                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-KA-01368-SCT

GREGORY WAYNE COLBURN a/k/a GREGORY
WAYNE CULBURN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          08/19/2014
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS:                     LARRY BAKER
                                           JAMES GIDDY
                                           KELLY G. WILLIAMS
                                           CATHY CRONIN COUGHLIN
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   KELLY G. WILLIAMS
                                           CATHY CRONIN COUGHLIN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA AINSWORTH
DISTRICT ATTORNEY:                         MICHAEL GUEST
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 08/11/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    A jury convicted Gregory Colburn of two counts of exploitation of a vulnerable

person. The trial court sentenced him to twenty years: ten years on each count, running

consecutively.    Colburn now appeals and argues that the exploitation statute is

unconstitutionally vague, that his indictment should have been quashed, that the State failed
to present sufficient evidence to support his convictions, and that his defense was hampered

by the judge’s evidentiary rulings. We affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.     Colburn met Ruby Frances Hill in 1990 when he began servicing her burial-insurance

policy; Colburn would visit the policyholders’ houses each month to collect the premiums.

Over the years, Hill and Colburn became close friends—Colburn defined it as a

grandmother-grandson relationship—and eventually he became her primary caregiver.1 At

first, Hill would ask Colburn to run simple errands—like paying a bill or picking something

up from Walmart—but after Hill’s mother passed away, Hill began relying on Colburn for

more help. And when Hill had a car accident, she started relying on Colburn as her driver.

Colburn testified that he telephoned Hill at 9:30 every night, even if he had spent the day

running errands with her, and even if he was out of town on tour with his gospel trio, the

Men of Music.

¶3.     In October 2011, Hill executed a general power of attorney and an advanced

healthcare directive, naming Colburn as her agent in both documents. Both documents were

notarized, and the notary testified that Hill knew what she was doing when she executed

them.

¶4.     In January 2012, Hill moved into Heritage House, an assisted-living facility in Rankin

County. This move happened sometime after she was diagnosed with dementia, but the

record is unclear if that diagnosis prompted the move. Corrine Watts, a Heritage House



        1
        The State does not dispute any of the facts of Hill’s and Colburn’s relationship.

                                              2
employee, testified that the facility had a dementia ward, but Hill was not a resident of that

ward; she had a first-floor studio apartment and could come and go as she pleased. She said

Colburn and Hill had a very loving and caring relationship. She also testified that, to her

knowledge, Colburn was the only person who visited Hill there.

¶5.    Colburn helped Hill with her banking on several occasions. Hill owned a house in

Brookhaven, so she often would conduct her banking at the Trustmark branch there. Brenda

Henderson, who worked at the Brookhaven Trustmark and assisted Hill, testified that she

was familiar with Colburn because he brought Hill to the bank. According to Henderson,

Hill said that Colburn was a friend of the family and that she could trust him. Henderson

testified that she had no concerns about the relationship, and that Colburn seemed to care for

Hill. Henderson said Hill always seemed happy around Colburn.

¶6.    On one occasion, when Colburn was transacting some of Hill’s business at another

Trustmark branch—he was making a deposit for Hill and requesting cash back—that bank’s

manager called Henderson, questioning the transaction. Henderson called Hill to make sure

that was what she wanted and informed the other branch manager of this. Henderson

testified that Hill always seemed to know what she was doing. Henderson was aware that

Hill had executed a power of attorney naming Colburn as her agent but, to her knowledge,

Colburn never transacted any business at the Brookhaven Trustmark under that document.

¶7.    Colburn was with Hill when she opened a joint checking account at Community Bank

in April 2012. Tracy Primer was the bank employee who helped Hill set up the account, and




                                              3
she testified that Hill appeared to know what she was doing, and that she did not appear to

have been coerced into opening the account.

¶8.       Hill wrote several large checks to Colburn in 2012, ranging from around $3,000 to

more than $52,000. She also moved $125,000 from a Trustmark account into the joint

checking account she shared with Colburn and ultimately closed that Trustmark account.

Trustmark officials came across these transactions when they were investigating Hill’s

account for an unrelated issue having to do with a Social Security check. Trustmark notified

the Attorney General’s Office, which in turn initiated an investigation.             After the

investigation, a Rankin County grand jury indicted Colburn on three counts of exploitation

of a vulnerable person under Mississippi Code Section 43-47-19.

¶9.       After a trial in Rankin County Circuit Court in July 2014,2 the jury convicted Colburn

of counts one and two, but acquitted him of count three. Colburn appeals, arguing five

issues:

          1)The statute under which [he] was indicted and convicted is
          unconstitutionally vague and overly broad;

          2) The trial court erred in denying [his] Motion to Quash Indictment as the
          indictment failed to state an indictable offense;

          3) There was insufficient evidence to support [his] conviction; therefore, the
          trial court erred by denying [his] Motions for Directed Verdict and Judgment
          Notwithstanding the Verdict;

          4) The trial court erred in denying the testimony of [his] expert witness and
          denying the admission of the last will and testament and handwritten letter of
          Ruby Hill; and

          2
        An earlier trial had ended in mistrial because two jurors had “reported a conflict in
the case.”

                                                4
       5) The trial court erred by admitting into evidence a photograph of Ruby Hill.

                                        ANALYSIS

       1. The Mississippi Vulnerable Persons Act is not unconstitutionally vague.

¶10.   Colburn first attacks the constitutionality of the Mississippi Vulnerable Persons Act3

(the “Act”)—specifically, Sections 43-47-5 and 43-47-19—arguing that the terms

“vulnerable person,” “exploitation,” and “improper use” are unconstitutionally vague and

overbroad.4 Colburn argues that “[u]nder the broad, general provisions of [Section] 43-47-5,

prosecutors could seemingly bring criminal charges against any caregiver within the borders

of Mississippi.”

¶11.   This Court has held that

       [a] party challenging the constitutionality of a statute must prove his case by
       showing the unconstitutionality of a statute beyond a reasonable doubt. This
       Court will strike down a statute on constitutional grounds only where it
       appears beyond all reasonable doubt that such statute violates the constitution.
       We adhere here to the rule that one who assails a legislative enactment must
       overcome the strong presumption of validity and such assailant must prove his
       conclusion affirmatively, and clearly establish it beyond a reasonable doubt.
       All doubts must be resolved in favor of the validity of a statute. If possible,
       courts should construe statutes so as to render them constitutional rather than
       unconstitutional if the statute under attack does not clearly and apparently
       conflict with organic law after first resolving all doubts in favor of validity.




       3
           See Miss. Code Ann. §§ 43-47-1 to 43-47-39 (Rev. 2015).
       4
         Colburn argues that the statute is overly broad because it criminalized activity here
that was carried out under a lawful power of attorney, properly executed, and not shown to
be the result of undue influence or duress. Because this argument focuses on the evidence
in this case rather than the words of the statute, we address this issue with Colburn’s other
sufficiency-of-the evidence arguments.

                                              5
Richmond v. City of Corinth, 816 So. 2d 373, 375 (Miss. 2002) (internal citations and

punctuation omitted). “The U.S. Supreme Court has ruled that ‘the void-for-vagueness

doctrine requires that a penal statute define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.’” Fulgham v. State, 47 So. 3d 698, 701

(Miss. 2010).

