Moore v. State

309 So.3d 7

Ronald MOORE, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-00851-COA

Court of Appeals of Mississippi.

June 23, 2020

Rehearing Denied October 6, 2020

ATTORNEYS FOR APPELLANT: CHUCK McRAE, DREW McLEMORE MARTIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LOUIS P. FRASCOGNA, Jackson

BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Ronald Moore appeals his conviction of one count of racketeering and two counts of operating an illegal sweepstakes café. On appeal, Moore raises two issues: (1) the Attorney General lacked jurisdiction to prosecute him, and (2) his conviction must be reversed due to the cumulative effect of errors during trial. We find no error and affirm.

BACKGROUND AND PROCEDURAL HISTORY

¶2. This case stems from Moore's operation of the Junction Café in Shannon, Mississippi. Moore sold food and prepaid phone minutes in the café. Moore also had several computer terminals in the café. On the terminals, customers could play simulated games that resembled gambling programs, such as slot machines, keno, and poker. Customers needed a "sweepstakes" code to play the games, but customers could not purchase a sweepstakes code outright. Instead, customers received sweepstakes codes by purchasing something else in the store, such as food or phone minutes.

¶3. When a customer made a purchase, the customer received a purchase receipt with a sweepstakes code on it. The customer then had two options. The customer could ask the store clerk to reveal whether he or she had won a cash prize, or the customer could use the code to play one of the simulated gambling games. Those games implemented the predetermined outcome of the code. If the customer "won," the customer could then choose to redeem the cash prize at the counter, or the customer could use his or her winnings to receive additional sweepstakes codes and continue playing.

¶4. Following multiple undercover surveillance operations, the Mississippi Gaming Commission raided the Junction Café. On February 2, 2015, a Lee County grand jury indicted Moore on five counts: Count I (racketeering); Count II (enticing/inducing to gamble); Count III (gaming without a license); and Counts IV and V (operating an illegal sweepstakes café).

¶5. The Attorney General, with the apparent blessing of the Lee County District Attorney, prosecuted Moore on behalf of the State. In a February 17, 2016 letter addressed to the Mississippi Gaming Commission, and copying Special Assistant Attorney General Louis Frascogna, Lee County District Attorney John Weddle explained that the Lee County District Attorney's office had "reviewed the matters involved in the investigation of Ronald Moore ... by the Mississippi Gaming Commission[,]" and it "declined to prosecute due to the special nature of the crimes alleged." Weddle also stated that "[t]hough this was conveyed verbally to your counsel, this letter shall serve as documentation of that agreement."

¶6. Prior to trial, the State voluntarily dismissed Counts II and III with prejudice. The remaining charges against Moore were initially tried in February 2016; however, the jury was unable to agree on a verdict, resulting in a mistrial. Moore's case was tried a second time in November 2017. The jury in the second trial found Moore guilty of Counts I, IV, and V.

¶7. The court sentenced Moore in March 2018. For Count I, the court sentenced Moore to twenty years in the custody of the Mississippi Department of Corrections (MDOC), suspended all twenty years, and placed Moore on five years of probation. The court also ordered Moore to pay $1,796.50 in court costs, a $150,000 fine, and $8,339.64 in restitution to the Attorney General's office for investigative fees. For Counts IV and V, the court sentenced Moore to one year per count in the MDOC's custody, suspended each year, and ordered Moore to pay a $1,000 fine per count. The court further ordered that Moore's sentences were to run consecutively.

¶8. Moore filed post-trial motions for judgment notwithstanding the verdict and for a new trial. The circuit court never ruled on Moore's post-trial motions, so the motions were deemed denied. Moore now appeals. On appeal, Moore raises two issues: (1) whether the Attorney General had jurisdiction to prosecute him, and (2) whether he received a fair and impartial trial. Finding no error, we affirm.

STANDARD OF REVIEW

¶9. "Jurisdiction is a question of law, which receives a de novo review on appeal." In re Underhill , 262 So. 3d 1111, 1113 (¶6) (Miss. 2019). We review the giving or refusing of jury instructions for abuse of discretion. Nelson v. State , 284 So. 3d 711, 716 (¶18) (Miss. 2019).

DISCUSSION

I. The Attorney General had authority to prosecute Moore.

¶10. Moore first contends the Attorney General lacked legal authority to prosecute this case, so the circuit court did not have jurisdiction over this matter. Moore relies heavily on Williams v. State , 184 So. 3d 908 (Miss. 2014), for this contention. We find Williams is distinguishable from the case at hand and disagree with Moore.

