Wilson v. State
| Docket Number: | 2007-KA-01532-COA Linked Case(s): 2007-KA-01532-COA ; 2007-CT-01532-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-09-2008 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Embezzlement - Defective indictment - Prior bad acts - M.R.E. 404(b) - M.R.E. 402 - M.R.E. 403 - Right against self-incrimination - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE, P.J., MYERS, P.J., IRVING, J., CHANDLER, J., GRIFFIS, J., BARNES, J., ROBERTS, J. AND CARLTON, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-29-2007 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: William E. Chapman, III Disposition: CONVICTED OF EMBEZZLEMENT AND SENTENCED AS A HABITUAL OFFENDER TO TEN YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE AND TO PAY A FINE OF $10,000 AND RESTITUTION IN THE AMOUNT OF $800 District Attorney: David Byrd Clark Case Number: 18259 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | EARNEST LEE WILSON, JR. |
DONALD W. BOYKIN,
DAN W. DUGGAN |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Embezzlement - Defective indictment - Prior bad acts - M.R.E. 404(b) - M.R.E. 402 - M.R.E. 403 - Right against self-incrimination - Sufficiency of evidence |
| Summary of the Facts: | Earnest Wilson, Jr., was convicted of embezzlement. The circuit court sentenced Wilson as a habitual offender to ten years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Defective indictment Wilson argue that the indictment was fatally defective for failing to include a necessary element of the crime of embezzlement required under the embezzlement statute, i.e., it did not charge that the embezzlement was committed by “any director, agent, clerk, servant, or officer of any incorporated company, or [] any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person . . . .” The indictment charged that the victim entrusted him with her money. It further alleged that she employed Wilson, which was the reason that she entrusted him with the money. This language is more than sufficient to satisfy the language of section 97-23-19, which Wilson claims was absent from the indictment. Issue 2: Prior bad acts Wilson argues that the circuit court erred in allowing the testimony of three witnesses who testified that they gave Wilson money with the understanding that he would procure a vehicle for them. He argues that the testimonies should have been excluded as prior bad acts under M.R.E. 404(b). Under M.R.E. 402, for evidence to be admissible it must be relevant. While Rule 404(b) generally provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, it excepts from the exclusion those instances in which the evidence is offered to show, among other things, intent or absence of mistake or accident. The State presented the testimonies of the three witnesses as evidence of Wilson’s intent and to show that it was not a mistake or accident that he took the victim’s money but never gave her the promised vehicle. It was proper for the circuit court to allow this testimony to rebut Wilson’s allegations that he had no intent to take the victim’s money and that it was only a mistake that she had not yet received the promised vehicle. Wilson also argues that the circuit court should have excluded the testimonies under M.R.E. 403 as being more prejudicial than probative. While the circuit court did not provide an on-the-record Rule 403 analysis, the court did hear arguments concerning the issue from both sides. From that, the circuit court ultimately found that allowing the witnesses to testify outweighed any prejudicial effect. There was no error with the circuit court’s finding and its decision to allow the witnesses to testify. Issue 3: Right against self-incrimination Wilson argues that because he had previously elected not to testify, the circuit court violated Wilson’s right against self-incrimination and his right to due process by questioning Wilson prior to sentencing him. Wilson did not object to the circuit court’s questions during his sentencing hearing. Failure to make a timely objection at trial will bar such an issue from review on appeal. In addition, the ten-year sentence Wilson received was statutorily mandated. Issue 4: Sufficiency of evidence Wilson argues that because the State did not charge a necessary element of embezzlement, it could not prove all the necessary elements of the crime. Wilson’s argument concerning his indictment is without merit. The State charged him with each of the necessary elements of embezzlement, and as shown, the State put on evidence regarding each of those necessary elements. From the testimony and the evidence presented, the State presented sufficient evidence to allow the jury to find each of the necessary elements of the crime of embezzlement. |
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