¶12.   Colburn relies heavily on dicta from a case in which this Court reversed a conviction

for exploitation of a vulnerable adult. Decker v. State, 66 So. 3d 654 (Miss. 2011).

Although this Court decided that case on other grounds, it alluded to possible constitutional

problems with the Act’s breadth:

       The statute’s term “exploitation” is defined as “the illegal or improper use of
       a vulnerable person or his resources for another’s profit or advantage, with or
       without the consent of the vulnerable adult . . . .” The term “improper
       purpose”—which is not defined within the statutes—forms the base for
       Decker’s argument that the statute is unconstitutionally vague.

       This case was prosecuted by—and the appeal has been presented by—the
       Attorney General’s office. At oral argument, the assistant attorney general
       argued that any use of a vulnerable person’s money for personal benefit would
       be an improper use, even with the vulnerable person’s consent. So we must
       accept that interpretation as to how citizens are to be prosecuted under the
       statute.

       Under Section 43-47-19—as applied by the Attorney General, and as its terms
       are defined in Section 43-47-5—a vulnerable adult cannot give a spouse
       permission to withdraw money from a checking account to buy herself a
       birthday present; or give one of her children or grandchildren permission to
       withdraw money to pay college tuition. According to the argument presented
       by the Attorney General’s office, both these actions would constitute crimes.




                                              6
       We are troubled by the statute’s broad reach. But because we have decided this
       case based on [another issue], we decline to address today the constitutionality
       of the statute.

Id. at 658 (emphasis original). But in 2012, the year after this Court decided Decker, the

Legislature amended the Act to include a definition of “improper use,” as well as a definition

of “undue means.” Miss. Ann. § 43-47-5 (k), (p) (Rev. 2015).

¶13.   The Act provides that “[a]ny person who willfully exploits a vulnerable person . . .

where the value of the exploitation is Two Hundred Fifty Dollars ($250) or more . . . shall

be guilty of a felony . . . .” Miss. Code Ann. § 43-47-19(2)(b) (Rev. 2015). The Act defines

a “vulnerable person” as

       a person, whether a minor or adult, whose ability to perform the normal
       activities of daily living or to provide for his or her own care or protection
       from abuse, neglect, exploitation or improper sexual contact is impaired due
       to a mental, emotional, physical or developmental disability or dysfunction, or
       brain damage or the infirmities of aging. The term “vulnerable person” also
       includes all residents or patients, regardless of age, in a care facility . . . .

Miss. Code Ann. § 43-47-5(q) (Rev. 2015). “Exploitation” means

       the illegal or improper use of a vulnerable person or his resources for another’s
       profit, advantage or unjust enrichment, with or without the consent of the
       vulnerable person, and may include actions taken pursuant to a power of
       attorney. “Exploitation” includes, but is not limited to, a single incident.

Miss. Code Ann. § 43-47-5(I) (Rev. 2015).

¶14.   “Illegal use,” in turn, means “any action defined under Mississippi law as a criminal

act.” Miss. Code Ann. § 43-47-5(j) (Rev. 2015). And “improper use” means

       any use without the consent of the vulnerable person, any use with the consent
       of the vulnerable person if the consent is obtained by undue means, or any use
       that deprives the vulnerable person of his ability to obtain essential services or



                                               7
       a lifestyle to which the vulnerable person has become accustomed and could
       have otherwise afforded.

Miss. Code Ann. § 43-47-5(k) (Rev. 2015). Finally, the Act defines “undue means” as

       the use of deceit, power, or persuasion over a vulnerable person resulting in
       the vulnerable person being influenced to act otherwise than by his own free
       will or without adequate attention to the consequences.

Miss. Code Ann. § 43-47-5(p) (Rev. 2015).

¶15.   Colburn argues first that the term “vulnerable person” is unconstitutionally vague

because it includes people whose mental faculties are sound but who merely suffer

physically. Colburn posits that “the statutory language does not eliminate any one [sic] being

treated for conditions, ailments, impairments, or any other circumstance that may have

absolutely nothing to do with mental awareness, capacity or competency.” But Colburn does

not elaborate on his argument or provide any authority for his suggestion that the

Constitution somehow is violated by a law that protects from exploitation and abuse those

citizens who suffer from ailments other than mental incapacity or deficiency.

¶16.   The State recognizes that the statutory definition of “vulnerable person” is broad but

argues that “the statute’s broad definition of ‘vulnerable person’ ensures that people whose

abilities are equally impaired by causes other than just mental impairments are included in

the protected category of people. A person with a physical or emotional disability may be as

vulnerable to abuse, neglect and [exploitation] as a person with a mental impairment.” But

the State posits that innocent conduct is protected from the reach of the statute by the




                                              8
exploitation5 element and its required subelements. In other words, the broad, threshold issue

of who is a vulnerable person does not render the statute unconstitutional. We agree. While

the Legislature has defined the term “vulnerable person” broadly we find that the remaining

elements and the definitions of those elements now contained in the Act “‘define the criminal

offense with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.’” Fulgham, 47 So. 3d at 701.

¶17.   Colburn argues also that the term “improper use” is unconstitutionally vague, claiming

that “[t]here is absolutely no objective standard in determining the answer[] to what is

‘improper use’ and subjecting innocent citizens to selective prosecution.” Colburn argues

that the statutory definition leaves the term open to subjective interpretation and therefore

violates United States Supreme Court precedent that requires penal statutes to be “explicit

and well-defined, and not subject to arbitrary, selective, or discriminatory enforcement.”

¶18.   The State argues that “‘improper use’ is explicitly defined in the statute in a manner

that is not subject to more than one meaning.” Specifically, the State argues that “[t]here are

four instances when the use of a vulnerable person’s resources is considered improper

pursuant to the statute and those four ways are unambiguous.”6 That unambiguous


       5
        Like his “overbreadth” argument, Colburn’s “exploitation” argument is really a
sufficiency-of-the evidence argument, and we therefore address it later in this opinion.
       6
        Those four ways are:
       (1) any use without the consent of the vulnerable person;
       (2) any use with the consent of the vulnerable person if the consent is obtained
       by undue means;
       (3) any use that deprives the vulnerable person of his ability to obtain essential

                                               9
definition, the State argues, “cures the issue of the statute’s overbreadth so that

constitutionally protected conduct is not punished.”

¶19.      Again, we agree with the State. We find that the recently enacted statutory definition

of “improper use” has, at least on its face, cured any vagueness problems that the exploitation

statutes might have had and that troubled this Court in Decker. Put simply, following the

Legislature’s addition of a definition of “improper use,” Colburn’s argument that there is

“absolutely no objective standard in determining the answer[] to what is ‘improper use’” is

incorrect. Indeed, the troubling hypothetical scenarios described by the Decker Court are no

longer possible: under the statutes as currently written, a vulnerable person may consent to

his or her spouse using their debit card to withdraw money to buy themselves a gift, and a

vulnerable person may consent to his or her child or grandchild withdrawing money to use

for tuition, as long as that consent was not obtained by undue means. See Decker, 66 So. 3d

at 658.

