IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00914-COA
SHALONDA NIKKIA VALE A/K/A SHALONDA APPELLANT
N. VALE A/K/A SHALONDA VALE A/K/A
SHALONDRA NIKKIA VALE A/K/A
SHALONDRA VALE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/27/2016
TRIAL JUDGE: HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: ANTHONY J. BUCKLEY
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND RENDERED - 08/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WESTBROOKS, J., FOR THE COURT:
¶1. Shalonda Vale and Kawaskei Bender1 were charged as codefendants with burglary of
a dwelling. After Vale’s jury trial in the Circuit Court of Jones County, she was sentenced
to twenty-one years in the custody of the Mississippi Department of Corrections (MDOC),
with seventeen years to serve, and the remaining four years suspended for postrelease
1
Bender’s first name is also spelled “Kawaski” in the record. At the time of Vale’s
trial, Bender was incarcerated and awaiting trial.
supervision (PRS). Vale filed a motion for a judgment notwithstanding the verdict (JNOV)
or, in the alternative, a new trial, which was denied. Vale appeals, raising two issues:
I. Whether the indictment was fatally defective; and
II. Whether the indictment was constructively amended by jury
instruction S-1.
After review of the record, we find Vale’s indictment neglected to allege an essential element
of the crime of burglary of a dwelling under Mississippi law. Accordingly, we reverse the
judgment of the circuit court and render a dismissal of the indictment.
FACTS AND PROCEDURAL HISTORY
¶2. After arriving home from work, Carolyn Mulloy observed dust by her apartment door.
Inside her apartment, Mulloy noticed a white envelope of coins and other valuables were
missing. Mulloy filed a police report with the Laurel Police Department, and an officer
advised her to check the local pawn shops to see if any of the shops were in possession of her
missing items.
¶3. An employee at “The Gold Shop” notified Mulloy that a bag of jewelry and several
other items had been sold to the shop. Mulloy testified the shop had several items of jewelry
she did not even realize were missing. These items included a wedding-ring set, earrings,
and various gold rings. The shop employee also noted that a high-school class ring and a
University of Massachusetts class ring had already been sent to be melted down. The Gold
Shop provided Mulloy with the names of two individuals responsible for selling the jewelry.
Mulloy recognized the names of Vale and Bender, because the individuals lived together
above her in the same apartment complex.
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¶4. Mulloy submitted both Vale and Bender’s names to Brandon Evans, an investigator
with the Laurel Police Department. Shortly thereafter, Vale was arrested at her home. After
waiving her right to an attorney, Vale confessed on videotape to burglarizing Mulloy’s
apartment. Vale confessed that she broke the lock on Mulloy’s apartment door with a
fingernail file and took the jewelry from Mulloy’s night stand. Vale also confessed that she
took coins in a white envelope from Mulloy’s apartment. Vale told Detective Evans where
all the items were located in Mulloy’s home at the time she broke in, and that Bender was not
with her during the time of the burglary.
¶5. However, at trial, she vehemently denied burglarizing Mulloy’s home. Vale testified
she confessed to the burglary because Bender stated he could not “take another charge.” She
testified Bender gave her the items of jewelry and said they belonged to his grandmother.
Vale stated she took the jewelry to The Gold Shop, along with Bender’s identification, and
sold the items for cash.
¶6. Also at trial, Bender testified he broke into Mulloy’s apartment alone, gave the stolen
items to Vale, and asked her to find out whether the jewelry was real to possibly sell for cash.
Bender stated he told Vale the jewelry belonged to his grandmother. Bender testified that
Vale likely made up the story about her burglarizing Mulloy’s apartment, because he would
face life in jail for a conviction of burglary.2
¶7. A jury found Vale guilty of burglary of a dwelling. She was sentenced to twenty-one
years in the custody of the Mississippi Department of Corrections, with seventeen years to
2
At the time of the trial, Bender testified he had been charged with conspiracy,
possession of marijuana, and possession of synthetic marijuana in Green County. He also
testified he had two drug charges and the burglary charge, with Vale, in Jones County.
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serve, and with four years suspended, based upon the successful completion of four years of
PRS. Vale filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. The motion was denied. Vale timely appeals.
