Vickie Balouch v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CT-00386-SCT

VICKIE BALOUCH

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 02/18/2003
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: L. ABRAHAM ROWE, JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: DEE BATES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS
IS REVERSED. THE JUDGMENT OF THE PIKE
COUNTY CIRCUIT COURT IS REINSTATED
AND AFFIRMED - 10/05/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1. Vickie Balouch was found guilty by a Pike County Circuit Court jury of the “placing out”

of D.L.1 in violation of Miss. Code Ann. §§ 43-15-23 (Rev. 2004). She was sentenced to three

years in the custody of the Mississippi Department of Corrections, with one year to serve and

two years on post- release supervision, and fined $1,000. She appealed, and the case was assigned

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We use these initials instead of the child’s full name in order to protect the child’s interests.
to the Court of Appeals, which reversed her conviction and rendered a verdict of not guilty, based

on its holding that evidence in the record was insufficient to support the verdict. Upon grant of

certiorari, we conclude the Court of Appeals erred. Therefore, we reverse the judgment of the

Court of Appeals and reinstate and affirm the trial court judgment entered consistent with the

jury verdict.

FACTS

¶2. Balouch assisted Dr. David Smith and his wife, Autumn Smith, in connection with their

possible adoption of D.L. The facts set forth by the Court of Appeals in its opinion (with re-

numbered footnotes) are stated in their entirety, as follows:

On May 2, 2002, Balouch contacted her physician, Dr. David Smith,
regarding the adoption of three-year-old [D.L.]. At the time, both of [D.L.'s]
biological parents were incarcerated, and [D.L.] had been temporarily placed in the
home of her foster parents, John and Paula Newton.2 Balouch falsely informed Dr.
Smith that she had a working relationship with the Mississippi Department of
Human Services (DHS) and that she worked with battered women and children. She
also misrepresented that [D.L.] had been sexually abused by John and that Paula
was addicted to drugs.3 Later that night, Dr. Smith called Balouch to inform her
that he and his wife Autumn were interested in pursuing the adoption. Balouch
brought the child to visit with the Smiths the next day.4
Over the course of her communications with the Smiths, Balouch also
misrepresented that [D.L.’s] father was incarcerated in a Texas prison and that he

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John Newton was formerly married to [D.L.’s] biological mother.
3
Balouch also told the Smiths that [D.L.] had been removed from the Newtons’ home due to drug
use by Paula.
4
Paula was under the belief that Balouch had taken [D.L.] to the store and was unaware that she
had actually taken the child to visit the Smiths.

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 was willing to relinquish his paternal rights.5 She also stated that she had a working
relationship with local attorney Jack Price whom she recommended to handle the
adoption. Balouch informed the Smiths that they could expect to pay up to $5,000
in attorney fees and expenses for the adoption. The Smiths soon learned that
[D.L.'s] father was unwilling to consent to the adoption, and Balouch was
subsequently indicted for placing out a child in violation of Mississippi Code
Annotated section 43-15-23 (Rev.2004).6

Balouch v. State, 2005 WL 2358338, *1 (Miss. Ct. App. 2005).

PROCEEDINGS IN THE COURT OF APPEALS

¶3. Balouch raised four issues on appeal, challenging the sufficiency and weight of the

evidence; improper jury instructions; witness testimony in violation of physician-patient

privilege; and speculative lay opinion testimony. Finding reversible error due to insufficiency

of the evidence and holding that the State failed to prove essential elements of the crime, the

Court of Appeals declined to address the other issues. Balouch v. Stat e, 2005 WL 2358338,

*2- 4. Specifically, the Court of Appeals held the State failed to prove that Balouch arranged

to place D.L. in the Smiths’ home for the purpose of free care and adoption pursuant to Miss

Code Ann. § 43-15-23(1). Id.*2. The Court of Appeals further held that even if Balouch

illegally placed the child out, the State failed to prove she received or requested compensation

for her services pursuant to Miss. Code Ann. § 43-15-23(2). Id. In conclusion, the Court of

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[D.L.’s] father was actually incarcerated in Mississippi and was unaware of Balouch’s
communications with the Smiths.
6
The grand jury returned a two-count indictment against Balouch which was later severed by the
trial court. Count one charged Balouch with requesting compensation for placing out a child, and count
two charged her with illegally obtaining prescription drugs in violation of Mississippi Code Annotated
section 41-29-144 (Rev. 2004).

