Deborah Champluvier v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CT-02581-SCT
DEBORAH CHAMPLUVIER a/k/a DEBORAH
MARIE CHAMPLUVIER
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 01/15/2004
TRIAL JUDGE: HON. GRAY EVANS
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PRO SE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND RENDERED - 11/09/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Upon being indicted on two counts of embezzlement from a limited liability company
pursuant to Miss. Code Ann. § 97-23-19 (Rev. 2000), Deborah Champluvier was tried and
found guilty by a DeSoto County jury on November 4, 2003. At a subsequent sentencing
hearing, the trial judge sentenced Champluvier to concurrent sentences of five years in the
custody of the Mississippi Department of Corrections, with four and one-half years of each
sentence suspended, followed by two years of house arrest pursuant to Miss. Code Ann. §§ 47-
5-1001, -1015 (Rev. 2004). Champluvier appealed her convictions and sentences to this
Court, and we assigned this case to the Court of Appeals which affirmed Champluvier’s
convictions and sentences. Having granted Champluvier’s petition for writ of certiorari, we
reverse the judgments of the Court of Appeals and the circuit court and render judgment here
discharging Champluvier.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. The relevant facts of this case are very ably set out in the opinion of the Court of
Appeals:
On September 18, 1998, Deborah Champluvier created Perfect Treasures
Furniture, L.L.C. in Horn Lake with L.L. Ross. No one ever found a written
executed operating agreement for Perfect Treasures On March 22, 1999, Ross
had a stroke and later died intestate leaving his half of the business to his heirs
on March 25. The State alleged that Champluvier took $6,000 of the $6,202.07
out of the operating account March 23, the day after L.L.'s stroke. Champluvier
claimed that the money was to pay her back for a loan to the business.
Thomas Ross became administrator of his father's estate including acting as the
liquidating trustee of L.L.'s business interests. The Chancery Court of DeSoto
County entered an agreed order granting judicial dissolution, preliminary
injunction and other relief on June 11, 1999, that kept a prior temporary
restraining order in effect. The order found that Champluvier individually and as
a member of Perfect Treasures disposed of numerous assets, inventory and
proceeds from Perfect Treasures and, thus, could not carry on the business in
conformity with the certificate of formation. The order also stated that
Champluvier denied Ross access to the books, records, inventory, and premises
to such a point as to constitute pervasive fraud and unfairness toward the
membership interest of L.L. Ross.
Furthermore, the order found that Champluvier had misapplied and wasted the
assets of Perfect Treasures after L.L.'s death as well as failed to pay the debts
and creditors. The order required Champluvier to return all proceeds, cash,
and/or checks, accounts, checkbooks, check registers, and/or other banking
records or documents to Thomas Ross. Thomas testified that Champluvier never
2
turned any funds over to him after this order that required her to do so. After this
order, Champluvier withdrew the remaining $445 dollars from a Perfect
Treasures's bank account without turning it over to Thomas Ross even though the
order expressly said that, "Defendant is hereby restrained from disposing of any
accounts, funds, assets, inventory and/or proceeds of Perfect Treasures."
Thomas's attorney during the estate process, Barry Bridgforth, testified that he
never received documentation from Champluvier to show where she loaned the
company money as the order required him (sic) to. Bridgforth also testified that
the check for $6000 had a date of March 22 on it, but the corresponding ledger
book the check came out of had the date March 23. At first Champluvier
testified in her deposition that she took the money to purchase used furniture.
She never provided information as to the seller of this used furniture. Bridgforth
also testified that Champluvier said that part of the money was needed because
the landlord would only take cash, yet the ledger showed checks written out to
the landlord that month. He also testified about the $445 dollar withdrawal from
Perfect Treasure's second account that Champluvier withdrew after the hearing
granting the injunction. Bridgforth further testified that Champluvier never gave
the money back or tried to give the money back as required by the order. She
also filed for bankruptcy to prevent the estate from collecting from her.
