IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-KA-00311-SCT
SAMUEL ALLEN NUCKOLLS a/k/a SAMMY NUCKOLLS a/k/a SAM ALLEN NUCKOLLS a/k/a SAM NUCKOLLS a/k/a SAMUEL NUCKOLLS a/k/a SAMUEL A. NUCKOLLS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/14/2012 TRIAL JUDGE: HON. GERALD W. CHATHAM, SR. TRIAL COURT ATTORNEYS: RONALD D. MICHAEL SETH POUNDS ALICIA M. AINSWORTH COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RONALD D. MICHAEL ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH DISTRICT ATTORNEY: JOHN W. CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART, REVERSED IN PART - 12/10/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. In this thirteen-count, video-voyeurism bench trial, the parties agreed to forego calling
witnesses and to have the trial judge decide the case on a submission of stipulated facts. The
stipulation omitted any reference to where ten of the thirteen counts took place. So, because
the State failed to prove venue as to those ten counts, we must reverse them. We affirm
Nuckolls’s remaining convictions. FACTS AND PROCEDURAL HISTORY
¶2. On February 14, 2012, a DeSoto County grand jury indicted Samuel Nuckolls for
thirteen violations of Mississippi Code Section 97-29-63, which provides:
Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony . . . .1
¶3. The original indictment charged that Nuckolls “secretly filmed and videotaped”
women in his bathroom on thirteen occasions. When Nuckolls moved to dismiss most of the
counts because they had occurred outside the two-year statute of limitations,2 the State
obtained an amended indictment, adding language charging that Nuckolls “otherwise
reproduced” the images within the statute of limitations by saving them on his computer.
Nuckolls’s attorney then moved for a continuance, arguing that the State had made no
allegation and had no proof as to where the images had been reproduced. The circuit judge
denied the motion and found that all of the counts survived the statute of limitations.
¶4. Nuckolls then waived his right to a trial by jury, and the parties submitted an agreed
stipulation of facts to the circuit judge, asking the circuit judge to decide the case based on
that stipulation. The stipulation included no information as to where the images allegedly
were reproduced, and Nuckolls preserved his challenge to the statute of limitations. Based
1 Miss. Code Ann. § 97-29-63(1) (Rev. 2014). 2 Miss. Code Ann. § 99-1-5 (Rev. 2015).
2 on the stipulation of facts, the circuit judge convicted Nuckolls on all thirteen counts. On
appeal, Nuckolls attacks his ten transfer convictions on two grounds: (1) the statute does not
criminalize the transfer of images to a computer; and (2) even if it does, the State failed prove
where the transfer took place, or who made the transfer. He also challenges one of his three
filming convictions, arguing that the State failed to prove that it occurred within the statute
of limitations. He has not appealed the other two filming convictions.
¶5. Because we find that the State failed to prove venue, we reverse the transfer
convictions. We affirm the remaining convictions.
ANALYSIS
I. The Transfer Convictions
¶6. When we consider the sufficiency of the evidence, our “‘relevant inquiry is whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’”3 “‘The state receives the benefit of all favorable inferences that may
reasonably be drawn from the evidence.’”4
¶7. The stipulation—which was the sole evidence at trial—is entirely silent as to where
the transfers occurred. The State has not suggested otherwise in its brief. And when asked
about the venue issue at oral argument, the State responded that, because Nuckolls resides
3 Conner v. State, 138 So. 3d 143, 147-48 (Miss. 2014) (quoting Young v. State, 119 So. 3d 309, 315 (Miss. 2013)). 4 Conner, 138 So. 3d at 148 (quoting Hughes v. State, 983 So. 2d 270, 276 (Miss. 2008)).
3 in DeSoto County, the trial judge was within his discretion to find that the transfers took
place there.
¶8. We consistently have held that venue is an essential part of the State’s burden of proof
that “may be proved by direct or circumstantial evidence.”5 This precedent is based on the
Mississippi Constitution’s requirement that “an accused has the right to trial ‘by an impartial
jury of the county where the offense was committed.’”6 Also, venue in this case—as in all
criminal cases—constitutes a material allegation of the indictment that becomes a part of the
State’s burden of proof.
¶9. No evidence was provided at trial to show where the transfers took place. And to
imply, as the State suggests, that the transfers occurred in DeSoto County simply because
Nuckolls resided there—even though he allegedly used a laptop computer that (1) was
purchased in Tennessee, (2) was found in Arkansas, and (3) could operate anywhere—would
strain credibility and obviate the State’s burden of proof.
¶10. The stipulation did not state—as the separate opinion by Presiding Justice Michael K.