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Appeals determined the evidence was insufficient to support the verdict and reversed and

rendered. Id *4.

¶4. The State’s petition for writ of certiorari raised the sole issue of whether the Court of

Appeals erred in its interpretation of the statutory language of Miss. Code Ann. § 43-15-23, an

issue of first impression. We found the petition to be well-taken, and granted certiorari. After

due consideration of not only the single issue raised by the State on certiorari, but also all other

issues raised on direct appeal, we now reverse the judgment of the Court of Appeals and

reinstate and affirm the judgment of the Circuit Court of Pike County.

ANALYSIS

¶5. In Bush v. State, 895 So. 2d 836, 843-44 (Miss. 2005), this Court laid to rest some

confusion surrounding the difference between review of the weight and sufficiency of the

evidence. When reviewing the sufficiency of the evidence, this Court, after viewing the evidence

in a light most favorable to the prosecution, must determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Id. at 843. If

this Court determines the evidence is insufficient to support the verdict, the proper remedy is

to reverse and render. Id. Where sufficiency of the evidence is determined within a context

requiring the definition of statutory elements of a crime, the correct statutory construction by

the courts is critical.

¶6. Balouch was found guilty of the placing out of a child in violation of Miss. Code Ann.

§ 43-15-23, which became effective from and after July 1, 1986, and which reads in pertinent

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part, as follows:

(1) As used in this section the term “placing out” means to arrange for the free
care of a child in a family, other than that of the child’s parent, stepparent,
grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of
adoption or for the purpose of providing care. (Emphasis added).

(2) No person, agency, association, corporation, institution, society or other
organization, except a child placement agency licensed by the Department of
Public Welfare under Section 43-15-5, shall request, receive or accept any
compensation or thing of value, directly or indirectly, for the placing out of a
child. (Emphasis added).

(3) No person shall pay or give any compensation or thing of value, directly or
indirectly, for placing out of a child to any person, agency, association,
corporation, institution, society or other organization except a child placement
agency licensed by the Department of Public Welfare.

. . . . [here deleted sub-section 4 which talks of payment of salaries to DHS, etc.]

(5) Any person, agency, association, corporation, institution, society or other
organization violating the provisions of this section shall be guilty of illegal
placement of children and shall be punished by a fine not to exceed Five Thousand
Dollars ($5,000.00) or by imprisonment not more than five (5) years, or both
such fine and imprisonment.

¶7. The State points to the deception perpetrated by Balouch. It was established through the

testimony of Dr. Smith that Balouch claimed she was working with social services and attorney

Jack Price, and that the adoption would cost approximately $5,000. However, she was not

involved with either social services or Price. The State argues “it is an absolutely reasonable

inference from the entire record that defendant asked for money for arranging the ‘placing out’

or ‘placing in’ of the child. Defendant was the only person gathering information, correct names,

addresses, the sole keeper of the information regarding the child transfer.”

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¶8. Balouch responds only that the State has no grounds for seeking a writ of certiorari,

because none of the M.R.A.P. 17 grounds for granting certiorari exist. She bases her position

on her belief that “[t]he overwhelming majority of the opinion by the Court of Appeals is obiter

dictum, and it is this dicta which the State seeks to have reviewed by this Court.” Thus, she

argues, the State has “completely ignored the actual basis for the ruling of the Court of Appeals

and has not sought a review of the actual basis for that ruling.” She goes on to state the basis

“was that the State failed to prove one of the essential elements of the crime charged,

specifically that [her] actions constituted a placing out of the child for adoption.” We reject

Balouch’s argument. Because the determination by the Court of Appeals was based on an

erroneous interpretation of the plain language of Miss. Code Ann. § 43-15-23, this matter is

properly before this Court on writ of certiorari pursuant to M.R.A.P. 17.

