The New Crime of “Online Impersonation” in Mississippi

Not too many industries can claim double-digit growth over the past few years.  The use of computers to commit unlawful acts, including cybercrimes, cyberbullying, fraud, harassment, and other crimes continues to increase exponentially year after year.  In Mississippi’s latest attempt to curb the tide of online criminal activity, on July 1, 2011 it became illegal to impersonate another “actual person” on the internet in Mississippi.

The New Law

The law, located at Miss. Code Ann. § 97-45-33, makes it a misdemeanor to “knowingly and without consent impersonate another actual person through or on an Internet website or by other electronic means for purposes of harming, intimidating, threatening or defrauding another person.”  The person must “reasonably believe . . . that the defendant was or is the person who was impersonated.”

You can commit this crime by opening up an email account or a profile on a social networking site in another person’s name, if you use that identity for illegal purposes.

The Penalties

This crime is a misdemeanor, and is punishable by a fine of between $250.00 – $1000.00 plus court costs, or by imprisonment for not  less than ten days and not more than one year, or both.

The Implications

The law is brand new, and so of course there is no case law (no interpretations of it from the court system) on it yet.  If you come to me with your “online impersonation” case, we are going to look to see if you had a First Amendment right to say what you were saying.  Also, the law doesn’t address the difference between the actual crime, and satire, parody, or just poking fun at someone.  The internet is still a whole new world, and if the authorities are going to get serious about prosecuting internet crime, then your lawyer needs to get serious about defending it.

We were able to get the charges dismissed yesterday for one of my clients who was facing a DUI(2nd offense).  Was it because of my brilliant legal skills?  Sure.  Maybe.  Probably not . . .

 The officer didn’t show up

It was a crowded docket, our case was called, and it turned out the officer was not present to testify in the State’s case.  Without any effort on my part whatsoever (I did have to say “Defense is ready, Your Honor”), the prosecutor unilaterally dismissed the charges.  In this case the arresting officer was no longer employed by the police department, and it would have been difficult to get him back in to testify.  So it was a banner day for my client.  A win is a win no matter how you get it.

This happens every now and then in misdemeanor cases; not so much in felonies.  Officers fail to show for any number of issues, including scheduling problems, miscues with the clerk or prosecutor’s office regarding their subpoena, or back-to-back shifts.  Or maybe, just maybe, they know that they are about to swear to God to tell the truth on the stand, and your lawyer is going to ask them about the truth, and since they know the truth “will set you free,” it is just easier to not be there.

 But you can’t depend on it

This used to be one of the “classic” ways to defend a DUI.  Delay the case, delay the case, schedule it for the 4th of July, or Thanksgiving, and hope that when you finally get in there the officer fails to show.  I guess it is OK for your lawyer to have this in his “bag-o-tricks,” just make sure that this is not the only trick in his bag.  And do not be misled – the officer failing to show for trial does not automatically mean the case will be dismissed.  If your case has been scheduled on a certain date, and you and your lawyer are present and ready for trial, then your lawyer should absolutely move for a dismissal if the State cannot proceed due to its witnesses not being there.  But granting a continuance for either side is within the discretion of the judge, and it is not unusual for the State to get at least one continuance if needed, especially if the Defense has been granted one previously.    

It is just so much better to have the defense case prepared to try on the day it is scheduled for trial, then when you ”luck up” and the officer is not there, and the court agrees to dismiss the charges, it is gravy.

 Misdemeanor Possession of Marijuana in Mississippi

Marijuana is a “controlled substance” in Mississippi, which means it is illegal to ”sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense” any amount of marijuana in Mississippi.  Although for the past three years a bill has been introduced in the Mississippi Legislature that would authorize doctor-recommended medical use of marijuana for patients with debilitating medical conditions, this bill has not been making it out of the Drug Policy Committee each year, and so the possession of any amount of marijuana in Mississippi remains illegal, no matter what it is for.

