                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CT-02581-SCT


DEBORAH CHAMPLUVIER a/k/a DEBORAH
MARIE CHAMPLUVIER

v.

STATE OF MISSISSIPPI

                               ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         01/15/2004
TRIAL JUDGE:                              HON. GRAY EVANS
COURT FROM WHICH APPEALED:                DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   PRO SE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        JOHN W. CHAMPION
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND RENDERED - 11/09/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    Upon being indicted on two counts of embezzlement from a limited liability company

pursuant to Miss. Code Ann. § 97-23-19 (Rev. 2000), Deborah Champluvier was tried and

found guilty by a DeSoto County jury on November 4, 2003.       At a subsequent sentencing

hearing, the trial judge sentenced Champluvier to concurrent sentences of five years in the

custody of the Mississippi Department of Corrections, with four and one-half years of each

sentence suspended, followed by two years of house arrest pursuant to Miss. Code Ann. §§ 47-
5-1001, -1015 (Rev. 2004).       Champluvier appealed her convictions and sentences to this

Court, and we assigned this case to the Court of Appeals which affirmed Champluvier’s

convictions and sentences.    Having granted Champluvier’s petition for writ of certiorari, we

reverse the judgments of the Court of Appeals and the circuit court and render judgment here

discharging Champluvier.

                   FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    The relevant facts of this case are very ably set out in the opinion of the Court of

Appeals:

       On September 18, 1998, Deborah Champluvier created Perfect Treasures
       Furniture, L.L.C. in Horn Lake with L.L. Ross. No one ever found a written
       executed operating agreement for Perfect Treasures On March 22, 1999, Ross
       had a stroke and later died intestate leaving his half of the business to his heirs
       on March 25. The State alleged that Champluvier took $6,000 of the $6,202.07
       out of the operating account March 23, the day after L.L.'s stroke. Champluvier
       claimed that the money was to pay her back for a loan to the business.

       Thomas Ross became administrator of his father's estate including acting as the
       liquidating trustee of L.L.'s business interests. The Chancery Court of DeSoto
       County entered an agreed order granting judicial dissolution, preliminary
       injunction and other relief on June 11, 1999, that kept a prior temporary
       restraining order in effect. The order found that Champluvier individually and as
       a member of Perfect Treasures disposed of numerous assets, inventory and
       proceeds from Perfect Treasures and, thus, could not carry on the business in
       conformity with the certificate of formation. The order also stated that
       Champluvier denied Ross access to the books, records, inventory, and premises
       to such a point as to constitute pervasive fraud and unfairness toward the
       membership interest of L.L. Ross.

       Furthermore, the order found that Champluvier had misapplied and wasted the
       assets of Perfect Treasures after L.L.'s death as well as failed to pay the debts
       and creditors. The order required Champluvier to return all proceeds, cash,
       and/or checks, accounts, checkbooks, check registers, and/or other banking
       records or documents to Thomas Ross. Thomas testified that Champluvier never

                                               2
       turned any funds over to him after this order that required her to do so. After this
       order, Champluvier withdrew the remaining $445 dollars from a Perfect
       Treasures's bank account without turning it over to Thomas Ross even though the
       order expressly said that, "Defendant is hereby restrained from disposing of any
       accounts, funds, assets, inventory and/or proceeds of Perfect Treasures."

       Thomas's attorney during the estate process, Barry Bridgforth, testified that he
       never received documentation from Champluvier to show where she loaned the
       company money as the order required him (sic) to. Bridgforth also testified that
       the check for $6000 had a date of March 22 on it, but the corresponding ledger
       book the check came out of had the date March 23. At first Champluvier
       testified in her deposition that she took the money to purchase used furniture.
       She never provided information as to the seller of this used furniture. Bridgforth
       also testified that Champluvier said that part of the money was needed because
       the landlord would only take cash, yet the ledger showed checks written out to
       the landlord that month. He also testified about the $445 dollar withdrawal from
       Perfect Treasure's second account that Champluvier withdrew after the hearing
       granting the injunction. Bridgforth further testified that Champluvier never gave
       the money back or tried to give the money back as required by the order. She
       also filed for bankruptcy to prevent the estate from collecting from her.

