                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-CT-01819-SCT

DEXTER FULTON a/k/a DEXTER CALVIN
FULTON

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         03/01/2011
TRIAL JUDGE:                              HON. LEE J. HOWARD
TRIAL COURT ATTORNEYS:                    MARK JACKSON
                                          DONNA SMITH
COURT FROM WHICH APPEALED:                LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   MONIQUE BROOKS MONTGOMERY
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
                                                JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                        FORREST ALLGOOD
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              THE JUDGMENT OF THE COURT OF
                                          APPEALS IS REVERSED. THE JUDGMENT
                                          OF THE LOWNDES COUNTY CIRCUIT
                                          COURT IS REVERSED AND THE
                                          CONVICTION IS VACATED - 09/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Dexter Fulton was convicted in the Lowndes County Circuit Court for receiving stolen

property. The Court of Appeals affirmed Fulton’s conviction and sentence on direct appeal.

We granted Fulton’s petition for writ of certiorari to determine whether Fulton’s indictment
was fatally defective and whether the trial court erroneously allowed an amendment of

substance to Fulton’s indictment. Finding error as to both issues, we reverse the judgments

of the Court of Appeals and the circuit court and vacate Fulton’s conviction.

                             STATEMENT OF THE CASE

¶2.    Dexter Fulton was arrested by officers of the Columbus Police Department after he

attempted to sell allegedly stolen truck-battery box covers1 to Columbus Scrap in Columbus,

Mississippi. These battery boxes previously had been reported missing after a break-in at

Sobley Excavating in Columbus.

¶3.    Fulton’s indictment, which charged him with receiving stolen property in violation

of Section 97-17-70 of the Mississippi Code, provided:

       [O]n or about the 20th day of October, 2008, [Fulton] did unlawfully, wilfully,
       and feloniously, receive, possess or dispose of the personal property of Sobley
       Excavating, to-wit: tractor batteries, battery cables, mack truck batteries, and
       aluminum wheels, said property having a total value in excess of $500.00, and
       having been feloniously taken away from the said Sobley Excavating and
       further that the said Dexter Fulton [] had reasonable grounds to believe at the
       time of the receiving, possessing, or disposing of said property that said
       property had been so feloniously taken.

(Emphasis added.)

¶4.    On August 10, 2010, the State moved to amend Fulton’s indictment, asking that the

words “tractor batteries, battery cables, mack truck batteries, and aluminum wheels” be



       1
         As used in this case, a “battery box” refers to a hinged metal box attached to a
heavy-duty vehicle, such as a semi truck or a tractor, that houses the vehicle’s battery. The
top portion of the battery box, referred to as the “battery box cover” can be removed from
the rest of the box to access the battery.

                                              2
struck from the indictment and replaced with “tractor battery box covers and mack truck

battery box covers.” The trial court granted the State’s motion to amend Fulton’s indictment

on February 18, 2011, ten days before trial. At the conclusion of Fulton’s trial, the jury

found Fulton guilty of receiving stolen property. Fulton was sentenced as a habitual offender

to ten years’ imprisonment without the possibility of parole or reduction in sentence. On

appeal, Fulton argued that the trial court had erred when it allowed a substantive amendment

to his indictment. The Court of Appeals affirmed his conviction, finding no error in the

amendment of the indictment. Fulton v. State, No. 2011-KP-01819-COA, 2013 WL

3886021, *3 (Miss. Ct. App. July 30, 2013). Fulton now seeks certiorari review from this

Court. We limit our review to whether Fulton’s indictment was fatally defective for failing

to inform him sufficiently of the charges against him and whether the Court of Appeals erred

in holding that the amendment of the indictment was one of mere form. Miss. R. App. P.

17(h).

                                 STANDARD OF REVIEW

¶5.      Because the question of whether an indictment is fatally defective is an issue of law,

the standard of review is de novo. Peterson v. State, 671 So. 2d 647 (Miss. 1996).        The

standard of review for an amendment of an indictment also is de novo. Spears v. State, 942

So. 2d 772, 773 (Miss. 2006).

                                        DISCUSSION

         I.     Whether Fulton’s indictment was fatally defective for failing to
                sufficiently describe the stolen property he allegedly received.