As I have explained on my other website, the elements of Mississippi’s drug crimes, and the punishment you receive for breaking the law, can be broken down and classified according to:

1. which controlled substance
2. how much of it
3. what you were doing with it

Misdemeanor Possession

Possession of marijuana in the amount of 30 grams (1.05821 ounce) or less is a misdemeanor under Section 41-29-139(c)(2)(A) of the Mississippi Code Annotated.  Penalties are as follows:

1. First Offense:  a fine of between $100.00 and $250.00, plus court costs
2. Second Offense (within two years):  a fine of $250.00, plus court costs, not less than five, nor more than 60 days in jail, and mandatory participation in a drug education program
3. Third Offense (within two years):  a fine of between $100.00 and $250.00, plus court costs, and not less than five, nor more than 60 days in jail.

Penalties are Enhanced if You are in a Vehicle

Section 41-29-139(c)(2)(A) enhances the penalties if you are the “operator” of a motor vehicle, and you “possess on [your] person or knowingly keep or allows to be kept in a motor vehicle within the area of the vehicle normally occupied by the driver or passengers” between one and thirty grams of marijuana.  By statute, the trunk of the vehicle doesn’t count, but the utitlity or glove box does.  If you are convicted of possessing this amount of marijuana in a vehicle it is still a misdemeanor, but the penalties are increased to a fine of not more than $1000.00 plus court costs and not more than 90 days in jail.

And your Driver’s License will be Suspended

Conviction under any of these statutes (not just the one having to do with a vehicle) will cause your license to be suspended for a period of six months.  I have a detailed post concerning that here: Suspension of Driver’s License for Drug Crimes in Mississippi.

Mind you, the crimes I have described about only concern amounts of 30 grams (one ounce) of marijuana or less.  Amounts more than 30 grams subject you to felony-level penalties, and could possibly lead to “possession with intent” charges.

Defenses to Possession

Your lawyer will need to look into things such as:

1. Was it yours?
2. Was it marijuana?
3. Did you know it was there?
4. Did law enforcement have probable cause to stop you, search you, arrest you?

I have an extensive section of my main website dealing with marijuana crimes in Mississippi.  If you are arrested for possession of marijuana in Mississippi and need the help of an experienced attorney give us a call.  We are here to help.

New Updates to Mississippi’s Sex Offenders Registration Law

On July 1, 2011, new updates to Mississippi’s Sex Offender Registration Law went into effect.  These laws were passed earlier this year by the Mississippi Legislature.  I have posted about Mississippi’s registration requirements here, Crimes Requiring Registration as a Sex Offender, and I have some frequently-asked questions about this law posted on my main website here, Questions Regarding Mississippi’s Sexual Offender Registration Laws.

Summary of Changes

The list of sex offenses requiring registration has been expanded to include:

• Obscene Electronic Communication under Section 97-29-45 of the Mississippi Code Annotated;
• Sexual Activity Between Law Enforcement, Correctional or Custodial Personnel and Prisoners under Section 97-3-104 of the Mississippi Code Annotated;
• Condoning by the Parent, Legal Guardian, or Caretaker of Continuing Sexual Abuse of a Child under Section 97-5-39(1)(c) of the Mississippi Code Annotated.

The new law also expands the duty to register to include offenders from other states and jurisdictions who are temporarily employed or attending school in Mississippi.  In addition to registering with the Mississippi Department of Public Safety, you must register with the sheriff of every county where you are working, living, or attending school.  Offenders will also now be required to report volunteer service and unpaid internships, and virtually any type of temporary work.  Offenders must also report all:

• temporary residences
• telephone numbers
• passport and immigration document information
• professional licenses held

Any changes in registration information must be reported within three days.  The timeframe in which the initial registration duty attaches, as well as any updates, has been decreased from ten to three days.  In addition, the Mississippi Department of Public Safety is required to post all new information filed by residents online within three days of receiving any reported changes.  Mississippi’s online registration database may be found here.