       Champluvier originally hired Randall Pierce to represent her in this matter.
       However, she filed her own motions including motions that accused Pierce of
       forging her signature on documents and conspiring with the prosecution. She
       also admitted that Bill Cockrell1 helped her with her motions but later
       downplayed the extent that he helped her. Pierce moved to remove himself as
       counsel due to the allegations but Champluvier filed a motion for the trial court
       to deny this request. When asked how she could want an attorney who did the
       things she accused Pierce of she responded, "Well, I don't know that he forged
       my signature. I mean I don't know that. . . I'm guessing." She also felt that the
       employment contract between the two should require he remain her attorney.


       1
        Bill Cockrell, a/k/a Billy Cockrell, is no stranger to our court system, nor to the notion
of pro se representation. See, e.g., Cockrell v. State, 2005 Miss. LEXIS 816 (Miss. 2005)
(per curiam affirmance); Cockrell v. City of Southaven, 730 So.2d 1119 (Miss. 1998);
Cockrell v. Memphis-Shelby Co. Airport Auth., 1996 U.S. Dist. LEXIS 21375 (N.D. Miss.
1996), aff’d mem., 125 F.3d 851 (5th Cir. 1997)). The record indeed reflects that Cockrell
was present at many of the court proceedings involving Champluvier’s criminal charges.
Champluvier’s conduct at trial and her trial antics virtually mirror that of Cockrell.        See
Cockrell, 730 So.2d at 1121-23.

                                                3
       The trial court also granted Champluvier's motion to proceed in forma pauperis
       and appointed Jack R. Jones, III as counsel for her. However, Champluvier soon
       moved to have the court remove Jones as "ineffective counsel the same as no
       counsel" since he could not recite the entire Mississippi and United States
       Constitutions. When the court decided to appoint her new counsel, Clay
       Vanderburg, she objected to receiving new counsel and argued that Vanderburg
       could not serve as effective counsel after her five minute interview with him.

       She later filed a motion to remove Vanderburg from the case as well that the
       trial court denied. The trial court urged her to use the assistance of the appointed
       counsel but noted that she had the right to represent herself if she chose to do
       so. The trial court retained Vanderburg to assist Champluvier if she chose to
       during the trial as her standby counsel.

       Right before her trial began, Champluvier accused two different witnesses of
       saying derogatory comments about her close enough for the jury to hear them.
       The trial judge listened to April Brown and Bobbie Yates describe things they
       saw or overheard from Thomas Ross or A.C. Leroy Easley. No one in the jury
       responded that they overheard Easley and the juror who met Ross at a cigarette
       break said they did not discuss the case. The juror said that all Ross said
       concerned that his father owned a Furniture Store and that he felt he could
       remain impartial about the case.

       Champluvier called upon her daughter, April Brown, and the store’s truck driver
       George Friday, who both testified that she purchased $4000 worth of used
       furniture at the time in question. Champluvier argued that she could not act as
       the agent or servant of the company and also be an owner or member. Further,
       she argued that she could not embezzle the money because she owned it.
       However, the jury convicted Champluvier on both counts of embezzlement.

       The trial judge also caught her lying under oath at her sentence hearing when she
       described selling all the merchandise in the store for her attorney bills
       associated with the temporary restraining order. However, the temporary
       restraining order came after this sale to liquidate all the merchandise in the
       store. Champluvier then filed her appeal with fourteen issues of error. The brief
       surpasses the fifty page limit for the body of briefs as given by M.R.A.P. 28(g)
       by topping out at seventy-five pages. Champluvier also made sure to include
       every possible person from the Governor of Mississippi to every member of the
       Mississippi Bar as "Interested Persons".

Champluvier v. State, 2005 Miss. Ct. App. LEXIS 1025, 2-7 (Miss. Ct. App. 2005).

