Gene GALES a/k/a Gene Gales, Jr. a/k/a Gene E. Gales, Jr., Appellant
STATE of Mississippi, Appellee.
Rehearing Denied Feb. 4, 2014.
Office of State Public Defender by George T. Holmes, Craig Thomas Rose, attorneys for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before LEE, C.J., MAXWELL and FAIR, JJ.
¶ 1. There are three essential elements that must be alleged in an indictment charging a defendant with burglary of a nondwelling— (1) the defendant unlawfully broke and entered into a building, (2) where anything of value is kept for use, (3) with the intent to commit some specific crime once inside. But here, Gene Gales
was convicted of nondwelling burglary based on an indictment that charged only one of the three mandated elements— that he broke and entered an unoccupied dwelling.
¶ 2. Because the Mississippi Supreme Court has emphasized that " [a]n indictment which fails to allege all essential elements of a crime runs afoul of our constitutions and is void[,]"  we must reverse Gales's conviction and sentence. We also dismiss the indictment.
¶ 3. Gales was charged with burglary of a nondwelling after a witness saw him in the yard of a vacant house at 1203 Edwards Street in Hattiesburg, Mississippi, possessing mattresses that had been removed from the house. Gales claimed the mattresses were his, but when the witness called the police, Gales fled. An officer found him hiding in a nearby backyard of an abandoned residence. By this time, Gales had removed the shirt the eyewitness described him wearing and had discarded a backpack containing a flashlight. After his arrest, Gales claimed to police that he was told he could haul off the mattresses, but he decided not to do so after noticing their poor condition.
¶ 4. The State initially charged Gales with burglary of a dwelling, as a habitual offender under section 99-19-83. But because the house was boarded up and had been vacant for some time, the State recognized the charge did not fit the indicted crime. So it later moved to amend the indictment to burglary of a nondwelling, and also sought to swap habitual-offender provisions to charge Gales under the lesser enhancement found in section 99-19-81.  Gales did not object to the amendments, which the court granted.
¶ 5. Gales proceeded to trial, where a jury convicted him of nondwelling burglary. He was sentenced as a habitual offender to seven years' imprisonment under Mississippi Code Annotated section 99-19-81. He now appeals.
¶ 6. On appeal, Gales filed a separate pro se brief, arguing the indictment was defective for failing to charge the essential elements of burglary of a nondwelling under 99-17-33, an argument he had also furthered in a pro se pretrial motion. After review, we agree ...