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Spears v. State

Court of Appeals of Mississippi

October 15, 2019

MICHAEL R. SPEARS A/K/A MICHAEL SPEARS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/09/2018

          JONES 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.

          BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

          LAWRENCE, J.

         ¶1. 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 sentence.

         FACTS

         ¶2. Michael Spears lived with his wife Jennifer Spears and two of her children, VR and MS, until Spears and Jennifer separated in 2015.[1] 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. [1970]) [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. [1992]), 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.

         ¶3. 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.

         The 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.

         ¶4. 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.[2] 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 her.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         STANDARD OF REVIEW

         ¶9. 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 (ΒΆ8) (Miss. Ct. App. 2007)). An indictment is valid if it contains "the essential elements of the crime with which the ...


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