Randolph inaccurately suggests—that the transfers occurred at either of Nuckolls’s
residences. For example, for Count 1 (which largely mirrors the language of the other
counts), the stipulation states in its entirety:
5 Smith v. State, 646 So. 2d 538, 541 (Miss. 1994) (citing Jones v. State, 606 So. 2d 1051, 1055 (Miss. 1992); Griffin v. State, 381 So. 2d 155, 158 (Miss. 1980); Jackson v. State, 246 So. 2d 553, 555 (Miss. 1971)). 6 Rogers v. State, 95 So. 3d 623, 630 (Miss. 2012) (quoting Miss. Const. art. 3, § 26); see also Miss. Code Ann. § 99-11-3 (Rev. 2015) (“The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.”).
4 Facts regarding COUNT 1
In Count 1 the State would show that SAMUEL NUCKOLLS, between the dates of June 1, 2007 and October 29, 2011, did willfully, unlawfully and feloniously, with lewd, licentious or indecent intent secretly photograph, film, videotape, record, or otherwise reproduce the image of another, to wit: Ashley Fisher, without the permission of Ashley Fisher when Ashley Fisher was located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, to-wit: in the bathroom.
The State would offer four videos. The first video, labeled “af” shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded.
The second video, labeled afh shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. This video appears to be older than the video labeled “af” due to a piece of furniture not being present in “afh.”
The third video, labeled “afp” shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she was pregnant in this video. Ashley Fisher would testify that she did not give permission or consent to be recorded. The piece of furniture seen in “af” is present.
The fourth video, labeled “afrp” shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. Ashley Fisher would testify that she was pregnant when this was recorded. She would further testify that this video took place some time after “afp.”
5 Testimony would establish that these videos were found on the Defendant’s Apple MacBook Pro (Serial number W8047932ATMA1344). The videos were all located in the subfolder orange.
¶11. Nothing in the stipulation suggests where the transfer to the laptop took place. Every
mention of Nuckolls’s residence—in this count and all others—pertains only to where the
filming took place. And the separate opinion cannot take the position that the two
events—filming and transferring to the laptop—took place close in time because, as already
stated, the filming took place outside the statute of limitations, so the transfer to the computer
must have taken place long after the filming. And, with regard to the transfers’ locations, the
stipulation is completely silent.
¶12. Also, Presiding Justice Randolph incorrectly contends that Nuckolls waived this
assignment of error by failing to obtain a ruling in the trial court. As stated, venue is a
constitutional requirement, and this Court has said repeatedly “that the question could be
raised for the first time in [the Supreme Court] court,” on appeal.7 As recently as 2012, we
have recognized and reaffirmed this principle.8
¶13. Nuckolls has raised this issue on appeal. Under an issue heading labeled “The Trial
Court Erred in Finding Samuel Nuckolls Guilty and Subsequently Overruling Defendant’s
7 Dorsey v. State, 141 Miss. 60, 106 So. 827, 828 (1926) (citing Monroe v. State, 104 So. 451 (Miss. 1925); Slaton v. State, 134 Miss. 419, 98 So. 838 (1924); Sullivan v. State, 136 Miss. 773, 101 So. 683 (1924); Sandifer v. State, 136 Miss. 836, 101 So. 862 (Miss.1924); Pickle v. State, 137 Miss. 112, 102 So. 4 (1924); Carpenter v. State, 102 So. 184 (Miss. 1924); Norwood v. State, 129 Miss. 813, 93 So. 354 (1922);Quillen v. State, 106 Miss. 831, 64 So. 736 (1914); Cagle v. State, 106 Miss. 370, 63 So. 672 (1913)). 8 Moreno v. State, 79 So. 3d 508, 511 (Miss. 2012) (citing Gillett v. State, 56 So. 3d 469, 502 (Miss. 2010) (“[V]enue in criminal cases may be raised for the first time on direct appeal . . . .”).
6 Motion for Judgment of Acquittal Notwithstanding the Verdict or in the Alternative for a
New Trial,” Nuckolls argued that “the State presented no evidence to the Court showing
where the transfer took place . . . .” With regard to the State’s burden of proof, a complaint
that the State failed to prove where the crime took place can be read only as a statement that
the State failed to prove venue.
¶14. Further, the record contradicts Presiding Justice Randolph’s assertion that Nuckolls
“agreed that the evidence the State would offer was sufficient to convict Nuckolls.” When
the parties appeared before the circuit judge to submit the stipulation of facts, the parties
repeatedly affirmed that they were asking the judge to adjudicate the defendant’s guilt.
Defense counsel, the circuit judge, and the prosecutor each specifically noted at one point or
another that the judge had to determine whether the stipulation established Nuckolls’s guilt.
In fact, at one point when the circuit judge specifically asked if Nuckolls was entering a
guilty plea, the prosecutor informed the judge that he had to determine Nuckolls’s guilt.
