Allen v. State
| Docket Number: | 2005-KA-00755-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-19-2006 Opinion Author: Lee, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Exploitation of minor - Amendment of indictment - Jury oath Judge(s) Concurring: King, C.J., Myers, P.J., Southwick, Chandler, Griffis, Barnes and Ishee, JJ. Judge(s) Concurring Separately: Roberts, J., joined by Lee and Myers, P.JJ., Chandler, Griffis and Barnes, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-21-2005 Appealed from: George County Circuit Court Judge: Dale Harkey Disposition: CONVICTED OF EXPLOITATION OF A CHILD AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FIVE YEARS ON POST-RELEASE SUPERVISION, PAY $5,000 FINE, AND REGISTER AS A SEX OFFENDER Case Number: 2003-10,027(3) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Geraldine Allen |
ROSS PARKER SIMONS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY |
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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: | Exploitation of minor - Amendment of indictment - Jury oath |
| Summary of the Facts: | Geraldine Allen was convicted of exploitation of a minor and sentenced to serve fifteen years. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Allen was indicted for exploiting a minor “during the year of 2002.” On October 24, 2004, the State petitioned the court to amend the indictment to change the date of the criminal offense to “the summer of 1999.” The court granted the motion, but also granted Allen’s motion for a continuance. Allen argues that because the court failed to enter an order reflecting the amendment, the amendment is void. No such objection was raised before the trial court either ore tenus or in Allen’s motion for a new trial. It is clear that the defendant must bring the absence of an order on the minutes to the trial court’s attention and that such an error cannot be raised for the first time on appeal. Allen also argues that the amendment was too vague to allow her to effectively prepare a defense. The primary piece of evidence against Allen, the videotape which recorded the illicit acts, bore a time stamp of June 1999. Additionally, as Allen was granted a continuance of nearly three months, Allen was not ambushed by the indictment. Issue 2: Jury oath Allen argues that the transcribed record lacks any indication that the jury was placed under oath. A rebuttable presumption exists that trial judges properly performed their duties, and the defendant has the burden to overcome this presumption. Allen has failed to meet this burden, as she merely argues that the jury should have been sworn in and baldly asserts that the jury was not sworn in. |
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