                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2008-KA-02060-SCT

FRANK SANDERS TIPTON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           11/30/2007
TRIAL JUDGE:                                HON. DALE HARKEY
COURT FROM WHICH APPEALED:                  JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     ROSS PARKER SIMONS
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                          ANTHONY N. LAWRENCE, III
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND VACATED - 06/24/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      DICKINSON, JUSTICE, FOR THE COURT:

¶1.   The defendant – an employee of a private company that (according to Mississippi

Law)1 provides an alternative to incarceration services – was indicted and convicted under

a statute 2 that criminalized certain acts committed by an “employee of any contractor

providing incarceration services.” Since the terms “incarceration” and “alternative to

incarceration” are mutually exclusive, we reverse and vacate the conviction.




      1
          See Miss. Code Ann. § 47-5-1003(1) (Supp. 2009).
      2
          Miss. Code Ann. § 97-11-33 (Rev. 2006).
                    BACKGROUND FACTS AND PROCEEDINGS

¶2.    Court Programs is a private company that contracts with the City of Gulfport to

provide probation and monitoring services for persons convicted of misdemeanors in

Gulfport City Court. While monitoring the probation activities of Dorothy Lakay Rayborn

(who had been convicted of shoplifting), Tipton offered to pay her monthly fine if she would

shower in front of him.

¶3.    Tipton was indicted and convicted for violation of Mississippi Code Section 97-11-37.

He now appeals, raising numerous issues including that – because he did not fall within any

of the categories of persons covered by the statute under which he was indicted – he was

entitled to a directed verdict. We agree.

                                            ANALYSIS

¶4.    For a trial judge, “considering whether the evidence is sufficient to sustain a

conviction in the face of a motion for directed verdict or for judgment notwithstanding the

verdict, the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that

[the] accused committed the act charged, and that he did so under such circumstances that

every element of the offense existed; and where the evidence fails to meet this test it is

insufficient to support a conviction.’” 3

¶5.    Our standard of review of a trial judge’s decision on a motion for directed verdict is

as follows: “[A]fter viewing the evidence in the light most favorable to the prosecution,

[could] any rational trier of fact . . . have found the essential elements of the crime beyond



       3
        Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889
(Miss. 1968)).

                                                2
a reasonable doubt.” 4 If the facts and inferences “point in favor of the defendant on any

element of the offense with sufficient force that reasonable men could not have found beyond

a reasonable doubt that the defendant was guilty,” this Court must reverse and render.5

¶6.    Tipton was charged under Mississippi Code Section 97-11-33, which provides:

       If any judge, justice court judge, sheriff, deputy sheriff, sheriff's employee,
       constable, assessor, collector, clerk, county medical examiner, county medical
       examiner investigator, employee of the Mississippi Department of Corrections,
       employee of any contractor providing incarceration services or any other
       officer, shall knowingly demand, take or collect, under color of his office, any
       money fee or reward whatever, not authorized by law, or shall demand and
       receive, knowingly, any fee for service not actually performed, such officer,
       so offending, shall be guilty of extortion, and, on conviction, shall be punished
       by fine not exceeding Five Thousand Dollars ($5,000.00), or imprisonment for
       not more than five (5) years, or both, and shall be removed from office.6

Thus, to convict Tipton of the crime for which he was indicted, the State carried the burden

of proving beyond a reasonable doubt that Tipton belonged to one of the enumerated

statutory categories. The State argues that Tipton was an “employee of [a] contractor

providing incarceration services.” 7

¶7.    During its case-in-chief, the State twice called Charles Langenbacker, a manager at

Court Services during Tipton’s tenure with the company. Langenbacker’s testimony was the

only evidence as to the nature of the services provided by Court Programs. He testified that

Court Programs, Inc., a private corporation, “ had an agreement or contract with the City of

       4
           Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)).
       5
           Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
       6
           Miss. Code Ann. § 97-11-33 (Rev. 2006).
       7
        The State offered no jury instruction, and makes no argument on appeal, that Tipton was
covered by any other category.