          2. The trial judge did not err when he denied Colburn’s motion to quash
          his indictment.

¶20.      Colburn argues next that the trial court should have granted his motion to quash the

indictment. This Court has held that “whether an indictment is defective is an issue of law

and therefore deserves a relatively broad standard of review, or de novo review . . . .” State

v. Hawkins, 145 So. 3d 636, 638 (Miss. 2014) (quoting Tapper v. State, 47 So. 3d 95, 100



          services or (4) to obtain a lifestyle to which the vulnerable person has become
          accustomed and could have otherwise afforded.

Miss. Code Ann. § 43-47-5(k) (Rev. 2015).

                                                10
(Miss. 2010)) (internal quotation marks omitted). Uniform Rule of Circuit and County Court

Practice 7.06 provides in part that an indictment

       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. Formal and technical words are not
       necessary in an indictment, if the offense can be substantially described
       without them.

URCCC 7.06. “The rule in this state is that an indictment which states the statutory language

is generally sufficient to inform the accused of the charge against him.” King v. State, 580

So. 2d 1182, 1185 (Miss. 1991) (quoting Cantrell v. State, 507 So. 2d 325, 329 (Miss.

1987)). “This Court has made it ‘clear that the ultimate test, when considering the validity

of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his

defense.’” Byrom v. State, 863 So. 2d 836, 867 (Miss. 2003) (quoting Medina v. State, 688

So. 2d 727, 730 (Miss. 1996)).

¶21.   All three counts for which Colburn was indicted tracked the exploitation statute, and

the counts varied only in two places: in the dates alleged, and in the last sentence, where

specific facts are alleged. Count I charged

       that Gregory Wayne Colburn between February 1, 2012 and August 31, 2012
       in the County and State aforesaid and within the jurisdiction of this Court, did
       wilfully, unlawfully, feloniously, knowingly, and intentionally exploit Ruby
       Hill, a vulnerable adult as defined by Section 43-47-5(n) of the Mississippi
       Code of 1972, as amended, and with knowledge that Ruby Hill’s ability to
       perform normal activities of daily living or to provide for her own care or
       protection from abuse, neglect, or exploitation was impaired due to mental,
       emotional, physical or developmental disability or dysfunction, or brain
       damage or the infirmities of aging, did exploit Ruby Hill, by the illegal or
       improper use of Ruby Hill’s resources, in an amount over two hundred fifty
       dollars ($250.00), for his own profit or advantage, with or without the consent
       of Ruby Hill, including acts committed pursuant to power of attorney, by

                                              11
       depositing checks made payable to Ruby Hill into his personal Community
       Bank account [account number] in violation of M.C.A. Section 43-47-19 of
       1972, as amended[.]

Count II was identical to Count I, except that it charged Colburn with exploiting Hill “by

creating a Community Bank account [account number] in the name of ‘Ruby Francis Hill or

Gregory Wayne Colburn,’ and then transferring funds belonging to Ruby Hill into the

account, and using these funds for his own profit or advantage in violation of M.C.A. Section

43-47-19 of 1972, as amended[,]” between May 1, 2012, and August 21, 2012. Count III

again was virtually identical to the first two counts, except that it charged Colburn with

exploiting Hill “by depositing a check made payable to Ruby Hill and a check from Ruby

Hill’s Trustmark bank account [account number] into a ‘Men of Music’ bank account

[account number] in violation of M.C.A. Section 43-47-19 of 1972[,]” between February 1,

2012, and March 31, 2012.

¶22.   Colburn claims that, since the financial transactions are not disputed and because he

had Hill’s consent, none of the facts charged in the indictment amount to illegal acts, and so

the indictment denied him “a reasonable opportunity to prepare and present a defense . . . .”

According to Colburn, because every count included the language “with or without the

consent of Ruby Hill,” then “the grand jury could have found that Ruby Hill did in fact give

her consent for every act alleged by the indictment, which if given without undue influence,

is perfectly legal.” So according to Colburn, the indictment put him in the impossible

position of being forced to prepare a “defense for legal acts[.]”




                                             12
¶23.    The State, on the other hand, points out that the indictment tracks the statute, including

the “with or without the consent” language.7 The State also argues that the specific facts

alleged in the indictment put Colburn on notice of the crimes with which he was being

charged. The State argues finally that the “did exploit” and “illegal or improper use”

language in the indictment prevented the grand jury from charging Colburn with any innocent

acts.

¶24.    Our analysis of this issue is similar to our analysis of Colburn’s constitutionality

claim. While the indictment did contain the language “with or without the consent of Ruby

Hill—again, language quoted directly from the statute—it also said that Colburn “exploited”

Hill “by the illegal or improper use of” her resources. As such, any behavior of Colburn’s

that the grand jurors deemed “innocent” would have, by definition, been excluded. In short,

we find that the indictment satisfied the requirements of Rule 7.06 in that it was “a plain,

concise and definite written statement of the essential facts constituting the offense charged”

that “fully notif[ied] the defendant of the nature and cause of the accusation.” Colburn knew

the statute he was charged with violating. He knew the date ranges, the transactions, the

banks, the account numbers, and the alleged victim of the crimes charged.




        7
        “It shall be unlawful for any person to abuse, neglect or exploit any vulnerable
person.” Miss. Code Ann. § 43-47-19(1) (Rev. 2015). And again, “exploitation” is defined
as “the illegal or improper use of a vulnerable person or his resources for another’s profit,
advantage or unjust enrichment, with or without the consent of the vulnerable person, and
may include actions taken pursuant to a power of attorney. ‘“Exploitation”’ includes, but is
not limited to, a single incident.” Miss. Code Ann. § 43-47-5(i) (Rev. 2015) (emphasis
added).

                                               13
¶25.   It appears that the crux of Colburn’s issue with the indictment is that it failed to state

which type of “improper use” was being charged. And he correctly asserts that consent is

a total defense to one of the four types. But there were three other ways he could have

“improperly” used Ruby Hill’s resources. See supra, n. 6. And this Court has not required

that level of specificity in indictments. See, e.g., State v. Hawkins, 145 So. 3d 636, 645

(Miss. 2014). The trial judge did not err when he denied Colburn’s motion to quash.

       3. Colburn’s convictions were supported by sufficient evidence.

¶26.   Colburn argues that, even in the light most favorable to the State, the evidence was

insufficient to sustain his convictions, so the trial court should have granted his motion for

directed verdict or his motion for judgment notwithstanding the verdict (JNOV).

¶27.   When considering a sufficiency-of-the-evidence argument, this Court has said that

       the critical inquiry is whether the evidence shows beyond a reasonable doubt
       that the accused committed the act charged, and that he did so under such
       circumstances that every element of the offense existed; and where the
       evidence fails to meet this test it is insufficient to support a conviction.
       However, this inquiry does not require a court to ask itself whether it believes
       that the evidence at the trial established guilt beyond a reasonable doubt.
       Instead, the relevant question is whether, after viewing the evidence in the
       light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.

Fagan v. State, 171 So. 3d 496, 503 (Miss. 2015) (quoting Bush v. State, 895 So. 2d 836,

843 (Miss. 2005)) (internal alterations and quotation marks omitted) (emphasis added). This

Court 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




                                              14
only find the accused not guilty.’” Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996)

(quoting Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987)) (emphasis added).