¶11. In Williams , the supreme court reversed and remanded the appellant's murder conviction. Id . at 909 (¶1). On remand, the local district attorney sought a nolle prosequi, which the circuit court initially granted. Id . However, the circuit court later vacated the nolle prosequi and appointed the Attorney General's office as a special prosecutor in the case. Id . The local district attorney objected to the intervention of the Attorney General. Id . at 910 (¶6). On interlocutory appeal, the supreme court found "[t]he involuntary disqualification of the local district attorney and the substitution of the Office of the Attorney General, over the objection of the local district attorney " to be "wholly unsupported by any constitutional, common law, or statutory authority of the State of Mississippi." Id . at 909 (¶1) (emphasis added). The supreme court clarified that the "[i]ntervention of the [A]ttorney [G]eneral into the independent discretion of a local district attorney regarding whether or not to prosecute a criminal case constitutes an impermissible diminution of the statutory power of the district attorney." Id . at 913 (¶15).

¶12. The Williams court distinguished Bell v. State , 678 So. 2d 994 (Miss. 1996) : "in [ Bell ], unlike in [ Williams ], no evidence was adduced that the local district attorney opposed the involvement of the [A]ttorney [G]eneral. ..." Williams , 184 So. 3d at 913 (¶14). In Bell , the supreme court addressed the authority of the Attorney General to " ‘institute’ a criminal prosecution":

[T]he Attorney General is a [c]onstitutional officer possessed of all the power and authority inherited from the common law as well as that specially conferred upon him by statute. This includes the right to institute, conduct and maintain all suits necessary for the enforcement of the laws of the state, preservation of order[,] and the protection of public rights.

Bell , 678 So. 2d at 996 (internal quotation marks omitted) (quoting Gandy v. Reserve Life Ins. Co. , 279 So. 2d 648, 649 (Miss. 1973) ); accord Williams , 184 So. 3d at 922 (¶46) (Coleman, J., dissenting) (outlining the common-law duties of the Attorney General).

¶13. Bell also aligns with Mississippi Code Annotated section 7-5-1 (Rev. 2014), which states that the Attorney General is the

chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state .... [She] shall have the powers of the Attorney General at common law and, except as otherwise provided by law, is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest.

¶14. We find that this matter is distinguishable from Williams and consistent with Bell because here, as in Bell , the local district attorney did not affirmatively oppose the involvement of the Attorney General. Indeed, the Lee County District Attorney indicated his "agreement" that the Attorney General should prosecute this action on behalf of the Mississippi Gaming Commission, a state agency, to enforce the laws of this State by stopping Moore's operation of an illegal "Internet sweepstakes café," a crime prohibited by Mississippi Code Annotated section 97-33-8(2) (Rev. 2014).

¶15. Although district attorneys are generally responsible for prosecuting local criminal offenses, the Attorney General is the "chief legal officer and advisor for the [S]tate," Miss. Code Ann. § 7-5-1, vested with "the right to institute, conduct and maintain all suits necessary for the enforcement of the laws of the state ...." Bell , 678 So. 2d at 996 (quoting Gandy , 279 So. 2d at 649 ). As stated in Williams , this does not mean that the Attorney General is the district attorney's "boss." Williams , 184 So. 3d at 913 (¶16). To the contrary, the Attorney General cannot "involuntarily disqualif[y] ... a duly elected district attorney from the lawful performance of his duty. ..." Id . at 913-14 (¶17). But that is not what happened here. The record indicates that the Attorney General prosecuted Moore with at least the implicit blessing of the Lee County District Attorney, who declined to prosecute Moore based upon "the specialized nature of the crimes alleged." Accordingly, the Attorney General had both the authority, vested in common law and statute, as well as the district attorney's consent, to prosecute Moore in this matter. This issue lacks merit.

II. The trial errors alleged by Moore do not require reversal.

¶16. Moore's second contention on appeal is that his conviction must be reversed due to the cumulative effect of trial errors. Although Moore lists a number of alleged trial errors in his appeal brief, he only provides citations and support for two alleged errors: "[T]he [c]ourt [kept] Mr. Moore from introducing testimony and evidence that he acted without criminal intent," and "[t]he jury...