                                                4
¶3.    From the time of her indictment and throughout the course of the various proceedings

in this case, Champluvier’s conduct was less than civil.     Champluvier went through several

attorneys, and all three circuit judges in the circuit court district of which DeSoto County is

a part, eventually recused themselves. By order entered on August 4, 2003, the Chief Justice

of this Court specially appointed Judge Gray Evans to preside and conduct all proceedings in

this case.    Throughout his involvement in this case, Judge Evans dealt patiently with

Champluvier to assure that she was afforded all her rights as guaranteed by our state and federal

constitutions, even though Champluvier persistently and obstinately ignored the notions of

fundamental decency. In fact, Judge Evans acted with great restraint. Among the actions taken

by Judge Evans when Champluvier persisted in representing herself was to advise her of her

rights pursuant to URCCC 8.05 concerning pro se defendants. Not surprisingly, Champluvier,

proceeding pro se, dug herself a hole before the jury, which promptly convicted her of both

counts of embezzlement.    Again, at the subsequent sentencing hearing, Judge Evans exercised

almost unbelievable restraint, but ultimately      (and   understandably) held   Champluvier in

contempt of court for her conduct, and sentenced her to an additional ten days in the DeSoto

County Jail. Notwithstanding Champluvier’s conduct, Judge Evans imposed a lenient sentence,

allowed Champluvier to appeal in forma pauperis, and allowed Champluvier to remain at liberty

pending appeal via a $15,000 appeal bond.

                      PROCEEDINGS IN THE COURT OF APPEALS

¶4.    Champluvier raised fourteen issues before the Court of Appeals, which thoroughly

addressed each issue. Among the issues addressed by the Court of Appeals was the application

                                               5
of Miss. Code Ann. § 97- 23- 19 (Rev. 2000). In its discussion, the Court of Appeals addressed

this statute’s applicability in relation to Miss. Code Ann. §§ 79-29-101 et seq. (Rev. 2001),

commonly cited as the “Mississippi Limited Liability Company Act” (MLLCA).          Champluvier

argued in essence that since she was accused of stealing from an LLC, she was guilty of no

crime under the provisions of section 97-23-19, which applied only to corporations and private

persons. In distinguishing this Court’s decision in Burroughs v. State, 406 So.2d 814 (Miss.

1981), and its own recent decision in Coleman v. State, No. 2004-KA-00346-COA, 2005

Miss. Ct. App. LEXIS 795 (Miss. Ct. App. Nov. 1, 2005),2 the Court of Appeals rejected

Champluvier’s argument,3 stating, inter alia:

        Perfect Treasures also had its own bank accounts and Federal Tax ID number and
        was registered with the Secretary of State’s Office. Mississippi Code Annotated
        § 79-29-701 states, "A limited liability company interest is personal property.
        A member has no interest in specific limited liability company property." Thus,
        an LLC is treated like a corporation in that it acts as a separate individual and
        owns property as a separate individual. The city also granted a business license



        2
          The Court of Appeals reversed Coleman’s conviction and rendered judgment for
Coleman. This Court thereafter granted the State’s petition for writ of certiorari. Coleman v.
State, 2006 Miss. LEXIS 321 (Miss. June 15, 2006). Coleman, which involves the same
criminal statute which is before us in today’s case, is still pending before this Court. Coleman
involved charges of embezzlement of funds belonging to an unincorporated church and one of
its deacons. Since Coleman is still pending before us, we will not discuss its merits in today’s
case. On the other hand, we will on occasion make a passing reference to Coleman for the sake
of clarity in today’s discussion.


        3
        The majority opinion was authored by Judge Bridges and joined by four other judges.
Judge Griffis wrote a separate concurring opinion, joined by two other judges. Judge Barnes
wrote a dissenting opinion, joined by two other judges. Two judges joined in both the majority
opinion and the separate concurring opinion. Nine of the ten judges participated in this case.

                                                6
       to Perfect Treasures and not to either Ross or Champluvier. Champluvier clearly
       converted funds that did not belong to her, but to Perfect Treasures.

