275 So. 3d 100
Miss. Ct. App.2019Background
- Rashad J. Smith was tried on a two‑count indictment; Count I (marijuana) was nolle prossed after a jury deadlock; Count II charged unlawful possession of a cell phone in the Lincoln County jail under Miss. Code § 47‑5‑193.
- The original indictment did not allege habitual‑offender status; the State orally moved to amend and the trial court ruled on the record that the enhancement was proper, but no written order amending the indictment was entered on the minutes.
- At booking Smith pulled on a jail uniform and a rolled mat; two cell phones and marijuana fell out of the mat; officers investigated and Smith was convicted on Count II.
- The trial court sentenced Smith to 15 years, day‑for‑day, as a habitual offender under § 99‑19‑81; defense counsel did not object to proceeding despite the absence of a written order amending the indictment.
- On appeal Smith argued (1) insufficiency/weight of the evidence (alleging the State failed to prove certain statutory elements and that he was an "inmate"), and (2) ineffective assistance of counsel because counsel failed to object to the missing written amendment order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State had to prove jail was "property belonging" to county and "occupied or used by offenders" under § 47‑5‑193 | Smith: conviction defective because State did not prove those statutory elements | State: Count II alleged possession under the first sentence of § 47‑5‑193, which does not require those elements | Court: Conviction valid — those elements apply only to the "taking" offense (second sentence); possession charge did not require them |
| Whether the State had to prove the indictment’s factual allegation that Smith was an "inmate housed" in the jail | Smith: indictment alleged he was an inmate so State had to prove it | State: whether called a "person" or "inmate" does not change the possession offense; the phrase was surplusage | Court: No reversible error; even if required, record evidence supported that Smith was confined and jury found he was an inmate |
| Whether the verdict was against the overwhelming weight of the evidence or legally insufficient | Smith: alternative argument that verdict lacked sufficient evidence or was contrary to overwhelming weight | State: evidence (officer testimony, physical items) sufficed and credibility is for the jury | Court: Denied JNOV and new‑trial relief; evidence sufficient and verdict not unconscionable |
| Whether counsel was ineffective for failing to object to absence of written court order amending indictment for habitual status | Smith: counsel’s failure waived the issue on appeal and was ineffective assistance | State: defense did not preserve objection; record does not affirmatively show ineffective assistance | Court: Denied on direct appeal without prejudice — record inadequate to resolve the Strickland claim; allowed Smith to raise it via post‑conviction relief |
Key Cases Cited
- McCollum v. State, 81 So.3d 1191 (Miss. Ct. App. 2012) (distinguishing possession and taking under § 47‑5‑193)
- Richmond v. State, 751 So.2d 1038 (Miss. 1999) (indictment adding unnecessary elements can increase State's burden)
- Smith v. State, 250 So.3d 421 (Miss. 2018) (distinguishing Richmond where listed particulars do not change the offense)
- Cooley v. State, 803 So.2d 485 (Miss. Ct. App. 2001) (State must prove statutory element alleged, not merely the descriptive label in indictment)
- Reed v. State, 506 So.2d 277 (Miss. 1987) (order amending indictment must appear in record; defense must object to preserve error)