                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-KA-00304-SCT

ZENAS TILLIS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                         01/21/2009
TRIAL JUDGE:                              HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED:                LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                        MARK SHELDON DUNCAN
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 09/16/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Zenas Tillis, an inmate at Walnut Grove Youth Correctional Facility (“Walnut

Grove”), was indicted for the simple assault of Kathy Hogue, a nurse who worked at Walnut

Grove, under the enhanced sentencing provisions of Mississippi Code Sections 47-4-1 and

97-3-7. Following a jury trial in the Circuit Court of Leake County, Mississippi, Tillis was

found guilty as charged and sentenced to “five years in the custody of the Mississippi

Department of Corrections [(“MDOC”)] . . . , to run consecutive to any sentence [Tillis] is
presently serving.” 1 On appeal, Tillis contends that “the evidence did not meet the statutory

or indictment requirements of the crime charged . . . .”

                                            FACTS

¶2.    On February 8, 2008, Hogue was delivering medication to inmates, escorted by

Captain James Lewis. Upon reaching Tillis, Hogue reached into his cell to provide Tillis an

inhaler. Hogue testified that “[h]e grabbed my hand and pulled my arm all the way inside

the cell through th[e] food flap, where my entire [left] arm . . . was inside the flap[,]” and “he

had a hold of my [left] wrist with one hand, my ring finger, specifically, with another hand,

twisting, trying to take my rings off of my finger.” Captain Lewis was able to force Tillis

to release Hogue’s hand, but her finger soon became swollen to “probably three times its

normal size.” 2 Hogue suffered a spiral fracture of her ring finger, which was splinted for two

weeks and placed in a cast for six additional weeks.

¶3.    On July 1, 2008, Tillis was indicted for “simple assault of [an] employee of a private

correctional facility.” The indictment specifically stated that Tillis:

       did willfully, unlawfully, feloniously, purposely and knowingly cause bodily
       injury to [Hogue], an employee of [Walnut Grove], a private correctional
       facility, by grabbing and twisting the hand and fingers of [Hogue], at a time
       when [Hogue] was acting within the scope of her employment with [Walnut
       Grove], contrary to and in violation of Section 47-4-1 and Section 97-3-7 . .
       ..

(Emphasis added.)




       1
        Tillis had been incarcerated at Walnut Grove since 2005. Following his conviction
for grand larceny, he was given an eight-year sentence.
       2
           A bolt-cutter-type device was used by the fire department to remove her rings.

                                                2
¶4.    On January 21, 2009, a jury trial commenced. At trial, Hogue testified that she was

“employed actually for a contract company called Health Assurance.” According to Hogue,

“I work [at Walnut Grove], I’m employed there, but I do not work for Walnut Grove. I work

for a medical company that provides medical care for residents at Walnut Grove.” (Emphasis

added.) Hogue added that her work duties were conducted only at Walnut Grove and that

on the date of the attack, she was so employed. Captain Lewis testified that Hogue has an

office at Walnut Grove, i.e., the nurse’s station.

¶5.    After the State rested, Tillis moved for a directed verdict, arguing that “because

[Hogue’s] status as an employee is one of the necessary elements of the case, the State cannot

make their case out and have not . . . .” According to counsel for Tillis:

       Hogue is not an employee of a private correctional facility. She is a contract
       employee . . . of another corporation . . . , the same as Central Electric provides
       power to the correctional facility by contract. Their employees would not be
       entitled to this. Whoever did the plumbing work for the correctional facility
       wouldn’t be entitled to that protection under [Mississippi Code Section 47-4-
       1].

The State responded that “while [Walnut Grove] might not write her paycheck[,]” that is “the

only place that she works. . . . She’s there every day.” The State maintained that Hogue was

“a de facto employee of [Walnut Grove] . . . .” Ultimately, the circuit court overruled Tillis’s

motion for directed verdict, concluding that:

       [r]ight or wrong, I’m going to take the broad view. I think the statute is not so
       wooden that it would not anticipate something like this. I think, as far as the
       interpretation . . . that ostensibly it could be broadly interpreted that [Hogue],
       in this setting, and under these circumstances, would qualify as being a person
       who would fit the term of employee.




                                                3
¶6.    After Tillis rested, Jury Instruction S-1, which contained all of the elements of the

crime for which Tillis was indicted, was granted by the circuit court for the jury’s

determination. Jury Instruction S-1 provided:

       [t]he court instructs the jury that if you believe from the evidence in this case
       beyond a reasonable doubt that at the time and place charged in the indictment
       and testified about, that [Tillis] did willfully, unlawfully, feloniously,
       purposely and knowingly cause bodily injury to [Hogue], an employee of
       [Walnut Grove], a private correctional facility, by grabbing and twisting the
       hand and fingers of [Hogue], at a time when [Hogue] was acting within the
       scope of her employment with [Walnut Grove], then it is your duty to find
       [Tillis] guilty as charged.[3 ]

(Emphasis added.) Subsequently, the jury found Tillis guilty as charged, and the circuit court

sentenced him to the maximum of “five years in the custody of the [MDOC] . . . . Said

sentence is to run consecutive to any sentence [Tillis] is presently serving.”