Champluvier v. State, 2005 Miss. Ct. App. LEXIS 1025 at **9-10. On this issue, the Court

of Appeals concluded:

       This case clearly fits the intent of the statute to prevent someone from
       embezzling assets from a company that legally belongs to the company and not
       the individual. The statute acts to prevent some “by virtue of his office, place,
       or employment” from “converting to their own use.” Since the company is not
       a person, this statute serves as the way to prosecute someone from fraudulently
       taking money from the LLC where he gained the ability as one of its members.
       The statute clearly did not intend to outlaw converting funds from an
       incorporated company but legalize unauthorized conversion of funds from an
       LLC. This would create another advantage to LLC’s beyond the tax benefits to
       its members since the members could also embezzle all of the assets away from
       [the] LLC and its members without fear of retribution. We reject this argument.

Id. at **10-11.

¶5.    In his separate concurring opinion, Judge Griffis, who dissented in Coleman, found

Coleman to be similar to Champluvier’s case, and in essence adopted and incorporated by

reference his dissenting opinion in Coleman.          Judge Griffis found that “the proper

interpretation of the term ‘incorporated company,’ as used in Section 97-23-19, should include

all entities that are created by statute under Title 79 of the Mississippi Code Annotated, which

is titled ‘Corporations, Associations and Partnerships,’”and that since an LLC “is created under

the Mississippi Limited Liability Company Act,” which is included in Title 79, Champluvier

violated section 97-23-19 and could be held criminally culpable for her actions.   Id. at 27-28.

¶6.    In her dissent, Judge Barnes concluded that the Legislature’s “narrow and precise

language in the embezzlement statute” did not include limited liability companies since


                                               7
“section 97-23-19 plainly does not allow agents of unincorporated entities to be subjected to

prosecution for embezzlement.”        Id. at 30-31.       Finding the dissent to be right on target, we

agree and thus reverse and render.

                                              DISCUSSION

¶7.     While the Court of Appeals was called upon to address fourteen issues asserted by

Champluvier, we find one issue dispositive and thus decline to address the remaining issues.

We re-state the issue for the sake of clarity in discussion.

        WHETHER MISS. CODE ANN. § 97-23-19 APPLIES TO LIMITED
        LIABILITY COMPANIES.

¶8.     Before the Court today is the question of whether a criminal statute which provides that

certain persons may be criminally culpable for embezzling from an incorporated company or

a private person likewise encompasses similar acts committed against a limited liability

company.     Since the interpretation of a statute is a question of law, we are required to employ

a de novo standard of review. Sykes v. State, 757 So.2d 997, 999 (Miss. 2000) (citing Ellis

v. Anderson Tully Co., 727 So.2d 716, 718 (Miss. 1998)).

¶9.     Champluvier was indicted in a two- count indictment charging, inter alia, that she “did

wilfully, unlawfully and feloniously, at a time when she was an agent or servant of Perfect

Treasures, L.L.C., a Mississippi Limited Liability Company, embezzle, fraudulently secrete,

conceal and convert to her own use . . . the personal property of Perfect Treasures, L.L.C., a

Mississippi Limited Liability Company, which money had come or been entrusted to her care

or possession by virtue of her office, place, and employment, in direct violation of Section 97-


                                                      8
23-19, Mississippi Code 1972 Annotated.”      This language was common to both counts, with

count one charging the embezzlement of “approximately $6,000.00" on or about March 23,

1999, and count two charging the embezzlement of “approximately $445.64" on or about June

8, 1999.4

¶10.   At the time these offenses were alleged to have been committed by Champluvier, Miss.