New Requirements in Time of Emergency or Natural Disaster

Newly-created Section 45-33-28 of the Mississippi Code Annotated, based on post-Katrina Louisiana law, states:

(1) Notwithstanding any other provision of the law to the contrary, during a declaration of emergency, any person who has been required to register as a sex offender as provided in this chapter who enters an emergency shelter, within the first twenty-four (24) hours of admittance, shall notify the management of the facility, the sheriff of the county in which the shelter is located and the chief of police of the municipality, if the shelter is located in a municipality, of the person’s sex offender status. The sex offender shall provide his full name, date of birth, social security number, and last address of registration prior to the declaration of emergency. Within seventy-two (72) hours of receiving the notification required by the provisions of this subsection, the sheriff and chief of police shall forward that information to the department.

(2) The manager or director of the emergency shelter shall make a reasonable effort to notify the chief law enforcement officer of the county or municipality in which the shelter is located of the presence of the sex offender in the emergency shelter. No person associated with a nonprofit organization that operates an emergency shelter shall be liable for any injury or claim arising out of the failure of the manager or operator to communicate the presence of a sex offender in the shelter to the appropriate law enforcement official.

Ability to Petition for Relief From Duty to Register Extensively Revised

Although it is possible to petition for relief from the duty to register, this section of the Mississippi Code was extensively revised, and set up ”tiers” regarding the length of time that must pass before your petition will even be accepted for consideration.  The minimum time for a few offenses is 15 years, a few more is 25 years, and most offenses require lifetime registration.  You will absolutely need the assistance of a criminal lawyer to get this done if you would like to pursue it.

In my experience, the requirement to register as a sex offender is one of the most troubling aspects for my clients that are accused of sex crimes.  The registration requirements are difficult and arduous, and the penalties are stiff for failure to comply. 

If you are accused of a sex crime in Mississippi, or you are relocating to Mississippi and you need proper advice on registration requirements, give us a call.  We are here to help.

Hearsay Evidence in Mississippi Courts

Hearsay evidence is probably not what you think it is.  Everyone has heard someone say something like “Everyone is saying that he was drunk at the party before he went home, but that is just hearsay.”  Hearsay evidence is more than that.  Most people associate hearsay with rumors, gossip, or the type of “he said-she said” testimony that makes up many domestic dispute and assault trials, and in some cases that may well be hearsay.  But hearsay is a complicated evidentiary concept that has enough twists, turns, rules, and exceptions to the rules to keep lawyers arguing in court for hours.

Here I’m just going to explain what hearsay is, and then maybe in later posts we’ll discuss some advanced hearsay concepts.  Here we go . . .

Definition of Hearsay

Mississippi Rule of Evidence 801 defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Imagine a witness on the witness stand at a trial.  That witness cannot discuss what they heard someone else say, if what was said is being offered to prove something.  Or they cannot discuss what they read, or introduce a document, if that document is going to be offered to prove a fact.

Some Examples:

• Joe is on the witness stand and testifies that Sheila, who is not at the trial, told him that she saw you kill Bob.  If the prosecution is trying to show that you killed Bob, then Joe will not be able to say this.  Your lawyer should object, and the judge should keep the jury from hearing it.  Why?  Because it is a statement offered into evidence (“I saw the Defendant kill Bob”) made by an out of court declarant (Sheila – she’s not testifying) that is being offered to prove the matter of what it asserts (you killed Bob).
• Joe is on the witness stand and testifies that Sheila said ”all police officers are jerks.”  If the prosecution is trying to prove that police officers are jerks, then this statement is hearsay, but if it is offered to prove that Sheila is biased against police officers, then it is probably admissible.  It is not being offered for its truth.
• As the Defense, we call Joe as a witness, and Joe says he heard you say “I am Charlie Sheen.”  If we are trying to prove that you are Charlie Sheen, then Joe’s testimony is inadmissible, and the jury will probably not be allowed to hear it.  But if we are trying to show that you are mentally unstable, or did not know who you were at the time of your alleged crime, then it would likely be admissible.