¶7.    Tillis then filed a “Motion for New Trial,” arguing, inter alia, that:

       2. The Court erred in refusing to grant a peremptory instruction for [Tillis] and
       further erred in refusing to direct a verdict for [Tillis] at the conclusion of the
       State’s case.

       3. The Court erred in refusing to grant a directed verdict, as the [S]tate wholly
       failed to prove an element of their indictment, namely that [Hogue] was an
       employee of a private correctional facility, according to the statute. Her
       testimony was that she was not an employee of a private correctional facility,
       but was an employee of another company that does contract work with a
       private facility.



       3
          Regarding Jury Instruction S-1, counsel for Tillis stated, “[n]o objection . . . but I am
confused. They are requesting the jury to determine if she is an employee of [Walnut Grove]
. . . .” The dissent opines that the circuit court peremptorily instructed the jury on Hogue’s
employment status, which is inconsistent with defense counsel’s acknowledgment that the
State was requesting the jury to determine her employment status. As Tillis did not raise the
issue addressed by the dissent, neither shall we. See Glover v. Jackson State Univ., 755 So.
2d 395, 398 n.1 (Miss. 2000) (“this Court has long held that issues not raised on appeal are
procedurally barred from consideration.”).

                                                4
The circuit court entered an “Order Overruling Motion for New Trial.” Tillis filed timely

notice of appeal.

                                             ISSUE

¶8.      This Court will consider:

         Whether the evidence met the statutory or indictment requirements of the
         crime charged.

                                          ANALYSIS

¶9.      Underlying Tillis’s challenge to the denial of his motion for directed verdict, request

for peremptory instruction, and motion for new trial is a challenge to the circuit court’s

interpretation of Mississippi Code Section 47-4-1(4). Specifically, Tillis asserts that the State

failed to prove that Hogue was “an employee of a private correctional facility[,]” a requisite

element for conviction. See Miss. Code Ann. § 47-4-1(4) (Rev. 2004). This Court reviews

the interpretation of statutes de novo. See Gilmer v. State, 955 So. 2d 829, 833 (Miss. 2007).

In statutory interpretation:

         [t]he first question . . . is whether the statute is ambiguous. When a statute is
         unambiguous, this Court applies the plain meaning of the statute and refrains
         from the use of statutory construction princip[les]. The [C]ourt may not
         enlarge or restrict a statute where the meaning of the statute is clear. In
         interpreting statutes, this Court’s primary objective is to employ that
         interpretation which best suits the legislature’s true intent or meaning.

Id. (citations omitted). After determining the proper interpretation of Mississippi Code

Section 47-4-1(4), this Court will consider whether the circuit court improperly denied

Tillis’s motion for directed verdict, request for peremptory instruction, and motion for new

trial.




                                                5
¶10.   Mississippi Code Section 97-3-7(1) provides that, generally, an individual convicted

of simple assault “shall be punished by a fine of not more than Five Hundred Dollars

($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.”

Miss. Code Ann. § 97-3-7(1) (Rev. 2006) (emphasis added). However, according to

Mississippi Code Section 47-4-1(4):

       [a] person convicted of simple assault on an employee[4 ] of a private
       correctional facility while such employee is acting within the scope of his or
       her duty or employment shall be punished by a fine of not more than One
       Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5)
       years, or both.

Miss. Code Ann. § 47-4-1(4) (Rev. 2004) (emphasis added).

¶11.   According to Tillis, “the indictment allegation of [Hogue’s] employment was the only

allegation that rendered the crime charged a felony[,]” and no evidence was adduced at trial

that Hogue was employed by Walnut Grove or any private correctional facility. As such,

Tillis argues that “[t]his material variance between the proof and the accusation was fatal to

[Tillis’s] felony conviction, because an essential element of the indictment remained

unproven.” Therefore, Tillis asserts that “[d]ue process requires that the crime he was

convicted of be reduced to misdemeanor simple assault, and he should be resentenced as a

misdemeanant.”

¶12.   Conversely, the State maintains that Hogue, “as a person who works among the

inmate population on a daily basis, providing necessary medical services to the inmates, is

exactly the kind of worker the legislature intended to protect with [Mississippi Code Section



       4
       The term “employee” is not statutorily defined in Title 47, Chapter 4. Miss. Code
Ann. § 47-4-1(4) (Rev. 2004).

                                              6
47-4-1].” According to the State, “[w]hile [Hogue’s] paycheck came from Health Assurance,

her place of employment was [Walnut Grove,]” and “[i]t would be an absurd result to say

that [Hogue] is not protected by this statute based on a hyper-technical definition of

employee.”