                                                  3
Gulfport to administer probation services for the courts.” He confirmed that Tipton was

assigned by the company to monitor Dorothy Lakay Rayborn. On cross-examination,

Langenbacker said of his company:

      Q.     And, in fact, y’all don’t offer any incarceration services at all, do you?

      A.     No, sir.

      Q.     In fact, you offer alternatives to incarceration, is that correct?

      A.     That is correct.

      Q.     So, your company is not a contractor that offers incarceration services;
             true?

      A.     Yes, sir, that is true.

(Emphasis added.)

¶8.   Prior to resting, the State was permitted to recall Langenbacker. The prosecutor

elicited from this witness that Court Programs, Inc., was a private entity, and that the

company monitored some persons whom courts had placed on house arrest. Such monitoring

was accomplished, according to Langenbacker, by means of ankle bracelets, telephone voice

recognition, and GPS.      On cross-examination, Langenbacker said of the company’s

employees:

      Q.     Because your employees, your private employees were not certified law
             enforcement officers, correct?

      A.     Yes, sir, that is correct.

      Q.     They were not certified Department of Correction [sic] officers,
             correct?

      A.     Yes, sir.



                                              4
       Q.        And then they weren’t any type of officer, they were only private
                 employees. Isn’t that true?

       A.        That is true.

       Q.        Last question. It is true that your company did not provide
                 incarceration services. It provided alternatives to incarceration
                 services. Is that correct?

       A.        That is correct.

(Emphasis added.)

¶9.    After the close of the evidence, Tipton moved for a directed verdict. In denying the

motion, the trial court stated that

       the services provided to the municipal court in Gulfport [by Court Programs]
       included house arrest, included what we refer to as intensive supervision. In
       felony cases, that is equivalent to, as I understand it by our Supreme Court,
       they have equated that to incarceration. So, those services are included. I
       think it’s without question the testimony here establishes they don’t provide
       prison facilities, but they do provide incarceration services. And I think the
       status of Mr. Tipton would be included, and his conduct proscribed by this
       particular statute.

Tipton argues that this construction violates the long-established rule that criminal statutes

are to be construed liberally in favor of the accused and strictly against the State, and that

house arrest and “incarceration services” cannot be synonymous because Mississippi Code

Section 47-5-1003(1) defines “intensive supervision,” commonly known as house arrest,

as a “program [that] may be used as an alternative to incarceration.” 8 We must agree with

Tipton.




       8
           Miss. Code Ann. § 47-5-1003(1) (Supp. 2009) (emphasis added).

                                                5
¶10.   The interpretation of a statute “is a question of law subject to de novo review.” 9

Furthermore, “[i]t is well settled that when a court considers a statute passed by the

Legislature, the first question before the Court is whether the statute is ambiguous. If the

statute is not ambiguous, the court should interpret and apply the statute according to its plain

meaning without the aid of principles of statutory construction.” 10

¶11.   The term “incarceration services” is not defined by statute. In considering the

arguments advanced by the State, we must apply the “bedrock law in Mississippi that

criminal statutes are to be strictly construed against the State and liberally in favor of the

accused.” 11

¶12.   Extortion was a common-law offense that could be committed only by officials.12 The

crime was first codified by our Legislature in the 1892 Code (Section 1453). Through the

years, the Legislature has amended the statute to expand the list of officials to which the

prohibited conduct would apply. Thus far, the Legislature has not seen fit to include a

category which applies to persons employed by a private company providing monitoring or

probation services.