¶28.   Colburn was convicted on two counts of exploitation of a vulnerable person. There

is no dispute that, at all relevant times, Ruby Hill was a “resident or patient . . . in a care

facility,” and therefore a “vulnerable person” under the Act. To prove that Colburn exploited

Hill, the State was required to prove that he “illegal[ly] or improper[ly] use[d] a vulnerable

person or [her] resources for another’s profit, advantage or unjust enrichment, with or

without the consent of the vulnerable person . . . . ” Miss. Code Ann. § 43-47-5(i) (Rev.

2015). Exploitation “may include actions taken pursuant to a power of attorney.” Id.

¶29.   While the “illegal or improper” language was in the indictment and the jury

instructions, nothing else indicates that the State alleged that Colburn’s use of Hill’s

resources was illegal. Rather, the State argues that the evidence “demonstrates that Colburn

exploited Ms. Hill through the improper use of her resources for his own profit or

advantage.” As discussed above, under the statute are four ways that the State could prove

“improper use”: (1) Any use without the consent of the vulnerable person; (2) any use with

the consent of the vulnerable person if the consent is obtained by undue means; (3) any use

that deprives the vulnerable person of his ability to obtain essential services; or (4) any use

that deprives the vulnerable person of his ability to obtain a lifestyle to which the vulnerable

person has become accustomed and could have otherwise afforded. Miss. Code Ann. § 43-

47-5(k) (Rev. 2015).




                                              15
¶30.   The State did not present any evidence of Hill’s net worth or available resources. And

while the State introduced evidence of the money that was involved in the transactions at

issue, it did not present evidence that Hill had been deprived of her “ability to obtain” either

“essential services” or “a lifestyle to which [she] ha[d] become accustomed and could have

otherwise afforded.” Miss. Code Ann. § 43-17-5(k). As such, the issue here is if the State’s

evidence was sufficient for any rational juror to conclude that Colburn’s use of Hill’s

resources, as described in Counts I and II, was done either without her consent, or with her

consent that was obtained by undue means. Again, the Act defines undue means as “the use

of deceit, power, or persuasion over a vulnerable person resulting in the vulnerable person

being influenced to act otherwise than by his own free will or without adequate attention to

the consequences.” Miss. Code Ann. § 43-47-5(p) (Rev. 2015).

¶31.   The State presented four witnesses in its case-in-chief: Hill’s treating physician Dr.

Todd Perkins, Trustmark Bank employee Doug Winstead, Community Bank employee

Christy Jones, and Investigator Russell Frazier. Dr. Perkins testified that Hill became his

patient in early 2012 when she was referred to him as her primary physician. Dr. Perkins’s

treatment of Hill varied, but sometimes it was as often as every two weeks. Dr. Perkins’s

testified that Hill was “always pleasant and – but not very conversant . . . . ” When asked

about her mental ability, Dr. Perkins said that Hill “[s]eemed to be impaired. She had a

diagnosis of dementia.” Dr. Perkins described dementia as “a group of symptoms [a]ffecting

[sic] cognitive function, thinking, memory loss, and other social functioning to the point




                                              16
where it [a]ffects your daily activities.”         Dr. Perkins testified that Hill displayed

characteristics of dementia; specifically, impaired cognition and slow memory.

¶32.   When asked if Hill was able to care for herself, Dr. Perkins said “[i]n my opinion, no.”

Dr. Perkins also opined that Hill was unable to take care of her personal finances. When

asked the basis of that opinion, Dr. Perkins testified that

       A. Just she seemed to need assistance with her [sic]. In my limited interaction
       with her at the clinic, she needed assistance with being brought to the clinic,
       with ambulation, with – even with our discussions with asking her questions,
       it was very limited responses that we would have.

       Q. Was her mental capacity good?

       A. It didn’t seem to be. It seemed to be impaired.

       Q. As far as her memory, were you able to determine whether or not her
       memory was good?

       A. She would respond to me and ask me about my children, so there were –
       she would have some memory. I never got into detail about specific testing of
       her memory, but based on our conversations, it was impaired.

       Q. Is that something that’s consistent with someone suffering from dementia?

       A. Very consistent.

¶33.   Dr. Perkins acknowledged that Colburn was the person who brought Hill to see him,

and that he did not have any concerns about Colburn. When asked by Colburn’s attorney if

it was possible that Hill was “lucid enough” to make decisions during the time period

described in the indictment, Dr. Perkins said he “[could not] say that personally.” Dr.

Perkins testified that dementia is a progressive illness and that there may be “more lucid”

moments, generally speaking, but that he could not say specifically for Hill.



                                              17
¶34.   Trustmark Bank employee Doug Winstead testified that he was a regional security

officer responsible for “protecting the assets of the company and its customers.” Winstead

began looking into Hill’s account in November 2012 after he got a phone call from another

department “concerning a reclamation that was made on her account.”8 During his

investigation he “discovered some irregularities,” which prompted him to notify the Attorney

General’s Office. The “irregularities” that Winstead found were “[p]ersonal checks coming

out of [Hill’s] account to an individual that were going back to another bank [Colburn’s

Regions Bank individual account] that were for – noted for expenses.”

¶35.   Winstead also noticed “some rather large checks that were payable to another bank,

which indicated the closing of her [Hill’s] accounts at Trustmark and the funds being

diverted over to Community Bank.” Through Winstead’s testimony, the State introduced

Exhibit 1, which showed a $20,000 check, dated May 14, 2012, drawn on Hill’s Trustmark



       8
        Winstead explained that Colburn had called Trustmark when Hill’s account had a
negative balance, which had started the entire chain of events. Winstead explained how
Hill’s account had become overdrawn:

       Well, he [Colburn] had deposited the [social security] check into her [Hill’s]
       account, but somewhere along the way, it appears that she didn’t touch the
       check; therefore, [she] signed the affidavit of forgery on the check because
       she, in her mind, had never seen the check or signified her endorsement on the
       back of the check . . . these complaints go through the federal government,
       which in turn hits us [Trustmark] with a reclamation once the forgery is made,
       letting us know that they’re charging us with the amount of the check based
       on the forgery. We didn’t know who it was . . . once we were able to do a past
       history of this check and saw that it went into her account, well, we debited
       the account based on forgery, because they had debited us. So in order for us
       to get the money that had been taken from us, we took it from the account,
       which threw the account into the negative, which prompted the call by Greg
       Colburn to the bank as to what’s going on . . . . ”

                                            18
account, payable to Community Bank, and deposited by Colburn into his personal account.

State’s Exhibit 2 showed a $125,000 check, dated April 10, 2012, drawn on Hill’s Trustmark

account, payable to Community Bank, with the memo line reading “New Checking Acct.”

¶36.   State’s Exhibit 3 showed a $1,500 check, dated February 15, 2012, drawn on Hill’s

Trustmark account, payable to Colburn, with the memo line reading “Exp Reimbursement

Oct-Dec [20]11.” State’s Exhibit 4 showed a $1,500 check, dated March 27, 2012, drawn

on Hill’s Trustmark account, payable to Colburn, with the memo line reading “Exp-Jan, Feb,

March,” deposited by Colburn into The Men of Music, LLC’s account.9 Winstead testified

that, to his knowledge, Hill’s Trustmark accounts had been closed and that she no longer had

any money there. Winstead testified that he had never spoken personally to Hill or Colburn,

and that the check memos were the only thing that indicated what the checks were for and

the intent behind them; he had “no idea” whether Hill intended for Colburn to complete the

transactions or not. When asked by Colburn’s attorney if the transfers were “abnormal,”

Winstead said “[b]ased on what I saw in this particular case, it was abnormal in my opinion.”

