202 So. 3d 216
Miss. Ct. App.2016Background
- Cory Cotten was indicted July 20, 2013, for exploitation of children under Miss. Code Ann. § 97-5-33(3) and (5) based on possession/receipt of visual depictions of minors engaging in sexually explicit conduct.
- Indictment alleged Cotten (age over 21) received and possessed a photograph of two minors "under the age of eighteen" engaging in masturbation during October 2012.
- Cotten pled guilty and was sentenced to ten years with five to serve and five suspended on postrelease supervision.
- On April 6, 2015, Cotten filed a motion for postconviction relief (PCR), claiming the indictment was fatally defective because it did not include the minors’ names and exact ages, and thus failed to allege essential elements and left him vulnerable to double jeopardy.
- The circuit court dismissed the PCR on April 8, 2015; Cotten appealed. The Court of Appeals affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of minors’ names and exact ages renders indictment fatally defective | Indictment lacked essential elements because it did not state the minors’ names and exact ages | Indictment tracked statutory language and stated minors were under 18, satisfying elements and notice | Held: Not defective; specifying "under 18" satisfied the age element and names are not required |
| Whether omission prevents pleading double jeopardy in future prosecutions | Absence of names/ages could allow State to reindict with those details and subject him to double prosecution | Indictment gave fair notice of charge and sufficient facts to plead double jeopardy later | Held: Indictment provided sufficient facts to permit a double jeopardy plea; argument fails |
Key Cases Cited
- Wilson v. State, 76 So. 3d 733 (Miss. Ct. App. 2011) (standard of review for PCR dismissal and de novo review for legal questions)
- Dickens v. State, 119 So. 3d 1141 (Miss. Ct. App. 2013) (summary dismissal of PCR when movant not entitled to relief)
- Miller v. State, 18 So. 3d 898 (Miss. Ct. App. 2009) (requirements of an indictment: elements, fair notice, and ability to plead double jeopardy)
- Batiste v. State, 121 So. 3d 808 (Miss. 2013) (indictment tracking statutory language is generally sufficient)
- Tapper v. State, 47 So. 3d 95 (Miss. 2010) (indictment must be a plain, concise, definite statement fully notifying defendant)
- Williams v. State, 169 So. 3d 932 (Miss. Ct. App. 2014) (primary purpose of indictment is to give defendant fair notice)