¶15. In light of these repeated comments, we cannot agree with Presiding Justice
Randolph’s characterization that Nuckolls admitted that the stipulation provided sufficient
evidence to convict him.
¶16. It is true that, at one point in the proceeding, the circuit judge proposed a procedure
for the parties to appear at a later date and make arguments as to Nuckolls’s guilt, and for the
judge to render a verdict and hold a sentencing hearing. Contrary to other statements
throughout the proceeding, the State suggested—in response to the proposed procedure—that
it believed the parties were agreeing that the evidence was sufficient to convict Nuckolls.
7 Nuckolls’s counsel then made a statement, which from the appellate transcript and without
the benefit of being present in the courtroom, could be read either as agreement with the
State’s statement or as agreement to the judge’s proposed procedure. The separate opinion
reads this statement as the former, but the record supports only the latter. And even if we
were to agree with Presiding Justice Randolph that Nuckolls was attempting to plead guilty,
none of the required procedures was followed to ensure that, in doing so, he made a knowing
and intelligent waiver of all of his rights.
¶17. But there was no attempt to plead guilty. All involved in that hearing repeatedly
asserted that the judge had to determine whether Nuckolls was guilty or innocent. To adopt
Presiding Justice Randolph’s reading would conflict with the rest of the parties’ and the
judge’s statements. And the circuit judge apparently did not believe Nuckolls had admitted
his guilt because, when the court reconvened, the trial judge began by stating
heretofore the Court was informed by counsel for the defense and counsel for the state that they wished a bench trial. That is, they wanted the Court to rule on the defendant’s guilt or innocence based on a stipulation of fact.
(Emphasis added.) The judge then rendered his verdict count by count, formally finding that
the stipulation provided sufficient evidence to support each one. In no way did he suggest
that the parties had conceded that the stipulation provided sufficient evidence.
¶18. Because the State offered no evidence to meet its constitutional burden to prove
venue, we must reverse the transfer convictions.9
9 Because we reverse Nuckolls’s transfer convictions based on the State’s failure to prove venue, we need not address Nuckolls’s contention that the statute does not criminalize this conduct.
8 II. The State’s Evidence on Count 11
¶19. Nuckolls argues that the State failed to prove that count eleven occurred within the
statute of limitations because the parties stipulated that the filming occurred within a range
of dates, including dates both within and outside the two-year statute of limitations. When
considering the sufficiency of the evidence, our “‘relevant inquiry is whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’”10 “‘The state receives the benefit of all favorable inferences that may reasonably be
drawn from the evidence.’”11 And the State bears the burden to prove that an offense
occurred within the statute of limitations.12
¶20. Here, the parties stipulated that count eleven occurred between June 1, 2007, and
October 29, 2011. They also stipulated that it occurred at Nuckolls’s Meadow Ridge
residence, where he moved on October 6, 2009. So the date range includes a short time
period—October 6, 2009, to October 28, 2009—more than two years before Nuckolls’s arrest
on October 29, 2011, and outside the statute of limitations.13
10 Conner, 138 So. 3d at 147–48 (quoting Young, 119 So. 3d at 315). 11 Conner, 138 So. 3d at 148 (quoting Hughes, 983 So. 2d at 276). 12 McLaughlin v. State, 133 Miss. 725, 98 So. 148 (1923). 13 See Miss. Code Ann. § 99-1-5 (Rev. 2015) (“A person shall not be prosecuted for any other offense not listed in this section unless the prosecution for the offense is commenced within two (2) years next after the commission thereof.”); Miss. Code Ann. § 99-1-7 (Rev. 2015) (“A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.”).
9 ¶21. The parties also stipulated, however, that “[t]he [count eleven] video ends with
Sammy Nuckolls entering with a silver laptop consistent with the Apple MacBook Pro.”
Nuckolls purchased the Apple MacBook Pro on January 5, 2011. So, drawing all reasonable
inferences in favor of the State, we find that the State presented sufficient evidence because
the stipulation gives rise to a strong inference that the video depicts the same computer
purchased in January 2011, and that the recording must have occurred after that date.
CONCLUSION
¶22. Nuckolls has not appealed his convictions on counts three and four, so those
convictions are not before us. The State presented sufficient evidence to prove that count
eleven—filming—occurred within the statute of limitations, so that conviction is affirmed.
But the State failed to prove venue for counts one, two, five, six, seven, eight, nine, ten,
twelve, and thirteen, so we reverse the trial count’s judgment as to those convictions.