¶37.   Community Bank records custodian Christy Jones testified that part of her

employment responsibilities included watching for “suspicious activity.” Through Jones’s

testimony, the State introduced Exhibit 5, which showed an opening deposit of $125,000 for

a joint account between Colburn and Hill, dated April 10, 2012. State’s Exhibit 6 showed

the May 14, 2012, purchase of a $75,000 CD from the joint account, which was then put



       9
        All of the checks in State’s Exhibit 1-4 were signed by Ruby Hill, and two of the
checks also were signed by Colburn as POA. So all of the transactions appeared to be
facially valid.

                                             19
solely in Colburn’s name after the purchase. Jones testified that Hill would have no access

to the CD, and that the CD would go to Colburn’s estate should he pass away.

¶38.   State’s Exhibit 7 was a $1,500 check, dated June 5, 2012, made payable to cash,

drawn on Hill and Colburn’s joint account, signed by Colburn. State’s Exhibit 8 was a

$1,500 check, dated August 21, 2012, made payable to cash, drawn on Hill and Colburn’s

joint account, signed by Colburn. The memo line read “Reimbursement June, July August.”

State’s Exhibit 9 showed a check payable to Hill from AXA Equitable Life Insurance

Company for $3,440 (that Hill endorsed), which Colburn deposited into his personal account

on February 22, 2012. State’s Exhibit 10 showed a check for $52,209.93 from “Federated

Gov Income Securities - F” payable to “Gregory Wayne Colburn POA, FBO10 Ruby Frances

Hill,” which Colburn deposited into his personal account on May 10, 2012. And finally,

State’s Exhibit 11 showed a check for $3,931.31 drawn from the Bank of Forest payable to

Ruby Hill, which Colburn deposited into his personal account on August 22, 2012.

¶39.   Jones testified that she had reviewed the bank statements related to Hill’s and

Colburn’s joint account. Jones said that there was the initial $125,000 opening deposit, and

that there were various other deposits after that, totaling $82,000, that all came from Hill’s

personal account at Trustmark. Jones testified that Colburn never deposited anything in the

joint account as the “maker”; all of the deposits were either from Hill, or payable to Hill.

When asked specifically about several of the exhibits by Colburn’s counsel, Jones

acknowledged that, because Hill either signed personally, or because Colburn signed as joint



       10
        “For benefit of.”

                                             20
account-owner or as Hill’s POA, there was nothing facially improper or illegal about the

transactions. Jones also testified that she did not file a report with anyone regarding the joint

account.

¶40.   Investigator Russell Frazier of the Attorney General’s Office testified that he

investigates cases involving allegations of exploitation of vulnerable adults. Frazier became

involved with Hill’s case after Trustmark Bank contacted the Attorney General’s Office

regarding some “unusual financial transactions.”          Frazier subpoenaed records from

Trustmark Bank and Community Bank, and he also spoke with Hill in her room at Heritage

House the same day that Winstead had called to report the suspicious financial activity.

Frazier went to speak with Hill about the allegations and to “get her input on what’s going

on and kind of get a feel of what her mental capacity was and if she was okay with all these

transactions that had happened.” But Frazier ultimately spoke to Hill for less than ten

minutes. When asked why he cut the interview short, Frazier responded

       Well, I started off – I just kind of wanted to get the framework, because the
       only thing we knew was that [Colburn] was a non-family member, so I had to
       kind of figure out what was this relationship, and then I wanted to find out
       about these financial transactions that took place. I started off by just asking
       her, tell me about your relationship with Greg Colburn and how long you’ve
       known him. And she told me, oh, I’ve known Greg for a long time . . . I said,
       well, how did you meet him and exactly how long [have] you’ve known him,
       and she couldn’t tell me. And then I said, well, you know, I’m here today,
       [and] I want to ask you about this account that got opened at Community Bank
       with you and [Colburn], this joint account. And she told me she didn’t have
       a joint account at Community Bank and didn’t have any account with
       [Colburn]. So I said, okay. So I had several checks that had been provided to
       me by Trustmark that were made out to [Colburn], and I kind of asked her can
       you tell me what the checks were for, and she couldn’t recall what the checks
       were for. And at that point, I cut the interview off. And I found out who her
       medical doctor was to verify my suspicion.

                                               21
¶41.   Frazier testified that he interviewed Colburn on December 10, 2012. Frazier said that

Colburn spoke to him willingly, and that Colburn responded to his questions. Colburn told

him that he had met Hill about twenty years ago, and that he had become her primary

caregiver. When asked about the $125,000 check that came from Hill’s personal Trustmark

account into the Community joint account, Colburn said that Hill told him to move the money

because Trustmark was “having a problem recognizing the power of attorney.” Colburn

recommended Community Bank—his bank—and Hill agreed. Colburn did not want to be

on the joint account, but Hill “insisted it was going to be a joint account.”

¶42.   Colburn later suggested to Hill that she move some of that money into a CD, and Hill

agreed. When asked why he put the CD in his name, Colburn said that “it must have been

a mistake, because the CD was supposed to be in both of their names.” Colburn said that Hill

was not present when he opened the CD, but he was going to “make sure” that her name was

added to it. Frazier testified that Colburn used the CD as collateral to obtain a $60,000

personal loan shortly after he purchased it.

¶43.   Frazier asked Colburn if he had ever transferred any of Hill’s money from her

Trustmark account into his personal account, and Colburn said that he “may have put a few

hundred dollars in there for running some errands and stuff.” But when asked specifically

about the $20,000 check that he had deposited into his personal account—State’s Exhibit

1—“that’s when he explained that – that’s what she [Hill] wanted to do with the money.”

When asked about a $15,000 Met Life transaction,11 Colburn testified that that money went



       11
        It does not appear that the “Met Life transaction” was entered as an exhibit.

                                               22
into their joint account. But after Frazier told him that the bank records showed that money

went to the Men of Music, Colburn stated “that’s [where] Ms. Hill wanted the money to go.”

Similarly, when asked about the AXA transaction—State’s Exhibit 9—Colburn said that

money went into their joint account. But when Frazier told him the bank records indicated

that money was deposited into his personal account, Colburn “advised [that] Ms. Hill wanted

him to have it as a gift.”

¶44.   When Frazier asked Colburn about the $52,000 federal government income securities

check—State’s Exhibit 10—Colburn

       originally stated he put the money in Ms. Hill’s checking account. And when
       we explained to him that it indicated the money had actually been deposited
       into his personal account, he explained that it must have been a mistake or he
       made a mistake. And, you know, at this point we asked him, you know, how
       do you make a mistake by putting $52,000 into your account and not recognize
       its [sic] there, and he told me he only checks his accounts like once a year.