Champluvier originally hired Randall Pierce to represent her in this matter.
However, she filed her own motions including motions that accused Pierce of
forging her signature on documents and conspiring with the prosecution. She
also admitted that Bill Cockrell1 helped her with her motions but later
downplayed the extent that he helped her. Pierce moved to remove himself as
counsel due to the allegations but Champluvier filed a motion for the trial court
to deny this request. When asked how she could want an attorney who did the
things she accused Pierce of she responded, "Well, I don't know that he forged
my signature. I mean I don't know that. . . I'm guessing." She also felt that the
employment contract between the two should require he remain her attorney.
1
Bill Cockrell, a/k/a Billy Cockrell, is no stranger to our court system, nor to the notion
of pro se representation. See, e.g., Cockrell v. State, 2005 Miss. LEXIS 816 (Miss. 2005)
(per curiam affirmance); Cockrell v. City of Southaven, 730 So. 2d 1119 (Miss. 1998);
Cockrell v. Memphis-Shelby Co. Airport Auth., 1996 U.S. Dist. LEXIS 21375 (N.D. Miss.
1996), aff’d mem., 125 F.3d 851 (5th Cir. 1997)). The record indeed reflects that Cockrell
was present at many of the court proceedings involving Champluvier’s criminal charges.
Champluvier’s conduct at trial and her trial antics virtually mirror that of Cockrell. See
Cockrell, 730 So. 2d at 1121-23.
3
The trial court also granted Champluvier's motion to proceed in forma pauperis
and appointed Jack R. Jones, III as counsel for her. However, Champluvier soon
moved to have the court remove Jones as "ineffective counsel the same as no
counsel" since he could not recite the entire Mississippi and United States
Constitutions. When the court decided to appoint her new counsel, Clay
Vanderburg, she objected to receiving new counsel and argued that Vanderburg
could not serve as effective counsel after her five minute interview with him.
She later filed a motion to remove Vanderburg from the case as well that the
trial court denied. The trial court urged her to use the assistance of the appointed
counsel but noted that she had the right to represent herself if she chose to do
so. The trial court retained Vanderburg to assist Champluvier if she chose to
during the trial as her standby counsel.
Right before her trial began, Champluvier accused two different witnesses of
saying derogatory comments about her close enough for the jury to hear them.
The trial judge listened to April Brown and Bobbie Yates describe things they
saw or overheard from Thomas Ross or A.C. Leroy Easley. No one in the jury
responded that they overheard Easley and the juror who met Ross at a cigarette
break said they did not discuss the case. The juror said that all Ross said
concerned that his father owned a Furniture Store and that he felt he could
remain impartial about the case.
Champluvier called upon her daughter, April Brown, and the store’s truck driver
George Friday, who both testified that she purchased $4000 worth of used
furniture at the time in question. Champluvier argued that she could not act as
the agent or servant of the company and also be an owner or member. Further,
she argued that she could not embezzle the money because she owned it.
However, the jury convicted Champluvier on both counts of embezzlement.
The trial judge also caught her lying under oath at her sentence hearing when she
described selling all the merchandise in the store for her attorney bills
associated with the temporary restraining order. However, the temporary
restraining order came after this sale to liquidate all the merchandise in the
store. Champluvier then filed her appeal with fourteen issues of error. The brief
surpasses the fifty page limit for the body of briefs as given by M.R.A.P. 28(g)
by topping out at seventy-five pages. Champluvier also made sure to include
every possible person from the Governor of Mississippi to every member of the
Mississippi Bar as "Interested Persons".
Champluvier v. State, 2005 Miss. Ct. App. LEXIS 1025, 2-7 (Miss. Ct. App. 2005).