STANDARD OF REVIEW
¶8. “The issue of whether an indictment is fatally defective is an issue of law and deserves
a relatively broad standard of review by this Court.” Snowden v. State, 131 So. 3d 1251,
1255 (¶11) (Miss. Ct. App. 2014). “As the issue involves a question of law, this Court
applies a de novo standard of review.” Id. (internal citation omitted).
DISCUSSION
I. Whether the indictment was fatally defective.
¶9. The Mississippi Supreme Court has held that “where a deficiency appearing in an
indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent
a showing of cause and actual prejudice.” Brown v. State, 37 So. 3d 1205, 1209 (¶9) (Miss.
Ct. App. 2009). However, “[the] courts have identified two instances where deficiencies are
deemed jurisdictional: where the indictment fails to charge a necessary element of a crime,
and where there exists no subject matter jurisdiction.” Id. at 1209-10 (¶9) (citation and
quotation marks omitted).
¶10. Vale did not object to the indictment before or during trial; however, the supreme
court has previously held that “since the intent to steal was an essential element of the
crime[,] the appellant’s failure to demur to the indictment did not constitute a waiver of [the]
right to raise the question on [a] motion for a new trial and on appeal.” Taylor v. State, 214
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Miss. 263, 268, 58 So. 2d 664, 666 (1952) (citations omitted).
¶11. The indictment against Vale states:
[I]n said County, District, and State, on or about the 27th day of April, 2015,
A.D., [Vale] did then and there unlawfully, feloniously, and burglarious break
into and enter the dwelling house of Carolyn Mulloy located at [address
redacted], Laurel, MS, wherein valuable things were kept for use, and did
carry away jewelry:
in violation of Section 97-17-23, Mississippi Code of 1972, and contrary to the
form of the statute in such cases made and provided and against the peace and
dignity of the State of Mississippi.
Mississippi Code Annotated section 97-17-23(1) (Rev. 2014) reads as follows:
Every person who shall be convicted of breaking and entering the dwelling
house or inner door of such dwelling house of another, whether armed with a
deadly weapon or not, and whether there shall be at the time some human
being in such dwelling house or not, with intent to commit some crime therein,
shall be punished by commitment to the custody of the Department of
Corrections for not less than three (3) years nor more than twenty-five (25)
years.
(Emphasis added).
¶12. Vale argues her indictment was defective, because it failed to set forth the element of
“intent to commit a crime” inside Mulloy’s dwelling. “Numerous Mississippi cases have
held that the failure to include an essential element of the crime in the indictment is a
jurisdictional defect that cannot be cured with extrinsic proof.” Patton v. State, 34 So. 3d
563, 573 (¶33) (Miss. 2010) (Kitchens, J., specially concurring) (citations omitted). “Thus,
the indictment’s failure to charge an essential element of the crime, value, violates
fundamental federal and state constitutional rights and requires automatic reversal.” Id. at
573-74 (¶33). We agree.
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¶13. Vale’s indictment failed to include the element “with intent to commit some crime
therein.” The words “wherein valuable things were kept for use, and did carry away jewelry”
do not equate to the statutory element needed to indict Vale on the charge of burglary of a
dwelling. “It has been uniformly holden, that where the evil intent accompanying an act is
necessary to constitute such act a crime, the intent must be alleged in the indictment, and
proved; and the intent with which the act was done, must be proved to be the same with that
charged.” Taylor, 214 Miss. at 267, 58 So. 2d at 665. In Taylor, the supreme court reversed
a conviction and quashed an indictment, because the indictment failed to allege an “intent
to steal.” Id. at 267-68, 58 So. 2d at 664-66.
¶14. “An indictment must contain (1) the essential elements of the offense charged, (2)
sufficient facts to fairly inform the defendant of the charge against which he must defend,
and (3) sufficient facts to enable him to plead double jeopardy in the event of a future
prosecution for the same offense.” Spearman v. State, 80 So. 3d 116, 119 (¶12) (Miss. Ct.
App. 2011) (citations omitted).
