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Smith v. State

Court of Appeals of Mississippi

May 28, 2019

RASHAD J. SMITH A/K/A RASHAD JAMALE SMITH A/K/A RASHAD SMITH A/K/A TWIN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/16/2017

          LINCOLN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. DAVID H. STRONG JR.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

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

          DISTRICT ATTORNEY: DEE BATES

          BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

          CARLTON, P.J.

         ¶1. Rashad Smith was tried in Lincoln County Circuit Court on a two-count indictment. Prior to trial, the court granted the State's motion to amend the indictment to allege Smith's habitual-offender status, but a written order amending the indictment was not entered. A nolle prosequi order was subsequently entered on Count I of the indictment, and the jury found Smith guilty on Count II (unauthorized possession of a cell phone in the Lincoln County jail). The trial court sentenced Smith to serve fifteen years, day for day, as a habitual offender.

         ¶2. On appeal, Smith asserts that (1) his conviction should be reversed and rendered because the State's evidence was insufficient for a conviction under the indictment as drafted, or, alternatively, he is entitled to a new trial because the verdict was contrary to the overwhelming weight of evidence; and (2) he received ineffective assistance of counsel because the indictment in this case was never properly amended to authorize sentencing as a habitual offender and his counsel failed to object, thereby waiving this issue for appellate review. We find no merit to Smith's first assignment of error, and we deny Smith's ineffective-assistance-of-counsel claim without prejudice to his right to pursue relief on this alleged error in a petition for post-conviction relief.

         I. STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

         ¶3. On August 16, 2017, Smith was tried in Lincoln County Circuit Court on a two-count indictment. Count I of the indictment charged Smith with possession of marijuana in the Lincoln County jail. After the jury deadlocked on Count I, the State requested and was granted a nolle prosequi order on that count. Count II of the indictment charged Smith with unauthorized possession of a cell phone in the Lincoln County jail, in violation of Mississippi Code Annotated section 47-5-193 (Rev. 2015). The jury found Smith guilty on Count II, and he was sentenced to serve fifteen years as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).

         ¶4. The original indictment did not allege that Smith was a habitual offender. Prior to trial, the State moved to amend the indictment to allege Smith's habitual-offender status. That motion was heard on June 26, 2017. At the hearing, the trial court ruled on the record that the State met its burden for the indictment to be amended to include a habitual-offender sentencing enhancement, but the record reflects that no order to that effect was entered.[1]

         ¶5. At the one-day trial held on August 26, 2017, the State's witness, Correctional Officer Larry Morris, testified that on September 28, 2015, Rashad Smith "turned himself in" to the Lincoln County jail because his twin brother, Rashan, was mistakenly in jail instead of Rashad. On cross examination, Officer Morris was asked whether he told Smith what he could and could not bring to the jail when Smith phoned in to advise that he was turning himself in. Officer Morris responded, "No," and then he stated that Smith had "been down [to the jail] before so I didn't have to [give him any instructions]."

         ¶6. Officer Morris testified that when Smith arrived at the jail, Smith was brought in through one locked door and was taken to the booking area to be processed. He further testified that before he (Morris) was able to get Smith booked in, Smith grabbed a jail uniform off of a shelf along with a mat that the jail provides, went in another area, and changed his clothes. According to Officer Morris, Smith was in "a hurry to get dressed out and to go upstairs." Officer Morris said he told Smith that before he could go upstairs, Morris needed to finish booking him and that he needed to be searched. At that point, Officer Morris testified, Smith put his belongings on the counter, and several items that were rolled up with the jail-issued mat started falling out, including two cell phones and some marijuana. Officer Morris turned these items over to Brookhaven Police Investigator Lisa Jackson who turned them over to Lincoln County Chief Deputy Johnny Hall.

         ¶7. The State's witness, Chief Deputy Johnny Hall, testified that he investigated the September 28, 2015 incident, and that when he interviewed Smith, Smith told him that he was bringing the cell phones in with "the help" of Officer Morris. Hall further testified that this allegation was never confirmed. The State also established through Chief Deputy Hall's testimony that the Lincoln County jail is a correctional facility in Brookhaven, Lincoln County, Mississippi.

         ¶8. At the close of the State's case, defense counsel moved for a directed verdict, which the trial court denied. Smith did not testify at trial, and the defense presented no other witnesses.

         ¶9. The court instructed the jury which found Smith guilty of possession of a cell phone in a correctional facility under Count II of the indictment.

         ¶10. Following the announcement of the jury verdict, the trial court proceeded with the sentencing hearing. At that hearing, the trial court read the jury's verdict on the record and then stated that at "a motion hearing . . . on June 26th of 2017, the [c]ourt found beyond a reasonable doubt that Mr. Smith was an habitual criminal within the meaning of section 99-19-81." Defense counsel stated on the record that he had no objection to sentencing proceedings going forward, and there is no indication in the record that defense counsel made any objection to the absence of a written order allowing the amendment to the indictment to reflect Smith's habitual-offender status. The trial court sentenced Smith to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), to be served day for day pursuant to section 99-19-81. Following the denial of his motion for a judgment notwithstanding the verdict (JNOV), or, alternatively, for a new trial, Smith appeals.

         II. LAW AND ANALYSIS

         A. The State's Alleged Failure of Proof

         ¶11. Smith asserts that the State failed to prove two statutory elements of section 47-5-193 and one non-statutory factual allegation charged in Count II of the indictment, and, therefore, the trial court erred in denying his JNOV motion, or, alternatively, the trial court erred in denying his motion for a new trial. We find that these assertions are without merit because we find that the State was not required to prove these elements, as discussed below.

         1. The Statutory Elements Under Section 47-5-193

         ¶12. Count II of Smith's indictment charged him with violating section 47-5-193. In McCollum v. State, 81 So.3d 1191 (Miss. Ct. App. 2012), we examined section 47-5-193 and held that "[i]t is clear the statute considers that the possession of contraband and the taking of contraband are two separate crimes." Id. at 1192 (¶6). We found that the first sentence in section 47-5-193 "makes possession of contraband unlawful." Id. The statute provides:

It is unlawful for any officer or employee of the department, of any county sheriff's department, of any private correctional facility in this state in which offenders are confined, of any municipal or other correctional facility in this state, or for any other person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any . . . cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers.

         Miss. Code Ann. § 47-5-193. The second sentence of section 47-5-193 makes the "taking of contraband unlawful." McCollum, 81 So.3d at 1192 (¶6). The statute provides:

It is unlawful for any person or offender to take, attempt to take, or assist in taking any . . . cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers on property within the state belonging to the department, a county, a municipality, or ...

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