Moses v. State, 2000-KA-00287-COA.

• Decision Date: 31 July 2001
• Docket Number: No. 2000-KA-00287-COA.,2000-KA-00287-COA.
• Citation: 795 So.2d 569
• Parties: Willie Walter MOSES, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

795 So.2d 569

Willie Walter MOSES, Appellant v. STATE of Mississippi, Appellee.

No. 2000-KA-00287-COA.

Court of Appeals of Mississippi.

July 31, 2001.

Morris Sweatt Sr., Columbia, Vicki Lachney Gilliam, Jackson, Attorneys for Appellant.

Office of the Attorney General by Scott Stuart, Jackson, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, and CHANDLER, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Willie Walter Moses was convicted in one trial on nineteen separate counts in a multi-count indictment alleging various acts of criminal sexual misconduct with two different minor females. Moses has appealed those convictions to this Court. Finding reversible error as to all convictions, we reverse. As to twelve of the counts, we reverse and remand and, as to the remaining seven counts, we reverse and render a judgment of acquittal.

I.

Facts

¶ 2. Moses was indicted in October 1998 in a single indictment charging him with twenty-two separate incidents of sexual activity involving two females, both initially alleged to be under the age of fourteen years at all relevant times. Counts One through Fifteen pertained to one victim and Counts Sixteen through Twenty-Two related to the second victim. As has become the custom in such matters, we will not refer to the alleged victims by name; rather, we will refer to them as Child A and Child B.

¶ 3. This appeal deals only with convictions on Counts One through Thirteen and Counts Sixteen through Twenty One since, at the conclusion of the State's proof, the trial court directed a verdict in favor of the defendant as to Counts Fourteen, Fifteen, and Twenty-Two.

¶ 4. Counts One through Thirteen of the indictment were identical in language. Those counts each charged Moses as follows:

During a period of time between June 1994 and September 1997 the defendant being a male over the age of eighteen (18) years did wilfully, unlawfully, feloniously and forcibly rape, ravish and carnally know [Child A], a female under the age of fourteen (14) years, contrary to and in violation of Section 97-3-65(1) of the Mississippi Code of 1972, as amended.

(Section 97-3-65 has been amended from the form that was in effect at the times relevant to this case. For purposes of clarity, there is attached as Addendum A to this opinion the text of Section 97-3-65 as it relates to the charges against Moses.)

¶ 5. Counts Sixteen and Seventeen were identical in language and charged acts of sexual battery of Child B by the insertion of Moses's penis into the vagina of Child B in violation of Section 97-3-95 of the Mississippi Code. These two counts, like Counts One through Thirteen, charged only that the offenses occurred some time between June 1994 and September 1997.

¶ 6. Counts Eighteen through Twenty One were identical in language. The charge under these counts was as follows:

Willie Walter Moses, being then and there a male person above the age of eighteen (18) years, and for the purpose of gratifying his lust and for the purpose of indulging his depraved licentious sexual desires, did wilfully, unlawfully and feloniously touch with his hand the private parts of [Child B], a female child under the age of fourteen (14) years, contrary to and in violation of Section 9-5-23 of the Mississippi Code of 1972, as amended.

¶ 7. As may be observed, none of these four counts purported to specify the date, or even a range of dates, that the alleged violation occurred.

¶ 8. Moses filed a motion to quash the indictment for failing to inform him with the necessary specificity of the crimes for which he stood accused. He alleged, among other things, that a span of some thirty-nine months was too broad to permit him any real opportunity to formulate an effective defense to the charges. In the alternative, Moses asked that the State be required "to provide more specific dates, times and places of the occurrences...." ¶ 9. There is nothing in the record to indicate that the trial court formally ruled on Moses's motion. Piecing together facts as best we can from the record, it would appear that the State may have furnished the defense with a report prepared by an organization identified as "the Sexual Assault Crisis Center." This report apparently narrowed (or, in the case of Counts Fifteen through Twenty-Two, identified for the first time) the time frame in which each of the alleged incidents was said to have occurred. Unfortunately, the report was not made a part of the record, and neither was the indictment formally amended to set out the more narrow range of dates nor to provide other factual details for each incident that may have been reflected in the crisis center report.

