jury Instruction S-1 presented the jury with the elements of fondling, and Jury Instruction D-3 set forth the definition of "willfully."9 Both the State and Fortune's counsel argued the issue of the voluntariness of Fortune's actions to the jury. The State submitted in its closing argument: "We're not talking about an involuntary act. That this was a purposeful act with the specific intent to do something the law forbids.... I believe that's really the heart of this case. That's the issue that y'all are really going to have to decide." (Emphasis added). Likewise, defense counsel said in its closing arguments: "Now the Court gives you an instruction on whether this is willful or not. Means that an act was committed voluntarily and purposely with the specific intent to do something the law prohibits." (Emphasis added). The defense reiterated that Ambien can make a person "do[] activities [they are] not fully aware of," and concluded that "[if] anything happened that day, it happened in an unconscious/subconscious state and was not intentional." Fortune was thus afforded an opportunity to negate the element of voluntariness through the evidence of Ambien's side effects in the medication guide that was presented to the jury.

¶ 19. Reading the jury instructions as a whole, we find that the jury "was fully and fairly instructed according to the applicable law." See Jackson, 68 So.3d at 713 (¶ 12). In this case, it was undisputed that Fortune ingested Ambien prior to the incident, and the jury was fully informed of the side effects of the drug. If the jury believed that Fortune was unconscious due to the effects of Ambien when committing the act of fondling, the jury would have found Fortune "not guilty." See LaFave, § 9.4(b) at 36 (successful defense under mens rea rationale would "result[] in outright acquittal").

¶ 20. Accordingly, we find no error in the circuit court's denial of Jury Instruction D-2A.

II. Whether the circuit court erred in denying Fortune's motion for a new trial.

¶ 21. "A motion for a new trial challenges the weight of the evidence." Gordon v. State, 76 So.3d 198, 202 (¶ 13) (Miss.Ct.App.2011) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). "We will not set aside a guilty verdict for the reason that it is against the weight of the evidence, unless it is clear that the verdict is the result of bias, prejudice, or is manifestly against the overwhelming weight of the evidence." Id. (quoting Flanagan v. State, 605 So.2d 753, 757 (Miss.1992)). Thus, unless a verdict "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice," we will not reverse the verdict on appeal. Id. (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)).

¶ 22. Fortune argues that "the overwhelming weight of the evidence suggest[s] that [he] was unaware of his actions" and that he lacked the requisite intent to commit fondling. Fortune never denied that he fondled Alice; he merely claimed he did not remember doing so. Fortune confessed: "[W]hen I am on my medication, I do things I don't remember." However, we find that Fortune's loss of memory is not the issue. See Brown v. State, 290 S.W.3d 247, 251 n. 2 (Tex.App. 2009) (stating that "loss of memory is not a defense"); Nelson v. State, 149 S.W.3d 206, 212 (Tex.App.2004) (finding defendant not entitled to instruction since he took his prescription medication voluntarily with full knowledge of its effects, and there was no evidence he was unconscious).

¶ 23. Furthermore, the record reflects that Fortune remembered the movie credits rolling when the movie ended. He remembered taking off Alice's glasses. Alice claimed that Fortune intermittently drank his tea located on the nearby table during the fondling episode. He also remembered getting up from the couch and going to bed. As Investigator Ferris noted in his testimony:

Fortune testified that he had been taking Ambien since October 2006 and said that this "was [his] first time ever doing anything like that[.]" Fortune admitted the only part of the evening that he could not remember was when he fondled Alice, and there was no evidence presented that he was acting odd, unconscious, or in any type of altered state.

¶ 24. Finding that the jury's acceptance of Alice's testimony over Fortune's testimony was not against the overwhelming weight of the evidence so as to sanction an unconscionable injustice, we affirm the judgment of the circuit court.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.