        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-00926-COA

SHIRLEY WARREN A/K/A SHIRLEY OLIVER                                       APPELLANT
WARREN A/K/A SHIRLEY NICHOLS WARREN
A/K/A SHIRLEY OLIVER

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                         05/01/2013
TRIAL JUDGE:                              HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                WINSTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ANDY DAVIS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        DOUG EVANS
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF POSSESSION OF A
                                          CONTROLLED SUBSTANCE IN A
                                          CORRECTIONAL FACILITY AND
                                          SENTENCED TO SEVEN YEARS IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS, WITH
                                          FOUR YEARS SUSPENDED AND FIVE
                                          YEARS OF SUPERVISED PROBATION
DISPOSITION:                              REVERSED AND REMANDED - 01/27/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

       JAMES, J., FOR THE COURT:

¶1.    Shirley Warren was indicted by a Winston County grand jury on one count of

possession of a controlled substance in a correctional facility pursuant to Mississippi Code

Annotated section 47-5-198 (Rev. 2011). A jury trial was held in the Circuit Court of
Winston County, resulting in a guilty verdict. Warren was sentenced to seven years in the

custody of the Mississippi Department of Corrections (MDOC), with four years suspended

and five years of supervised probation. Warren appeals. Finding error, we reverse and

remand the judgment.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On June 9, 2012, Warren visited the Winston-Choctaw Regional Correctional Facility

in Louisville, Mississippi. Upon checking in with the visitation officer, Warren was

subjected to a search performed by Correctional Officer Theresa Carter. During the search

of Warren’s person, Carter discovered several medicine tablets concealed in the waistband

of Warren’s pants. It was later determined that the contraband consisted of four Lortab

tablets and four Xanax tablets. Carter then summoned the warden of the correctional facility,

Timothy Palmer, who placed Warren under arrest for introducing contraband into a

correctional facility.

¶3.    On September 26, 2012, the grand jury indicted Warren on one count of possession

of a controlled substance in a correctional facility. Warren filed a motion to dismiss

asserting that the indictment was defective and insufficient for failing to identify the

controlled substances that Warren was alleged to have possessed. Warren also objected to

the testimony of William Smith, the State’s laboratory analyst, alleging that the State failed

to provide Smith’s curriculum vitae. Warren further objected to admission of any testing or

analysis performed by the Columbus Forensic Laboratory, asserting that the laboratory was

not certified by the State Crime Lab or the American Society of Crime Laboratory Directors.

The trial court denied Warren’s motion.

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¶4.       A jury trial was held May 1, 2013. During the trial, Carter testified to discovering

the contraband on Warren’s person during a body search. Palmer testified that he took

control of the contraband and placed Warren under arrest for introducing contraband into a

correctional facility. Smith testified that the tablets were Lortab and Xanax and that both

were controlled substances under Mississippi law. At the close of the State’s case-in-chief,

Warren moved for a directed verdict, asserting that the State failed to meet its burden of

proof. The trial court denied the motion, and Warren rested without producing any witnesses

in her defense.

¶5.    The jury found Warren guilty of possession of a controlled substance in a correctional

facility. Warren was sentenced to seven years in the custody of the MDOC, with four years

suspended and five years of supervised probation. On May 6, 2013, Warren filed a motion

for a judgment notwithstanding the verdict (JNOV), or for a new trial, which the trial court

denied.

¶6.    Aggrieved, Warren appeals raising the following issues: (1) whether the trial court

erred in denying her motion to dismiss due to the defective indictment; (2) whether the trial

court erred in denying her motion to dismiss; (3) whether the State’s expert witness was

properly qualified under Mississippi Rule of Evidence 702; (4) whether the trial court erred

in denying her motion for a directed verdict and/or her motion for a JNOV; and (5) whether

she was denied her right to a fair trial due to the trial court’s cumulative errors. We find

Warren’s first assignment of error to be dispositive, and we reverse and remand the judgment

for proceedings consistent with this opinion.

                                        DISCUSSION

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¶7.    Warren argues that her indictment was defective because it failed to identify the

controlled substance that she was alleged to have possessed. In the hearing held before the

trial court on Warren’s motion to dismiss, Warren argued that this defect deprived her of the

ability to prepare an adequate defense. We agree.