¶13.   The State has a constitutional obligation to provide medical care to prisoners, see

Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976), and the

Legislature has statutorily mandated such medical care. See Miss. Code Ann. §§ 47-1-57,

47-1-59 (Rev. 2004). That duty did not depart when the Walnut Grove Correctional

Authority contracted with Cornell Companies, Inc., to operate Walnut Grove. See Walnut

Grove Correctional Authority Home Page, http://www.walnutgrove-ms.com/ca.htm (last

accessed June 21, 2010). To the end of satisfying that duty, Cornell contracted with Health

Assurance to provide employees like Hogue to perform medical services at Walnut Grove.

¶14.   At Walnut Grove, Hogue exclusively conducted her work duties, providing medical

care to inmates, and had her own office. When the incident occurred, Hogue was in the

process of delivering medication to the inmates while escorted by Captain Lewis. Based

upon the facts presented, this Court finds that Hogue was, at a minimum, a dual employee

of both Walnut Grove, a private correctional facility, and Health Assurance.

¶15.   Dual employment arises “when an employee is engaged in the service of two (2)

employers in relation to the same act.” Ray v. Babcock & Wilcox Co., Inc., 388 So. 2d 166,

167 (Miss. 1980). See also Northern Elec. Co. v. Phillips, 660 So. 2d 1278, 1282 (Miss.

1995) (“[i]n Mississippi, one may be employed by more than one employer . . . .”);

Dependents of Roberts v. Holiday Parks, Inc., 260 So. 2d 476, 478 (Miss. 1972) (“[i]t is

                                            7
well settled that a person may be a servant of two or more masters at one time as to one

act.”). Such dual employment may exist even if only one employer pays the employee. See

Biggart v. Texas Eastern Transmission Corp., 235 So. 2d 443, 444-45 (Miss. 1970) (“[t]he

fact that only one of the employers paid Biggart (here River Construction Corporation) does

not alter the fact that Biggart was in the service of Texas Eastern and Brown & Root, Inc.,

an employer-employee relationship between appellees and . . . Biggart based on the element

of control present at the time.”). Accordingly, the fact that Hogue’s paycheck came from

Health Assurance is not dispositive. Rather, given Hogue’s exclusive service to Walnut

Grove, this Court concludes that she was a dual employee of both Walnut Grove and Health

Assurance.5

¶16.   As Hogue was a dual employee, this Court concludes that the circuit court did not err

in finding that Hogue, “in this setting, and under these circumstances, would qualify as being

a person who would fit the term of employee.” Undoubtedly, “criminal statutes must be

strictly construed in favor of the accused . . . .” Lewis v. State, 765 So. 2d 493, 499 (Miss.




       5
        Alternatively, Hogue could be considered an “employee” of Walnut Grove pursuant
to the “borrowed servant” doctrine. This Court has stated that:

       it is well settled in other states that a person in the employ of one person or
       company whose services are loaned by his employer to another company or
       person becomes, for the purpose of the work assigned to him, the servant of
       the latter company, that is to say, the company for whom the work is
       performed.

Phillips, 660 So. 2d at 1281 (quoting Runnels v. Burdine, 234 Miss. 272, 276-77, 106 So.
2d 49, 51 (1958)). This Court finds the “borrowed servant” doctrine applicable here,
because Hogue was working exclusively at Walnut Grove, supplying the medical services
which Walnut Grove was constitutionally required to provide its inmates.

                                              8
2000). However, concluding that the term “employee” provided in Mississippi Code Section

47-4-1(4) includes dual employees does no damage to this principle.                 In fact, an

interpretation which protects individuals performing constitutionally mandated services in

the prisons of this state “best suits the legislature’s true intent or meaning” in enacting the

enhanced sentencing provisions of Mississippi Code Section 47-4-1(4). Gilmer, 955 So. 2d

at 833.

¶17.      The motion for directed verdict challenges the sufficiency of the evidence, is reviewed

de novo, and involves consideration of “whether the evidence is of such quality that

reasonable and fairminded jurors in the exercise of fair and impartial judgment might reach

different conclusions.” Id. The motion for new trial challenges the weight of the evidence,

is reviewed under an abuse-of-discretion standard, and involves consideration of whether

“the verdict was contrary to the substantial weight of the evidence so that justice requires that

a new trial be granted.” Id. See also Dilworth v. State, 909 So. 2d 731, 737 (Miss. 2005).

As this Court finds that Hogue was an “employee” of Walnut Grove, the sole issue in dispute

here, we further conclude that the circuit court properly denied Tillis’s motion for directed

verdict, request for peremptory instruction, and motion for new trial. Accordingly, this issue

is without merit.




