       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2016-KA-00801-COA

SHARON SALLIE A/K/A SHARON JEAN                                        APPELLANT
SALLIE A/K/A SHARON PLAXICO SALLIE

v.

STATE OF MISSISSIPPI                                                     APPELLEE

DATE OF JUDGMENT:                       05/11/2016
TRIAL JUDGE:                            HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:              TIPPAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                        BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                      BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF COUNT I, CONSPIRACY
                                        TO COMMIT FALSE PRETENSES, AND
                                        SENTENCED AS A HABITUAL OFFENDER
                                        TO FIVE YEARS; AND COUNT II, FALSE
                                        PRETENSES, AND SENTENCED AS A
                                        HABITUAL OFFENDER TO TEN YEARS,
                                        WITH THE SENTENCES TO RUN
                                        CONCURRENTLY IN THE CUSTODY OF
                                        THE MISSISSIPPI DEPARTMENT OF
                                        CORRECTIONS, AND TO PAY
                                        RESTITUTION JOINTLY AND
                                        SEVERALLY IN THE AMOUNT OF
                                        $15,518.25
DISPOSITION:                            AFFIRMED: 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      FAIR, J., FOR THE COURT:

¶1.   Sharon Sallie was convicted of conspiring with her daughter, Jessica Plaxico, and
son-in-law, Ahmad Fryar, to obtain money from Wilma Colom through false pretenses, and

for actually committing the crime of false pretenses. The circuit court sentenced Sallie as a

habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), ordering

that she serve five years for her conspiracy conviction and ten years for her false-pretenses

conviction. The court further ordered that the sentences run concurrently and that Sallie pay

restitution jointly and severally in the amount of $15,518.25 (the total amount of money that

Colom lost from the scam).

¶2.    Sallie claims, for the first time on appeal, that her indictment in Count II was fatally

flawed because it did not contain specific facts surrounding the alleged crime. Finding

Sallie’s indictment sufficient, we affirm the judgment of the circuit court.

                                          FACTS

¶3.    Colom owned a motel in Tiplersville, Mississippi. Plaxico and Fryar were two of her

tenants. Colom testified that Plaxico often came to her with financial problems and that she

was not an “ideal tenant.” The scam leading to Sallie’s conviction started when Plaxico told

Colom that a doctor left medical tools inside her body when she gave birth to her child.

Plaxico said she planned to sue the doctor and claimed that she needed money for the lawsuit.

She promised that she would repay Colom once she had the money. When Colom asked

Sallie if Plaxico’s story was true, Sallie said that it was. Plaxico initially asked Colom to

send money through Moneygram in Sallie’s name because she was the only one with valid

identification. Colom sent Sallie $2,160 in September 2012, and then two $50 money orders


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– one in October 2012 and one in July 2013.

¶4.    Colom kept giving money directly to Plaxico and Fryar until she found out there was

no lawsuit in Plaxico’s name. She testified that, although Sallie did stop telling her to send

money, Sallie never said the story was a scam. Sallie testified that Colom kept sending

Plaxico and Fryar money even though she told her there was no pending lawsuit. Sallie also

denied ever conspiring with Plaxico and Fryar.

                                       DISCUSSION

¶5.    Sallie claims that Count II of the indictment was defective because it lacked an

essential element of the crime – the specific nature of the false pretenses – and prevented her

from preparing an adequate defense. She further argues that the indictment did not provide

specific details protecting her from double jeopardy.

¶6.    “Challenges to the substantive sufficiency of an indictment may not be waived and

consequently may be raised for the first time on appeal.” Ross v. State, 954 So. 2d 968, 1015

(¶126) (Miss. 2007) (citing State v. Berryhill, 703 So. 2d 250, 254 (¶16) (Miss. 1997)). Since

“a challenge to an indictment for failure to charge the essential elements of a criminal offense

affects a fundamental right,” it “may not be waived.” Id. (citing Jefferson v. State, 556 So.

2d 1016, 1019 (Miss. 1989)).

¶7.    On Count II, Sallie was indicted under Mississippi Code Annotated section

97-19-39(2) (Rev. 2014), which states in pertinent part:

       Every person, who with intent to cheat or defraud another, shall designedly, by
       color of any false token or writing, or by another false pretense, obtain the

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       signature of any person to any written instrument, or obtain from any person
       any money, personal property, or valuable thing, with a value of Five Hundred
       Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony
       and punished by imprisonment in the State Penitentiary not exceeding ten (10)
       years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

Count II of Sallie’s indictment read:

       [O]n or about and between the dates of September 1, 2012 – October 15, 2013,
       a date more certain unknown to the grand jury, Sharon Sallie wilfully,
       unlawfully, feloniously and knowingly with intent to cheat or defraud Wilma
       Colom by color of any false token or writing, or by another false pretense, did
       obtain from Wilma Colom, money with a value of Five Hundred Dollars
       ($500.00) or more in violation of Section 97-19-39, Mississippi Code, 1972,
       as amended . . . .