       9
        Arceo v. Tolliver, 19 So. 3d 67, 70 (Miss. 2009) (citing Sheppard v. Miss. State Highway
Patrol, 693 So. 2d 1326, 1328 (Miss. 1997)).
       10
        Finn v. State, 978 So. 2d 1270, 1272 (Miss. 2008) (quoting Harrison County Sch. Dist.
v. Long Beach Sch. Dist., 700 So. 2d 286, 288-89 (Miss. 1997).
       11
          Coleman v. State, 947 So. 2d 878, 881 (Miss. 2006) (citing McLamb v. State, 456 So. 2d
743, 745 (Miss. 1984) (emphasis added); see also Duke v. Univ. of Tex. at El Paso, 663 F.2d 522,
526 (5th Cir. 1981) (“Ambiguities concerning the ambit of criminal statutes should be resolved in
favor of lenity.”) (citing cases).
       12
            35 C.J.S. Extortion § 5 (2009); See also State v. Jones, 71 Miss. 872, 15 So. 237 (1894).

                                                   6
¶13.   In order to obtain a proper conviction under Section 97-11-33, the State was required

to prove that Tipton was an “employee of any contractor providing incarceration services,”

which he was not. Thus, the State failed to prove an essential element of the crime, and we

must hold that the trial court erred by failing to grant Tipton’s motion for a directed verdict.

                                       CONCLUSION

¶14.   Because the State failed to prove an essential element of the crime of extortion, we

reverse the trial court and vacate the judgment.

¶15.   REVERSED AND VACATED.

    CARLSON AND GRAVES, P.JJ., LAMAR AND KITCHENS, JJ., CONCUR.
CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., RANDOLPH AND PIERCE, JJ.

       CHANDLER, JUSTICE, DISSENTING:

¶16.   I respectfully dissent. Charles Langenbacker, the manager of Court Programs’s

Gulfport office, testified that Court Programs is a private company that, in addition to

monitoring probationers, also monitored offenders under house arrest. I would find that,

under a reasonable interpretation of Mississippi Code Section 97-11-33, the term

“incarceration services” embraces monitoring offenders on house arrest. See Miss. Code

Ann. § 97-11-33 (Rev. 2006).

¶17.   The plurality finds that, in denying Tipton’s motion for a directed verdict, the trial

court incorrectly construed Section 97-11-33 in favor of the State by finding that Court

Programs was a contractor that provided incarceration services. At the hearing on Tipton’s

motion for a directed verdict, Tipton argued that “any contractor providing incarceration

services” referred only to private prison facilities. The trial court ruled that there was

                                               7
evidence that Court Programs provided incarceration services, because it provided

supervision for offenders on house arrest, and the appellate courts have held that house arrest

is the equivalent of incarceration. The plurality finds that the trial court’s ruling contravened

the rule that criminal statutes are to be construed in favor of the accused, and that

“incarceration services” cannot be interpreted to include house arrest, because the house-

arrest statute states that house arrest is “an alternative to incarceration.”

¶18.   This Court affords de novo review to the interpretation of statutes. Gilmer v. State,

955 So. 2d 829, 833 (Miss. 2007). If a statute is unambiguous, the Court will apply its plain

meaning and refrain from statutory construction. Id. The Court’s “primary objective” is to

discern the Legislature’s “true intent or meaning.” Id. (citing Clark v. State ex. rel Miss.

State Med. Ass’n, 381 So. 2d 1046, 1048 (Miss. 1980)). Further, “[a]lthough criminal

statutes must be strictly construed in favor of the accused, we will not adopt an interpretation

that is absurd or unreasonable.” Lewis v. State, 765 So. 2d 493, 499 (Miss. 2000). “Courts

have a duty to give statutes a practical application consistent with their wording, unless such

application is inconsistent with the obvious intent of the legislature.” Miss. Ethics Comm’n

v. Grisham, 957 So. 2d 997, 1001 (Miss. 2007). This Court further has stated that:

       Although a statute imposing criminal penalties must be strictly construed in
       favor of the accused, it should not be so strict as to override common sense or
       statutory purpose. United States v. Brown, 333 U.S. 18, 25, 68 S. Ct. 376, 380,
       92 L. Ed. 442, 448 (1948); see also State v. Burnham, 546 So. 2d 690, 692
       (Miss. 1989). Strict construction means reasonable construction. State v.
       Martin, 495 So. 2d 501, 502 (Miss. 1986).

