Sharon Sallie v. State of Mississippi , 230 So. 3d 312 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00801-COA
SHARON SALLIE A/K/A SHARON JEAN APPELLANT
SALLIE A/K/A SHARON PLAXICO SALLIE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/11/2016
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, CONSPIRACY
TO COMMIT FALSE PRETENSES, AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS; AND COUNT II, FALSE
PRETENSES, AND SENTENCED AS A
HABITUAL OFFENDER TO TEN YEARS,
WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND TO PAY
RESTITUTION JOINTLY AND
SEVERALLY IN THE AMOUNT OF
$15,518.25
DISPOSITION: AFFIRMED: 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
FAIR, J., FOR THE COURT:
¶1. Sharon Sallie was convicted of conspiring with her daughter, Jessica Plaxico, and
son-in-law, Ahmad Fryar, to obtain money from Wilma Colom through false pretenses, and
for actually committing the crime of false pretenses. The circuit court sentenced Sallie as a
habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), ordering
that she serve five years for her conspiracy conviction and ten years for her false-pretenses
conviction. The court further ordered that the sentences run concurrently and that Sallie pay
restitution jointly and severally in the amount of $15,518.25 (the total amount of money that
Colom lost from the scam).
¶2. Sallie claims, for the first time on appeal, that her indictment in Count II was fatally
flawed because it did not contain specific facts surrounding the alleged crime. Finding
Sallie’s indictment sufficient, we affirm the judgment of the circuit court.
FACTS
¶3. Colom owned a motel in Tiplersville, Mississippi. Plaxico and Fryar were two of her
tenants. Colom testified that Plaxico often came to her with financial problems and that she
was not an “ideal tenant.” The scam leading to Sallie’s conviction started when Plaxico told
Colom that a doctor left medical tools inside her body when she gave birth to her child.
Plaxico said she planned to sue the doctor and claimed that she needed money for the lawsuit.
She promised that she would repay Colom once she had the money. When Colom asked
Sallie if Plaxico’s story was true, Sallie said that it was. Plaxico initially asked Colom to
send money through Moneygram in Sallie’s name because she was the only one with valid
identification. Colom sent Sallie $2,160 in September 2012, and then two $50 money orders
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– one in October 2012 and one in July 2013.
¶4. Colom kept giving money directly to Plaxico and Fryar until she found out there was
no lawsuit in Plaxico’s name. She testified that, although Sallie did stop telling her to send
money, Sallie never said the story was a scam. Sallie testified that Colom kept sending
Plaxico and Fryar money even though she told her there was no pending lawsuit. Sallie also
denied ever conspiring with Plaxico and Fryar.
DISCUSSION
¶5. Sallie claims that Count II of the indictment was defective because it lacked an
essential element of the crime – the specific nature of the false pretenses – and prevented her
from preparing an adequate defense. She further argues that the indictment did not provide
specific details protecting her from double jeopardy.
¶6. “Challenges to the substantive sufficiency of an indictment may not be waived and
consequently may be raised for the first time on appeal.” Ross v. State, 954 So. 2d 968, 1015
(¶126) (Miss. 2007) (citing State v. Berryhill, 703 So. 2d 250, 254 (¶16) (Miss. 1997)). Since
“a challenge to an indictment for failure to charge the essential elements of a criminal offense
affects a fundamental right,” it “may not be waived.” Id. (citing Jefferson v. State, 556 So.
2d 1016, 1019 (Miss. 1989)).
¶7. On Count II, Sallie was indicted under Mississippi Code Annotated section
97-19-39(2) (Rev. 2014), which states in pertinent part:
Every person, who with intent to cheat or defraud another, shall designedly, by
color of any false token or writing, or by another false pretense, obtain the
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signature of any person to any written instrument, or obtain from any person
any money, personal property, or valuable thing, with a value of Five Hundred
Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony
and punished by imprisonment in the State Penitentiary not exceeding ten (10)
years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).
