Jim Terry v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02260-COA
JIM TERRY A/K/A JAMES CLAYTON TERRY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/30/2007
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
JIM WAIDE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF EMBEZZLEMENT AND
FRAUD IN PUBLIC OFFICE AND
SENTENCED TO THIRTEEN MONTHS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
FIVE YEARS OF POST-RELEASE
SUPERVISION; TO PAY RESTITUTION TO
LOWNDES COUNTY IN THE AMOUNT OF
$2,227.29; TO PAY $4,000 TO THE
MISSISSIPPI DEPARTMENT OF AUDIT;
AND TO BE REMOVED FROM THE
OFFICE OF SUPERVISOR OF DISTRICT
FOUR OF LOWNDES COUNTY
AFFIRMED: 06/16/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
KING, C.J., FOR THE COURT:
¶1.
James “Jim” Clayton Terry was convicted and sentenced in the Circuit Court of
Lowndes County of embezzlement and fraud while holding a public office. Aggrieved, Terry
appeals, raising one issue, which we quote verbatim:
Whether an indictment alleging embezzlement or fraud occurring over a twoyear period is sufficient when it does not give specific dates of embezzlement
or fraud, or state what facts constitute the embezzlement or fraud.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
In 2004, Terry was elected to serve as a member of the Lowndes County, Mississippi
Board of Supervisors, serving as the supervisor for District Four. As a member of the Board
of Supervisors, Terry was issued a county vehicle and a Fuelman card, which was to be used
to purchase gasoline for the county’s vehicle. The county’s vehicle and the Fuelman card
were to be utilized for business purposes only.
¶3.
Complaints were received that Terry was making inappropriate purchases of gasoline
with his Fuelman card and was using the county’s vehicle to take personal trips to casinos.
Local authorities investigated the allegations and questioned Terry regarding his use of the
county’s vehicle, his use of the Fuelman card, and his trips to casinos. As a result of the
investigation, Terry was indicted on August 21, 2006, for violating Mississippi Code
Annotated section 97-11-31 (Rev. 2006):
. . . between January 1, 2004, through the 31st day of December 2005, in the
County aforesaid, [Terry] did unlawfully, wilfully, and feloniously commit a
fraud or embezzlement while holding a public office, to wit: Supervisor of
District 4 of Lowndes County, Mississippi, by fraudulently obtaining gasoline
and the use of a county[-]owned vehicle for his personal activities, having a
total aggregate value of over $500.00, by charging said gasoline to his county
Fuelman card and using his county vehicle for personal purposes . . . .
¶4.
Terry filed a motion to dismiss the indictment, raising three issues: (1) whether the
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indictment was vague and indefinite, failing to fully advise him of the nature of the charge
against him; (2) whether the indictment charged Terry with two separate offenses in the
alternative, making it fatally defective; and (3) whether the indictment failed to state an
offense. In his brief in support of the motion and during the hearing on the motion, Terry’s
argument focused on whether the indictment impermissibly charged him with “fraud” or
“embezzlement,” in the alternative. The trial court found that the Legislature used the terms
“fraud” and “embezzlement” interchangeably; the indictment contained the required
elements; and the indictment fully apprised Terry of the charge against him. Thus, the trial
court denied Terry’s motion to dismiss the indictment, and the trial commenced.
¶5.
On November 29, 2007, a Lowndes County jury found Terry guilty. The trial court
sentenced Terry to thirteen months in the custody of the Mississippi Department of
Corrections, with five years of post-release supervision. The trial court also ordered Terry
to pay restitution to Lowndes County in the amount of $2,227.39 and to pay $4,000 to the
Mississippi Department of Audit. Terry was also removed from the office of Supervisor of
District Four. Terry filed a motion for a judgment notwithstanding the verdict or, in the
alternative, a new trial, which the trial court denied.
¶6.
Aggrieved, Terry timely filed his notice of appeal.
ANALYSIS
¶7.
Whether an indictment is fatally defective is a question of law, which this Court
reviews under a de novo standard of review. Williams v. State, 772 So. 2d 406, 408 (¶8)
(Miss. Ct. App. 2000).
I.
Whether Terry’s issues are procedurally barred from appellate
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review.
¶8.
The State argues that Terry’s issues are procedurally barred because he failed to
specifically raise these issues before the trial court in his motion to dismiss the indictment.
The law is clear that issues raised for the first time on appeal are procedurally barred from
review. Jackson v. State, 856 So. 2d 412, 415 (¶12) (Miss. Ct. App. 2003).
¶9.
As previously stated, Terry raised three issues in his motion to dismiss the indictment:
(1) whether the indictment was vague and indefinite, failing to fully advise him of the nature
of the charge against him; (2) whether the indictment charged him with two separate offenses
in the alternative; and (3) whether the indictment failed to state an offense. Although the
majority of Terry’s arguments before the trial court focused on whether the indictment
impermissibly charged him in the alternative, there is evidence in the record that raises a
reasonable inference that the issues before this Court were properly raised before the trial
court. Thus, we find that Terry’s appeal is not procedurally barred from review.
II.
¶10.
Whether the indictment provided sufficient notice of the charge.
Terry argues that the indictment was insufficient to alert him of the nature of the
charges against him because: (1) the indictment failed to note the specific dates that Terry
allegedly used the county vehicle for personal use, and (2) the indictment failed to identify
the type of personal use alleged. Terry also contends that he did not receive complete
information regarding the charge against him until the day of the trial. Specifically, Terry
argues that the State’s Exhibit 9 contained additional information that he did not receive
during discovery. Terry maintains that the indictment was insufficient, thus, prejudicing his
defense.