¶8.    Warren was indicted for possession of a controlled substance in a correctional facility

pursuant to Mississippi Code Annotated section 47-5-198(1), which provides: “It is unlawful

for any person to sell within, bring to, or be in possession of, in any correctional facility or

convict camp within the state or any county, municipal[,] or other jail within the state, except

as authorized by law, any controlled substance or narcotic drug.” Warren’s indictment

alleged, in part, that Warren: “On or about June 9, 2012, in Winston County, Mississippi,

. . . did willfully, unlawfully, feloniously, and knowingly or intentionally, and without

authority of law, bring to, or be [sic] in possession of, a controlled substance in the

Winston[-]Choctaw County Correctional Facility[.]”

¶9.    We have held that “[t]he purpose of an indictment is to give the defendant reasonable

notice of the charges against him in order that he may prepare an adequate defense.” Jones

v. State, 130 So. 3d 519, 524 (¶13) (Miss. Ct. App. 2013) (citing Brawner v. State, 947 So.

2d 254, 265 (¶31) (Miss. 2006)). Thus, “[t]he ultimate test for the validity of an indictment

is whether the defendant was prejudiced in preparing his defense.” Id. (citing Medina v.

State, 688 So. 2d 727, 730 (Miss. 1996)). Finally, “[w]hether an indictment is fatally

defective is a question of law, which this Court reviews de novo.” Id. (citing Moten v. State,

20 So. 3d 757, 759 (¶4) (Miss. Ct. App. 2009)).

¶10.   Rule 7.06 of the Uniform Rules of Circuit and County Court provides: “The

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indictment upon which the defendant is to be tried shall be a plain, concise[,] and definite

written statement of the essential facts constituting the offense charged and shall fully

notify the defendant of the nature and cause of the accusation.” (Emphasis added). In

Hampton v. State, 860 So. 2d 827 (Miss. Ct. App. 2003), this Court addressed the sufficiency

of an indictment charging the unlawful sale of a controlled substance. There, we recognized

that “the nature . . . of the drug involved is an essential element of the crime that must be

alleged in the indictment and proven beyond a reasonable doubt at trial.” Id. at 828 (¶5); see

also Barnette v. State, 481 So. 2d 788, 791 (Miss. 1985) (“[A]n essential element of the

crime of selling a controlled substance is that the substance sold is indeed a controlled

one[.]”).

¶11. Here, it is clear that the indictment failed to specify the nature of the controlled

substance that Warren was alleged to have possessed. Although our caselaw on this issue

primarily addresses possession and trafficking of controlled substances pursuant to

Mississippi Code Annotated section 41-29-139 (Supp. 2014), we see no reason why this

same reasoning should not extend to possession of a controlled substance in a correctional

facility pursuant to section 47-5-198.

¶12.   The dissenting opinion correctly points out that section 47-5-198(1) fails to

distinguish among the different types of narcotics. However, we note that section 47-5-

198(1) provides that it is unlawful to possess a controlled substance in a corrections facility

“except as authorized by law.” As Warren argued during the pretrial motion hearing, if she

“was going to prepare a . . . prescription defense or . . . other . . . legal authority defense[,]

she would not know how to do that without being informed through the indictment of [the]

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. . . name of the controlled substance.” Thus, the State’s failure to include the identity of the

controlled substance that Warren was alleged to have possessed prevented Warren from

preparing a possible defense: namely, that her possession of the controlled substance was

lawful.

¶13.   The State should have included the identity of the controlled substances in the original

indictment, or sought to re-indict Warren in order to include the identity of the controlled

substances so as to adequately inform Warren of the precise nature of the charges against her

and permit her to prepare a defense. Accordingly, we reverse and remand for proceedings

consistent with this opinion. Because the Court's resolution of this issue is dispositive, we

decline to address Warren’s remaining assignments of error.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WINSTON COUNTY.

    LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR.
CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
GRIFFIS, P.J., BARNES AND MAXWELL, JJ.

       CARLTON, J., DISSENTING:

¶15.   I respectfully dissent from the majority’s opinion because I would affirm the

conviction and judgment of the circuit court.