¶9. The Court of Appeals stated that Balouch had to receive something of value to be guilty

pursuant to the Miss. Code Ann. § 43-15-23, but went on to hold Balouch did not request or

receive a thing of value for placing out D.L. Balouch v. State, 2005 WL 2358338, *2, *6, 12-

13. Further, the evidence is sufficient to show that a rational juror could find that Balouch

requested, directly or indirectly, payment for the placing out of D.L. Balouch never directly

asked the Smiths to give her anything of value for the adoption. However, in order to prove

Balouch guilty of placing out D.L., the State need only prove she directly or indirectly requested

a thing of value; the statute does not require she actually receive anything of value. See supra

Miss. Code Ann. § 43-15-23(2). The Smiths testified that Balouch told them the adoption would

cost approximately $5,000. Dr. Smith expressed concern about this cost and asked Balouch why

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it would be so much. Balouch responded that she was working with Jack Price, an attorney, and

it was to cover the cost of Price flying to Texas to meet with D.L.’s biological father to get the

adoption papers signed and that “ there would be other expenses involved too.” At this point

Balouch was the only person with whom the Smiths had dealt regarding the adoption. Dr. Smith

testified that “[Balouch] presented herself as working with [Price], so she had done all this other

information collecting for him, so why wouldn’t I assume, just like anyone else would, that I

would be giving the money to her to get to him later.”

¶10. Balouch misrepresented to the Smiths that D.L.’s father was incarcerated in a Texas

prison and was willing to relinquish his parental rights. In fact, D.L.’s biological father, who was

incarcerated in Leakesville, Mississippi, testified that he did not even know Balouch and was

never contacted regarding the adoption. In addition, Price testified he was not associated with

Balouch, and that Balouch called him only after she had made substantial arrangements for the

adoption and told the Smiths the adoption would cost $5,000. Price further testified that he and

Balouch never discussed a fee, and furthermore, his legal fee for an adoption is $750, and he

only handles uncontested adoptions. Moreover, Balouch told the Smiths she was associated with

the Department of Human Services, and there was testimony revealing this statement was false

as well.

¶11. Given Balouch’s ongoing and exclusive relationship with the Smiths regarding the

potential adoption, together with her statement to the Smiths that the adoption would cost $5,000

despite the fact that she was not affiliated with an attorney or social services at the time, is

sufficient for a rational juror to find she directly or indirectly requested a thing of value for

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placing out D.L. See Hooker v. State, 716 So. 2d 1104, 1110 (Miss. 1998) (A jury is allowed

to draw all reasonable inferences from the evidence). Further, when reviewing the sufficiency

of the evidence, the State is given the benefit of all favorable inferences that may reasonable be

drawn from the evidence. Miller v. State, 875 So. 2d 194, 198 (Miss. 2004). Therefore, the

Court of Appeals erred when it determined the evidence was insufficient to support the verdict

because there was no evidence she received compensation for placing out D.L.

¶12. The Court of Appeals also held the evidence was insufficient to show Balouch arranged

the placing out of D.L. Balouch v. State, 2005 WL 2358338, *2. Specifically, the Court of

Appeals stated “[a]lthough Balouch took the child to visit with the Smiths on one occasion, the

record is clear that [D.L.] remained in her foster parents’ home at all times. As a result we fail

to see how Balouch’s actions constituted a ‘placing out’ within the meaning of the statute”.

Balouch v. State, 2005 WL 2358338, *2. Essentially, the Court of Appeals held that to be guilty

for the placing out of a child, the defendant had to actually place that child in another’s home.

This holding is contrary to the plain language of the statute. The statutory definition states

“‘placing out’ means to arrange for the free care of a child in a family . . . . for the purpose of

adoption.” Miss. Code Ann. § 43-15-23(1) (emphasis added).

