Michael Ishee v. State of Mississippi
248 So. 3d 841
| Miss. Ct. App. | 2017Background
- Michael Ishee was indicted on 19 counts of exploitation of a child for possessing images of minors on his computer; he pled guilty to Count I and was sentenced to 20 years (8 suspended), with 12 years to serve and 4 years probation.
- Ishee filed a post-conviction relief (PCR) motion arguing that Miss. Code Ann. § 97-5-33(5), as written at the time of his offense, was constitutionally defective because it lacked a scienter (mens rea) element.
- At the time of the indictment (2011), § 97-5-33(5) criminalized mere possession of visual depictions of actual children engaging in sexually explicit conduct without an express "knowingly" or other mens rea element; the statute was later amended (effective July 1, 2013) to add "knowingly possess or knowingly access with intent to view."
- Ishee’s indictment alleged he "willfully, unlawfully, feloniously possess[ed]" the images, and at his plea hearing he admitted downloading and possessing the images.
- The circuit court denied Ishee’s PCR; on appeal the State relied on precedent holding that an indictment alleging willfulness supplies the mens rea element even if the statute lacks one.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 97-5-33(5) was unconstitutional for lacking a scienter requirement | § 97-5-33(5) is overbroad/unconstitutional because it contains no mens rea element | The indictment alleged "willful" possession and Ishee admitted knowledge; willfulness supplies scienter | Court upheld conviction; statute’s lack of mens rea was rendered irrelevant by indictment and plea admissions |
| Whether the State’s charging language impermissibly altered elements of the crime (separation-of-powers / ex post facto) | Inserting mens rea into the indictment improperly adds elements not in statute and violates separation of powers / ex post facto principles | Charging "willfully" was proper; proving willfulness at trial (or by plea) meets constitutional notice and proof requirements | Court rejected challenge; charging "willfully" was permissible and not an ex post facto issue |
Key Cases Cited
- New York v. Ferber, 458 U.S. 747 (states have greater leeway regulating child pornography; criminal responsibility requires some element of scienter)
- Renfrow v. State, 34 So. 3d 617 (Miss. Ct. App. 2009) (where indictment alleges willful possession, mens rea is supplied despite statute not containing it)
- Ryals v. State, 881 So. 2d 933 (Miss. Ct. App. 2004) (trial court may place great weight on testimony at a plea hearing for PCR review)