DATE OF JUDGMENT: 05/03/2013.
WARREN COUNTY CIRCUIT COURT, HON. M. JAMES CHANEY, JR.,
FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL, BY: PATRICK JOSEPH MCNAMARA, JR.
FOR APPELLEE: MICHAEL R. BONNER.
COLEMAN, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, AND PIERCE, JJ., CONCUR. KING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
¶1. The trial court sustained the defendant's demurrer to the indictment, dismissing the case against Hattie Hawkins. The State appealed. We hold tat the indictment was sufficient and that the trial judge erred by granting the demurrer.
Facts and Procedural History
¶2. Hattie Hawkins was a nursing assistant at Heritage House Nursing Center in Vicksburg. Deserie Edwards, a resident at Heritage House, suffered injuries while under Hawkins's care. An investigation revealed that Hawkins had lifted Edwards by herself, knowing that two people were required to lift Edwards. Hawkins then improperly placed Edwards into a lift/sling and left her unattended. Edwards fell from the sling and suffered injuries, but Hawkins did not call for assistance. Hawkins was indicted for simple assault of a vulnerable person. Several days before trial, defense counsel demurred to the indictment on the grounds that it did not comport with Mississippi Code Section 97-3-7(1) and was an improper statement of the law. The circuit court dismissed the case saying the indictment failed to state a cause of action against the defendant. The State filed a
motion to reconsider, which was denied. The State appealed.
¶3. The issue is whether the indictment was sufficient on its face such that the trial judge erred by sustaining the demurrer to the indictment. Whether the trial court erred in sustaining a demurrer to an indictment is a question of law. See State v. May, 208 Miss. 862, 45 So.2d 728, 728 (1950). Therefore, the standard of review is de novo. Tapper v. State, 47 So.3d 95, 100 (¶ 17) (Miss. 2010) (" whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review" ) (citations omitted).
¶4. Hawkins was indicted for simple assault of a vulnerable person under Mississippi Code Section 97-3-7(1). The indictment read:
HATTIE M. HAWKINS on or about the 23rd day of June, 2010 . . . commit[ed] the offense of Simple Assault of a Vulnerable Person in that Hattie M. Hawkins, while employed as a Certified Nursing Assistant at Heritage House Nursing Center, did willfully, negligently[,] and feloniously inflict pain and/or injury upon Deserie S. Edwards, a vulnerable person as defined by § 43-47-5(n), in that Deserie S. Edwards was a resident of Heritage House Nursing Center; to wit: Hattie M. Hawkins, while knowingly engaged in improper lifting procedures, being aware that the victim required two persons to be moved from her bed, acted alone in knowingly placing the victim in a lift/sling improperly, and then allowed the victim to fall from the lift/sling to the floor by leaving the victim unattended causing multiple serious injuries, and then failed to inform appropriate staff or seek out medical treatment for the injuries inflicted upon Deserie S. Edwards. This act being in violation of § 97-3-7(1), Miss. Code Ann. (1972, as amended), contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
The simple assault statute, Mississippi Code Section 97-3-7(1), referenced in the indictment, provides:
(a) A person is guilty of simple assault if he (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
(b) However, a person convicted of simple assault . . . (iii) upon a person who is sixty-five (65) years of age or older or a person who is a vulnerable adult, as defined in Section 43-47-5, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.
Miss. Code Ann. § 97-3-7(1) (Supp. 2013). Under Section 43-47-5, a " vulnerable person" includes " all residents or patients, regardless of age, in a care facility." Miss. Code Ann. § 43-47-5(q) (Supp. 2013) (previously subsection (n), as referenced in the indictment). It is undisputed that Edwards was a resident in a care facility, thus, she was a vulnerable person under Section 43-47-5(q), and Hawkins would have been subject to the more severe sanctions of Section 97-3-7(1)(b).
¶5. Hawkins takes issue with the part of the indictment that says Hawkins " willfully, negligently[,] and ...