Williams v. State

169 So. 3d 932, 2014 WL 3409170, 2014 Miss. App. LEXIS 382
Court of Appeals of Mississippi·Decided July 15, 2014·No. No. 2013-KA-00660-COA·Published·Cited by 22 cases

Opinion

ROBERTS, J.,

for the Court:

¶ 1. On March 12, 2013, a jury in the Copiah County Circuit Court convicted Kevin Leigh Williams of failing to register as a sex offender. He was sentenced to serve three years in the custody of the Mississippi Department of Corrections (MDOC). Following the denial of his post-trial motions, Williams appeals his conviction and sentence, primarily on the ground that his indictment was insufficient, as it did not allege the essential elements of the crime or the facts constituting the offense. We agree. Therefore, we reverse Williams’s conviction and sentence. Williams’s indictment is dismissed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Williams was indicted by a Copiah County grand jury on January 30, 2013. The indictment read that Williams,

on or about the 4th day of September, 2012, in Copiah County, Mississippi, ... did then and there wilfully, unlawfully[,] and feloniously fail to register or re-register as a sex offender with the Department of Public Safety, contrary to and in violation of [Mississippi Code Annotated sjection 45-33-33 [(Rev.2011)] ..., and against the peace and dignity of the State of Mississippi.

¶ 3. At Williams’s trial on March 12, 2013, two witnesses testified for the State, and the defense put on no witnesses or evidence. Testifying first for the State was Officer Greg Farrell, who was employed by the MDOC as a field officer in Copiah County for probation and parole compliance. Officer Farrell testified that he met Williams on September 5, 2012, after supervision of Williams was transferred to him in Copiah County from another county. According to Officer Farrell, Williams signed several documents at their meeting at his office, and he provided Officer Farrell with an address that he said belonged to him and his brothers. [934] Only an Acknowledgment of Convicted Sex Offender’s Duty to Register form was entered into evidence, and this form does not contain a date that it was signed or the address Williams provided. The form contained a sixteen-part list of the various duties required of sex offenders relating to registration. No other documents from their meeting were entered into evidence.

¶4. On September 10, 2012, Officer Farrell went to the address provided; however, Williams was not there.1 Officer Farrell never went inside the home, and was not aware if anyone else was in the home that day. Following his visit, Officer Farrell completed a violation report and forwarded it to Williams’s county of conviction.2 The violation report was not entered into evidence. Officer Farrell also notified Copiah County Sheriffs Department Investigator Tommy Roberts of a possible sex-offender violation to investigate.

¶ 5. .Investigator Roberts next testified at Williams’s trial. Investigator Roberts testified that Williams signed an acknowledgment-of-duties form and that the first duty listed was that Williams would need to report all the addresses where he would reside for a period of seven or more consecutive days. After receiving information from Officer Farrell, Investigator Roberts also went to the address Williams provided and spoke with Chris. Chris told Investigator Roberts that Williams did not live there. Investigator Roberts testified that he first went to the home on September 4, 2012, and again on September 18, 2012.3 On his September 18, 2012 visit, Investigator Roberts, wearing a video camera, went to the address and again spoke with Chris. The video was shown to the jury, over defense counsel’s objection that the date and time on the video were incorrect; therefore, it could not be authenticated. Chris informed Investigator Roberts that Williams was not present. The State rested. Williams did not testify or offer any other evidence.

¶ 6. The jury convicted Williams of failing to register or reregister as a sex offender, and he was sentenced to serve three years in the custody of the MDOC. Williams filed a motion to set aside his sentence and for a judgment notwithstanding the verdict, and a motion for a new trial. His motions were denied, and Williams appeals. He raises three issues on appeal:

I. The indictment was fatally defective, as it failed to allege the elements of the crime or the essential facts constituting the offense.
II. The trial court committed plain error by failing to instruct the jury on the essential elements of the crime.
III. The evidence is insufficient to support the verdict or, in the alterna[935] tive, the verdict is against the overwhelming weight of the evidence.

ANALYSIS

¶ 7. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.... [T]he legal sufficiency of an indictment must be reviewed de novo.” Young v. State, 119 So.3d 309, 313 (¶ 10) (Miss.2013) (citations omitted).

¶ 8. We note that Williams raised the issue of the legal sufficiency of his indictment for the first time on appeal. That State argues that this acts as a waiver, and Williams is procedurally barred from raising this issue on appeal. However, it is settled that objections to the sufficiency of an indictment may be raised for the first time on appeal. See Tucker v. State, 47 So.3d 135, 137 (¶ 8) (Miss.2010); Ross v. State, 954 So.2d 968, 1015 (¶ 126) (Miss.2007); Havard v. State, 928 So.2d 771, 801 (¶ 59) (Miss.2006); State v. Berryhill, 703 So.2d 250, 254 (¶ 16) (Miss.1997); Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982).

¶ 9. Uniform Rule of Circuit and County Court 7.06 provides that an indictment “shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” The primary purpose of an indictment is to give a defendant fair notice of the crime charged. Hines v. State, 126 So.3d 985, 987 (¶ 10) (Miss.Ct.App.2013) (quoting Faulkner v. State, 109 So.3d 142, 146 (¶ 13) (Miss.Ct.App.2013)). “An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Gilmer v. State, 955 So.2d 829, 836-37 (¶ 24) (Miss.2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). “[E]ach and every material fact and essential ingredient of the offense must be with precision and certainty set forth.” Burchfield v. State, 277 So.2d 623, 625 (Miss.1973).

¶ 10. Williams’s indictment, quoted in almost its entirety, read:

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Williams v. State, 169 So. 3d 932, 2014 WL 3409170, 2014 Miss. App. LEXIS 382 (Mich. Ct. App. 2014).

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