       Q. Did you ask him about the purchase of a tour bus?

       A. I did. I noticed in this same month in his bank records, it appeared a tour
       bus had been bought for $112,000. And I told him it was obvious to me that
       the $52,000 was used to buy the tour bus, and he denied that he used the
       $52,000 to buy the tour bus.12

¶45.   The State rested after Frazier’s testimony, and Colburn moved for a directed verdict,

which the trial judge denied. Colburn then presented several witnesses who testified about

his and Hill’s loving and caring relationship and about Hill’s demeanor when she executed

the power of attorney and during some of the transactions at issue. Finally, Colburn took the

       12
        Mark Carman testified during Colburn’s defense. He met Colburn through the
music industry, and he testified regarding Colburn’s tour bus: “It’s my understanding that
somewhere in the neighborhood of $50,000 or a little bit more of it [the purchase price]
came from Mrs. Ruby.”

                                             23
stand in his own defense. When asked how he felt about Hill, Colburn said “Oh, I love her

with all my heart. I would do anything and everything in the world to make sure that she’s

taken care of and I feel that I have.” Colburn testified that Hill had given him gifts in the

past; she once gave him $18,000 to cover medical bills, and she also gave him $10,000 for

a down payment on a car. She also would give him up to $1,000 sometimes before he would

go on his singing trips to help cover his travel expenses. He testified that Hill wanted him

to have the $20,000 and the $52,000 as gifts to support his music ministry. He could not

recall a lot of what he told Investigator Frazier during his interview, but he testified that he

was suffering from a diabetic episode during the interview. Both sides finally rested after

Colburn’s testimony.

¶46.   So as mentioned above, several witnesses testified that Colburn and Hill appeared to

have a loving and caring relationship, and that Hill seemed to “know what she was doing”

during some of the banking transactions. But the State also presented evidence of Hill’s poor

mental state from both Dr. Perkins and Investigator Frazier. Winstead testified that he had

observed “irregularities” in Hill’s account that had caused him to investigate further, and that

he regarded the transactions at issue as “abnormal.” Hill told Frazier that she knew Colburn,

but she said she did not have a joint account with him, nor could she remember what the

checks Frazier showed her were for. And perhaps most importantly, Colburn changed his

story about several of the financial transactions, both during his interview with Frazier, and

between the time he talked with Frazier and when he testified at trial. Based on the evidence




                                              24
the State presented, we find that a “rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Fagan, 171 So. 3d at 503.

¶47.   Colburn’s argument that “no crime was committed” because he had Hill’s POA, and

because there was testimony of a loving relationship and that Hill “knew what she was

doing” during some of the banking transactions is unavailing. Simply put, his argument stops

short of a full analysis of the elements of exploitation. Hill could have been perfectly lucid

and intentional in opening an account—i.e., she could have given her consent—but if the jury

believed that Colburn had used “deceit, power, or persuasion” to influence Hill to act

“without adequate attention to the consequences,” then he obtained her consent by undue

means, which also is an “improper” use under the Act.

¶48.   Specifically, Count I alleged that Colburn exploited Hill by depositing checks made

payable to her into his personal checking account. Colburn deposited a $52,209.93 check

from Federated Gov Income Securities—payable to the order of “Gregory Wayne Colburn

POA FBO Ruby Frances Hill”—into his personal checking account. And, using a power of

attorney, he endorsed the check. The power of attorney specifically prohibited Colburn from

gifting or assigning any of Hill’s assets to himself. So the jury’s verdict on Count I is

supported by evidence that he deposited this check into his personal account without consent.

¶49.   Count II alleged that Colburn exploited Hill by using funds in their joint checking

account “for his own profit or advantage.” Reasonable jurors could conclude that Hill

decided to create the joint checking only so that Colburn could better manage her financial

affairs. But Colburn persuaded Hill to use some of that money to obtain the CD, which he



                                             25
put in his name, and then used as collateral to obtain a loan. Jurors certainly could conclude

that Hill did not consent to this use. They also could conclude that Colburn persuading Hill

to obtain a CD constituted undue means.

¶50.   Stated differently, even assuming that the jury believed absolutely all of the facts that

Colburn highlights on appeal—including his and Hill’s close relationship—that would not

necessarily absolve him of liability. We find that, based on the evidence produced by the

State, the jury properly could have found that Colburn used that close relationship and other

forms of persuasion to gain Hill’s consent to the financial transactions. Indeed, that seemed

to be the State’s theory of the case. During opening statements, the prosecutor said that

Colburn “befriended” Hill. “He doted on her, and he took her money.” The jury also could

have concluded that certain transactions lacked Hill’s consent altogether. In short, after

viewing the evidence in the light most favorable to the State, we find that a rational juror

could have found the essential elements of the crime beyond a reasonable doubt. We

therefore find that the State presented sufficient evidence to support Colburn’s convictions.

       4. The trial judge did not err in his evidentiary rulings.

¶51.   Colburn was prepared to call Dr. Richard A. Roper, a purported handwriting expert.

Roper had examined four documents and had prepared a report, about which he was prepared

to testify, outlining his expert opinion that the four documents were signed by the same

person. Two of the documents, the general power of attorney and the advance directive,

were introduced into evidence during the notary’s testimony, and she testified that it was

indeed Hill who had signed the documents. The third document was a will, dated several



                                              26
years before the indictment, which named Colburn as executor and sole beneficiary of Hill’s

estate. The fourth document was a handwritten letter, purportedly from Hill to Colburn,

which expressed gratitude to him for visiting her and keeping in touch via telephone, among

other things. Colburn wished to introduce the will and the letter and have Dr. Roper opine

that Hill had signed all the documents.

¶52.   But the trial judge excluded the will and the letter,13 finding them irrelevant,

cumulative, potentially confusing to the jury, and that their probative value was substantially

outweighed by their prejudicial effect. Specifically, the trial judge stated that

       the mere fact that a victim has executed a will leaving her estate to the
       defendant upon her death is not really probative on the issue of whether or not
       that defendant took money before she died. Those are two separate and
       distinct matters, and to allow that kind of testimony in, I think might be
       confusing to the jury . . . . I think the issue is [whether to allow Colburn to
       present evidence that Hill] was going to leave everything to [him] at her death
       – and therefore, it showed [their] relationship. I believe that would be just
       confusing to the jury whenever a defendant, if they’ve known each other 24
       years, has the ability to put forth his relationship with the victim through other
       evidence . . . I think that could be confusing to the jury, and you can prove that
       close relationship through other testimony.

¶53.   Colburn argues that the trial judge erred, claiming that this evidence “would have

assisted the jury in understanding the true nature of the relationship between [him] and Ms.

Hill . . . . ” The State counters that “the relationship between Colburn and Ms. Hill is not

relevant to the issue of whether he exploited her” and that it “would not help the jury in




       13
        It does not appear that the trial judge made a ruling specifically about Dr. Roper’s
testimony, but it is clear from the transcript that the exclusion of the will and letter obviated
the need for his testimony.

                                               27
determining any element of the crime or defense to this crime and could possibly confuse the

jury regarding the issues.”

¶54.   This Court reviews evidentiary rulings under an abuse-of-discretion standard, and

“will not reverse a trial court’s evidentiary ruling absent a finding of abuse of discretion ‘so

as to be prejudicial to the accused.’” Ronk v. State, 172 So. 3d 1112, 1132 (Miss. 2015).

After hearing argument from both sides, the trial judge decided to exclude the evidence and

gave clear reasons for his ruling. And after careful review, we cannot say that the trial judge

abused his discretion. This issue is without merit.

