Pollard v. State, 2004-KA-01700-COA.

• Decision Date: 20 June 2006
• Docket Number: No. 2004-KA-01700-COA.,2004-KA-01700-COA.
• Citation: 932 So.2d 82
• Parties: Robert Ed POLLARD, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

932 So.2d 82

Robert Ed POLLARD, Appellant v. STATE of Mississippi, Appellee.

No. 2004-KA-01700-COA.

Court of Appeals of Mississippi.

June 20, 2006.

COPYRIGHT MATERIAL OMITTED

James A. Williams, Brookhaven, attorney for appellant.

Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.

EN BANC.

BARNES, J., for the Court.

¶ 1. Robert Ed Pollard was convicted in the Circuit Court of Lauderdale County of larceny of timber of a value of $250 or more, and was sentenced to five years in the custody of the Mississippi Department of Corrections, fined $500, and ordered to pay restitution of $1,226.50. Aggrieved, Pollard timely appealed to this Court. Finding error, we reverse and remand.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In early 2003, Walter Duncan sought to have some trees removed from a piece of property located in Meridian, Mississippi. He contacted Cuba Timber and was told by a representative that someone from the company would be in touch with him in a few days. On January 6, Pollard and his brother Charles—both employees of Cuba Timber—arrived at Duncan's property and indicated that they were ready to begin cutting the trees. Duncan took the Pollards twice around the property, pointing out the property lines and emphasizing to the Pollards that they were to obey the property lines. Duncan stated that he did not see Robert Pollard again until the morning of January 8, when he arrived at the property to find Pollard and a crew cutting trees on an adjacent parcel of land owned by Melwyn Shirley. Duncan testified that he informed Pollard that he was cutting on the wrong property and ordered him to stop cutting immediately. According to Duncan, Pollard indicated that he had spoken to Shirley and had agreed to pay her for the mistakenly cut timber.

¶ 3. Shirley testified that on the morning of January 8, she witnessed Pollard cutting trees in her backyard. Shirley stated that she went outside and confronted Pollard, who apologized for cutting too far over the property line and offered to pay for the timber and to clean up her property. Shirley sought the assistance of the Mississippi Forestry Commission, which determined that twenty-five trees had been cut by Pollard, with a total value of $1,226.50. Shirley testified that when she received this estimate, she showed it to Pollard, who refused to pay the sum and instead offered a payment of $500. Shirley testified that she did not accept Pollard's offer.

¶ 4. Pollard was indicted on a charge of larceny of timber of a value of $250 or more, pursuant to section 97-17-59(2) of the Mississippi Code (Rev.2000). On July 9, 2004, Pollard was convicted of the crime in the Circuit Court of Lauderdale County and was sentenced to the maximum term of five years in prison, fined $500, and ordered to pay restitution of $1,226.50. Pollard filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, which was denied by the trial court. On appeal, Pollard raises several issues, some of which we need not reach, as we find reversible error.

ISSUES AND ANALYSIS

I. WHETHER POLLARD'S INDICTMENT WAS FATALLY DEFECTIVE.

¶ 5. Section 97-17-59(2) of the Mississippi Code, under which Pollard was convicted, reads in pertinent part:

Any person who shall knowingly, willfully and feloniously take, steal and carry away from the lands of another any merchantable timber on the property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, whether such timber is growing, standing, or lying on the lands, shall be guilty of a felony; and upon conviction thereof, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the Penitentiary for a term of not less than one (1) year nor more than five (5) years, or both, in the discretion of the court.

¶ 6. The indictment charging Pollard stated that "Robert Ed Pollard . . . did then and there wilfully, unlawfully, and feloniously cut and harvest [$1,226.50] worth of timber from the property of Melwyn Shirley . . . ." (emphasis added). Pollard contends that his indictment was defective because it did not specify an essential element of the crime, namely, that he "carried away" the timber in question.