Code Ann. § 97-23-19 (Rev. 2000) stated:

       If any director, agent, clerk, servant, or officer of any incorporated company, or
       if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any
       private person, shall embezzle or fraudulently secrete, conceal, or convert to his
       own use, or make way with, or secrete with intent to embezzle or convert to his
       own use, any goods, rights in action, money, or other valuable security, effects,
       or property of any kind or description which shall have come or been intrusted
       to his care or possession by virtue of his office, place, or employment, either
       in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction
       thereof, shall be imprisoned in the penitentiary not more than ten years, or fined
       not more than one thousand dollars and imprisoned in the county jail not more
       than one year, or either.[5]



       4
       By order entered on September 25, 2003, the indictment was amended to reflect the
name of the victim to be “Personal Treasures Furniture, LLC.” Likewise, by order dated
October 6, 2003, and entered, nunc pro tunc on October 14, 2003, the indictment was again
amended to reflect the name of the defendant to be “Deborah Champluvier (a/k/a ‘Deborah
Marie Champluvier’).”
       5
         Thus the statute applicable to Champluvier provided for a defendant convicted of
embezzlement to be sentenced either as a felon or a misdemeanant, in the discretion of the
trial judge, regardless of the amount embezzled. However, effective July 1, 2003, this statute
was amended to provide for a felony conviction if the amount embezzled was $500.00 or more,
and for a misdemeanor conviction if the amount embezzled was less than $500.00.             The
penalty for a felony conviction under the statute is a maximum sentence of not more than ten
(10) years in the state penitentiary, or a fine of not more than $10,000.00, or both; while, on
the other hand, the penalty for a misdemeanor conviction under the statute is a maximum
sentence of not more than six (6) months in the county jail, or a fine of not more than
$1,000.00, or both. However, the 2003 amendment obviously does not apply to today’s case.

                                               9
¶11.    In May v. State, 240 Miss. 361, 127 So.2d 423 (1961), this Court set out the elements

of the embezzlement statute, Miss. Code § 2115 (Recomp. 1942), which was the predecessor

statute to Miss. Code Ann. § 97-23-19. We stated:

        The constituent elements of the offense are (1) an agent or trustee of a private
        person,[6] (2) embezzling or converting to his own use, (3) rights in action,
        money, or other valuable security, effects or property of any kind, (4) which
        have been intrusted to his care or possession by virtue of his position or
        employment.

240 Miss. at 363, 127 So.2d at 425. May involved a charge under the statute of embezzlement

by a trustee and agent of a private person.           Thus, in the appropriate case, the first element,

depending on the facts of the case, would state either that “a director, agent, clerk, servant, or

officer of any incorporated company” had embezzled, or that “any trustee or factor, carrier or

bailee, or any clerk, agent or servant of any private person” had embezzled. See also

Montgomery v. State, 891 So.2d 179, 186-87 (Miss. 2004); Bunkley v. State, 495 So.2d 1,

3-4 (Miss. 1986); Coleman, 2005 Miss. App. LEXIS 795, **8-9 (citing May, 240 Miss. at

363, 127 So.2d at 425).

¶12.    The cases are legion where we have been confronted with questions of whether the

evidence in a criminal case is legally sufficient to support a conviction.            We again recently

addressed the sufficiency of the evidence in relation to the elements of the crime charged:

        "The motion for j.n.o.v. tests the legal sufficiency of the evidence supporting the
        verdict" while "the motion for a new trial is an altogether different animal."
        Jesco, Inc. v. Whitehead, 451 So. 2d 706, 713-14 (Miss. 1984) (Robertson, J.,


        6
          In the appropriate case the word “corporation” or “incorporated company” could be
substituted for the phrase “private person.”

                                                   10
       specially concurring). Our cases setting out the standard of review for the legal
       sufficiency of the evidence are legion. In Gleeton v. State, 716 So. 2d 1083,
       1087 (Miss. 1998), we stated:

               We must, with respect to each element of the offense, consider
               all of the evidence - not just the evidence which supports the case
               for the prosecution - in the light most favorable to the verdict.
               The credible evidence which is consistent with the guilt [of the
               accused] must be accepted as true. The prosecution must be given
               the benefit of all favorable inferences that may reasonably be
               drawn from the evidence. Matters regarding the weight and
               credibility to be accorded the evidence are resolved by the jury.
               We may reverse only where, with respect to one or more of the
               elements of the offense charged, the evidence so considered is
               such that reasonable and fair-minded jurors could only find the
               accused not guilty.