¶16.   Warren was charged with possession of a controlled substance in a correctional

facility in violation of Mississippi Code Annotated section 47-5-198(1) (Rev. 2011). Except

as authorized by law, section 47-5-198(1) prohibits any person from selling within,

possessing within, or bringing to any correctional facility or jail in Mississippi any controlled



                                               6
substance or narcotic. Because section 47-5-198(1) prohibits all such substances, it is

immaterial which specific narcotic or controlled substance is in question.1

¶17.    The evidence in the record shows that Warren possessed four Lortab tablets and four

Xanax tablets and that both of these substances constituted controlled narcotics in Mississippi

and under applicable federal law.2 Warren presented no evidence to show that she was

authorized by law to possess such controlled narcotics in a correctional facility. The

indictment sufficiently placed Warren on notice of the charge against her for unlawful

possession of narcotics in a correctional facility. Furthermore, the evidence showed that

Warren possessed not just one narcotic, but two different controlled scheduled narcotics, in

a correctional facility in violation of section 47-5-198(1).3 The record is devoid of any

evidence that shows authority for Warren to possess controlled substances in a correctional

facility.

¶18.    Warren’s arguments on appeal fail to acknowledge that section 47-5-198(1) fails to

distinguish among different types of narcotics and that a violation of this statutory section



        1
         At the time Warren possessed the four tablets of Lortab at the correctional facility,
the narcotic was a controlled substance, schedule III, under federal law. In August 2014,
federal law reclassified the narcotic Lortab as a controlled substance, schedule II. This
reclassification increased the restrictions applicable to prescribing and possessing Lortab.
Currently, as well as at the time of Warren’s offense, state statutory law also identified
Lortab as a controlled, scheduled substance. See Miss. Code Ann. § 41-29-115 (Rev. 2013)
(discussing controlled substances, schedule II); Miss. Code Ann. § 41-29-117 (Rev. 2013)
(discussing controlled substances, schedule III).
        2
            See Miss. Code Ann. § 41-29-115; Miss. Code Ann. § 41-29-117.
        3
         See also Weems v. State, 63 So. 3d 579, 588 (¶34) (Miss. Ct. App. 2010) (finding
sufficient ttimony existed to support the jury’s verdict that the defendant was guilty of
bringing contraband into a prison).

                                              7
occurs upon the unauthorized possession of any narcotic in a correctional facility or jail in

Mississippi. Warren’s indictment cited section 47-5-198(1), the statutory section violated,

and set forth the charge against her of possessing a controlled substance in a correctional

facility. The indictment in this case satisfies the requirements of Rule 7.06 of the Uniform

Rules of Circuit and County Court.

¶19.   The majority mistakenly asserts that the indictment was defective because it failed to

specify the exact type of prohibited controlled substance that Warren illegally possessed in

the correctional facility in violation of section 47-5-198(1). However, the statute clearly

prohibits all controlled substances, unless authority exists for their possession in the facility,

and therefore prohibited the controlled substances Warren unlawfully brought to and

possessed in the correctional facility. The indictment specifically charged that Warren

possessed or brought to the correctional facility the controlled substances “wilfully,

unlawfully, feloniously, and knowingly or intentionally, and without authority of law[.]” As

discussed, at trial, Warren presented no evidence to show that she possessed any legal

authority, such as the lawful authority of prison medical personnel or a prison physician, to

so possess the controlled substances in the correctional facility. See Clincy v. Atwood, 65 So.

3d 327, 332 (¶12) (Miss. Ct. App. 2011) (finding that the refusal by correctional-facility

personnel to allow an inmate to keep his arthritis medication followed standard policies

applicable to the medical care of inmates and the possession of medication by inmates).4



       4
         See also Miss. Code Ann. § 11-46-1(f) (Rev. 2012) (defining an “employee” of the
State of Mississippi and noting that prison doctors and other prison healthcare practitioners
are included in the definition); Miss. Code Ann. § 47-1-57 (Rev. 2011) (noting that prisons
and jails possess authorized medical personnel).

                                                8
¶20.   With respect to Warren’s claim regarding lack of sufficient notice, Warren’s pretrial

motion to dismiss reflects that the State provided Warren with discovery setting forth the

contraband of controlled narcotics — the Lortab and Xanax tablets — that the correctional

officer seized from Warren’s person. The pretrial motion to dismiss also shows that the State

further provided Warren with discovery that included the State’s laboratory tests, which

identified the controlled substances or types of narcotics seized from Warren’s person at the

correctional facility.

¶21.   For these reasons, I respectfully dissent from the majority’s opinion reversing and

remanding the circuit court’s judgment.

       GRIFFIS, P.J., BARNES AND MAXWELL, JJ., JOIN THIS OPINION.




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