Balouch v. State

938 So. 2d 253, 2006 WL 2829827
CourtMississippi Supreme Court
DecidedOctober 5, 2006
Docket2003-CT-00386-SCT
StatusPublished
Cited by6 cases

This text of 938 So. 2d 253 (Balouch v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Balouch v. State, 938 So. 2d 253, 2006 WL 2829827 (Mich. 2006).

Opinion

938 So.2d 253 (2006)

Vickie BALOUCH
v.
STATE of Mississippi.

No. 2003-CT-00386-SCT.

Supreme Court of Mississippi.

October 5, 2006.

*255 L. Abraham Rowe, Jr., attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. Vickie Balouch was found guilty by a Pike County Circuit Court jury of the "placing out" of D.L.[1] in violation of Miss. Code Ann. §§ 43-15-23 (Rev.2004). She was sentenced to three years in the custody of the Mississippi Department of Corrections, with one year to serve and two years on post-release supervision, and fined $1,000. She appealed, and the case was assigned to the Court of Appeals, which reversed her conviction and rendered a verdict of not guilty, based on its holding that evidence in the record was insufficient to support the verdict. Upon grant of certiorari, we conclude the Court of Appeals erred. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the trial court judgment entered consistent with the jury verdict.

FACTS

¶ 2. Balouch assisted Dr. David Smith and his wife, Autumn Smith, in connection with their possible adoption of D.L. The facts set forth by the Court of Appeals in its opinion (with re-numbered footnotes) are stated in their entirety, as follows:

On May 2, 2002, Balouch contacted her physician, Dr. David Smith, regarding the adoption of three-year-old [D.L.]. At the time, both of [D.L.'s] biological parents were incarcerated, and [D.L.] had been temporarily placed in the home of her foster parents, John and Paula Newton.[2] Balouch falsely informed Dr. Smith that she had a working relationship with the Mississippi Department of Human Services (DHS) and that she worked with battered women and children. She also misrepresented that [D.L.] had been sexually abused by John and that Paula was addicted to drugs.[3] Later that night, Dr. Smith called Balouch to inform her that he and his wife Autumn were interested in pursuing the *256 adoption. Balouch brought the child to visit with the Smiths the next day.[4]
Over the course of her communications with the Smiths, Balouch also misrepresented that [D.L.'s] father was incarcerated in a Texas prison and that he was willing to relinquish his paternal rights.[5] She also stated that she had a working relationship with local attorney Jack Price whom she recommended to handle the adoption. Balouch informed the Smiths that they could expect to pay up to $5,000 in attorney fees and expenses for the adoption. The Smiths soon learned that [D.L.'s] father was unwilling to consent to the adoption, and Balouch was subsequently indicted for placing out a child in violation of Mississippi Code Annotated section 43-15-23 (Rev.2004).[6]

Balouch v. State, 938 So.2d 262, 263, 2005 WL 2358338, *1 (Miss.Ct.App.2005).

PROCEEDINGS IN THE COURT OF APPEALS

¶ 3. Balouch raised four issues on appeal, challenging the sufficiency and weight of the evidence; improper jury instructions; witness testimony in violation of physician-patient privilege; and speculative lay opinion testimony. Finding reversible error due to insufficiency of the evidence and holding that the State failed to prove essential elements of the crime, the Court of Appeals declined to address the other issues. Balouch v. State, 938 So.2d at 259-60, 2005 WL 2358338, *2-4. Specifically, the Court of Appeals held the State failed to prove that Balouch arranged to place D.L. in the Smiths' home for the purpose of free care and adoption pursuant to Miss Code Ann. § 43-15-23(1). Id. at 257-58, *2. The Court of Appeals further held that even if Balouch illegally placed the child out, the State failed to prove she received or requested compensation for her services pursuant to Miss. Code Ann. § 43-15-23(2). Id. In conclusion, the Court of Appeals determined the evidence was insufficient to support the verdict and reversed and rendered. Id at 260, *4.

¶ 4. The State's petition for writ of certiorari raised the sole issue of whether the Court of Appeals erred in its interpretation of the statutory language of Miss. Code Ann. § 43-15-23, an issue of first impression. We found the petition to be well-taken, and granted certiorari. After due consideration of not only the single issue raised by the State on certiorari, but also all other issues raised on direct appeal, we now reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Pike County.

ANALYSIS

¶ 5. In Bush v. State, 895 So.2d 836, 843-44 (Miss.2005), this Court laid to rest some confusion surrounding the difference between review of the weight and sufficiency of the evidence. When reviewing the sufficiency of the evidence, this Court, after viewing the evidence in a light most favorable to the prosecution, must *257 determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 843. If this Court determines the evidence is insufficient to support the verdict, the proper remedy is to reverse and render. Id. Where sufficiency of the evidence is determined within a context requiring the definition of statutory elements of a crime, the correct statutory construction by the courts is critical.

¶ 6. Balouch was found guilty of the placing out of a child in violation of Miss. Code Ann. § 43-15-23, which became effective from and after July 1, 1986, and which reads in pertinent part, as follows:

(1) As used in this section the term "placing out" means to arrange for the free care of a child in a family, other than that of the child's parent, stepparent, grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of adoption or for the purpose of providing care. (Emphasis added).
(2) No person, agency, association, corporation, institution, society or other organization, except a child placement agency licensed by the Department of Public Welfare under Section 43-15-5, shall request, receive or accept any compensation or thing of value, directly or indirectly, for the placing out of a child. (Emphasis added).
(3) No person shall pay or give any compensation or thing of value, directly or indirectly, for placing out of a child to any person, agency, association, corporation, institution, society or other organization except a child placement agency licensed by the Department of Public Welfare.
. . . . [here deleted sub-section 4 which talks of payment of salaries to DHS, etc.]

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Cite This Page — Counsel Stack

Bluebook (online)
938 So. 2d 253, 2006 WL 2829827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balouch-v-state-miss-2006.