¶ 10. We gather, from our review of the record, that, once some attempt was made to correlate the information in the crisis center report with the counts in the indictment, it was discovered that the alleged incidents supporting Counts Seven through Thirteen probably occurred outside the already overly-broad thirty-nine month range alleged in the indictment. In fact, based on the best evidence available to the State, these seven incidents seemed to have occurred after Child A had passed her fourteenth birthday.

¶ 11. The trial court's solution to this was to permit the State to proceed to try those seven counts on the theory of a forcible rape of a person fourteen years old or older under Section 97-3-65(2) of the Mississippi Code. We reconstruct this course of the trial from various bits of dialogue in the record since there was no formal order in the record or even a formal ruling from the bench amending any of the counts of the indictment in this regard.

¶ 12. The only firm indication of any attempt to actually amend the indictment related to Counts Sixteen and Seventeen involving Child B. Just prior to beginning trial, the court permitted the State to amend Counts Sixteen and Seventeen to change the alleged instrument of sexual penetration from the defendant's penis, as charged in the indictment, to his finger. These amendments were orally allowed over Moses's timely objection that they were substantive in nature and, thus, could only be accomplished by the grand jury; however, no formal written order accomplishing these amendments appears in the record.

II

Failure to Quash the Indictment

¶ 13. An indictment serves a valuable purpose in the criminal process. Its purpose is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense and to enable him to effectively assert his constitutional right against double jeopardy in the event of a future prosecution for the same offense. U.S. v. Gordon, 780 F.2d 1165, 1169 (5th Cir.1986). In furtherance of that underlying purpose, Uniform Rules of Circuit and County Court Rule 7.06(5) requires, as an essential element of an indictment, a statement of "[t]he date and, if applicable, the time at which the offense was alleged to have been committed." URCCC 7.06(5). We have little doubt in determining that this indictment, in the form returned by the grand jury, did not adequately fulfill its purpose. Multiple accusations of crimes that are, word for word, identical to each other simply cannot by any logical argument provide the necessary information that a defendant is entitled to receive by way of the indictment. ¶ 14. No formal amendment of the indictment was ever undertaken to narrow the dates of the alleged offenses or to attempt to differentiate the facts of the separate alleged incidents by providing even the sketchiest facts of what was alleged to have occurred. We can only speculate as to what information was contained in the crisis center report since it is not a part of the record nor was there any effort on the record to formally recognize the information in that report as constituting the underlying basis for the indictment. In its absence, it cannot be maintained that the report itself cured any defects in the indictments.

¶ 15. We understand that, as to the provision of an exact date for the offense, the Mississippi Supreme Court has relaxed this provision to some extent in cases involving sexual abuse of children. The court has done so in recognition of the fact that, due to a child's inherent lack of awareness of dates and the secretive circumstances under which such offenses normally occur, it is often difficult to pinpoint the exact time of the offense. See, e.g., Eakes v. State, 665 So.2d 852, 860 (Miss.1995); Daniel v. State, 536 So.2d 1319, 1326 (Miss.1988). Despite this concession borne of necessity, the court has also said that, "in cases of this nature, it is important that a defendant be given the specific date or dates of the alleged acts if at all possible." Wilson v. State, 515 So.2d 1181, 1183 (Miss.1987). Expanding further on that point, the court affirmed a conviction in Morris v. State only upon concluding that, in narrowing the dates of the alleged offenses to a period between March and May of 1986, "the State could not narrow the time frame any more than it did." Morris v. State, 595 So.2d 840, 842 (Miss.1992).

¶ 16. In the case before us, it is patently clear that the State, in drafting the repetitively identical and essentially uninformative counts of this indictment, made no effort to narrow the dates of the separate offenses in any meaningful way. We do not, therefore, face the situation where the State, after its best investigative effort, could only narrow the span of time for an offense to a period in excess of three years. The problems with requiring a defendant to present a defense to such an accusation seem self-evident but we may leave for another day the question of whether the problems are of sufficient gravity to bar the State from proceeding with a prosecution in that circumstance. In this case, there is no question but that the State was aware of information that would have easily permitted it to provide...