¶23. COUNT ELEVEN: CONVICTION OF VIDEO VOYEURISM AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCE TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT THREE, AFFIRMED. CONVICTIONS AND SENTENCES IN COUNTS ONE, TWO, FIVE, SIX, SEVEN, EIGHT, NINE, TEN, TWELVE, AND THIRTEEN ARE REVERSED.
WALLER, C.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE, J.
RANDOLPH, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶24. Pursuant to the stipulation presented at trial, which is attached as an appendix to this
opinion, the parties stipulated that the only issue to be “preserved for appeal” was the issue
10 of the statute of limitations, save for counts three and four–“all arguments and testimony
regarding the statute of limitations are preserved for appeal.” Today’s majority goes outside
of the stipulated facts and issues preserved for appeal by overturning ten of Sam Nuckolls’s
thirteen convictions based on its sua sponte raising and then deciding an issue which was
neither raised nor briefed. Accordingly, I would affirm the entire judgment of the trial court.
¶25. Nuckolls was indicted on thirteen counts of “wilfully, unlawfully and feloniously,
with lewd, licentious or indecent intent, secretly photograph[ing], film[ing], videotap[ing],
record[ing], or otherwise reproduc[ing] the image of another. . . .” The amended indictment
charged that each count, including the “otherwise reproducing” took place at one of
Nuckolls’s two homes in DeSoto County.
¶26. Nuckolls elected to waive the constitutional right upon which the majority premises
its opinion. See Maj. Op. ¶8 and Miss. Const. art 3, §26. Then Nuckolls and the State entered
into a binding and conclusive stipulation of facts, with Nuckolls making no claim of
improper waiver. The stipulation is not “entirely silent as to where the transfers occurred.”
(Maj. Op. ¶7). The stipulation tracked the exact language of the amended indictment, which
included the alleged venue, summarizing the evidence that the State would offer at trial. The
parties agreed that the evidence the State would offer was sufficient to convict Nuckolls,
Nuckolls argued that the crimes took place outside of the statute of limitations.
[An] Agreed Statement of Facts on which the parties submit [a] case for trial is binding and conclusive on them, and the facts stated are not subject to subsequent variation. So, the parties will not be permitted to deny the truth of the facts stated, or the truth, competency or sufficiency of any admission contained in the Agreed Statement or to maintain a contention contrary to the Agreed Statement or be heard to claim that there are other facts that the Court
11 may presume to exist, or to suggest, on appeal, that the facts were other than stipulated, or that any material fact was omitted.
In re Collins, 524 So. 2d 553, 561 (Miss. 1987) (citing 83 C.J.S. Stipulations § 25 (1954)).
¶27. Estoppel, properly applied, should preclude Nuckolls’s offering a contention contrary
to the stipulation or suggesting on appeal that facts other than those stipulated were omitted.
Additionally, Nuckolls never contested venue before the trial court. See Walker v. State, 913
So. 2d 198, 217 (Miss. 2005) (“Failure to raise an issue at trial bars consideration on an
appellate level.”). Nor does he offer that argument here today.14 Nuckolls neither raised,
addressed, nor briefed the issue of whether the State failed to establish venue.15 In his
fourteen-page brief, Nuckolls made a statement that “the State presented no evidence to the
Court showing where the transfer took place. . . .” Moreover, Nuckolls did not provide any
authority that the State failed to provide evidence of venue other than what was charged in
his amended indictment and agreed upon in the binding and conclusive stipulation of facts.
¶28. Today’s holding overturns ten of Nuckolls’s convictions for reasons never contested
before the trial court. Our role is not to act as an advocate for the defendant or the State.
14 The majority is silent as to how or why it is addressing an issue not raised or briefed. The only mechanism by which this Court could decide such an issue is the plain- error doctrine. However, this Court can reverse a conviction only if Nuckolls’s “substantive or fundamental rights are affected,” and if the error “resulted in a manifest miscarriage of justice.” Foster v. State, 148 So. 3d 1012, 1018 (Miss. 2014) (quoting Grayer v. State, 120 So. 3d 964, 969 (Miss. 2013)). There is no manifest miscarriage of justice in this case because the sentences for the ten counts the majority overturns are to run concurrently with Counts 3 and 4, which Nuckolls did not appeal. 15 Moreover, the majority’s pinpoint citation in footnote 8, Moreno v. State, 79 So. 3d 508, is wholly distinguishable from the unique circumstances presented in this case and should not be relied upon.
12 Creating an issue never presented is an act of advocacy and is cautiously applied only in
cases in which we have a firm conviction that a manifest miscarriage of justice has occurred.
Venue was never the issue for which Nuckolls sought relief. I respectfully oppose such
action and would decline to extend relief as to that issue, it not having been raised, briefed,
or addressed. I would affirm the judgment of the trial court as to all counts.
PIERCE, J., JOINS THIS OPINION.
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