¶15. “The supreme court has repeatedly held that indictments based on statutory offenses
are void if they do not charge all essential elements of the statutory crime.” Gales v. State,
131 So. 3d 1238, 1240 (¶10) (Miss. Ct. App. 2013) (citing Spears v. State, 253 Miss. 108,
116, 175 So. 2d 158, 161-62 (1965)). Accordingly, we find Vale’s indictment failed to
charge her with a crime under Mississippi law. This constitutional error requires dismissal
of the indictment and reversal of Vale’s burglary conviction.
II. Whether the indictment was constructively amended.
¶16. Vale argues that her indictment was constructively amended due to the variance in the
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indictment and jury instruction S-1. “Not all variances between the indictment and
instructions constitute a constructive amendment.” Graham v. State, 185 So. 3d 992, 1001
(¶25) (Miss. 2016) (citing Bell v. State, 725 So. 2d 836, 855 (¶61) (Miss. 1998)). “The
central question [a] [c]ourt must ask when reviewing an alleged constructive amendment is
whether the variance is such as to substantially alter the elements of proof necessary for a
conviction.” Id. (quotation marks omitted). “As long as the change does not materially alter
facts which are the essence of the offense on the fac[e] of the indictment as it originally stood
or materially alter a defense to the indictment as it originally stood in a way that would
prejudice the defendant’s case, then the amendment is permissible.” Id. at 1001-02 (¶25).
(quotation marks omitted).
¶17. “All objections to an indictment for a defect appearing on the face thereof, shall be
taken by demurrer to the indictment, and not otherwise, before the issuance of the venire
facias in capital cases, and before the jury shall be impaneled in all other cases, and not
afterward . . . . ” Brown, 37 So. 3d at 1209 (¶9); see also Miss. Code Ann. § 99-7-21 (Rev.
2015). “Further, the . . . [s]upreme [c]ourt has held that where a deficiency appearing in an
indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent
a showing of cause and actual prejudice.” Id. (quoting Baker v. State, 930 So. 2d 399, 404-
05 (¶9) (Miss. Ct. App. 2005)) (quotation marks omitted).
¶18. Jury instruction S-1 reads in part:
SHALONDA NIKKIA VALE, has been charged with the offense of
burglary of a dwelling.
If you find from the evidence in this case beyond a reasonable doubt
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that:
1. On or about the 27th day of April, 2015, in the Second Judicial District
of Jones County, Mississippi;
2. Shalonda Nikkia Vale did unlawfully break and enter;
3. The dwelling house of Carolyn Mulloy located at [address redacted],
Laurel, Mississippi;
4. With the intent to commit to steal valuable things once inside;
then you shall find the defendant, Shalonda Nikkia Vale, guilty of Burglary of
a Dwelling.
(Emphasis added).
¶19. Notwithstanding the procedural bar, we find Vale’s indictment was constructively
altered by the jury instruction, because it contained the element “with the intent to commit
to steal valuable things once inside,” which was not charged in her indictment. Accordingly,
this Court finds that Vale’s indictment failed to charge her with a crime under Mississippi
law, and we reverse her conviction and render a dismissal of the indictment.
¶20. REVERSED AND RENDERED.
IRVING, P.J., BARNES, AND ISHEE, JJ., CONCUR. FAIR AND WILSON,
JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.,
CARLTON AND GREENLEE, JJ.
LEE, C.J., DISSENTING:
¶21. I disagree with the majority’s opinion that Vale’s indictment was fatally defective for
failure to use the word “intent.” The indictment substantially described the offense and fully
informed Vale that she was charged with burglary in violation of Mississippi Code Annotated
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section 97-17-23 (Rev. 2014)—which expressly contains the element of intent. Therefore,
the element of intent was set forth in Vale’s indictment. Thus, I respectfully dissent.
¶22. Mississippi law provides that an indictment “shall be a plain, concise, and definite
written statement of the essential facts constituting the offense charged and shall fully notify
the defendant of the nature and cause of the accusation.” Williams v. State, 169 So. 3d 932,
935 (¶9) (Miss. Ct. App. 2014). “The primary purpose of an indictment is to give a
defendant fair notice of the crime charged.” Id.