                                               3
¶6.    The purpose of the indictment is “to furnish the accused such a description of the

charges against him as will enable him to adequately prepare his defense.” Williams v. State,

445 So. 2d 798, 804 (Miss. 1984). Rule 7.06 of the Uniform Rules of Circuit and County

Court Practice governs our consideration of the sufficiency of an indictment, including that

the indictment must contain “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.” URCCC 7.06. “An additional test [for the sufficiency of the

indictment] is whether, in case other criminal proceedings are taken against the defendant

based on the same matters, the record shows with accuracy to what extent he may plead a

former acquittal or conviction in bar of the later proceedings.” Hamilton v. State, 197 So.

2d 469, 474 (Miss. 1967) (citation omitted).

¶7.    Fulton was indicted under Section 97-17-70 of the Mississippi Code, which prohibits

a person from “intentionally possess[ing], receiv[ing], retain[ing] or dispos[ing] of stolen

property knowing that it has been stolen or having reasonable grounds to believe it has been

stolen[.]” Miss. Code Ann. § 97-17-70 (Rev. 2006). The question presented here is whether

Fulton’s indictment sufficiently described the stolen property that he allegedly received, an

essential fact at issue.

¶8.    “It is essential, in an indictment for receiving stolen property, to describe the property

with the same particularity as is required in an indictment for larceny.” Wells v. State, 43 So.

610, 611 (Miss. 1907). The common-law rule regarding the sufficiency of the description

of stolen property required in an indictment for larceny has been stated as follows: “A

                                               4
statement of number or quantity of articles taken being a necessary part of the description,

‘a load of cord wood,’ or a ‘certain load of lumber’ is not sufficiently definite. It is

insufficient to allege the defendant stole ‘cattle.’” Rutherford v. State, 17 So. 2d 803, 804

(Miss. 1944) (quoting 36 C.J. 815, § 271). In Rutherford, the defendant’s indictment

charged him with larceny of “a quantity of clover seed.” Id. This Court reasoned that “[t]he

word ‘quantity’ is so vague, uncertain and indefinite as to give the defendant no intimation

regarding the amount of clover seed which he was accused of stealing.” Id. This Court

recognized that, where a sufficient description of the stolen property is not known, “such

fact, if alleged in the indictment or information, will generally cure the otherwise

insufficiency, for the reason that the law does not require a greater certainty than the nature

of the case affords.” Id. (citation omitted). However, because the stolen clover seed readily

could have been described by specific weight or quantity, this Court found that the

defendant’s indictment was fatally defective for failing to include that information. Id. at

805.

¶9.    This Court has adhered to the rule in Rutherford when determining the sufficiency

of the description of property in an indictment for receiving stolen property. For example,

in Nguyen v. State, 761 So. 2d 873, 876-77 (Miss. 2000), this Court held that an indictment

for receiving stolen property, which described the property as “114 items, including

televisions, C.D. players, VCR’s, cameras, tools and microwaves,” was fatally defective.

Because “[t]he indictment does not describe how many individual TV’s, VCR’s, cameras,

tools or microwaves were received,” this Court found that the defendants were not

                                              5
sufficiently notified of the “essential facts constituting the offense charged.” Id. at 877

(citing URCCC 7.06). Notably, this Court rejected the State’s argument that the discovery

process eliminated the need for exhaustive descriptions in the indictment, finding that

“[d]iscovery is not a substitute for the requirements of URCCC 7.06 . . . . [T]he appellants

should not be forced to engage in discovery in order to find out the essential facts

constituting the offense charged[.]” Id. Again, in Tucker v. State, 47 So. 3d 135, 139 (Miss.

2010), this Court found a defendant’s indictment for receiving stolen property to be fatally

defective, where the stolen property was described merely as “athletic apparel.” In Tucker,

this Court, citing Nguyen, found that the defendant’s indictment should have contained

“limiting modifiers” or listed the quantity of each item received rather than simply describing

the stolen property as a single class. Id. at 138 (citing Nguyen, 761 So. 2d at 877)).

Accordingly, this Court held that the property description of “athletic apparel, said property

having a total value in excess of $500,” did not describe the stolen property with sufficient

particularity to inform the defendant of the nature of the charges against him. Tucker, 47 So.

3d at 139.

¶10.   In the instant case, Fulton’s indictments, both originally and as amended, clearly

suffer from the same inadequacies as those recognized by this Court in Nguyen and Tucker.

In Fulton’s original indictment, the stolen property he was alleged to have received was

described only by class – “tractor batteries, battery cables, mack truck batteries, and

aluminum wheels.” When Fulton’s indictment was amended shortly before trial, this class



                                              6
of items was merely substituted for another – “tractor battery box covers and mack truck

battery box covers.”