The Hearsay Rule

The hearsay rule in Mississippi is expressed in Mississippi Rule of Evidence 802, which simply states that “Hearsay is not admissible except as provided by law.”  Why?  Generally, there are three reasons that the law does not favor hearsay statements being admitted into evidence:

1. Most “out-of-court” statements are not made under oath.  Witnesses at a trial must take a sworn oath to tell the truth during their testimony on the witness stand.  Someone should not be allowed to say that their friend told them that your dog bit them, because the friend is not there to take the oath in front of the jury (so how can they evaluate whether the friend is lying?).
2. No opportunity to cross-examine the party who made out-of-court statement.  You have a fundamental right as an accused American to “confront” the witnesses that testify against you.  If out-of-court statements by people not at your trial are allowed into evidence, you are denied your right to confront these people.
3. No opportunity for the judge or jury to personally evaluate the credibility of the person making the statement.  In court, you get to eyeball the person testifying and use your own judgment to decide if they are lying or not.  The law actually recognizes this as very important, and of course this valuable opportunity is lost if out-of-court statements are admitted.

The exceptions that eat up the rule . . .

Of course there can never be a rule so simple as “hearsay is not admissible,” and hearsay is famous for the numerous exceptions where otherwise inadmissible hearsay may be admitted as evidence in a trial.  Exceptions to the hearsay rule are generally allowed for situations where the testimony is justified due to its trustworthiness and its necessity.  I’m only going to mention a few here, and I may do some follow-up posts about them later:

• Present Sense Impression - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.  “That was boring.”
• Excited Utterance – A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  “Watch out for George!  He’s got a knife!”
• Then Existing Mental, Emotional, or Physical Condition – A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health).  “I’m sick.”
• Business Records – records kept in the course of normal business activity that meet certain criteria.
• Public Records – records kept by public agencies that meet certain criteria.
• Dying Declarations – A statement made by a declarant while believing that his death was imminent concerning the cause or circumstances of what he believed to be his impending death.  “I can’t believe Bob ran me over with the tractor.”
• Statement Against Interest – A statement which at the time of its making was so far contrary to the declarant’s pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another that a reasonable man in his position would not have made the statement unless he believed it to be true.  “Yeah, I killed her.  What are you going to do about it?”
• Catch-all Exceptions – courts may decide that a statement can come in, despite it being hearsay, when the necessity for the statement is strong, and the statement’s “probative value outweighs its prejudicial effect” on the proceedings.

This is a simple introduction to hearsay law.  Entire law school semesters are spent studying hearsay, and I didn’t begin to scratch the surface on it.  Your lawyer should know the rules of hearsay by memory so that proper objections can be made at the appropriate time at trial.  A proper hearsay objection can mean the difference between damaging evidence being admitted in your trial, or staying out.  It is too important to ignore, and so if you need our help do not hesitate to give us a call.

Receiving Stolen Property in Mississippi

In accordance with Section 97-17-70 of the Mississippi Code Annotated, it is illegal to receive stolen property in Mississippi.  The crime of receiving stolen property is committed when a person “intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.”

According to the statute, it does not matter that the person that actually stole the property has not been caught, charged, convicted, or even identified, you can still be convicted of receiving stolen property if the State can prove:

1. the possession, receipt, retention or disposition of personal property;
2. stolen from someone else; and
3. with knowledge or a reasonable belief that the property is stolen.

Washington v. State, 726 So.2d 209 (Miss. Ct. App. 1998).  Further, evidence that you stole the property, instead of just received it knowing it was stolen, is not a defense to the specific crime of receiving, and in fact the statute calls it “prima facie” evidence of your knowledge that you knew the property was stolen.  BUT, the State is not allowed to bring charges of both larceny and receiving against a single person in a single jurisdiction.  So your lawyer will definitely need to get that straightened out at the beginning of your case.