               Wetz v. State, 503 So.2d 803, 808 (Miss. 1987) (citations omitted).

716 So.2d at 1087 (quoting from Franklin v. State, 676 So.2d 287, 288 (Miss. 1996)). Jones

v. State, 918 So.2d 1220, 1233- 34 (Miss. 2005). See also Bush v. State, 895 So.2d 836,

843-44 (Miss. 2005); Bunkley, 495 So.2d at 3-4. As this Court stated in Bunkley:

       This process [j.n.o.v. criteria] must be applied to each element of the offense
       charged. Embezzlement under Miss. Code Ann. § 97-23-19 (1972), requires
       proof of the identity of the “incorporated company” whose goods and money the
       accused has embezzled. The statute further requires proof that the defendant
       was a “director, agent, clerk, servant or officer” of that incorporated company.

Id. at 3-4 (footnote omitted).    Thus, in any embezzlement prosecution under section 97-23-19,

the State is required to prove the identity of the “incorporated company,” or the “private

person,” as the case may be.

¶13.   In her dissent in today’s case, Judge Barnes provided this analysis:




                                                  11
       In the present case, we are again confronted with the task of determining
       whether section 97-23-19 allows an agent of an unincorporated body to be
       convicted of embezzlement. The majority holds that because LLCs and
       corporations share many similarities, the statute should apply to agents of LLCs
       as well as to agents of [corporations]. Once again, the plain language of the
       statute does not permit this result. An LLC, by definition, is not an incorporated
       company, and regardless of the similarities between the two types of entities,
       the terms are not interchangeable. In fact, Mississippi Code Annotated section
       79-29-104(1)(d) (Rev. 2001) specifically prohibits an LLC from using the
       words "corporation" or "incorporated" in its name.

       The legislature surely had some reason for employing such narrow and precise
       language in the embezzlement statute. The legislature, in its prerogative,
       certainly could have altered the statute to take into account more modern
       business entities, had it desired. The fact that the statute is not written more
       broadly should not be written off as legislative acquiescence, as the legislature
       had the opportunity to re-examine section 97-23-19 when it amended the statute
       in 2003. The legislature made no amendment broadening the business entities
       to which the statute applies, and we should not do so judicially.

       Both the dissent in Coleman and the concurrence in the present case argue that
       any entity created under Title 79 of the Mississippi Code should be construed
       as an "incorporated company" for the purposes of section 97-23-19. However,
       because the language in section 97-23-19 is clear and precise, I believe that
       looking beyond the plain text of the statute is inappropriate. See Heard 151
       So.2d at 420 (stating that this Court will not resort to canons of statutory
       construction when the statute in question is clear and unambiguous).[7]

2005 Miss. Ct. App. LEXIS 1025, at 29-31.8




       7
           State v. Heard, 246 Miss. 774, 151 So.2d 417 (Miss. 1963).
       8
         While the Court of Appeals’ majority opinion in Champluvier, attempts to distinguish
our decision in Burroughs, Judge Barnes makes no mention of Burroughs in her dissenting
opinion. Likewise, while the facts in Burroughs, a cow embezzlement case, provide some
interesting reading, our disposition in today’s case does not require a discussion of joint
venture.

                                                 12
¶14.      That dissent drives home several points critical to the disposition of today’s case.

Pursuant to State v. Heard, 246 Miss. at 781, 151 So.2d at 420, the plain and unambiguous

language of section 97-23-19 simply obviates any requirement to apply the rules of statutory

construction. See also Sykes, 757 So.2d at 1000 (citing Miss. Power Co. v. Jones, 369 So.2d

1381, 1388 (Miss. 1979)). The current section 97-23-19 and its predecessors have been a part

of our code in some shape or form at least since Hutchinson’s 1848 Code.                     The current

Mississippi Limited Liability Company Act, Miss. Code Ann. §§ 79-29-101, et seq. (Rev.

