Jason HALL a/k/a Jason Ladell Hall a/k/a Jason L. Hall
STATE of Mississippi.
Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
RANDOLPH, Presiding Justice.
¶ 1. Jason Hall was indicted and tried on an indictment for burglary of a building. After both sides rested, the State requested and was granted a jury instruction for accessory after the fact to burglary (in addition to the burglary instruction). The jury acquitted Hall of burglary but convicted him of accessory after the fact to burglary. Because Hall was convicted of a crime for which he was not indicted, nor did he waive indictment, we reverse the judgment of conviction and vacate his sentence.
FACTS AND PROCEDURAL HISTORY
¶ 2. Hall was indicted for burglary under Mississippi Code Section 97-17-33. His indictment alleged that he " did willfully, unlawfully, feloniously, and burglariously break and enter a certain building ... wherein there were kept goods, merchandise, or valuable things for use, sale, deposit, or transportation, with the intent to steal therein...." His indictment did not contain a separate count for accessory after the fact to burglary.
¶ 3. After the State and the defense rested at trial, the State announced that it had a " supplemental instruction," S-9, for accessory after the fact that it needed to present to the court. Hall objected to S-9. The trial court granted the instruction. Then, the State offered S-10 which covered the elements of accessory after the fact. Hall did not object to S-10, specifically indicating that the lack of objection was due to the fact that S-9 already had been given. 
¶ 4. The jury acquitted Hall of burglary, but convicted him of accessory after the fact. Hall filed a post-trial motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. He argued, inter alia, that he was convicted of a crime for which he was never indicted; therefore, the trial court should " set[ ] aside the jury verdict[.]" The trial court denied Hall's motion, and he filed this appeal.
¶ 5. On appeal, Hall raises the following issues, restated as follows:
I. Whether the trial court erred in granting the State's requested instruction on accessory after the fact to burglary.
II. Whether the State presented sufficient evidence to convict Hall of accessory after the fact to burglary.
As Issue I is dispositive, we will address only that issue.
¶ 6. Hall's contention that the State was not entitled to a lesser-offense instruction raises a question of law, which this Court reviews de novo. Downs v. State, 962 So.2d 1255, 1258 (Miss.2007) (citing State v. Shaw, 880 So.2d 296, 298 (Miss.2004)).
¶ 7. Mississippi Code Section 99-19-5(1) provides, in pertinent part, that " [o]n an indictment for any offense the jury may find the defendant guilty of the offense as charged ... or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment...." Miss.Code Ann. § 99-19-5(1) (Rev.2007) (emphasis added). While accessory after the fact is considered a lesser offense of the principal, it is well-established that it " is an entirely separate and distinct offense and not ... a lesser included offense. " Byrom v. State, 863 So.2d 836, 874 (Miss.2003) (quoting Wilcher v. State, 455 So.2d 727, 734 (Miss.1984) (overruled on other grounds) (emphasis added)). Thus, accessory after the fact " is a distinct crime for which a person cannot be punished unless indicted."
Gangl v. State, 539 So.2d 132, 137 (Miss.1989) (citing Wilcher, 455 So.2d 727 (Miss.1984) (overruled on other grounds); Johnson v. State, 477 So.2d 196 (Miss.1985)).
¶ 8. As an exception, the Court has provided that " [a]n accused is entitled to a lesser-offense instruction only where there is an evidentiary basis in the record." Thomas v. State, 48 So.3d 460, 472 (Miss.2010) (citing McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)) (emphasis added). In this case, the State requested the lesser-offense instruction. Because the defendant's request of a lesser-offense instruction operates as a waiver of indictment, only the defendant, and not the State, may request a lesser-offense instruction. See Griffin v. State, 533 So.2d 444, 448 n. 2 (Miss.1988).
¶ 9. The State was not entitled to S-9 or S-10, which allowed the jury to convict Hall of the lesser offense of accessory after the fact. However, the State argues that Hall waived this issue because he failed to object to S-9 at trial on the same ground as he raises on appeal, and because he failed to object to S-10. Hall's counsel objected to S-9 and argued, " [i]sn't that covered basically in the definition of accomplice?.... There's an instruction on being an accomplice, an aider, an abettor, a presumption of theft, accessory after the fact." Hall's objection at trial does not reflect that raised on appeal (that the State was not entitled to the instruction because he was never indicted for accessory after the fact). Thus, the trial court was not called upon to determine whether S-9 was improper for want of indictment on the lesser offense.
¶ 10. Notwithstanding Hall's inartful objection, the trial court committed plain error when it granted S-9 and S-10. " To constitute plain error, the trial court must have deviated from a legal rule, the error must be plain, clear or obvious, and the error must have prejudiced the outcome of the trial." Keithley v. State, 111 So.3d 1202, 1204 (Miss.2013) (quoting Cox v. State, 793 So.2d 591, 599 (Miss.2001)). Based on this Court's precedent that accessory after the fact is a lesser (nonincluded) offense of the principal offense and that only the defendant may obtain a jury instruction on a lesser unindicted offense, the trial court " deviated from this legal rule." The error was " plain, clear or obvious" and " prejudiced the outcome of the trial[,]" for the instructions allowed Hall to be convicted of an offense which the State never secured the right to prosecute.
¶ 11. The result— a defendant convicted of a crime for which he was not indicted-is not new. More than 130 years ago, in Scott v. State, 60 Miss. 268 (1882), Scott was indicted and tried for murder, but was convicted by a jury of " assault and battery with the intent to murder." On appeal, this Court held that Scott was unlawfully convicted of assault and battery, as she was not indicted for that crime, nor is assault and battery a lesser included offense of murder. Id. The Scott ...