4
¶3. From the time of her indictment and throughout the course of the various proceedings
in this case, Champluvier’s conduct was less than civil. Champluvier went through several
attorneys, and all three circuit judges in the circuit court district of which DeSoto County is
a part, eventually recused themselves. By order entered on August 4, 2003, the Chief Justice
of this Court specially appointed Judge Gray Evans to preside and conduct all proceedings in
this case. Throughout his involvement in this case, Judge Evans dealt patiently with
Champluvier to assure that she was afforded all her rights as guaranteed by our state and federal
constitutions, even though Champluvier persistently and obstinately ignored the notions of
fundamental decency. In fact, Judge Evans acted with great restraint. Among the actions taken
by Judge Evans when Champluvier persisted in representing herself was to advise her of her
rights pursuant to URCCC 8.05 concerning pro se defendants. Not surprisingly, Champluvier,
proceeding pro se, dug herself a hole before the jury, which promptly convicted her of both
counts of embezzlement. Again, at the subsequent sentencing hearing, Judge Evans exercised
almost unbelievable restraint, but ultimately (and understandably) held Champluvier in
contempt of court for her conduct, and sentenced her to an additional ten days in the DeSoto
County Jail. Notwithstanding Champluvier’s conduct, Judge Evans imposed a lenient sentence,
allowed Champluvier to appeal in forma pauperis, and allowed Champluvier to remain at liberty
pending appeal via a $15,000 appeal bond.
PROCEEDINGS IN THE COURT OF APPEALS
¶4. Champluvier raised fourteen issues before the Court of Appeals, which thoroughly
addressed each issue. Among the issues addressed by the Court of Appeals was the application
5
of Miss. Code Ann. § 97- 23- 19 (Rev. 2000). In its discussion, the Court of Appeals addressed
this statute’s applicability in relation to Miss. Code Ann. §§ 79-29-101 et seq. (Rev. 2001),
commonly cited as the “Mississippi Limited Liability Company Act” (MLLCA). Champluvier
argued in essence that since she was accused of stealing from an LLC, she was guilty of no
crime under the provisions of section 97-23-19, which applied only to corporations and private
persons. In distinguishing this Court’s decision in Burroughs v. State, 406 So. 2d 814 (Miss.
1981), and its own recent decision in Coleman v. State, No. 2004-KA-00346-COA, 2005
Miss. Ct. App. LEXIS 795 (Miss. Ct. App. Nov. 1, 2005),2 the Court of Appeals rejected
Champluvier’s argument,3 stating, inter alia:
Perfect Treasures also had its own bank accounts and Federal Tax ID number and
was registered with the Secretary of State’s Office. Mississippi Code Annotated
§ 79-29-701 states, "A limited liability company interest is personal property.
A member has no interest in specific limited liability company property." Thus,
an LLC is treated like a corporation in that it acts as a separate individual and
owns property as a separate individual. The city also granted a business license
2
The Court of Appeals reversed Coleman’s conviction and rendered judgment for
Coleman. This Court thereafter granted the State’s petition for writ of certiorari. Coleman v.
State, 2006 Miss. LEXIS 321 (Miss. June 15, 2006). Coleman, which involves the same
criminal statute which is before us in today’s case, is still pending before this Court. Coleman
involved charges of embezzlement of funds belonging to an unincorporated church and one of
its deacons. Since Coleman is still pending before us, we will not discuss its merits in today’s
case. On the other hand, we will on occasion make a passing reference to Coleman for the sake
of clarity in today’s discussion.
3
The majority opinion was authored by Judge Bridges and joined by four other judges.
Judge Griffis wrote a separate concurring opinion, joined by two other judges. Judge Barnes
wrote a dissenting opinion, joined by two other judges. Two judges joined in both the majority
opinion and the separate concurring opinion. Nine of the ten judges participated in this case.
6
to Perfect Treasures and not to either Ross or Champluvier. Champluvier clearly
converted funds that did not belong to her, but to Perfect Treasures.