¶13. The word “arrange” means “1. [t]o place in proper, desired, or convenient order. 2. [t]o

come to an agreement or understanding regarding. 3. [t]o prepare or plan.” Random House

Webster’s College Dictionary 75 (2000). This definition is plain and unambiguous. “Where the

language used by the legislature in a statute is plain and unambiguous and converys [sic] a clear

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and definite meaning there is no occasion to resort to rules of statutory interpretation.” Miss.

Power Co. v. Jones, 369 So. 2d 1381, 1388 (Miss. 1979). The record is clear that Balouch made

plans and prepared for D.L.’s adoption. Balouch made the initial contact with Smith regarding

the adoption. Further, she did most of the planning. Dr. Smith testified that Balouch frequently

communicated with them regarding the adoption, including giving them information about D.L.’s

birth parents.

¶14. Further questioning of Dr. Smith revealed the following:

A. [Balouch] told us that she would be coming with a social worker to the
office with the child, and that we would be able t[o] see her and visit with
her then.
....

Q. Who brought [D.L.] to the office?
A. [Balouch].

Furthermore, Autumn Smith testified “. . . [Balouch] brought the child by the office. That was

the first time I met her”. Autumn Smith’s testimony also revealed that she and Balouch took D.L.

to the hospital where Dr. Smith was seeing patients:

[Balouch] was probably there a good 45 minutes at least, because then we loaded
[D.L.] up and took her to Beacham. She put the car seat in Sandra’s car, our nurse,
because all I had was a truck, and [Balouch] encouraged me to take her down there
because he couldn’t get back. We were supposed to keep her that night, but the
social worker wasn’t able to come for her to meet us, so she encouraged me to
take her to Beacham so David could meet her and spend the afternoon with her.
She had to have her back by 4:00 o’clock.

Moreover, Balouch falsely claimed to work for the Department of Human Services. Finally,

perhaps the most compelling evidence is Dr. Smith’s testimony that Balouch said, in essence,

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“if you want me to, even though its illegal, if you just give me the word, I’ll go and get the child

that night, and I’ll bring her over to your house that night . . . .”

¶15. In sum, a review of the transcript clearly reveals Balouch was heavily involved in the

arranging of D.L.’s adoption by the Smiths. Consequently, a rational juror could have, and in fact

did determine that Balouch was guilty of the placing out of D.L. The evidence is sufficient to

support the jury’s guilty verdict pursuant to Miss. Code Ann. § 43-15-23.

¶16. This Court must presume the words in the statute were “intended to convey their usual

meaning absent some indication to the contrary.” Wallace v. Town of Raleigh, 815 So. 2d 1203,

1208 (Miss. 2002)(internal citation omitted). There is nothing before this Court to indicate that

the legislature intended anything other than the literal meaning of the words in this statute. The

courts have no right to add anything to or take anything from a statute, where the language is

plain and unambiguous. To do so would encroach upon the power of the Legislature. The courts

have neither the authority to write into the statute something which the legislators did not write

therein, nor to ingraft upon it any exception not included by them. Id.

¶17. We have also considered the remaining issues raised by Balouch before the Court of

Appeals concerning claims of error due to improper jury instructions, witness testimony in

violation of the physician- patient privilege, and speculative lay opinion testimony. Having

considered these additional assignments of error, we find them to be without merit and without

need for discussion.

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 CONCLUSION

¶18. Under the plain language of Miss. Code Ann. 43-15-23, the evidence is sufficient to

support the jury’s decision to find Balouch guilty of the placing out of a child. Additionally, the

other issues Balouch raised in her brief to the Court of Appeals are without merit. We reverse

the judgment of the Court of Appeals and we reinstate and affirm the trial court’s judgment.

¶19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT IS REINSTATED AND
AFFIRMED. CONVICTION OF PLACING OUT OF A CHILD AND SENTENCE OF
THREE (3) YEARS, WITH ONE (1) YEAR TO SERVE AND TWO (2) YEARS ON POST-
RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND PAYMENT OF A FINE OF $1,000 AND COURT COSTS,
AFFIRMED.

SMITH, C.J., WALLER, P. J., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRAVES, J.