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¶11.
An indictment must contain the essential elements of the crime charged and sufficient
facts, which provide the defendant with sufficient notice of the charges against him. Gilmer
v. State, 955 So. 2d 829, 836 (¶24) (Miss. 2007) (citing Hamling v. United States, 418 U.S.
87, 117 (1974)). Specifically, Rule 7.06 of the Uniform Rules of Circuit and County Court
requires that an indictment contain the following:
. . . 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. . . . An indictment shall also include the
following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority
of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to
have been committed. Failure to state the correct date shall not render the
indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
A.
¶12.
Specific Dates of the Offenses
The indictment charged that Terry committed embezzlement or fraud between January
1, 2004, through December 31, 2005. Terry maintains that the range of dates was insufficient
to put him on notice of the charges against him, arguing that the indictment should have
listed each specific date that he allegedly committed the offense.
¶13.
This issue has mainly been addressed in the context of sex offender cases. See, e.g.,
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Price v. State, 898 So. 2d 641, 654-55 (¶32) (Miss. 2005). However, the same principle can
be applied here.
¶14.
In Price, the indictment did not contain the specific dates upon which the crimes were
committed. Id. at 654 (¶32). Instead, the indictment provided a time frame in which the
offenses occurred. Id. at 654-55 (¶32). The supreme court found that Rule 7.06 only
required the indictment to provide “the specific date if at all possible . . . .” Id. at 655 (¶32)
(emphasis added) (citing Morris v. State, 595 So. 2d 840, 842 (Miss. 1991)). In addition, the
supreme court found that the “failure to provide the correct date does not render the
indictment defective.” Id.; see also URCCC 7.06(5). Accordingly, the supreme court held
that the range of dates provided in the indictment sufficiently put the defendant on notice of
the charges against him. Id.
¶15.
In this case, Terry’s indictment did not list specific dates on which the offenses
occurred. However, the indictment did provide that the offenses were committed between
January 1, 2004, through December 31, 2005. In addition, the State provided Terry with its
Exhibit 9 – a chart that matched the dates that Terry used his Fuelman card to the dates that
Terry visited casinos. Terry argues that he did not receive this chart until the day of the trial.
However, the record is clear that the State used Terry’s Fuelman records and his casino
redemption records in preparing Exhibit 9. Terry does not claim that he did not have access
to his Fuelman records or his casino redemption records. Thus, Terry could have easily
obtained this information from other documents that were provided to him during discovery.
Like the reasoning in Price, we find that the range of dates provided in the indictment
sufficiently put Terry on notice of the charges against him.
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¶16.
Additionally, Terry’s embezzlement was a continuous offense. Continuous offenses
may “be laid as on one day and proved by acts either on one day or many.” Davis v. State,
108 Miss. 710, 722-23, 67 So. 178, 180 (Miss 1914). Thus, “[e]mbezzlement, when
committed by a series of connected transactions from day to day, may be alleged as on a
single day, and the real facts be shown in evidence.” Id.; see also Taylor v. State, 754 So.
2d 598, 604 (¶13) (Miss. Ct. App. 2000).
¶17.
Based on the foregoing, we find that the range of dates provided in the indictment
sufficiently put Terry on notice of the charges against him because: (1) the failure to provide
a specific date does not render the indictment defective, and (2) since Terry’s alleged crime
was a continuous offense, it could be proven by acts on either one day or numerous days.
We do not find any prejudice to Terry’s defense. This argument is without merit.
B.
¶18.
Type of Personal Use
Terry argues that the indictment failed to put him on notice of the charges against him
because it did not specify the type of personal use alleged. Terry was indicted under
Mississippi Code Annotated section 97-11-31, which provides that:
If any officer, or other person employed in any public office, shall commit any
fraud or embezzlement therein, he shall be committed to the department of
corrections for not more than ten (10) years, or be fined not more than five
thousand dollars ($5,000.00), or both.
Thus, the essential elements of this crime are that: (1) a person holding a public office (2)
committed an embezzlement or fraud in his or her public employment. See id. The statute
does not mention anything about personal use. Terry’s indictment clearly charged that he
committed an embezzlement or fraud while holding a public office by fraudulently obtaining
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gasoline and by the use of a county-owned vehicle for his personal activities. Thus, the
indictment sufficiently stated the essential elements of the crime and the acts which
constituted the embezzlement or fraud.
¶19.
Because personal use is not an essential element of the crime, we find that the State
was not required to specifically list what activity constituted the personal use. However, the
record clearly shows that through discovery, Terry was on notice that his trips to the casinos
constituted the personal use alleged in the indictment. This argument is without merit.
CONCLUSION
¶20.
The indictment was not defective because it failed to include the specific dates upon
which Terry committed the offense. We find that the range of dates provided in the
indictment was sufficient to put Terry on notice of the charges against him. Because
personal use is not an essential element of section 97-11-31, we cannot find that the
indictment was defective because it failed to specifically state the activity of personal use that
Terry was engaged in when he committed the offense. Terry failed to prove any prejudice
to his defense. Thus, the judgment of the trial court is affirmed.
¶21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF EMBEZZLEMENT AND FRAUD IN PUBLIC OFFICE AND
SENTENCE OF THIRTEEN MONTHS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE
SUPERVISION; TO PAY RESTITUTION TO LOWNDES COUNTY IN THE
AMOUNT OF $2,227.29 ; TO PAY $4,000 TO THE MISSISSIPPI DEPARTMENT OF
AUDIT; AND REMOVAL FROM THE OFFICE OF SUPERVISOR OF DISTRICT
FOUR OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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