¶23. Burglary of a dwelling, as codified in section 97-17-23, contains two essential
elements: “(1) the unlawful breaking and entering; and (2) the intent to commit some crime
when entry is attained.” Smith v. State, 150 So. 3d 122, 126 (¶17) (Miss. Ct. App. 2014)
(quoting Parker v. State, 962 So. 2d 25, 27 (¶9) (Miss. 2007)). Vale’s indictment stated that
she did “unlawfully, feloniously, and burglarious[ly] break into and enter the dwelling house
. . . wherein valuable things were kept for use, and did carry away jewelry; in violation of
Section 97-17-23 . . . .”
¶24. While Vale’s indictment did not directly use the word “intent,” it did, however,
specifically charge Vale with “carry[ing] away jewelry . . . in violation of section 97-17-23
. . . .” As section 97-17-23 specifies that the crime of burglary includes “intent to commit
some crime therein,” Vale’s indictment, which charged her with violation of section 97-17-
23, gave her fair notice of the crime charged, including the element of intent by reference to
the statute. Additionally, the indictment specified the actual underlying crime Vale was
accused of committing—stealing jewelry. Our courts have noted that the element of intent
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is “an emotional operation of the mind, and is usually shown by acts and declarations of the
defendant . . . . A defendant’s intention is manifested largely by the things [s]he does.” White
v. State, 195 So. 3d 801, 805 (¶14) (Miss. Ct. App. 2015) (quoting Dixon v. State, 240 So.
2d 289, 290 (Miss. 1970)). As such, the indictment fully notified Vale of the crime she was
charged with committing—burglary of a dwelling—as well as the specific underlying crime
she intended to and did commit.
¶25. “The ultimate test, when considering the validity of an indictment on appeal, is
whether the defendant was prejudiced in the preparation of h[er] defense.” Warren v. State,
187 So. 3d 616, 621-22 (¶10) (Miss. 2016) (quoting Medina v. State, 688 So. 2d 727, 730
(Miss. 1996)). In the instant case, Vale was not in any way prejudiced in the preparation of
her defense. Vale did not, at any point before or during her trial, object to the indictment.
Vale did not raise the issue in her posttrial motion for a judgment notwithstanding the verdict
or a new trial. And Vale’s defense did not center on an argument regarding intent. Rather,
Vale’s defense was that she did not break and enter the dwelling or steal the jewelry at
all—that she was not present during the commission of the crime, despite having previously
confessed to the crime. Moreover, Vale cannot state on appeal that her defense was
prejudiced in that she did not know she was charged with the element of intent. The record
clearly shows that the jury instructions proposed by Vale’s defense required the jury to find
that Vale had broken and entered the dwelling of another “with intent to commit to steal
valuable things once inside.” As such, it is clear Vale had full knowledge that the crime with
which she was charged contained the element of intent.
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¶26. “The Mississippi Supreme Court has stated, ‘so long as a fair reading of the
indictment, taken as a whole, clearly describes the nature and cause of the charge against the
accused, the indictment is legally sufficient.’” Martin v. State, 65 So. 3d 882, 884 (¶7) (Miss.
Ct. App. 2011) (quoting Sanderson v. State, 883 So. 2d 558, 561 (¶9) (Miss. 2004)). With
regard to intent, Vale’s indictment expressly charged that she did carry away
jewelry—evidencing her intent—in violation of section 97-17-23, which expressly states the
element of intent. Here, I find that Vale’s indictment, read as a whole, clearly charges her
with all the essential elements of the crime of burglary and that Vale was not prejudiced in
her defense. Thus, I dissent.
¶27. The majority also finds that Vale’s indictment was constructively amended due to the
variance in the indictment and jury instruction S-1. Though the majority acknowledges that
the issue is procedurally barred by Vale’s failure to object, the majority goes on to find the
indictment was constructively altered by the jury instructions. I disagree. Not only is the
issue barred from our appellate review, I do not find—as the majority apparently does—that
the change materially alters the facts which are the essence of the offense. As such, with
respect to this issue, I also dissent and would affirm Vale’s conviction.
GRIFFIS, P.J., CARLTON AND GREENLEE, JJ., JOIN THIS OPINION.
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