Reining v. State, 606 So. 2d 1098, 1103 (Miss. 1992).




                                                8
¶19.   Langenbacker testified that Court Programs monitored offenders under house arrest

with ankle bracelets and voice-recognition equipment. He testified that Court Programs did

not offer incarceration services, but instead offered alternatives to incarceration. Although

the plurality supports its opinion by quoting Langenbacker’s testimony, I observe that

statutory interpretation presents a question of law for the court that is not resolved by witness

testimony. Hedgepeth v. Johnson, 975 So. 2d 235, 237 (Miss. 2008). I proceed to my

analysis of the purely legal question presented.

¶20.   I agree that Section 97-11-33 is ambiguous because the scope of “incarceration

services” is unclear. Miss. Code Ann. § 97-11-33 (Rev. 2006). The majority finds that the

ambiguity requires an automatic default to Tipton’s interpretation. However, even when a

statute that proscribes criminal conduct is ambiguous, this Court must afford the criminal

statute a reasonable construction, rather than reflexively adopting whatever construction is

offered by the defendant. I would find that, under a reasonable construction of the statute,

the Legislature did not intend to restrict the application of the statute to private prisons, as

argued by Tipton. Otherwise, the statute could have so provided. Instead, the statute

specifies “any contractor providing incarceration services.”

¶21.   The Legislature has established an intensive supervision program, commonly known

as “house arrest,” as an alternative to incarceration in the general prison population for

certain low-risk and nonviolent offenders. Miss. Code Ann. §§ 47-5-1001 to 47-5-1015

(Rev. 2004 and Supp. 2009). Mississippi Code Section 47-5-1001(e) provides the following

definition of house arrest: “the confinement of a person convicted or charged with a crime

to his place of residence under the terms and conditions established by the department or


                                               9
court.”     Miss. Code Ann. § 47-5-1001(e) (Rev. 2004).         An offender in an intensive

supervision program is under the jurisdiction of the Mississippi Department of Corrections

(MDOC), which must promulgate rules providing reasonable guidelines for the operation of

an intensive supervision program. Miss. Code Ann. §§ 47-5-1003(3), 47-5-1005 (Supp.

2009). The Court of Appeals has found that house arrest is merely a reclassification of

MDOC confinement because, instead of being housed in the general prison population, the

offender is serving time confined to house arrest. See Ivory v. State, 999 So. 2d 420, 426

(Miss. Ct. App. 2008); Brown v. Dep’t of Corr., 906 So. 2d 833, 835 (Miss. Ct. App. 2004);

Perry v. State, 798 So. 2d 643, 645 (Miss. Ct. App. 2001); Lewis v. State, 761 So. 2d 922,

923 (Miss. Ct. App. 2000).

¶22.      It was established that Court Programs provided house arrest for misdemeanor

offenders or felony defendants awaiting trial. However, because there was no evidence that

the house arrest provided by Court Programs was administered by the MDOC, there was no

showing that it was the “house arrest” prescribed by the statutes governing the intensive

supervision program.      Miss. Code Ann. §§ 47-5-1001 to 47-5-1015 (Rev. 2004).

Nonetheless, because house arrest essentially confines an offender to his or her place of

residence, house arrest is the equivalent of incarceration for the purposes of Section 97-11-

33. I would find that: (1) "incarceration services" reasonably embraces monitoring offenders

on house arrest, and (2) there is nothing in Section 97-11-33 to indicate that, with the

language "any contractor providing incarceration services," the Legislature intended to

restrict its application to private prisons, as posited by Tipton, rather than to any contractor




                                              10
providing incarceration services. Therefore, I would affirm the decision of the Circuit Court

of Jackson County.

       WALLER, C.J., RANDOLPH AND PIERCE, JJ., JOIN THIS OPINION.




                                             11