Penalties for Receiving Stolen Property

1. Property less than $500.00 – misdemeanor, fine of not more than $1000.00 plus court costs, jail of not more than six months, or both.
2. Property $500.00 or more – felony, fine of not more than $1000.00 plus court costs, jail of not more than six months, or both.

Defenses to Receiving Stolen Property

When you discuss your case with your lawyer, you need to discuss whether you may have a “claim of right” defense (the property is yours, or you had a good reason to thing it was yours).  You also need to look at the value of the property, and what, exactly, your intent was.  Also, do not forget that before the State can prove that you received stolen property, they must show that you possessed it, which comes with “baggage” of its own.

If you need help with a receiving charge give us a call or email.  We are here to help.

The Mere Presence Defense

Your “mere presence” when a crime is being committed, or your association with people involved in criminal activity, does not necessarily mean you are guilty of a crime, and depending on the facts it may be used as a defense to any charged offenses.  It is important that your lawyer investigate and review the facts of your case to determine if the mere presence defense may apply in your situation.

When federal agents raid a location where they think criminal activity is occurring, they usually round up everyone present.  Then they look through all the documents and items at the scene and go after everyone mentioned.  So you may be arrested one day because you “talked to a guy last month about a thing,” and you had no idea of any illegal activity, and no intent to commit a crime.

 What the government must prove . . .

Ultimately, when the case is brought against you by the U.S. Attorney, the government must prove more than mere association with coconspirators, or mere presence when a crime was committed.  The Fifth Circuit pattern jury instruction (the law that the jury will have when it is deciding the case) that addresses the issue states:

Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.

The issue of “mere presence” often arises in federal drug conspiracies like conspiracy to manufacture or distribute a controlled substance, but this defense may be available against other charges as well.  If you are caught up in a federal conspiracy charge, make sure your lawyer is familiar with federal criminal law, and bring this defense to their attention.  It is your case; make sure it is handled correctly.

Yes, because some courts in Mississippi are not “courts of record,” and there may not be a court reporter present that is transcribing everything that is said.  As you may imagine, it is almost always good to have a clear transcript of what is said in court, to resolve any confusion about what was said when it later becomes very important.  Mississippi law recognizes this, and Section 9-13-32 of the Mississippi Code Annotated provides that:

Any attorney of record in any cause pending in a court which does not provide an official court reporter, may, in the discretion of such attorney, record or have recorded any court proceeding in such cause by mechanical means or stenographically.  Any expenses incident thereto shall be borne by the party or parties represented by such attorney of record.  The record of the court proceeding shall be used for impeachment purposes only.

Most, if not all, municipal and justice courts in Mississippi do not provide a court reporter for their proceedings.  This is because they process hundreds of small cases per week, and it would not be cost effective for the city or county to pay for a court reporter to transcribe each little domestic dispute, speeding ticket, or minor misdemeanor that comes before the court.  But your case is not “each little case.”  Your case is VERY IMPORTANT to you, and so if you spend the money to hire me as your lawyer we are going to treat it like it may wind up in the U.S. Supreme Court.  Every word that is said is important, and so I usually record every contested trial I have in municipal or justice court.  I have even been known to show up with my own court reporter on occasion.

Tools of the trade

What you see above is my Christmas present to myself last year.  I used to have a little voice recorder just like you can get at Office Depot that is used to transcribe letters, but I found that it was not clearly picking up everything in the courtroom.  After I little research I got the ”Zoom H1″ digital recorder pictured above, with its high-quality recording capability.  It is not very big, but now when I place it on the witness stand I have no problem getting good audio from the witness, from the judge, or from the attorneys.  Plus I like to think that those gnarly-looking microphones sticking out of  the top will put people on notice that we mean business when we come to court.

I use the recorder fairly frequently in DUI trials, domestic violence cases, and any other situations where testimony is important, the likelihood of appeal is high if if we lose, and the need for impeachment evidence is strong.  I have heard rumors that some courts have chastised lawyers for whipping out a recorder in court, but so far all of the courts in which I have appeared have not had any problem with it.  If you are headed to trial in a lower court in Mississippi you and your lawyer need to consider recording the proceedings, and you need to be prepared for it.