DIAZ, JUSTICE, DISSENTING:

¶20. The majority concedes that Ms. Balouch never directly asked for anything of value for the

adoption. They hold that she should be convicted of a felony and sent to prison for “indirectly”

requesting a “thing of value.” However, the evidence in this case does not show that Ms. Balouch

even “indirectly” requested anything and thus does not even rise to this abysmally low threshold

for felony conviction. The evidence in this case reveals that at most Ms. Balouch provided an

inaccurate estimate of the cost of the adoption. The majority’s interpretation of the statute in

question should send shivers down the spine of anyone involved in the private adoption process.

It is an invitation for abuse of the criminal process and will have a chilling effect upon adoptions

in this state. Further, to send someone to prison on such scant evidence is a reprehensible

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miscarriage of justice and should never be condoned by this Court. By reinstating this verdict we

are encouraging the prosecution of individuals based upon nothing more than someone’s

interpretation of another person’s words. Finally, it must be pointed out that no other underlying

crime was committed in this case. Ms. Balouch was prosecuted, convicted of a felony, and is

being sent to prison simply because she conveyed her thought and uttered the words that this

adoption “could cost up to $5,000, don't quote me on the exact price, but it could cost $5,000.”

¶21. Therefore, I agree with the Court of Appeals that the State failed to prove an essential

element of the crime charged, and I respectfully dissent. While the Court of Appeals did state

there was insufficient evidence that Ms. Balouch received compensation for her services, the

whole of the court’s holding was that she never even requested compensation. Balouch v. State,

2006 Miss. App. LEXIS 690, *2-4. The record demonstrates that the State offered the testimony

of three witnesses as evidence of Ms. Balouch’s alleged request for compensation, and all three

denied that she ever asked for money.

¶22. Angie McKenzie (Dr. Smith’s office manager) testified that Ms. Balouch informed her

“the [$5,000] would be for Jack Price to fly to Texas and for the paperwork to be done for the

child to be adopted.” When asked whether Ms. Balouch requested any compensation for herself,

Ms. McKenzie replied, “no.” Similarly, Dr. Smith testified that Ms. Balouch told him that he and

his wife “needed to be prepared to pay $5,000 for th[e] adoption to be able to take place.” When

he asked why it was such a large sum of money, Ms. Balouch responded that “it was going to cost

a lot of money for Jack Price to be able to fly to Texas,” and “there would be other expenses

involved too.”

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¶23. Furthermore, Autumn Smith offered the following testimony on cross-examination:

Q: And you asked Ms. Balouch what was involved in going private, did you not?

A: Yes, sir.

Q: And would you give me her exact quote, please, that's in your notes?

A: I asked what was involved by going private, and Vickie then said, “it could cost

up to $5,000, don't quote me on the exact price, but it could cost $5,000.”

Q: And your response, according to your notes?

A: I said, ‘Whoa, I wasn't expecting that with the father ready to sign.’

Q: And what was her response?

A: Vickie said that we would have to pay for Jack to fly to Texas to get the papers

signed.

Q: And there was no other conversation between you and Ms. Balouch about

money, correct, other than what you just testified to out of your notes?

A: We talked more in discussion about the $5,000.

Q: And it was for payment to Jack for things that he was going to do?

A: She did not say that it was being given directly to Jack.

Q: What was it going to be given to?

A: She said that she - Vickie said that she helped him out as well, and that she was

filling out necessary paper work, but she did not say the money was going to Jack.

She just said it was for Jack.

Q: She didn't request that you give her the money, did she?

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 A: (No Answer.)

Q: Yes or no?

A: (No Answer.)

Q: She did not request that you give - Vickie did not request that you give her the

money, did she?

A: She did not say give me the $5,000, no.

¶24. As the Court of Appeals held, the above testimony fails to demonstrate that Ms. Balouch

requested any compensation, either directly or indirectly. In light of the State’s failure to meet

the burden of proof as to the statute’s compensation element, I find it unnecessary to consider

the other issues. I would uphold the decision of the Court of Appeals to reverse and render.

GRAVES, J., JOINS THIS OPINION.

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