Champluvier v. State, 2005 Miss. Ct. App. LEXIS 1025 at **9-10. On this issue, the Court
of Appeals concluded:
This case clearly fits the intent of the statute to prevent someone from
embezzling assets from a company that legally belongs to the company and not
the individual. The statute acts to prevent some “by virtue of his office, place,
or employment” from “converting to their own use.” Since the company is not
a person, this statute serves as the way to prosecute someone from fraudulently
taking money from the LLC where he gained the ability as one of its members.
The statute clearly did not intend to outlaw converting funds from an
incorporated company but legalize unauthorized conversion of funds from an
LLC. This would create another advantage to LLC’s beyond the tax benefits to
its members since the members could also embezzle all of the assets away from
[the] LLC and its members without fear of retribution. We reject this argument.
Id. at **10-11.
¶5. In his separate concurring opinion, Judge Griffis, who dissented in Coleman, found
Coleman to be similar to Champluvier’s case, and in essence adopted and incorporated by
reference his dissenting opinion in Coleman. Judge Griffis found that “the proper
interpretation of the term ‘incorporated company,’ as used in Section 97-23-19, should include
all entities that are created by statute under Title 79 of the Mississippi Code Annotated, which
is titled ‘Corporations, Associations and Partnerships,’”and that since an LLC “is created under
the Mississippi Limited Liability Company Act,” which is included in Title 79, Champluvier
violated section 97-23-19 and could be held criminally culpable for her actions. Id. at 27-28.
¶6. In her dissent, Judge Barnes concluded that the Legislature’s “narrow and precise
language in the embezzlement statute” did not include limited liability companies since
7
“section 97-23-19 plainly does not allow agents of unincorporated entities to be subjected to
prosecution for embezzlement.” Id. at 30-31. Finding the dissent to be right on target, we
agree and thus reverse and render.
DISCUSSION
¶7. While the Court of Appeals was called upon to address fourteen issues asserted by
Champluvier, we find one issue dispositive and thus decline to address the remaining issues.
We re-state the issue for the sake of clarity in discussion.
WHETHER MISS. CODE ANN. § 97-23-19 APPLIES TO LIMITED
LIABILITY COMPANIES.
¶8. Before the Court today is the question of whether a criminal statute which provides that
certain persons may be criminally culpable for embezzling from an incorporated company or
a private person likewise encompasses similar acts committed against a limited liability
company. Since the interpretation of a statute is a question of law, we are required to employ
a de novo standard of review. Sykes v. State, 757 So. 2d 997, 999 (Miss. 2000) (citing Ellis
v. Anderson Tully Co., 727 So. 2d 716, 718 (Miss. 1998)).
¶9. Champluvier was indicted in a two- count indictment charging, inter alia, that she “did
wilfully, unlawfully and feloniously, at a time when she was an agent or servant of Perfect
Treasures, L.L.C., a Mississippi Limited Liability Company, embezzle, fraudulently secrete,
conceal and convert to her own use . . . the personal property of Perfect Treasures, L.L.C., a
Mississippi Limited Liability Company, which money had come or been entrusted to her care
or possession by virtue of her office, place, and employment, in direct violation of Section 97-
8
23-19, Mississippi Code 1972 Annotated.” This language was common to both counts, with
count one charging the embezzlement of “approximately $6,000.00" on or about March 23,
1999, and count two charging the embezzlement of “approximately $445.64" on or about June
8, 1999.4
¶10. At the time these offenses were alleged to have been committed by Champluvier, Miss.