I was in Rankin County Justice Court this morning when a young man was sentenced for illegal alligator hunting. Judge John Shirley sentenced the man to  five days in jail and a $5,000 fine.  In addition, the young man will not be permitted to have a hunting license for the next year.  Apparently the man was hunting alligators at a pond next to his apartment complex in Flowood, and was found with a live alligator, alligator parts and snake venom in his apartment.

Although it has been a part of local culture for hundreds of years, alligator hunting has become very popular in Mississippi and Louisiana of late, probably due to the growth in the alligator population, and possibly due to the popularity of the show “Swamp People” on The History Channel (it’s a great show).  But it is regulated by the state of Mississippi, and I was shocked at the penalties involved for illegally hunting or catching gators.

 The Law

Section 49-7-47 of the Mississippi Code Annotated requires a combination hunting and fishing license for sport hunting of alligators, and a special permit to hunt gators for commercial purposes.  The Mississippi Department of Wildlife, Fisheries and Parks has established other regulations for the hunting of alligators, and the Alligator Program website is very good if you want more information.

Unlike most parts of the Mississippi Code, violations of hunting and fishing laws have been divided into “classes” as far as penalties are concerned, and a violation of the alligator hunting statute is a “Class I” violation.  For a Class I violation, the maximum penalties are a fine of not less than $ 2,000.00 nor more than $ 5,000.00, and imprisonment in the county jail for  five days.  Class I violations also result in the forfeiture of all hunting, trapping and fishing privileges for a period of not less than twelve months from the date of conviction.

 So he got hammmered . . .

So as you can see the gentleman got a tough sentence in Rankin County.  Mississippi Conservation Officers (Game Wardens) take their job very seriously, and are some of the most dedicated law enforcement officers in the state.  They always push for stiff penalties in their cases that wind up in court, and they come well-prepared to testify.

But that doesn’t mean the situation is hopeless.  If you’ve been wrongfully accused of a hunting, fishing, or firearms violation give us a call.  We are here to help.

BACK.

After a six-month vacation (sabbatical, hiatus, break, gap), I am pleased to announce that I am back on duty with this blog. 

As some of you may know, my hotter-than-Mississippi-asphalt wife of 19 years had a bout with breast cancer this spring.  Cancer is never easy, but she handled it like a champion.  Through prayer and the grace of God, she now is cancer-free, and is back in the fight.  A lot of people did a lot of praying for us, and our prayers were answered.  I kept the practice going, but the blog had to wait.

Now it is time to get back to work . . .

This blog admittedly was started strictly as a marketing tool (“Pick me, please pick me!  Look how great I am!”), but I didn’t realize how much I would like keeping up with it.  It gives me an excuse to keep up with current trends in the law, and I refer to it often when I lose track of something.  And every now and then I will even get a call from some lawyer somewhere wanting to discuss something on the blog, and we’ll discuss the law and how to help our clients.  Doesn’t get any better than that.

As you can see, the blog has been totally overhauled, and we think it’s going to suit our purposes much better than the old one.  We tried to make it more inviting, user-friendly, and “ergonomic,” allowing you to get to the information you need more quickly and easily.  We are also going to try to “mix up” the content a little more, with some commentary on the case law as it comes out, along with some answers to common questions we receive every day.

Audience participation is welcomed and encouraged, so if you want to leave a comment or start a discussion please go ahead.  I’m going to reserve the right to pick and choose what gets posted on here, though.  That’s what you get to do when you run the place.  And if you’d like me to address a certain topic let me know with an email or a phone call.

I am looking forward to taking this thing to the next level.  Please go ahead and subscribe to it, “like” it, tweet it, digg it, repost it, or do whatever nerdy social media things are the thing to do now.  And if you need me you’ll know where I’ll be . . .