2001), was enacted by the Legislature effective July 1, 1994. The Legislature, as recently as

2003, amended section 97-23-19, and thus was presented with a golden opportunity, if it chose

to do so, to further revise this statute to include the “more modern business entities,” such as

limited       liability companies,   limited   partnerships,   professional corporations,   professional

associations, and the like. The Legislature, in its wisdom, chose not to do so, and, we should

thus not breathe life into imaginary entities which are nowhere to be found in section 97-23-

19.    Stated differently, we should not be about the business today of reading and construing a

criminal statute and a civil statute in pari materia to determine if Champluvier is guilty of a

crime.9


          9
         Also, this Court rejects the notion that “incorporated company” refers to any entity
other than a corporation. Miss. Code Ann. § 79-29-103(j) states:
        “Limited liability company” and “domestic limited liability company” mean an
        entity having one or more members that is an unincorporated association that is
        formed and existing under this chapter.”
Miss. Code Ann. § 79- 29- 103(j) (Rev. 2001). The Legislature has specifically defined a
limited liability company as an unincorporated association.        Therefore, adhering to our
precedent in State v. Heard, this Court must literally interpret the term “incorporated

                                                      13
¶15.    In the recent case of Trainer v. State, 930 So.2d 373 (Miss. 2006), this Court affirmed

the trial court’s dismissal of a suit commenced by an individual who claimed that his video

game machines were wrongly seized by law enforcement officials as illegal gambling

machines.   Trainer challenged the constitutionality of the criminal statutes under which he had

been arrested and his gaming machines had been seized. See Miss. Code Ann. §§ 97-33-7, -17.

Trainer invited us to consider the criminal statutes in conjunction with certain civil statutes and

Mississippi Gaming Commission regulations to conclude that the criminal statutes were

unconstitutional in their application and unconstitutionally vague.       We declined Trainer’s

invitation and instead determined that the answers to the issues before us were clearly found

in the criminal statutes, thus requiring no examination of the civil statutes and regulations in

conjunction with the criminal statutes. 930 So.2d at 379-81.

¶16.    Pursuant to URCCC 7.06, all defendants facing felony criminal charges in this state,

no matter who they are, or how reprehensible their conduct in court, are entitled to an

indictment which sets out, inter alia, “a plain, concise and definite written statement of the

essential facts constituting the offense charged and shall fully notify [them] of the nature and

cause of the accusation.” In today’s case, Champluvier was charged by a grand jury indictment

with embezzling funds from a limited liability company in violation of section 97-23-19.

Consistent with URCCC 7.06, and our case law, no defendant should be charged with the

responsibility of going beyond the clear language of an embezzlement indictment and perusing



company” to exclude limited liability company. If the Legislature intended to include limited
liability companies in Miss. Code Ann. § 97-23-19, then it may amend the statute.

                                                  14
the civil statutes of this state to determine if an entity specified in Title 79 of the Mississippi

Code Annotated can be classified as an “incorporated company” or a “private person” so as to

be subjected to criminal culpability under section 97-23-19.

¶17.    In the end, for the reasons stated, we conclude that a limited liability company such as

existed between Deborah Champluvier and L.L. Ross, is not encompassed within the language

of section     97- 23-19,    as currently written,      providing for a felony conviction upon

embezzlement of certain therein described property belonging to an incorporated company or

a private person.     If the Legislature should determine it is appropriate to amend section 97-23-

19 so as to include any or all of the entities described in Title 79 of the Mississippi Code

Annotated, the Legislature no doubt possesses the prerogative to do so. We are not about the

business of legislating.    Therefore, we find that the State, admittedly confronted with an

impossible task, did not present legally sufficient evidence which would support a guilty

verdict against Champluvier, on each and every element of the crime of embezzlement as set

out in section 97-23-19. Jones, 918 So.2d at 1233-34 (citing Gleeton, 716 So.2d at 1087)).

¶18.    Because of our disposition on this issue, we find that the remaining issues raised by

Champluvier before the Court of Appeals need not be discussed.

