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Wilcher v. State

Supreme Court of Mississippi, En Banc

March 23, 2017

JANICE MICHELLE WILCHER a/k/a JANICE WILCHER
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 06/12/2015

         SCOTT COUNTY CIRCUIT COURT HON. MARCUS D. GORDON TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: JERRY L. BUSTIN RICHARD POOLE NOEL, III

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: MARK SHELDON DUNCAN

          BEAM, JUSTICE

         ¶1. Janice Wilcher appeals her conviction in the Scott County Circuit Court for retaliation against a public servant in violation of Mississippi Code Section 97-9-127, for making a false representation of rape against Deputy Michael Townsend of the Scott County Sheriff's Department. Wilcher claims Section 97-9-127 is unconstitutionally vague. Wilcher further claims the State failed to prove that Deputy Townsend suffered any actual harm, as alleged in the indictment. Finding no merit in either issue, we affirm.

         FACTS

         ¶2. Wilcher was indicted by the Scott County grand jury as follows:

Janice Michelle Wilcher . . . did willfully, intentionally, knowingly and feloniously commit the offense of retaliation against a public servant, to-wit: Deputy Michael Townsend, . . . by making false allegations of rape against Deputy Michael Townsend, said false allegations that served to harm the professional reputation or standing as a law enforcement officer . . ., and which false allegations were made in retaliation against Deputy Michael Townsend for his having caused Janice Michelle Wilcher to have been previously cited, charged or arrested for crimes or law violations which were brought against Janice Michelle Wilcher in his capacity as a lawful public servant, contrary to and in violation of Section 97-9-127, Miss. Code Ann. (1972) . . . .

         ¶3. Wilcher's trial adduced the following facts. On May 20, 2014, around 5:00 in the afternoon, Deputy Townsend was on patrol on Hillsboro Road in Morton, Mississippi. He observed a blue SUV speeding and about to run off the highway. Deputy Townsend turned on his blue lights, turned around in the road, and followed the SUV. The SUV fled, and Deputy Townsend pursued the SUV until it ran off the road and stopped in a wooded area. When Deputy Townsend arrived on the scene, he ordered Wilcher out of her vehicle, placed her under arrest, and put her in the back of his patrol car. This was Deputy Townsend's third encounter with Wilcher within the past six months, while working in a law- enforcement capacity.

         ¶4. Larry Meeks lived in a house near where Wilcher came to a stop. Meeks was outside mowing his yard at the time and saw Wilcher drive up the road at a high rate of speed. Meeks testified that Wilcher had attempted to make a right turn off the road but was forced to stop by a "big pile" of dirt sitting just off the road. Meeks walked over to where Wilcher and Deputy Townsend were located, which Meeks said was approximately one minute from the time Wilcher's vehicle came to a stop. When Meeks arrived, Wilcher was sitting in the back of the patrol car. Meeks testified that he knew Deputy Townsend, having met him for the first time about a month prior to the incident. Deputy Townsend and Meeks's niece were engaged to be married at the time of the incident. They married on May 24, 2014. Meeks also recognized Wilcher, having seen her around town a few times.

         ¶5. When Meeks arrived, Deputy Townsend asked Meeks to stay until the tow truck showed up, which Deputy Townsend had just requested with his police radio. Meeks left after the tow truck arrived on the scene.

         ¶6. Once the tow truck left with Wilcher's vehicle, Deputy Townsend transported Wilcher directly to jail, where she was booked for "possession of paraphernalia" and "failure to yield to blue lights."

         ¶7. While at the jail, Wilcher started yelling to the jailers that Deputy Townsend had raped her. Deputy Townsend released Wilcher to the booking officers and did not have any further contact with her. Wilcher was booked into the facility and stayed overnight.

         ¶8. The next morning, Wilcher was belligerent, loud, and shaking the jail bars. Wilcher told the booking supervisor, Sergeant India Walker, that she was pregnant by "Polecat" (Deputy Townsend's nickname) for a month and a half and she was miscarrying. Wilcher's family bonded her out that day.