Code Ann. § 97-23-19 (Rev. 2000) stated:
If any director, agent, clerk, servant, or officer of any incorporated company, or
if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any
private person, shall embezzle or fraudulently secrete, conceal, or convert to his
own use, or make way with, or secrete with intent to embezzle or convert to his
own use, any goods, rights in action, money, or other valuable security, effects,
or property of any kind or description which shall have come or been intrusted
to his care or possession by virtue of his office, place, or employment, either
in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction
thereof, shall be imprisoned in the penitentiary not more than ten years, or fined
not more than one thousand dollars and imprisoned in the county jail not more
than one year, or either.[5]
4
By order entered on September 25, 2003, the indictment was amended to reflect the
name of the victim to be “Personal Treasures Furniture, LLC.” Likewise, by order dated
October 6, 2003, and entered, nunc pro tunc on October 14, 2003, the indictment was again
amended to reflect the name of the defendant to be “Deborah Champluvier (a/k/a ‘Deborah
Marie Champluvier’).”
5
Thus the statute applicable to Champluvier provided for a defendant convicted of
embezzlement to be sentenced either as a felon or a misdemeanant, in the discretion of the
trial judge, regardless of the amount embezzled. However, effective July 1, 2003, this statute
was amended to provide for a felony conviction if the amount embezzled was $500.00 or more,
and for a misdemeanor conviction if the amount embezzled was less than $500.00. The
penalty for a felony conviction under the statute is a maximum sentence of not more than ten
(10) years in the state penitentiary, or a fine of not more than $10,000.00, or both; while, on
the other hand, the penalty for a misdemeanor conviction under the statute is a maximum
sentence of not more than six (6) months in the county jail, or a fine of not more than
$1,000.00, or both. However, the 2003 amendment obviously does not apply to today’s case.
9
¶11. In May v. State, 240 Miss. 361, 127 So. 2d 423 (1961), this Court set out the elements
of the embezzlement statute, Miss. Code § 2115 (Recomp. 1942), which was the predecessor
statute to Miss. Code Ann. § 97-23-19. We stated:
The constituent elements of the offense are (1) an agent or trustee of a private
person,[6] (2) embezzling or converting to his own use, (3) rights in action,
money, or other valuable security, effects or property of any kind, (4) which
have been intrusted to his care or possession by virtue of his position or
employment.
240 Miss. at 363, 127 So.2d at 425. May involved a charge under the statute of embezzlement
by a trustee and agent of a private person. Thus, in the appropriate case, the first element,
depending on the facts of the case, would state either that “a director, agent, clerk, servant, or
officer of any incorporated company” had embezzled, or that “any trustee or factor, carrier or
bailee, or any clerk, agent or servant of any private person” had embezzled. See also
Montgomery v. State, 891 So. 2d 179, 186-87 (Miss. 2004); Bunkley v. State, 495 So. 2d 1,
3-4 (Miss. 1986); Coleman, 2005 Miss. App. LEXIS 795, **8-9 (citing May, 240 Miss. at
363, 127 So. 2d at 425).
¶12. The cases are legion where we have been confronted with questions of whether the
evidence in a criminal case is legally sufficient to support a conviction. We again recently
addressed the sufficiency of the evidence in relation to the elements of the crime charged:
"The motion for j.n.o.v. tests the legal sufficiency of the evidence supporting the
verdict" while "the motion for a new trial is an altogether different animal."
Jesco, Inc. v. Whitehead, 451 So. 2d 706, 713-14 (Miss. 1984) (Robertson, J.,
6
In the appropriate case the word “corporation” or “incorporated company” could be
substituted for the phrase “private person.”
10
specially concurring). Our cases setting out the standard of review for the legal
sufficiency of the evidence are legion. In Gleeton v. State, 716 So. 2d 1083,
1087 (Miss. 1998), we stated:
We must, with respect to each element of the offense, consider
all of the evidence - not just the evidence which supports the case
for the prosecution - in the light most favorable to the verdict.
The credible evidence which is consistent with the guilt [of the
accused] must be accepted as true. The prosecution must be given
the benefit of all favorable inferences that may reasonably be
drawn from the evidence. Matters regarding the weight and
credibility to be accorded the evidence are resolved by the jury.
We may reverse only where, with respect to one or more of the
elements of the offense charged, the evidence so considered is
such that reasonable and fair-minded jurors could only find the
accused not guilty.
Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987) (citations omitted).
716 So. 2d at 1087 (quoting from Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996)). Jones
v. State, 918 So. 2d 1220, 1233- 34 (Miss. 2005). See also Bush v. State, 895 So. 2d 836,
843-44 (Miss. 2005); Bunkley, 495 So. 2d at 3-4. As this Court stated in Bunkley:
This process [j.n.o.v. criteria] must be applied to each element of the offense
charged. Embezzlement under Miss. Code Ann. § 97-23-19 (1972), requires
proof of the identity of the “incorporated company” whose goods and money the
accused has embezzled. The statute further requires proof that the defendant
was a “director, agent, clerk, servant or officer” of that incorporated company.
Id. at 3-4 (footnote omitted). Thus, in any embezzlement prosecution under section 97-23-19,
the State is required to prove the identity of the “incorporated company,” or the “private
person,” as the case may be.
¶13. In her dissent in today’s case, Judge Barnes provided this analysis:
11
In the present case, we are again confronted with the task of determining
whether section 97-23-19 allows an agent of an unincorporated body to be
convicted of embezzlement. The majority holds that because LLCs and
corporations share many similarities, the statute should apply to agents of LLCs
as well as to agents of [corporations]. Once again, the plain language of the
statute does not permit this result. An LLC, by definition, is not an incorporated
company, and regardless of the similarities between the two types of entities,
the terms are not interchangeable. In fact, Mississippi Code Annotated section
79-29-104(1)(d) (Rev. 2001) specifically prohibits an LLC from using the
words "corporation" or "incorporated" in its name.
The legislature surely had some reason for employing such narrow and precise
language in the embezzlement statute. The legislature, in its prerogative,
certainly could have altered the statute to take into account more modern
business entities, had it desired. The fact that the statute is not written more
broadly should not be written off as legislative acquiescence, as the legislature
had the opportunity to re-examine section 97-23-19 when it amended the statute
in 2003. The legislature made no amendment broadening the business entities
to which the statute applies, and we should not do so judicially.
Both the dissent in Coleman and the concurrence in the present case argue that
any entity created under Title 79 of the Mississippi Code should be construed
as an "incorporated company" for the purposes of section 97-23-19. However,
because the language in section 97-23-19 is clear and precise, I believe that
looking beyond the plain text of the statute is inappropriate. See Heard 151
So. 2d at 420 (stating that this Court will not resort to canons of statutory
construction when the statute in question is clear and unambiguous).[7]
2005 Miss. Ct. App. LEXIS 1025, at 29-31.8
7
State v. Heard, 246 Miss. 774, 151 So. 2d 417 (Miss. 1963).
8
While the Court of Appeals’ majority opinion in Champluvier, attempts to distinguish
our decision in Burroughs, Judge Barnes makes no mention of Burroughs in her dissenting
opinion. Likewise, while the facts in Burroughs, a cow embezzlement case, provide some
interesting reading, our disposition in today’s case does not require a discussion of joint
venture.
12
¶14. That dissent drives home several points critical to the disposition of today’s case.
Pursuant to State v. Heard, 246 Miss. at 781, 151 So.2d at 420, the plain and unambiguous
language of section 97-23-19 simply obviates any requirement to apply the rules of statutory
construction. See also Sykes, 757 So. 2d at 1000 (citing Miss. Power Co. v. Jones, 369 So. 2d
1381, 1388 (Miss. 1979)). The current section 97-23-19 and its predecessors have been a part
of our code in some shape or form at least since Hutchinson’s 1848 Code. The current
Mississippi Limited Liability Company Act, Miss. Code Ann. §§ 79-29-101, et seq. (Rev.
