TIMOTHY STRATTON A/K/A TIMOTHY W. STRATTON Petitioner
STATE OF MISSISSIPPI Respondent
EN BANC ORDER
MICHAEL K. RANDOLPH CHIEF JUSTICE
before the en banc Court is Timothy Stratton's
Application for Leave to Proceed in the Trial Court with
Motion to Vacate Convictions.
was convicted of two counts of sexual battery and sentenced
to two concurrent life terms. Stratton v. State, 132
So.3d 1074, 1075 (Miss. Ct. App. 2014). The Court of Appeals
affirmed his convictions and sentences, and the mandate
issued on March 18, 2014. Stratton has filed one prior
application. See En Banc Order, Stratton v.
State, 2016-M-00217 (Miss. Aug. 4, 2016).
application, Stratton claims that his sentences were obtained
illegally and that his rights to due process and to a fair
trial were violated in two ways.
he says the jury was not instructed on venue, which is an
essential element of the crime. He raised this same issue in
his prior application. After due consideration, we find that
this claim does not meet any recognized exception to the
time, waiver, and successive-writ bars. Chapman v.
State, 167 So.3d 1170, 1174-75 (Miss. 2015); Smith
v. State, 149 So.3d 1027, 1031-32 (Miss. 2014),
overruled on other grounds by Pitchford v. State,
240 So.3d 1061 (Miss. 2017); Bell v. State, 123
So.3d 924, 925 (Miss. 2013); Rowland v.
State, 98 So.3d 1032, 1035-36 (Miss. 2012),
overruled on other grounds by Carson v. State, 212
So.3d 22 (Miss. 2016); see also Bevill v. State, 669
So.2d 14, 17 (Miss. 1996); Brown v. State, 187 So.3d
667, 671 (Miss. Ct. App. 2016). And even if the claim did
meet such an exception, it lacks any arguable basis to
surmount the bars. Means v. State, 43 So.3d 438, 442
(Miss. 2010). This Court recently rejected a similar
argument. Order, Smith v. State, 2013-M-00205 (Miss.
Dec. 13, 2018) ("This Court will not consider venue
questions raised for the first time in post-conviction
proceedings." (citing Order, Page v. State,
2013-M-01645 (Miss. Dec. 17, 2015))).
Stratton claims that the jury instructions omitted four other
essential elements. After due consideration, we find that
this claim also does not meet any recognized exception to the
procedural bars. And even if it did, it lacks any arguable
basis for the following reasons.
first concerns the dates of the crimes. Although the
indictment charged that the crimes occurred between certain
dates, the elements instruction omitted any date range. In a
direct appeal, such omission warrants relief only if unfair
surprise or prejudice is shown. Wilson v. State, 515
So.2d 1181, 1183 (Miss. 1987). Stratton's only asserted
prejudice is that the jury could not discern his and the
victim's ages without the dates. Yet the elements
instruction showed that he was well over eighteen years old
when the victim was born: it said that he was born July 4,
1964, and that she was born June 2, 1997. Furthermore, she
was still under age sixteen at the time of the May 2012
he asserts that the county and state were omitted. That
relates to the venue omission, which was discussed above.
he says the indictment charged that he forced the
victim to perform oral sex on him, but the elements
instruction omitted "forcing." Force is irrelevant,
however, because sexual battery of a child is a crime
regardless of consent. Miss. Code Ann. § 97-3-95 (Rev.
Stratton complains that "human being" was omitted.
Not only is that assertion frivolous, but also the elements
instruction identified the victim as "a child."
is hereby warned that future filings deemed frivolous may
result not only in monetary sanctions, but also restrictions
on filing applications for post-conviction relief (or
pleadings in that nature) in forma pauperis.
See Order, Dunn v. State, 2016-M-01514
(Miss. Nov. 15, 2018).
THEREFORE ORDERED that the application is denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,