       5. The trial judge did not err in admitting into evidence a photograph of
       Hill.

¶55.   Colburn argues finally that the trial court should not have allowed a photograph of

Hill to be introduced as evidence. He argues that it was irrelevant and prejudicial, because

it was taken more than two years after the incidents alleged in the indictment and because it

showed Hill in a wheelchair. He claims that “[t]he sole purpose of these photographs were

to manipulate the emotions of the jurors which unjustly prejudiced [his] defense . . . .”

¶56.   This Court has held that “[t]he admissibility of photographs rests within the sound

discretion of the trial court.” Keller v. State, 138 So. 3d 817, 857 (Miss. 2014). Photographs

may be relevant even if all they do is “supplement or clarify witness testimony.” Id. at 857

(quoting Le v. State, 913 So. 2d 913, 955 (Miss. 2005)). And “‘[t]he discretion of the trial

judge runs toward almost unlimited admissibility regardless of the gruesomeness,

repetitiveness, and the extenuation of probative value.’” Noe v. State, 616 So. 2d 298, 304

(Miss. 1993) (citation omitted) & (emphasis added).


                                              28
¶57.   We find no abuse of discretion here. First, the trial judge noted when he ruled the

photograph admissible that if Hill was physically able to be in the courtroom, “she would be

seen by the jury as she is today, not as she was the day the crime was allegedly committed.”

Additionally, as mentioned above, it is undisputed that Hill was a resident of a care

facility—a fact known to the jury—and therefore a “vulnerable person” under the Act.

¶58.   Also as mentioned above, the trial judge previously had declared a mistrial because

“two jurors reported a conflict in the case.” Here, the State argued that, because of the

previous mistrial, the photograph “would be relevant to a jury to be able to put a face to the

victim listed in the indictment that they were going to hear about all throughout the trial.”

And this Court previously has held that a photograph of the victim “served a meaningful

evidentiary purpose in establishing the identity of the man shot,” even after the defendant

offered to stipulate to the victim’s identity. See Noe, 616 So. 2d at 303. See also Campbell

v. State, 749 So. 2d 1208, 1213 (Miss. Ct. App. 1999) (“The photograph served the purpose

of establishing the identity of the victim of the crime . . . . The victim does not need to remain

faceless to the jury.”).

¶59.   Moreover, even assuming that Colburn is correct that the photograph “unfairly

prejudiced the jury,” we still would not reverse. For “[a] party may claim error in a ruling

to admit or exclude evidence only if the error affects a substantial right of the party[.]” Miss.

R. Evid. 103 (emphasis added). And we find no “substantial right” of Colburn’s affected by

the photo’s admission, especially since Hill could have been present in the courtoom had she

been physically able to do so. This issue is without merit.



                                               29
                                      CONCLUSION

¶60.   For the foregoing reasons, we find that all of Colburn’s arguments lack merit, and we

therefore affirm the judgment and sentences of the Rankin County Circuit Court.

¶61. COUNT I: CONVICTION OF EXPLOITATION OF A VULNERABLE ADULT
AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF
EXPLOITATION OF A VULNERABLE ADULT AND SENTENCE OF TEN (10)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONSECUTIVELY TO THE SENTENCE IN COUNT I. APPELLANT SHALL PAY
COURT COSTS, FEES AND ASSESSMENTS IN THE AMOUNT OF $1,031.50,
RESTITUTION IN THE AMOUNT OF $78,000 IN COUNT I AND RESTITUTION
IN THE AMOUNT OF $79,581.24 IN COUNT II. COURT COSTS, FEES AND
ASSESSMENTS IN THE AMOUNT OF $1,031.50 IS TO BE PAID OUT OF THE
APPELLANT’S CASH BOND ON DEPOSIT WITH THE CIRCUIT CLERK OF
RANKIN COUNTY, MISSISSIPPI, AND THE REMAINING BALANCE OF $2,518.50
IS TO BE APPLIED TO RESTITUTION IN COUNT I.           REMAINING
RESTITUTION SHALL BE PAID WITHIN NINETY (90) DAYS FROM AUGUST 19,
2014. THE PAYMENT OF COURT COSTS, FEES, ASSESSMENTS, AND FINES
PROVIDED ABOVE OR BY OTHER ORDERS OF THE COURT ARE TO BE
MADE A SPECIAL CONDITION OF PAROLE OR ANY OTHER FORM OF
EARLY RELEASE THAT MAY BE GRANTED TO APPELLANT. APPELLANT
SHALL RECEIVE CREDIT FOR TIME SERVED IN PRETRIAL DETAINMENT
AGAINST THIS SENTENCE.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION.

       KITCHENS, JUSTICE, DISSENTING:

¶62.   Because Counts I and II of Colburn’s indictment were insufficient to apprise him of

the crime for which he was accused, I respectfully disagree with the majority’s conclusion

that the trial court correctly denied the motion to quash.




                                             30
¶63.   Uniform Rule of Circuit and County Court Practice 7.06 sets forth the requirements

for the contents of a sufficient indictment:

       The 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. . . .

URCCC 7.06. Such requirements are fundamental, rooted in both federal and state

constitutions. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall

enjoy the right . . . to be informed of the nature and cause of the accusation . . . .”); Miss.

Const. art. 3, § 26 (“In all criminal prosecutions the accused shall have a right . . . to demand

the nature and cause of the accusation . . . .”) “‘[T]he purpose of the indictment is to provide

the accused reasonable notice of the charges against him so that he may prepare an adequate

defense.’” Warren v. State, 187 So. 3d 616, 621 (Miss. 2016) (quoting Brawner v. State, 947

So. 2d 254, 265 (Miss. 2006)). We have held that the “‘indictment must contain (1) the

essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of

the charge which he must defend, and (3) sufficient facts to enable him to plead double

jeopardy in the event of a future prosecution for the same offense.’” Warren, 187 So. 3d at

621 (quoting Young v. State, 119 So. 3d 309, 313 (Miss. 2013)).

¶64.   Count I of the indictment alleged that:

       Gregory Wayne Colburn between February 1, 2012 and August 31, 2012 in the
       County and State aforesaid and within the jurisdiction of this Court, did
       wilfully, unlawfully, feloniously, knowingly, and intentionally exploit Ruby
       Hill, a vulnerable adult as defined by Section 43-47-5(n) of the Mississippi
       Code of 1972, as amended, and with knowledge that Ruby Hill’s ability to
       perform normal activities of daily living or to provide for her own care or
       protection from abuse, neglect, or exploitation was impaired due to mental,

                                               31
       emotional, physical or developmental disability or dysfunction, or brain
       damage or the infirmities of aging, did exploit Ruby Hill, by the illegal or
       improper use of Ruby Hill’s resources, in an amount over two hundred fifty
       dollars ($250.00) for his own profit or advantage, with or without the consent
       of Ruby Hill, including acts committed pursuant to power of attorney, by
       depositing checks made payable to Ruby Hill into his personal Community
       Bank account . . . in violation of M.C.A. Section 43-47-19 of 1972, as
       amended . . . .