2001), was enacted by the Legislature effective July 1, 1994. The Legislature, as recently as
2003, amended section 97-23-19, and thus was presented with a golden opportunity, if it chose
to do so, to further revise this statute to include the “more modern business entities,” such as
limited liability companies, limited partnerships, professional corporations, professional
associations, and the like. The Legislature, in its wisdom, chose not to do so, and, we should
thus not breathe life into imaginary entities which are nowhere to be found in section 97-23-
19. Stated differently, we should not be about the business today of reading and construing a
criminal statute and a civil statute in pari materia to determine if Champluvier is guilty of a
crime.9
9
Also, this Court rejects the notion that “incorporated company” refers to any entity
other than a corporation. Miss. Code Ann. § 79-29-103(j) states:
“Limited liability company” and “domestic limited liability company” mean an
entity having one or more members that is an unincorporated association that is
formed and existing under this chapter.”
Miss. Code Ann. § 79- 29- 103(j) (Rev. 2001). The Legislature has specifically defined a
limited liability company as an unincorporated association. Therefore, adhering to our
precedent in State v. Heard, this Court must literally interpret the term “incorporated
13
¶15. In the recent case of Trainer v. State, 930 So. 2d 373 (Miss. 2006), this Court affirmed
the trial court’s dismissal of a suit commenced by an individual who claimed that his video
game machines were wrongly seized by law enforcement officials as illegal gambling
machines. Trainer challenged the constitutionality of the criminal statutes under which he had
been arrested and his gaming machines had been seized. See Miss. Code Ann. §§ 97-33-7, -17.
Trainer invited us to consider the criminal statutes in conjunction with certain civil statutes and
Mississippi Gaming Commission regulations to conclude that the criminal statutes were
unconstitutional in their application and unconstitutionally vague. We declined Trainer’s
invitation and instead determined that the answers to the issues before us were clearly found
in the criminal statutes, thus requiring no examination of the civil statutes and regulations in
conjunction with the criminal statutes. 930 So. 2d at 379-81.
¶16. Pursuant to URCCC 7.06, all defendants facing felony criminal charges in this state,
no matter who they are, or how reprehensible their conduct in court, are entitled to an
indictment which sets out, inter alia, “a plain, concise and definite written statement of the
essential facts constituting the offense charged and shall fully notify [them] of the nature and
cause of the accusation.” In today’s case, Champluvier was charged by a grand jury indictment
with embezzling funds from a limited liability company in violation of section 97-23-19.
Consistent with URCCC 7.06, and our case law, no defendant should be charged with the
responsibility of going beyond the clear language of an embezzlement indictment and perusing
company” to exclude limited liability company. If the Legislature intended to include limited
liability companies in Miss. Code Ann. § 97-23-19, then it may amend the statute.
14
the civil statutes of this state to determine if an entity specified in Title 79 of the Mississippi
Code Annotated can be classified as an “incorporated company” or a “private person” so as to
be subjected to criminal culpability under section 97-23-19.
¶17. In the end, for the reasons stated, we conclude that a limited liability company such as
existed between Deborah Champluvier and L.L. Ross, is not encompassed within the language
of section 97- 23-19, as currently written, providing for a felony conviction upon
embezzlement of certain therein described property belonging to an incorporated company or
a private person. If the Legislature should determine it is appropriate to amend section 97-23-
19 so as to include any or all of the entities described in Title 79 of the Mississippi Code
Annotated, the Legislature no doubt possesses the prerogative to do so. We are not about the
business of legislating. Therefore, we find that the State, admittedly confronted with an
impossible task, did not present legally sufficient evidence which would support a guilty
verdict against Champluvier, on each and every element of the crime of embezzlement as set
out in section 97-23-19. Jones, 918 So. 2d at 1233-34 (citing Gleeton, 716 So. 2d at 1087)).
¶18. Because of our disposition on this issue, we find that the remaining issues raised by
Champluvier before the Court of Appeals need not be discussed.