                                                 9
                                      CONCLUSION

¶18.   Based upon this analysis, this Court affirms Tillis’s conviction and the attending

sentence of five years in the custody of the MDOC imposed by the Circuit Court of Leake

County.6

¶19. CONVICTION OF SIMPLE ASSAULT OF AN EMPLOYEE OF A PRIVATE
CORRECTIONAL FACILITY AND SENTENCE OF FIVE (5) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SAID SENTENCE TO RUN CONSECUTIVE TO ANY SENTENCE
TILLIS IS PRESENTLY SERVING.

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

    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶20.   While it is conceivable that Nurse Hogue could be considered “an employee of a

private correctional facility” as contemplated by Mississippi Code Section 47-4-1 (Rev.

2004), her employment status was a question for the jury. Because the jury was peremptorily

instructed that Hogue was an employee, the enhanced portion of the sentence – but not the

conviction in toto – should be vacated. To the extent that the majority holds otherwise, I

respectfully dissent.

¶21.   We recently reiterated that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Jureka Brown v. State, 995 So.


       6
       In light of this disposition, Tillis’s separate petitions for writ of mandamus, filed
April 30, 2010 and August 3, 2010, are denied.

                                              10
2d 698, 703 (Miss. 2008) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000)). In Brown, the defendant was convicted of selling crack

cocaine, and his sentence was doubled because the sale allegedly had occurred within 1,500

feet of a church. Id. at 701. See Miss. Code Ann. § 41-29-142 (Rev. 2009) (providing

enhanced penalties for controlled-substance crimes which occur within 1,500 feet of certain

locales). On appeal, we vacated the sentencing enhancement because the trial judge, not the

jury, made the determination of whether the crime had taken place within the statutorily

prescribed distance. Id. at 705. Although Brown’s counsel failed to object at trial, we found

the error was not subject to a procedural bar because “Brown enjoyed a Sixth Amendment

right to have the issue of his sentence enhancement submitted to a jury.” Id. at 704 (citing

Apprendi, 530 U.S. 166). Moreover, the error was not harmless, because there was evidence

that the church was inactive; therefore, the evidence supporting an enhanced sentence was

not “overwhelming.” Id.

¶22.   Likewise, in the present case, because Section 47-4-1 increases the maximum penalty

for simple assault if the victim is “an employee of a private correctional facility,” the jury

should have been tasked with deciding whether the victim was an “employee” and whether

her employer was a “private correctional facility.” However, this decision was taken away

from the jury because an instruction peremptorily described the nurse as an employee:

       The Court instructs the Jury that if you believe from the evidence in this case
       beyond a reasonable doubt that at the time and place charged in the indictment
       and testified about, that the Defendant Zenas Tillis, did willfully, unlawfully,
       feloniously, purposely and knowingly cause bodily injury to Kathy Hogue, an
       employee of Walnut Grove Youth Correctional Facility, a private correctional
       facility, by grabbing and twisting the hand and fingers of said Kathy Hogue,
       at a time when the said Kathy Hogue was acting within the scope of her

                                             11
       employment with the Walnut Grove Youth Correctional Facility, then it is
       your duty to find the Defendant guilty as charged.

(Emphasis added.) As this instruction is phrased, it improperly assumes facts in issue,

specifically, whether Kathy Hogue was, at the time of the assault, an employee of Walnut

Grove Correctional Facility, and whether that entity was a private correctional facility.

¶23.    This instruction might have passed muster if it had gone on to make it clear to the

jury that it was for them to decide whether the nurse was an employee of a private

correctional facility at the time of the alleged offense. Alternatively, this could have been

accomplished in a separate instruction, since it is well established in our state’s jurisprudence

that none of the instructions stands alone; all must be considered together by the jury. See,

e.g., Ford v. State, 975 So. 2d 859, 863 (Miss. 2008) (quoting Austin v. State, 784 So. 2d

186, 192 (Miss. 2001)) (“[J]ury instructions are to be read together and taken as a whole with

no one instruction taken out of context.”).

¶24.   As in Brown, because the issue of Hogue’s employment status was hotly contested

at trial, such an error cannot be harmless, and his failure to object at trial does not bar our

review of the issue. Brown, 995 So. 2d at 704-05.

¶25.   Under Apprendi, 530 U.S. 466, the Sixth Amendment to the United States

Constitution requires that the jury, not the judge, make factual determinations necessary for

enhancement of sentencing beyond the statutory maximum. See also Miss. Const. art. 3, §

26 (guaranteeing right to jury trial “in all prosecutions by indictment or information”).

Because Tillis was denied his right to have a jury decide Hogue’s employment status, a fact




                                               12
that significantly increased the penalty, I would vacate the enhanced portion of his sentence

and remand the case for sentencing for simple assault.

       GRAVES, P.J., AND DICKINSON, J., JOIN THIS OPINION.




                                             13