¶11.   We hold that Fulton’s indictments did not describe with sufficient particularity the

essential facts constituting the offense charged. Accordingly, the trial court erred in denying

Fulton’s motion to quash the indictment.

       II.    Whether the amendment of Fulton’s indictment was one of
              substance or form.

¶12.   Fulton argues that the State could not amend his indictment to change the description

of the stolen property he allegedly received, because such an amendment would be one of

substance rather than form. “All indictments may be amended as to form but not as to the

substance of the offense charged[.]” URCCC 7.06. “[A] change in the indictment is

permissible if it does not materially alter facts which are the essence of the offense on the

face of the indictment as it originally stood or materially alter a defense to the indictment as

it originally stood so as to prejudice the defendant’s case.” Miller v. State, 740 So. 2d 858,

862 (Miss. 1999) (quoting Greenlee v. State, 725 So. 2d 816, 821 (Miss. 1998)) (quotations

omitted). An amendment to the substance of a charge must be made by a grand jury. Eakes

v. State, 665 So. 2d 852, 860 (Miss. 1995). The Court of Appeals found that the change in

the description of the stolen property in Fulton’s indictment was one of form rather than

substance, because the amendment did not change the offense charged and did not remove

any defenses available under the original indictment. Fulton, 2013 WL 3886021, at *3. The




                                               7
Court of Appeals also found that Fulton was given a fair opportunity to present a defense to

the amended indictment. Id.

¶13.   We find that the Court of Appeals’ analysis of Fulton’s argument is incomplete, as the

court did not analyze whether the amendment of Fulton’s indictment “materially alter[ed]

facts which are the essence of the offense on the face of the indictment as it originally stood,”

another mark of a substantive amendment. Miller, 740 So. 2d at 862. This Court previously

has held that the description of an item in an indictment may be changed by amendment if

the change supplements, but does not vary, the description of the property. Davis v. State,

181 Miss. 239, 179 So. 740 (1938). In Davis, the defendant was charged with grand larceny 2

for the theft of three horses and a cow. Id. The State later amended the defendant’s

indictment to provide more specific descriptions of two of the stolen animals. Id. On appeal,

this Court affirmed the amendment of the indictment, rejecting the defendant’s argument that

the amendment was one of substance. Id. This Court provided the following reasoning:

       We are of the opinion that the court properly allowed this indictment; that it
       did not vary the description, but merely supplemented it, and that the original
       indictment probably would have been sufficient; and that such amendment did
       not constitute a new case or a new description which would prevent the
       appellant from understanding the offense with which he was charged.

Id. at 741 (emphasis added).




       2
        As explained above, larceny cases are particularly instructive on the issues raised in
the instant case because an indictment for receiving stolen property must describe the
property with the same particularity as is required in an indictment for larceny. See Wells,
43 So. at 611.

                                               8
¶14.   In this case, unlike in Davis, the amendment to Fulton’s indictment did not

supplement the description of the stolen property he was alleged to have received. On the

contrary, “tractor battery box covers and mack truck battery box covers,” the stolen items

allegedly received, were not included in Fulton’s original indictment at all. And a battery box

cover is part of a vehicle, while batteries and battery cables clearly are not. We find that

completely changing the stolen property alleged to have been received by the defendant, an

essential element of the crime of receiving stolen property, “materially alter[s] facts which

are the essence of the offense on the face of the indictment as it originally stood.” Miller,

740 So. 2d at 862. Thus, we cannot say that the amendment to Fulton’s indictment was one

of form. Because the State’s proposed amendment to Fulton’s indictment was one of

substance rather than form, only the grand jury had the authority to approve such an

amendment. Accordingly, we must reverse the holding of the Court of Appeals on this issue,

as well as the judgment of the trial court, and vacate Fulton’s conviction. See, e.g., Hall v.

State, 127 So. 3d 202, 207 (Miss. 2013) (holding that, upon conviction of a crime for which

the defendant was not properly indicted, the judgment of conviction must be set aside,

dismissed, or vacated and remanded, and finding “no legal authority to acquit [the defendant]

by reversing and rendering judgment”).

                                      CONCLUSION

¶15.   For the foregoing reasons, we reverse the Court of Appeals’ judgment that the

indictment was sufficient, as well as the judgment of the Lowndes County Circuit Court, and

vacate Fulton’s conviction.

                                              9
¶16. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND
THE CONVICTION IS VACATED.

     DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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