CONCLUSION
¶19. The State of Mississippi did not prove beyond a reasonable doubt that Deborah
Champluvier, a/k/a Deborah Marie Champluvier, was guilty of each and every element of the
crime of embezzlement as set out in Miss. Code Ann. § 97-23-19 (Rev. 2000). For these
reasons, we reverse the judgments of the Court of Appeals and the DeSoto County Circuit
15
Court and render judgment here in favor of Deborah Champluvier, a/k/a Deborah Marie
Champluiver, who is thus discharged.
¶20. REVERSED AND RENDERED.
SMITH, C.J., WALLER, P.J., DIAZ, GRAVES AND DICKINSON, JJ., CONCUR.
COBB, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY EASLEY, J.
RANDOLPH, JUSTICE, DISSENTING:
¶21. The majority declares that “the plain and unambiguous language of [Miss. Code Ann.]
Section 97-23-19 simply obviates any requirement to apply the rules of statutory
construction.” Having correctly identified the standard, the majority then fails to follow its
own instruction. The hyper captious analysis found in the Court of Appeals dissent and adopted
by the majority, defeats the very purpose and intent of the legislative act and subverts the plain
language of Miss. Code Ann. Sect. 97-23-19.
¶22. The Court of Appeals majority held, “This case clearly fits the intent of the statute to
prevent someone from embezzling assets from a company that legally belongs to the company
and not the individual.” Champluvier v. State, 2005 Miss. App. LEXIS 1025, *10 (Miss. Ct.
App. 2005). The Court of Appeals majority opinion presents a logical, practical and reasoned
application of a LLC as a business entity under Title 79, Chapter 29 of the Mississippi Code.
For those who reject the path taken by the Court of Appeals to its conclusion, I offer a separate
path which leads the defendant to the same destination. Accordingly, I agree with the judgment
of the Court of Appeals, and in support thereof, I offer the following analysis.
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¶23. Miss. Code Ann. Sect. 79-29-701 states, “A limited liability company interest is
personal property. A member has no interest in specific limited liability company property.”
A group of persons, members, make up a limited liability company. Miss. Code Ann. Sect. 79-
29-103(n) defines member as, “a person that has been admitted to a limited liability company
as provided in Section 79-29-301....” (Emphasis added). Members of a LLC are individual
persons united for a common purpose.
¶24. We are required to utilize legislative guidelines set forth in the Code to assist us in
interpreting statutes. Miss. Code Ann. Sect. 1-3-1 states, “This chapter is applicable to every
statute unless its general object, or the context of language construed, or other provisions of
law indicate that a different meaning or application was intended from that required by this
chapter.” Further, Miss. Code Ann. Sect. 1-3-65 instructs, “All words and phrases contained
in the statutes are used according to their common and ordinary acceptation and meaning; but
technical words and phrases according to their technical meaning.” Miss. Code Ann. Sect. 97-
23-19 fails to declare that a “private person” is to be used only in the singular. “Words used
in the singular number only, either as descriptive of persons or things, shall extend to and
embrace the plural number; and words used in the plural number shall extend to and embrace
the singular number, except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33.
In this matter, no contrary intent was manifest.
¶25. Champluvier had, as all members of a LLC have to each other, a fiduciary duty to the
LLC and the respective individual members thereof. Members have a right to repose trust upon
another member acting in a fiduciary capacity, i.e., a trustee. Miss. Code Ann. Sect. 97-23-19
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specifically provides “any trustee” shall not embezzle from any private person(s), i.e.,
members of a LLC.
¶26. Thus, Champluvier embezzled from a private person. The majority’s conclusion that the
members of a limited liability company, (where personal property, i.e., their interest in the
LLC, has vanished through a criminal act), are not “private persons” leaves society with a
paradoxical result: a defendant who stole money, yet according to the majority, did not commit
a crime. This result eviscerates the legislative intent and purpose of Miss. Code Ann. Sect. 97-
23-19. Therefore, I must respectfully dissent.
EASLEY, J., JOINS THIS OPINION.
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