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 ...