Count II of Sallie’s indictment read:
[O]n or about and between the dates of September 1, 2012 – October 15, 2013,
a date more certain unknown to the grand jury, Sharon Sallie wilfully,
unlawfully, feloniously and knowingly with intent to cheat or defraud Wilma
Colom by color of any false token or writing, or by another false pretense, did
obtain from Wilma Colom, money with a value of Five Hundred Dollars
($500.00) or more in violation of Section 97-19-39, Mississippi Code, 1972,
as amended . . . .
¶8. An indictment that tracks the language of the statute is generally sufficient to inform
the accused of the charge against her, as long as the statute “fully, directly, and expressly,
without any uncertainty or ambiguity,” sets out all of the elements necessary for the offense.
Tran v. State, 962 So. 2d 1237, 1241 (¶17) (Miss. 2007). Depending on the nature of the
case and language of the statute, some indictments may need additional words or facts to
sufficiently put a defendant on notice. Id. Sallie argues that, based on our supreme court’s
ruling in State v. Cohran, 83 So. 2d 827 (Miss. 1955), her case falls into the latter category.
¶9. In Cohran, the State appealed the circuit court’s judgment sustaining the defendant’s
demurrer to the indictment because the indictment was defective. Id. at 827. The defendant
had been charged under Mississippi Code Annotated section 2149 (Rev. 1942) for falsifying
cotton tickets. Cohran, 83 So. 2d at 827-28. In 1955, section 2149 read as follows:
Every person who, with intent to cheat or defraud another, shall designedly, by
color of any false token or writing, or by another false pretense, obtain a
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signature of any person to any written instrument, or obtain from any person
any money, personal property, or valuable thing . . . shall be punished by
imprisonment . . . .
The indictment charged that the defendant:
[D]id wilfully, unlawfully, knowingly, fraudulently, designedly, and
feloniously, with intent to cheat and defraud one Ross Brown and Barry
Brown, a partnership, by color of certain false writings, in words and figures
as follows, to wit:
I. II.
Date 10/30/1952 Date 10/30/1952
Sam Jones Liner Jones
No. $300 No. $300
Reg. No. ___ Clerk, Account Reg. No. ___ Clerk, Account
[F]orwarded 52 Forwarded 52
185 186
196 172
42 77
PLM 423 PLM 429
OK 3 OK 3
12.69 12.87
obtain of and from the said Ross Brown and Barry Brown by means and color
of the said false writings the sum of $25.56 good and lawful money of the
United States,
Against the peace and dignity of the State of Mississippi.
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Cohran, 83 So. 2d at 827-28.
¶10. The supreme court stated that the indictment was speculative since there were no
extrinsic facts showing how the words and figures in the tickets were fraudulent. Id. at 828.
In affirming the circuit court’s judgment, the court held:
[For a prosecution of] false pretenses, it is necessary to charge that the
pretenses were false; that the defendant knew them to be false; that he obtained
from another certain money or other valuable things; and that the pretenses
were the moving cause by which the money or things were obtained . . . .
Because of the absence of extrinsic facts in explanation of the pretense and
wherein it consisted, the indictment was fatally defective. In addition, it also
failed to charge that the defendants knew that the writings were false.
Id. (citing State v. Freeman, 60 So. 774 (Miss. 1913)). See also Westmoreland v. State, 286
So. 2d 807, 809 (Miss. 1973).
¶11. The present case is readily distinguishable from Cohran because Sallie’s indictment
was not speculative. Sallie was clearly charged for willfully, unlawfully, feloniously, and
knowingly obtaining more than $500 from Colom through false pretenses. Her indictment
fully and directly set out all of the elements necessary for her offense. See Tran, 962 So. 2d
at 1241 (¶17). Therefore, no additional facts were necessary. Accordingly, we affirm the
circuit court’s judgment.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY OF
CONVICTION OF COUNT I, CONSPIRACY TO COMMIT FALSE PRETENSES,
AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS; AND COUNT
II, FALSE PRETENSES, AND SENTENCE AS A HABITUAL OFFENDER OF TEN
YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY
RESTITUTION JOINTLY AND SEVERALLY IN THE AMOUNT OF $15,518.25, IS
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AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TIPPAH
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
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