The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:
DATE OF JUDGMENT: 09/23/96
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: RICHARD DOUGLASS
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Mark Chevalier was convicted by a Jefferson County jury of kidnapping. The jury was unable to agree on a penalty, so the Judge sentenced Chevalier to thirty years in the Mississippi Department of Corrections, with the last ten years to be suspended. Aggrieved, Chevalier brings this appeal, assigning as error the amendment of his indictment, the inadequacy of the jury instruction on kidnapping, the exclusion of Thomas Earl Stevens's testimony, the sufficiency and weight of the evidence, and the legality of his sentence.
¶2. We find that the trial court committed reversible error by allowing the State to amend the indictment and by failing to adequately instruct the jury on the elements of kidnapping in this case. As a result, we decline to consider the sufficiency or weight of the evidence. However, because the issues of Stevens's testimony and the legality of sentencing could arise on retrial, we address Chevalier's contentions on those points and find no merit to his claims.
¶3. Mark and Karen Chevalier were married in 1995. Their son, Marcus, was five years old at the time of their marriage. After five months they separated, and Karen and Marcus began living with her parents. Mark moved in with his mother. The parties had been separated for approximately six months when the incident in question occurred.
¶4. On March 22, 1996, Karen was driving her mother, Linda Trott, to the doctor when they met Mark on the highway. He pulled them over and told Karen he wanted to talk to her. Karen told Mark they could talk at the doctor's office, whereupon Mark followed them into town. Once in the parking lot at the doctor's office, Karen and Mark stepped outside their vehicles, and Karen proceeded to remove some of her clothes from Mark's car. Mark then asked Karen if she would go for a ride with him so they could talk. Karen replied that she would prefer that they talk in the parking lot. At this point, Mark grabbed Karen by her "pony-tail", grabbed Marcus under his arm, and put them both in his car. The doctor's secretary, Diane Cox, heard a woman and a child screaming from the parking lot, looked out of the office window, and witnessed Mark forcing Karen and Marcus into the car. At this point, Anna Fortenberry, another witness at the doctor's office, called the sheriff.
¶5. Shortly after they left the doctor's office, a sheriff's deputy stopped the trio and asked Mark if he could ask him a few questions. Mark asked the police officer if he was under arrest. The officer replied that he was not, and Mark sped away. Karen testified that she did not ask the deputy for help, because before he pulled up, Mark had warned her not to say anything. After Mark sped away, Karen says she asked him to stop. When he refused, she asked him to turn onto a side road. Karen testified that she thought that if Mark continued on the main road that the deputy would chase them, Mark would try to outrun him, and they might have a wreck. Shortly after turning onto the side road, their vehicle became stuck in mud. Unable to free the car, they walked a few miles to the home of Earl Vinson, who took them to the home of Mark's mother, Jane Chevalier. Karen did not indicate to Vinson that Mark was holding her against her will. Vinson testified that Karen "didn't say much at all," but that she acted "a little bit funny." Karen testified that she did not tell Vinson that Mark was holding her against her will, because she was afraid that Mark would harm him if she did.
¶6. Once they arrived at Jane Chevalier's house, Mark and Karen went into a back bedroom to talk. The police arrived shortly thereafter. Mark and Karen briefly hid under the bed, but they did come out when Mrs. Chevalier came to get them. One of the officers asked Karen if she wanted to leave. When she replied that she wished to do so, Mark assaulted one of the police officers.
¶7. Mark was subsequently tried and convicted for kidnapping. He claims that Karen had access to the passenger side of the vehicle and could have exited the car at any time. Further, he asserts that she was free to leave his mother's home at any time. Karen says that when she reached for the door handle, Mark told her not to touch the door handle. She contends that she was afraid of Mark and "did not know what he would do." She ...