IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI MOTION FOR REHEARING

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1 E-Filed Document Sep :15: KA COA Pages: 5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHALONDA NIKKIA VALE APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING COMES NOW the Appellee, State of Mississippi, by and through counsel, pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, and moves this Court to grant rehearing of its decision handed down in this matter on August 29, In support of the motion, the State of Mississippi would show unto the Court the following: I. This Honorable Court overlooked or misapprehended the law in finding that Vale s indictment was fatally defective and constructively amended. WHEREFORE, PREMISES CONSIDERED, and for the reasons more fully developed below, the State respectfully moves this Court to rehear this case, and upon doing so, to affirm the trial court s judgment of conviction. FACTS AND PROCEDURAL HISTORY After a jury trial before the Honorable Judge Wayman Dal Williamson in the Circuit Court of Jones County, Second Judicial District, Shalonda Nikkia Vale ( Vale ) was convicted of burglary of a dwelling in violation of Mississippi Code Annotated Section (CP 3, 41) Vale appealed to this Honorable Court for relief on the basis that her indictment was fatally defective because it did 1

2 not include the element of intent and that her indictment was constructively amended as a result of Jury Instruction S-1. This Court agreed with Vale s claims and reversed the judgment of the circuit court and dismissed her indictment. ARGUMENT I. This Honorable Court overlooked or misapprehended the law in finding that Vale s indictment was fatally defective and constructively amended. The State respectfully submits that the majority s opinion is incorrect. The opinion ignores the fact that Vale clearly knew what crime she was charged with committing and presented no evidence of prejudice. The header of Vale s indictment stated that she was charged with violating Mississippi Code Annotated Section (CP 3) Then Section is referenced again in the body of the indictment. Thus, there can be no question that Vale knew she was charged with committing burglary of a dwelling which includes the element of intent to commit some crime therein. The fact that she never challenged her indictment before, during, or after trial in a post-trial motion further supports the fact that she was on notice of her charge and had no problem adequately preparing a defense. The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense. Lewis v. State, 155 So. 3d 772, 774 ( 7) (Miss. Ct. App. 2011). Vale s entire defense at trial was that she was not present during the burglary and never even entered Ms. Mulloy s apartment (even though she previously confessed to law enforcement). Her intent was never an issue at trial. Vale s indictment fulfilled its purpose according to this Court s prior case law and Vale suffered no prejudice as a result of its construction. 2

3 Vale, just like Wilson in Wilson v. State, 815 So. 2d 439, 443 ( 11) (Miss. Ct. App. 2002), did not demonstrate how [she] was prejudiced in the preparation of [her] defense[.] Vale has not shown how or why reversible error was committed by the State in charging that she actually committed a larceny as opposed to only having the intent to commit a larceny. In addition to clearly listing the code section, Vale s indictment charged that she unlawfully, feloniously, and burglarious break into Ms. Mulloy s home. These words should have been enough to convey that she had the intent to commit a crime therein. We hold that the words unlawfully and feloniously are sufficient to make the necessary charge of intent to steal. Thomas v. State, 278 So. 2d 469, 471 (Miss. 1973) Although the charge in Thomas was armed robbery, the principle is the same. The wording of the indictment was sufficient to convey that Vale had the intent to commit a larceny inside Ms. Mulloy s apartment. Similarly, in State v. Snowden, 164 Miss. 613, 622 (Miss. 1933), our Supreme Court held that [t]he charge in the indictment that the money was feloniously taken was sufficient to charge an intent to steal. The formal and technical words of the statute are dispensable in an indictment. Id. [T]he intent which is here sufficiently alleged, for an allegation that a person did unlawfully take, steal, and carry away property, of course includes the idea that he took the property with the intention of stealing it. Webster v. State, 111 So. 749, 750 (Miss. 1927) (internal quotations omitted) (emphasis added). Respectfully, this Court s finding that the indictment was constructively amended is incorrect because Jury Instruction S-1 did not broaden the grounds upon which Vale could be found guilty. Further, this Court s opinion acknowledges that the issue of whether the indictment was constructively amended is procedurally barred, meaning that it is not properly before this Court. The 3

4 State respectfully submits that the procedural bar should stand. But even so, Jury Instruction S-1 did not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment[.] Opinion at 16. Thus, there should be no reversible error here. CONCLUSION For the foregoing reasons, the State respectfully submits that the opinion in this case is incorrect and that this case should be reheard. Vale s conviction and sentence should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Abbie Eason Koonce ABBIE EASON KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) FACSIMILE: (601) akoon@ago.state.ms.us 4

5 CERTIFICATE OF SERVICE I, ABBIE EASON KOONCE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Justin Taylor Cook, Esq. Indigent Appeals Division Office of the State Public Defender Post Office Box 3510 Jackson, MS jcook@ospd.ms.gov Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This, the 7 th day of September, Honorable Dal Williamson Circuit Court Judge Post Office Box 65 Laurel, MS Honorable Anthony J. Buckley District Attorney Post Office Box 313 Gulfport, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) FACSIMILE: (601) akoon@ago.state.ms.us /s/ Abbie Eason Koonce ABBIE EASON KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL 5