Forkner v. State

902 So. 2d 615, 2004 WL 2711072
CourtCourt of Appeals of Mississippi
DecidedNovember 30, 2004
Docket2001-CT-00754-COA
StatusPublished
Cited by9 cases

This text of 902 So. 2d 615 (Forkner v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forkner v. State, 902 So. 2d 615, 2004 WL 2711072 (Mich. Ct. App. 2004).

Opinion

902 So.2d 615 (2004)

Winfred "Wimp" FORKNER, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-CT-00754-COA.

Court of Appeals of Mississippi.

November 30, 2004.
Rehearing Denied March 22, 2005.
Certiorari Denied May 26, 2005.

*617 Pamela A. Ferrington, Natchez, attorney for appellant.

*618 Office of the Attorney General by John R. Henry, attorney for appellee.

Before BRIDGES, P.J., MYERS and BARNES, JJ.

MYERS, J., for the Court.

¶ 1. On October 26, 2000, Winfred "Wimp" Forkner and April Harrison were indicted on two counts of burglary of a storehouse, in violation of Mississippi Code Annotated § 97-17-33 (Rev.2000). Forkner was charged as a habitual offender, pursuant to Mississippi Code Annotated § 99-19-83 (Rev.2000) and was convicted on Count I of the indictment. Forkner was sentenced to life without parole and appeals his conviction raising the following eight issues:

I. WHETHER THE INDICTMENT WAS DEFECTIVE.
II. WHETHER THE TRIAL COURT ERRED BY RECESSING OVER THE WEEKEND.
III. WHETHER APRIL HARRISON'S TESTIMONY WAS INSUFFICIENT TO SUPPORT THE JURY'S VERDICT.
IV. WHETHER THE COURT ERRED IN GRANTING THE STATE'S INSTRUCTION S-7.
V. WHETHER THE PROSECUTOR'S REMARKS IN HIS OPENING STATEMENT WERE IMPROPER.
VI. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO AMEND THE INDICTMENT.
VII. WHETHER THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, A PEREMPTORY INSTRUCTION, OR A JUDGMENT NOTWITHSTANDING THE VERDICT.
VIII. WHETHER THERE ARE CUMULATIVE ERRORS WHICH REQUIRE REVERSAL.

¶ 2. For the reasons set forth below, we find no merit to any of these assignments of error and affirm.

STATEMENT OF FACTS

¶ 3. On October 26, 2000, Winfred "Wimp" Forkner and April Harrison were indicted on two counts of burglary of a storehouse, in violation of Mississippi Code Annotated § 97-17-33. The indictment was the result of a late night theft spree which occurred in late August or early September, 2000 in which Forkner and Harrison traveled to hunting camps in the Wilkinson County area, stealing air conditioning units from the camps and selling the stolen goods. The stolen air conditioning units belonged to the hunting camps of Eric Trevillion, located on Bowling Green Road in Wilkinson County and Hobb's Hunting Club, also located on Bowling Green Road.

¶ 4. At trial, Harrison testified that she accompanied Forkner to the first hunting camp on Bowling Green Road where Forkner stopped the vehicle by the gate to the camp and loaded an air conditioner, which was lying close to the gate at the entrance of the hunting camp, into the vehicle's trunk. The pair then drove to St. Francisville, Louisiana and sold the air conditioning unit for $85. Harrison and Forkner then returned to Bowling Green Road and stole a second air conditioning unit. Harrison testified that Forkner used a screwdriver to pry the air conditioning unit from the window in which it was mounted, placed the unit into the trunk of the car, and drove to his niece's house, located at Sugar Hill. His niece, Linda Davis, and her husband purchased the air conditioning unit for $40. There was conflicting testimony as to whether Forkner or a "Mr. *619 Green" sold the air conditioner to Davis. The air conditioning unit Davis purchased was subsequently recovered by the Wilkinson County Sheriff's Department.

¶ 5. On February 21, 2001, Forkner's indictment was amended to charge Forkner as a habitual offender pursuant to Mississippi Code Annotated § 99-19-83. The jury returned a verdict of guilty on Count I in the indictment and could not return a verdict on Count II. On February 28, 2001, Forkner was sentenced to life without parole in accordance with Mississippi Code Annotated § 99-19-83. On March 8, 2001, Forkner filed his motion for judgment notwithstanding the verdict, or in the alternative, motion for a new trial. Forkner's motion was denied in an order dated March 9, 2001. From this guilty verdict, Forkner now appeals.

LEGAL ANALYSIS

I. WHETHER THE INDICTMENT WAS DEFECTIVE.

STANDARD OF REVIEW

¶ 6. "Whether an indictment is fatally defective is `an issue of law and deserves a relatively broad standard of review by this Court.'" Porter v. State, 749 So.2d 250, 260(¶ 34) (Miss.Ct.App.1999) (quoting Peterson v. State, 671 So.2d 647, 652 (Miss.1996)).

DISCUSSION

¶ 7. Forkner's first assignment of error is that the indictment under which he was charged was defective. The indictment in pertinent part reads as follows:

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful citizens of the said County, elected, empaneled on February 14, 2000, sworn and charged as required by law to inquire in and for said County, in the name and by the authority of the State of Mississippi, upon their oath, present that
WINFRED "WIMP" FOLKNER and APRIL HARRISON
late of the County aforesaid, in said County, during or about August of 2000, acting in concert, each with the other, did willfully, unlawfully, feloniously, and burglariously break and enter the following storehouses, being hunting camps, with the felonious intent of them, Winfred "Wimp" Folkner and April Harrison, once therein to steal and carry away goods, merchandise, and other valuable items, and did, in fact, take, steal, and carry away the below described items found and kept in said storehouses:
Count 1: from the camp of Eric Trevillion on the Bowling Green Road was taken one window air-conditioning unit;
Count 2: from the camp of the Hobb's Hunting Club on the Bowling Green Road was taken one window air-conditioning unit;
contrary to the form of the statute in such cases made and provided, against the peace and dignity of the State of Mississippi.

Forkner argues that the indictment is fatally flawed for the misspelling of his last name, as well as the failure to specify an exact date as to when the crimes charged took place.

¶ 8. The Mississippi Supreme Court has addressed the requirements for a sufficient indictment. The Court stated that:

[T]he accused is entitled to a plain statement of the charge against him. It is fundamental, of course, that an indictment, to be effective as such, must set forth the constituent elements of a criminal *620 offense; if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient

Love v. State, 211 Miss. 606, 52 So.2d 470, 472 (1951).

¶ 9. Forkner first argues that the indictment issued against him was defective, as the indictment misspelled his last name as "Folkner" rather than "Forkner." Though Forkner contends that the misspelling prejudiced his defense, he does not explain how he was prejudiced.

¶ 10. This issue is not properly before this Court, as there was no substantive error in the indictment. Forkner did not object to the indictment at the trial level, thus waiving this issue for appeal. "When `the formal defect is curable by amendment...

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Cite This Page — Counsel Stack

Bluebook (online)
902 So. 2d 615, 2004 WL 2711072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forkner-v-state-missctapp-2004.