¶ 7. It is well-settled that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged. Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). The Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice; however, the State's failure to include the essential elements of the crime in the indictment is a jurisdictional defect that is not waivable by the defendant. See Banana v. State, 635 So.2d 851, 853 (Miss. 1994). Furthermore, the State's failure to include an essential element of the crime cannot be cured by notice outside of the indictment. White v. State, 851 So.2d 400 403(¶ 5) (Miss.Ct.App.2003). The key question in this case is whether the word "harvest" served as an adequate substitute for "carry away"; if so, the indictment states each element of the crime and is thus adequate.¹

¶ 8. Our case law establishes that in order to constitute a "carrying away," movement of the good in question need not be substantial. In Mapp v. State, 248 Miss. 898, 904, 162 So.2d 642, 645 (1964), the Mississippi Supreme Court held that "it is not necessary to constitute a sufficient asportation, that the goods be removed from the owner's premises." Furthermore, in the case of Harbin v. State, 402 So.2d 360, 361 (Miss.1981), the supreme court sustained a conviction of grand larceny where the defendants had towed an automobile a mere three feet. In that case, the supreme court held that, "There is a caption when the defendant takes possession; he takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, even though it takes but a moment, is sufficient." Harbin, 402 So.2d at 361-62.

¶ 9. According to Black's Law Dictionary, "harvesting" refers to "[t]he act or process of gathering of crops of any kind." Black's Law Dictionary, 718 (6th ed.1990). It is obvious from this definition, as well as from common sense, that harvesting necessarily involves some degree of movement of the good in question. Furthermore, as stated above, even a slight movement of a good can constitute a "carrying away" so as to sustain a conviction of larceny. We have no difficulty finding that, where the indictment charging Pollard with larceny alleged that he feloniously "harvest[ed]" timber from the property of Melwyn Shirley, this served as an adequate replacement for the term "carried away." Thus, we find that Pollard's indictment was not defective, as it set forth each element of the crime with which he was charged. This issue is without merit.

II. WHETHER THE JURY WAS PROPERLY INSTRUCTED AS TO THE ESSENTIAL ELEMENTS OF THE CRIME.

¶ 10. As set forth supra, section 97-17-59(2) of the Mississippi Code sets forth the elements for larceny of timber of the value of $250 or more:

Any person who shall knowingly, willfully and feloniously take, steal and carry away from the lands of another any merchantable timber on the property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, whether such timber is growing, standing, or lying on the lands, shall be guilty of a felony; and upon conviction thereof, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the Penitentiary for a term of not less than one (1) year nor more than five (5) years, or both, in the discretion of the court.

(Emphasis added). However, jury instruction C-8 erroneously stated the elements of the crime. It read:

The Court instructs the Jury that, should you find from the evidence in this case, beyond a reasonable doubt that:

1. On or about the 8th day of January, 2003 in Lauderdale County, Mississippi;

2. The Defendant, Robert Ed Pollard, did wilfully and unlawfully take, steal or cut or did authorize his employees to unlawfully take, steal or cut the timber of Melwyn Shirley and the value of that timber was over $250.00;

then it is your sworn duty to find the Defendant guilty of Timber Theft over $250.00.

(Emphasis added). Pollard contends that the trial court committed plain error in allowing instruction C-8, as it improperly set forth the elements of the crime of timber larceny and thus deprived him of the right to a fair trial.

¶ 11. As an initial matter, we find that while defense counsel did not object to instruction C-8 at trial, the issue is nonetheless properly before this Court via the doctrine of plain error. Ordinarily, counsel's failure to object to a given instruction at trial serves as a procedural bar on appeal, unless its granting constitutes plain error. Berry v. State, 728 So.2d 568, 571(¶ 6) (Miss.1999). The Mississippi Supreme Court has held that the failure to submit to the jury the essential elements of a crime amounts to plain error. Id. (citing Hunter v. State, 684 So.2d 625, 636 (Miss.1996)). Furthermore, the prosecution, not the defendant, bears the burden of instructing the jury on the essential elements of the crime. Hunter, 684 So.2d at 635. In this case, the trial court committed plain error by adopting an instruction that did not fully instruct the jury on the elements of the crime; thus, the procedural bar does not apply. See Berry, 728 So.2d at 568(¶ 6).

¶ 12. The careless use of the word "or" (emphasized above) instead of "and" in instruction C-8 resulted in an erroneous statement of the law that deprived Pollard of his fundamental rights. As written, the instruction allowed...