(Emphasis added.) Count II likewise alleged that:

       Gregory Wayne Colburn between May 1, 2012 and August 21, 2012 in the
       County and State aforesaid and within the jurisdiction of this Court, did
       wilfully, unlawfully, feloniously, knowingly, and intentionally exploit Ruby
       Hill, a vulnerable adult as defined by Section 43-47-5(n) of the Mississippi
       Code of 1972, as amended, and with knowledge that Ruby Hill’s ability to
       perform normal activities of daily living or to provide for her own care or
       protection from abuse, neglect, or exploitation was impaired due to mental,
       emotional, physical or developmental disability or dysfunction, or brain
       damage or the infirmities of aging, did exploit Ruby Hill, by the illegal or
       improper use of Ruby Hill’s resources, in an amount over two hundred fifty
       dollars ($250.00) for his own profit or advantage, with or without the consent
       of Ruby Hill, including acts committed pursuant to power of attorney, by
       creating a Community Bank account . . . in the name of “Ruby Francis Hill or
       Gregory Wayne Colburn,” and then transferring funds belonging to Ruby Hill
       into the account, and using these funds for his own profit or advantage in
       violation of M.C.A. Section 43-47-19 of 1972, as amended . . . .

(Emphasis added.) Colburn was acquitted on Count III of the indictment.

¶65.   The majority concludes that Colburn was, in fact, provided adequate notice of the

charges against him because “Colburn knew the statute he was charged with violating” and

“[h]e knew the date ranges, the transactions, the banks, the account numbers, and the alleged

victim of the crimes charged.” (Maj. Op. ¶ 24). But the indictment is laden with layer upon

layer of disjunctive phraseology.




                                             32
¶66.   First, Colburn was informed that he exploited Hill “with knowledge that Ruby Hill’s

ability to perform normal activities of daily living or to provide for her own care or

protection from abuse, neglect, or exploitation was impaired due to mental, emotional,

physical or developmental disability or dysfunction, or brain damage or the infirmities of

aging . . . .” (Emphasis added.) Mississippi Code Section 43-47-19(2)(b) does not even

require that the defendant be in possession of knowledge of the alleged victim’s

vulnerability; it requires merely that the defendant “willfully exploit[] a vulnerable person

. . . where the value of the exploitation is Two Hundred Fifty Dollars ($250.00) or more.”

Miss. Code. Ann. § 43-47-19(2)(b) (Rev. 2015). While it is true that the indictment tracked

the statutory language defining “vulnerable person,” the indictment does not allege that Hill

was a “resident[] or patient[], regardless of age, in a care facility.” Miss. Code Ann. § 43-47-

5(q) (Rev. 2015). The State proved, though it did not allege in Colburn’s indictment, that

Hill resided in a care facility. The jury was instructed that “‘vulnerable person’ . . . includes

all residents or patients, regardless of age, in a care facility.” The indictment, therefore, did

not allege “sufficient facts to fairly inform the defendant” of what it intended to prove with

regard to Hill’s status as a vulnerable person within the meaning of Section 43-47-5(q).

¶67.   Second, the indictment alleged that Colburn exploited Hill “by the illegal or improper

use of Ruby Hill’s resources.” (Emphasis added.) “Illegal use” is defined as “any action

defined under Mississippi law as a criminal act.” Miss. Code Ann. § 43-47-5(j) (Rev. 2015).

“Improper use” is defined as follows:

       [A]ny use without the consent of the vulnerable person, any use with the
       consent of the vulnerable person if the consent is obtained by undue means, or

                                               33
       any use that deprives the vulnerable person of his ability to obtain essential
       services or a lifestyle to which the vulnerable person has become accustomed
       and could have otherwise afforded.

Miss. Code Ann. § 43-47-5(k) (Rev. 2015). Colburn would be wholly unable to ascertain

from the face of the indictment of which course of criminal conduct he was being accused,

whether he was being accused of the illegal use or the improper use of Hill’s resources. It

is difficult to conclude that the disjunctive language of the indictment provided “sufficient

facts to fairly inform the defendant of the charge which he must defend.”

¶68.   Finally, in the same vein, the indictment alleged that Colburn used Hill’s resources

“with or without the consent of Ruby Hill . . . .” It is true that such language tracks the

statutory language from Section 43-47-5(k). But, again, the indictment does not explain

which course of criminal conduct Colburn was alleged to have committed, whether he used

Hill’s resources without her consent, whether he used Hill’s resources with her consent, or

both. Of course, if the State intended to prove improper use “with the consent of the

vulnerable person,” it had to allege that the consent was “obtained by undue means.”14 Miss.

Code Ann. § 43-47-5(k). Undue means, an element of the crime of exploitation of a

vulnerable adult, was not pled in the indictment for either Count I or Count II.

¶69.   The majority cites State v. Hawkins, 145 So. 3d 636 (Miss. 2014), to argue that the

State was not required to allege which type of “improper use” was being charged, because

“this Court has not required that level of specificity in indictments.” (Maj. Op. ¶ 25). But in



       14
         The State did not attempt to prove “improper use” by its fourth definition, “any use
that deprives the vulnerable person of his ability to obtain essential services or a lifestyle to
which the vulnerable person has become accustomed and could otherwise have afforded.”

                                               34
Hawkins, the defendant was accused of having committed a simple assault on the victim by

“‘willfully, negligently[,] and feloniously’” inflicting “‘pain and/or injury upon Deserie S.

Edwards, a vulnerable person’” Hawkins, 145 So. 3d at 638 (emphasis added). This Court

examined the statutory language of Mississippi Code Section 97-3-7(1) (Supp. 2013) and

noted that “it is not clear if [the defendant] was charged under subsection (i) with ‘purposely,

knowingly[,] or recklessly’ injuring [the victim] or under subsection (ii) with ‘negligently’

injuring [the victim], presumably by means other than a deadly weapon.’” Id. at 640.

¶70.   The Court deemed the inclusion of the word “willfully’ in the indictment to have been

mere surplusage because “the indictment clearly charged [the defendant] with simple assault”

and “[t]he recitation of the relevant facts showed that [the defendant’s] conduct was

negligent.” Id. at 641. The Court further held that “the State is not required to distinguish the

subsections in every indictment so long as the indictment is sufficient to inform the defendant

of the claims against him or her.” Id. at 642. Of course, this Court relied upon caselaw

holding that an indictment putting a defendant on notice that the charge was aggravated

assault was sufficient to apprise the defendant that “he was being charged with aggravated

assault under both subsections, i.e., by causing injury under circumstances manifesting

extreme indifference to the value of human life and by causing bodily injury with a deadly

weapon or other means likely to produce death or serious bodily harm.” Id. at 643 (quoting

Stevens v. State, 808 So. 2d 908, 919-20 (Miss. 2002)). This Court held in Hawkins that the

same rationale applied in the context of simple assault and that the subsections, one requiring




                                               35
intentional conduct and the other requiring negligence, were not mutually exclusive.

Hawkins, 145 So. 3d at 643, 645.

¶71.   The present case presents a situation, unlike that in Hawkins, in which the courses of

criminal conduct are, in fact, mutually exclusive. For Colburn’s use of Hill’s resources could

have been either illegal or improper, not both. And each charged use of Hill’s resources must

have been either with or without Hill’s consent, for if Hill’s consent had been obtained, the

State bore the additional burden of alleging that consent had been obtained by undue means.

Here, due to the disjunctive wording of the indictment on multiple levels, I am unable to

conclude that the alternative courses of criminal conduct constitute mere surplusage.

¶72.   Accordingly, I would reverse and render, and I respectfully dissent.




                                             36