¶8.    An indictment that tracks the language of the statute is generally sufficient to inform

the accused of the charge against her, as long as the statute “fully, directly, and expressly,

without any uncertainty or ambiguity,” sets out all of the elements necessary for the offense.

Tran v. State, 962 So. 2d 1237, 1241 (¶17) (Miss. 2007). Depending on the nature of the

case and language of the statute, some indictments may need additional words or facts to

sufficiently put a defendant on notice. Id. Sallie argues that, based on our supreme court’s

ruling in State v. Cohran, 83 So. 2d 827 (Miss. 1955), her case falls into the latter category.

¶9.    In Cohran, the State appealed the circuit court’s judgment sustaining the defendant’s

demurrer to the indictment because the indictment was defective. Id. at 827. The defendant

had been charged under Mississippi Code Annotated section 2149 (Rev. 1942) for falsifying

cotton tickets. Cohran, 83 So. 2d at 827-28. In 1955, section 2149 read as follows:

       Every person who, with intent to cheat or defraud another, shall designedly, by
       color of any false token or writing, or by another false pretense, obtain a

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      signature of any person to any written instrument, or obtain from any person
      any money, personal property, or valuable thing . . . shall be punished by
      imprisonment . . . .

The indictment charged that the defendant:

      [D]id wilfully, unlawfully, knowingly, fraudulently, designedly, and
      feloniously, with intent to cheat and defraud one Ross Brown and Barry
      Brown, a partnership, by color of certain false writings, in words and figures
      as follows, to wit:

             I.                                        II.

             Date 10/30/1952                           Date 10/30/1952

             Sam Jones                                 Liner Jones

             No. $300                                  No. $300

             Reg. No. ___ Clerk, Account               Reg. No. ___ Clerk, Account

             [F]orwarded 52                            Forwarded 52

                    185                                            186

                    196                                            172

                     42                                            77

              PLM 423                                        PLM 429
              OK 3                                           OK  3

                  12.69                                         12.87

      obtain of and from the said Ross Brown and Barry Brown by means and color
      of the said false writings the sum of $25.56 good and lawful money of the
      United States,

      Against the peace and dignity of the State of Mississippi.


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Cohran, 83 So. 2d at 827-28.

¶10.   The supreme court stated that the indictment was speculative since there were no

extrinsic facts showing how the words and figures in the tickets were fraudulent. Id. at 828.

In affirming the circuit court’s judgment, the court held:

       [For a prosecution of] false pretenses, it is necessary to charge that the
       pretenses were false; that the defendant knew them to be false; that he obtained
       from another certain money or other valuable things; and that the pretenses
       were the moving cause by which the money or things were obtained . . . .

       Because of the absence of extrinsic facts in explanation of the pretense and
       wherein it consisted, the indictment was fatally defective. In addition, it also
       failed to charge that the defendants knew that the writings were false.

Id. (citing State v. Freeman, 60 So. 774 (Miss. 1913)). See also Westmoreland v. State, 286

So. 2d 807, 809 (Miss. 1973).

¶11.   The present case is readily distinguishable from Cohran because Sallie’s indictment

was not speculative. Sallie was clearly charged for willfully, unlawfully, feloniously, and

knowingly obtaining more than $500 from Colom through false pretenses. Her indictment

fully and directly set out all of the elements necessary for her offense. See Tran, 962 So. 2d

at 1241 (¶17). Therefore, no additional facts were necessary. Accordingly, we affirm the

circuit court’s judgment.

¶12. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY OF
CONVICTION OF COUNT I, CONSPIRACY TO COMMIT FALSE PRETENSES,
AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS; AND COUNT
II, FALSE PRETENSES, AND SENTENCE AS A HABITUAL OFFENDER OF TEN
YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY
RESTITUTION JOINTLY AND SEVERALLY IN THE AMOUNT OF $15,518.25, IS

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AFFIRMED.   ALL COSTS OF THIS APPEAL ARE ASSESSED TO TIPPAH
COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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