                                           CONCLUSION

¶19.    The State of Mississippi did not prove beyond a reasonable doubt that Deborah

Champluvier, a/k/a Deborah Marie Champluvier, was guilty of each and every element of the

crime of embezzlement as set out in Miss. Code Ann. § 97-23-19 (Rev. 2000).              For these

reasons, we reverse the judgments of the Court of Appeals and the DeSoto County Circuit

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Court and render judgment here in favor of Deborah Champluvier, a/k/a Deborah Marie

Champluiver, who is thus discharged.

¶20.    REVERSED AND RENDERED.

     SMITH, C.J., WALLER, P.J., DIAZ, GRAVES AND DICKINSON, JJ., CONCUR.
COBB, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY EASLEY, J.

        RANDOLPH, JUSTICE, DISSENTING:

¶21.    The majority declares that “the plain and unambiguous language of [Miss. Code Ann.]

Section 97-23-19       simply obviates       any    requirement to      apply the rules of statutory

construction.” Having correctly identified the standard, the majority then fails to follow its

own instruction. The hyper captious analysis found in the Court of Appeals dissent and adopted

by the majority, defeats the very purpose and intent of the legislative act and subverts the plain

language of Miss. Code Ann. Sect. 97-23-19.

¶22.    The Court of Appeals majority held, “This case clearly fits the intent of the statute to

prevent someone from embezzling assets from a company that legally belongs to the company

and not the individual.” Champluvier v. State, 2005 Miss. App. LEXIS 1025, *10 (Miss. Ct.

App. 2005). The Court of Appeals majority opinion presents a logical, practical and reasoned

application of a LLC as a business entity under Title 79, Chapter 29 of the Mississippi Code.

For those who reject the path taken by the Court of Appeals to its conclusion, I offer a separate

path which leads the defendant to the same destination. Accordingly, I agree with the judgment

of the Court of Appeals, and in support thereof, I offer the following analysis.


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¶23.    Miss. Code Ann. Sect. 79-29-701 states, “A limited liability company interest is

personal property. A member has no interest in specific limited liability company property.”

A group of persons, members, make up a limited liability company. Miss. Code Ann. Sect. 79-

29-103(n) defines member as, “a person that has been admitted to a limited liability company

as provided in Section 79-29-301....” (Emphasis added). Members of a LLC are individual

persons united for a common purpose.

¶24.    We are required to utilize legislative guidelines set forth in the Code to assist us in

interpreting statutes. Miss. Code Ann. Sect. 1-3-1 states, “This chapter is applicable to every

statute unless its general object, or the context of language construed, or other provisions of

law indicate that a different meaning or application was intended from that required by this

chapter.” Further, Miss. Code Ann. Sect. 1-3-65 instructs, “All words and phrases contained

in the statutes are used according to their common and ordinary acceptation and meaning; but

technical words and phrases according to their technical meaning.” Miss. Code Ann. Sect. 97-

23-19 fails to declare that a “private person” is to be used only in the singular. “Words used

in the singular number only, either as descriptive of persons or things, shall extend to and

embrace the plural number; and words used in the plural number shall extend to and embrace

the singular number, except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33.

In this matter, no contrary intent was manifest.

¶25.    Champluvier had, as all members of a LLC have to each other, a fiduciary duty to the

LLC and the respective individual members thereof. Members have a right to repose trust upon

another member acting in a fiduciary capacity, i.e., a trustee. Miss. Code Ann. Sect. 97-23-19

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specifically provides “any trustee” shall not embezzle from any private person(s), i.e.,

members of a LLC.

¶26.    Thus, Champluvier embezzled from a private person. The majority’s conclusion that the

members of a limited liability company, (where personal property, i.e., their interest in the

LLC, has vanished through a criminal act), are not “private persons” leaves society with a

paradoxical result: a defendant who stole money, yet according to the majority, did not commit

a crime. This result eviscerates the legislative intent and purpose of Miss. Code Ann. Sect. 97-

23-19. Therefore, I must respectfully dissent.

        EASLEY, J., JOINS THIS OPINION.




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