Pollard v. State
| Docket Number: | 2004-KA-01700-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-20-2006 Opinion Author: Barnes, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Larceny of timber - Defective indictment - Jury instructions - Other bad acts - M.R.E. 404(b) - M.R.E. 403 - Sentence - Section 97-17-59(2) - Section 97-17-81 Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis and Ishee, JJ. Non Participating Judge(s): Roberts, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-30-2004 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: CONVICTED OF LARCENY OF TIMBER OF OVER $250; SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINED $500, AND ORDERED TO PAY RESTITUTION OF $1,226.50. District Attorney: BILBO MITCHELL Case Number: 396-03 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Robert Ed Pollard |
JAMES A. WILLIAMS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOSE BENJAMIN SIMO |
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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: | Larceny of timber - Defective indictment - Jury instructions - Other bad acts - M.R.E. 404(b) - M.R.E. 403 - Sentence - Section 97-17-59(2) - Section 97-17-81 |
| Summary of the Facts: | Robert Pollard was convicted of larceny of timber of a value of $250 or more, and was sentenced to five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Defective indictment Pollard argues that his indictment was defective because it did not specify an essential element of the crime, namely, that he “carried away” the timber in question. In order for an indictment to be sufficient, it must contain the essential elements of the crime charged. The State’s failure to include the essential elements of the crime in the indictment is a jurisdictional defect that is not waiveable by the defendant. The indictment charging Pollard stated that “Robert Ed Pollard . . . Did then and there wilfully, unlawfully, and feloniously cut and harvest [$1,226.50] worth of timber from the property of Melwyn Shirley . . .” The key question in this case is whether the word “harvest” served as an adequate substitute for “carry away”. According to Black’s Law Dictionary, “harvesting” refers to “[t]he act or process of gathering of crops of any kind.” It is obvious from this definition, as well as from common sense, that harvesting necessarily involves some degree of movement of the good in question. Furthermore, even a slight movement of a good can constitute a “carrying away” so as to sustain a conviction of larceny. Thus, Pollard’s indictment was not defective. Issue 2: Jury instructions Pollard argues that the court committed plain error in allowing instruction C-8, as it improperly set forth the elements of the crime of timber larceny and thus deprived him of the right to a fair trial. Ordinarily, counsel’s failure to object to a given instruction at trial serves as a procedural bar on appeal, unless its granting constitutes plain error. The failure to submit to the jury the essential elements of a crime amounts to plain error. While defense counsel did not object to instruction C-8 at trial, the trial court committed plain error by adopting an instruction that did not fully instruct the jury on the elements of the crime. As written, the instruction allowed Pollard to be convicted upon proof beyond a reasonable doubt that he – assuming that the timber in question was valued at $250 or above – merely cut the timber of Melwyn Shirley or authorized his employees to cut Shirley’s timber. Such a showing, alone, would obviously be insufficient to sustain a conviction of timber larceny, as the instruction does not account for the other elements of the crime, namely, that the timber be taken “knowingly, willfully and feloniously,” and that the timber be “carried away.” Therefore, the case is reversed and remanded for a new trial. Issue 3: Other bad acts A witness testified, over objection by defense counsel, that Pollard had not paid him for several loads of timber cut from his land. The prosecution argued that evidence of this additional wrongful act was offered pursuant to M.R.E. 404(b) to prove Pollard’s intent to steal. Once proof of other bad acts of a defendant is deemed admissible pursuant to M.R.E. 404(b), this evidence must still survive the required balancing test pursuant to M.R.E. 403. It is implicit in the trial court’s statements that it found the evidence more probative than prejudicial. The trial court abused its discretion in admitting this evidence. Issue 4: Sentence Pollard argues that, rather than being sentenced as a felon pursuant to section 97-17-59(2), he should have been sentenced pursuant to section 97-17-81, which makes it a misdemeanor to “cut or raft” certain timber from the lands of another. It is clear from the indictment that Pollard was charged with the felony of larceny of timber – prohibited by section 97-17-59 – and that he was not charged pursuant to the misdemeanor statute. Therefore, this issue is without merit. |
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