MICHAEL R. SPEARS A/K/A MICHAEL SPEARS APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/09/2018
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. DAL
WILLIAMSON TRIAL JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
MOLLIE MARIE McMILLIN.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA McCLINTON.
J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.
A Jones County Grand Jury indicted Michael Spears for two
counts of sexual battery in violation of Mississippi Code
Annotated section 97-3-95 (Rev. 2014). On March 7, 2018, the
trial jury returned a guilty verdict on both counts. At a
separate sentencing hearing on March 8, 2018, the trial court
set aside Spears's conviction on Count I. Regarding Count
II, the trial court sentenced Spears to seventeen years in
the custody of the Mississippi Department of Corrections
(MDOC) with four years suspended and thirteen years to serve,
without eligibility for parole. Spears now appeals his
conviction and sentence in Count II, claiming that the
indictment was defective and that the trial court erred in
allowing the State to amend the indictment prior to trial. We
find no error and affirm Spears's conviction and
Michael Spears lived with his wife Jennifer Spears and two of
her children, VR and MS, until Spears and Jennifer separated
in 2015. VR was not Spears's biological child.
VR suffered from a mental disability and was enrolled in
special education classes while in grade school. VR also
received disability benefits. In October 2016, VR disclosed
to a friend that Spears had sex with her against her will.
Jennifer found out and reported the abuse to the Jones County
Sheriff's Department on January 5, 2017. Following an
investigation, Spears was indicted on two counts of sexual
battery. At issue in this appeal is the language of Count II
of the indictment, which reads as follows:
Michael R. Spears (D.O.B. ) [a] male person over 18
years old, at the time of said offense . . . . Count
II: Sexual Battery: as part of a common plan or
scheme or as part of the same transaction or occurrence in
said County, District[, ] and State, between 2007 and 2011
A.D., did willfully, unlawfully[, ] and feloniously engage in
sexual penetration as defined in MCA Section 97-3-97 with
V.R. (D.O.B. ), a female vulnerable person between the
ages of 13-19 by having sexual intercourse with V.R. against
her will at the time when the said defendant, Michael R.
Spears, was 24 or more months older than the child, and
having occupied a position of trust or authority over the
child, being her step father; in violation of Section
97-3-95, Mississippi Code 1972, and contrary to the form of
the statute in such cases made and provided against the peace
and dignity of the State of Mississippi.
The State filed a motion to amend the indictment on March 5,
2017. The amendment changed VR's age range at the time of
the assault from between thirteen and nineteen to between
thirteen and seventeen years old. At the pretrial hearing on
the motion to amend, the defense "debated on whether or
not to object." The defense argued that if the amendment
was allowed, Spears was "entitled to know who made the
decision to make those date changes." The trial court
granted the motion and found the change was not substantive.
The trial judge reasoned:
I don't think it really - we're talking about an
alteration of any date when [the crime] occurred. And I
realize the State's position that, with a lot of these
cases, especially a case that allegedly involves this type of
charge, that the child may not have recorded exact date of
events and it's hard to specify exactly what day it
occurred. But because the State has the additional burden of
proving that this was without her consent under Subsection
1(a) of 7-3-95, I'm going to allow the amendment.
defense never objected to the amended indictment, except as
set forth above, and never raised the issue about the
drafting of the indictment that is raised here. At the jury
instruction conference, the defense specifically had "no
objection to using the [S]tate's instruction" that
tracked the language of the amended indictment.
When VR testified at trial, she told the jury that she
"considered Michael Spears [to be her dad]." VR
claimed her stepfather sexually assaulted her on two separate
occasions. The second time VR was allegedly
assaulted, she came into Spears's bedroom after she found
something of Jennifer's. VR said the door was shut but
unlocked, and she came into the bedroom when Spears said to.
She then placed what belonged to her mother in the bedroom
closet. Spears made her sit on the bed. At that point, MS
came home. Spears instructed MS to go into the living room,
watch a movie, and shut the bedroom door on her way out. Once
the door was shut, Spears took off VR's clothing, got on
top of her, and proceeded to have sex with her. VR testified
that she "didn't want [to have sex with
Spears]." Spears instructed VR to "[not] tell
anyone," and especially to "[not] tell Mom."
VR claimed she was seventeen when her stepfather had sex with
VR initially did not say anything about the assault because
"[she] was scared [for her] life. And [she] was scared
if [she] told anyone it would happen again." VR
disclosed the abuse to her friend Linda Simpson while she was
at Linda's home. Jennifer found out the same day and
immediately confronted her husband. Spears admitted the
encounter occurred but maintained that the sex between he and
VR was consensual.
Spears testified that VR had touched him inappropriately or
acted inappropriately before the alleged assault VR claimed
happened when she was seventeen. Spears told the jury that
when VR was fourteen, she came into his bedroom after she had
showered. Spears testified that VR took off her towel and got
into bed with him. Spears responded by shaking VR and telling
Jennifer about what happened. Spears then recounted a second
time when VR was inappropriate. Spears claimed that when VR
was sixteen, he was asleep on the couch when VR took his hand
and put it down her pants. Finally, Spears alleged that when
VR was nineteen, she attempted to grab his penis while in the
swimming pool with him. He explained at trial that nothing
sexual ever happened between him and VR during these alleged
occurrences and that they only had sex once.
Spears admitted that he had sex with VR, however his version
of events differed from VR's testimony. Spears claimed
that VR walked in on him while he was masturbating. VR then
went and put a movie on for MS and came back into the
bedroom. Spears maintained that VR then took off her shorts,
sat on the bed, and spread her legs. The trial transcript
indicates that he asked VR, "[A]re we really going to do
this?" VR responded, "[Y]es." Both Spears and
VR testified that this was the only time they had sexual
intercourse. Spears, however, claimed that this event
happened in June 2015 when VR would have been twenty-three.
The jury found Spears guilty on both counts of sexual
battery, but this appeal only addresses Count II, as Count I
was set aside. The trial court sentenced Spears to seventeen
years with four years suspended and thirteen years to serve.
Spears now appeals and claims that the indictment was
defective on its face and that the trial court erred by
allowing the State to amend the indictment before trial.
It is well settled law that a question concerning the
effectiveness of an indictment is a question of law that
should be reviewed de novo. Payton v. State, 41
So.3d 717, 717 (¶11) (Miss. Ct. App. 2009) (citing
Graham v. State, 967 So.2d 670, 673 (¶8) (Miss.
Ct. App. 2007)). An indictment is valid if it contains
"the essential elements of the crime with which the