         ¶9. After her release from jail, Wilcher drove to Scott County Regional Hospital and reported she had been raped. Because the hospital did not have a sexual assault nurse examiner on staff at the time, Wilcher was advised to go to Lackey Hospital in Forest, Mississippi. Wilcher declined to go to Lackey Hospital because she said did not trust that hospital for personal reasons. She later went to the University of Mississippi Medical Center instead.

         ¶10. Before leaving Scott County Regional Hospital, Wilcher spoke to Investigator Donald Simpson with the Scott County Sheriff's Office. Investigator Simpson and another deputy were dispatched to Scott County Hospital to interview Wilcher about the reported rape. Wilcher reported to Investigator Simpson that when she had pulled over for Deputy Townsend, he had gotten her out of the vehicle, pushed her shirt and bra up and began sucking and pinching her breasts. Wilcher stated that someone across the road had noticed a commotion and had come over, so Deputy Townsend placed her in the back of the patrol car while he talked to the man. She said, after the man left, Deputy Townsend pulled her out of the patrol car and she struggled with him, so Deputy Townsend turned her around and placed handcuffs on her so she could not resist. Wilcher said Deputy Townsend then moved her to the back seat of the patrol car and took off her belt, pulled down her pants, and raped her. After he finished, Wilcher got dressed; the tow truck pulled up a few minutes later.

         ¶11. Investigator Simpson recovered all the clothes Wilcher was wearing at the time of her arrest and alleged rape and sent them to the state crime lab. Later that same day, Deputy Townsend received a phone call from Investigator Simpson, informing him that he was being investigated for Wilcher's allegations of rape. Detective Townsend voluntarily submitted a blood sample and wrote a report regarding Wilcher's arrest and the surrounding circumstances. Investigator Simpson interviewed Deputy Townsend twice regarding the rape allegations. The results of the crime lab analysis were negative for Deputy Townsend's DNA and seminal fluid on any of Wilcher's clothing.

         ¶12. On June 17, 2014, Wilcher came to Investigator Simpson's office and said she no longer wished to pursue charges against Deputy Townsend because she had been raped before and she was too tired to press the issue. Investigator Simpson then advised Wilcher there was ample evidence to move forward against her with a charge for retaliation against a public servant.

         ¶13. Shortly thereafter (the record does not specify when), Wilcher was charged with retaliation against a public servant. On July 9, 2014, Investigator Simpson and another deputy interviewed Wilcher again while she was in custody for the instant offense. Wilcher was advised of her rights and signed a waiver of those rights. Wilcher gave a written statement recanting her allegation of rape against Deputy Townsend. In her statement, Wilcher apologized for making the allegations and stated she was on drugs and had been off her medications.

         ¶14. During the course of his investigation, Investigator Simpson received several letters written by Wilcher to different people apologizing and asking for forgiveness for the rape allegations against Deputy Townsend. These letters were submitted to the jury at trial.

         ¶15. Wilcher testified in her own defense at trial. She told the jury Deputy Townsend had put her in jail a total of seven or eight times, and she did not know why. She testified he had called her bad names in front of her children and had said she was a drug dealer. She testified that one time when he had stopped her, he had put her in the back of his patrol car and shone his flashlight between her legs. She admitted that Deputy Townsend had found an open container of vodka and a bag of marijuana in her car.

         ¶16. Wilcher told the jury that, on the date in question, Townsend pulled her over and removed her from her car. She claimed Townsend lifted up her shirt and fondled her. She said Deputy Townsend then asked her what kind of sexual favors she performs for drugs, and she told him she does not do those things. She said when Meeks came down, she was screaming and banging on the window glass.

         ¶17. Wilcher testified that, once she arrived at the station, she screamed for days that she had been raped and officers placed her in lock-down in a suicide room. Wilcher told the jury she had recanted her claim of rape against Deputy Townsend because she had been in a cell for five months with a hole in the floor where she had to smell her own feces and she had developed scabies. Wilcher said she had recanted the rape allegation because she was tired and they would not let her out of jail unless she did so.

         ¶18. After the close of evidence, the jury found Wilcher guilty of retaliation against a public servant. This appeal followed, with the claims that (1) Section 97-9-127 is unconstitutionally vague, and (2) the State failed to prove that Deputy Townsend suffered actual harm. Additional facts, as necessary, will be related in the analysis.

         ANALYSIS

         I. Whether Section 97-9-127 is ...


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