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Date: 06-29-2020
Case Style:
Ronald Moore v. State of Mississippi
Case Number: . 2018-KA-00851-COA
Judge: Cory Todd Wilson
Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: LOUIS P. FRASCOGNA
Defendant's Attorney:
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Description:
¶2. This case stems fromMoore’s operation ofthe 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 AttorneyGeneral, with the apparent blessing of the Lee CountyDistrict 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 CountyDistrict AttorneyJohn Weddle explained that the Lee CountyDistrict
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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 February2016; however, the jurywas
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.
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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
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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 ofstatewide 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
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involvement of the AttorneyGeneral. Indeed, the Lee CountyDistrict 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 ofthis 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
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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 instructions, read as a whole, did not fairly announce the law
of the case, resulting in injustice to Mr. Moore.” As a result, these are the only issues that
we will address. See Williams v. State, 269 So. 3d 294, 297 (¶9) (Miss. Ct. App. 2018) (“It
is well established that we are ‘not required to address any issue that is not supported by
reasons and authority,’ and we decline to do so here.”) (quoting Varvaris v. Perreault, 813
So. 2d 750, 753 (¶6) (Miss. Ct. App. 2001)).
A. The court allowed Moore’s testimony about a lack of criminal
intent as to the racketeering charge, rendering any error in
excluding other testimony harmless.
¶17. Moore first contends that he should be granted a new trial because the circuit court
excluded testimonyand evidence that he acted without criminal intent.1 According to Moore,
both Bobby Moak (an attorney and former legislator) and Chuck McRae (an attorney and
former Mississippi Supreme Court Justice) “proffered testimonywhich tended to negate [his]
criminal intent.” Although Moak and McRae were not allowed to testify before the jury,
Moore testified regarding the legal advice that he received from McRae. Any error from the
court’s exclusion of the other witnesses’ testimony that Moore acted without criminal intent
was therefore harmless.
1 Moore principally addresses this issue in his reply brief. As a general rule, “[t]his
Court does ‘not consider issues raised for the first time in an appellant’s reply brief.’”
Jenkins v. State, 283 So. 3d 217, 221 (¶14) (Miss. Ct. App. 2019) (quoting Moore v. State,
250 So. 3d 521, 526 (¶16) (Miss. Ct. App. 2018)), cert. denied, Order, No. 2018-CT-00453-
SCT (Miss. Sept. 5, 2019). However, because Moore raises and provides minimal support
for this contention in his initial appeal brief, we address the merits.
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B. The jury instructions fairly announced the law of the case.
¶18. Next, Moore contends that the instructions provided to the jurydid not fairly announce
the law of the case. The supreme court recently summarized our standard of review for
allegedly defective jury instructions as follows:
Jury instructions are generally within the discretion of the trial court and the
settled standard of review is abuse of discretion. Jury instructions are to be
read together as a whole, with no one instruction to be read alone or taken out
of context. When read together, if the jury instructions fairly state the law of
the case and create no injustice, then no reversible error will be found. We
have held that a defendant is entitled to have jury instructions given which
present his theory of the case; however, this entitlement is limited in that the
court may refuse an instruction which incorrectly states the law, is covered
fairly elsewhere in the instructions, or is without foundation in the evidence.
Nelson, 284 So. 3d at 716 (¶18) (citations and internal quotation marks omitted).
i. Instruction S-9
¶19. Challenging specific jury instructions, Moore first asserts that “the [c]ourt improperly
permitted instruction S-9, which stated conditions for guilt to be prioritized over instructions
which stated conditions for acquittal.” However, upon review of the record, the court refused
to give proposed instruction S-9. Accordingly, this alleged error is groundless.
ii. Instruction S-10
¶20. Moore next asserts that “the [c]ourt improperly permitted instruction S-10 [(trial
instruction 14)], which relied for authority on an Attorney General opinion [and] improperly
elevated the opinion as equivalent to binding precedent or law.” Instruction S-10 provided,
“The [c]ourt hereby instructs the Jury that poker and keno are gambling games regardless of
the ability to place a wager and win an award, and as such, may only be offered on the
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premises of a licensed gaming establishment.” Taking this instruction into consideration
with the others given, we find that as a whole, the jury instructions fairly stated the applicable
law.2
¶21. Moore was charged with one count of racketeering and two counts of operating an
illegal sweepstakes café under Mississippi Code Annotated section 97-33-8. Pursuant to
section 97-33-8(2),
It shall be unlawful for any person or entity to possess, own, control, display,
operate[,] or have a financial interest in an electronic video monitor that:
(a) Is offered or made available to a person to play or participate in a
simulated gambling program in return for direct or indirect
consideration, including consideration associated with a product,
service[,] or activity other than the simulated gambling program; and
(b) The person who plays or participates in the simulated gambling
program may become eligible to win, redeem[,] or otherwise obtain a
cash or cash-equivalent prize, whether or not the eligibility for or value
of the prize is determined by or has any relationship to the outcome or
play of the program.
The circuit court gave a jury instruction that directly tracked this language.
¶22. As part of his defense at trial, Moore contended that he fell under the “safe harbor”
provision of section 97-33-8(5), which states that
[t]he provisions of this section shall not apply to:
. . .
(b) Any lawful marketing promotion, contest, prize[,] or sweepstakes
that is designed to attract consumer attention to a specific product or
service which is offered for sale by the manufacturer, distributor,
2 We reach this conclusion based upon the relevant statutes, not the referenced
Attorney General opinion.
9
vendor[,] or retailer of the product or service . . . .
In response, the State contended that the simulated gambling programs that Moore operated
at the Junction Café did not meet this exception from section 97-33-8’s proscribed activities
because poker and keno, two of the simulated gambling programs that were available at the
Junction Café, are expressly illegal under Mississippi’s gaming laws unless conducted by a
gaming licensee. Accordingly, the State requested instruction S-10, which the circuit court
gave as trial instruction 14. We find no reversible error in the court’s doing so.
¶23. Under the statutory scheme applicable to Moore’s case, instruction S-10 was
necessary because, as the State contended, poker and keno are explicitly illegal under
Mississippi’s gaming laws (unless operated by a gaming licensee). For this reason, those
games could not be part of “[a]ny lawful marketing promotion, contest, prize[,] or
sweepstakes” under the “safe harbor” in section 97-33-8(5)(b).
¶24. Mississippi Code Annotated section 75-76-5(k) (Rev. 2009) defines “‘game’ or
‘gambling game’” to include:
any banking or percentage game played with cards, with dice[,] or with any
mechanical, electromechanical[,] or electronic device or machine for money,
property, checks, credit[,] or any representative of value, including, without
limiting, the generality of the foregoing, . . . keno, . . . poker, . . . slot machine,
or any other game or device approved by the commission. However, “game”
or “gambling game” shall not include bingo games or raffles which are held
pursuant to the provisions of Section 97-33-51, or the illegal gambling
activities described in Section 97-33-8.
(Emphasis added);3
see Miss. Gaming Comm’n v. Six Elec. Video Gambling Devices, 792 So.
3 The exclusion of “the illegal gambling activities described in Section 97-33-8” from
section 75-76-5(k)’s definition of “game” or “gambling game” is of no moment to our
analysis. We read section 75-76-5’s exclusion of “the illegal gambling activities described
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2d 321, 325-26 (¶14) (Miss. Ct. App. 2001) (assuming arguendo that “the Gaming Control
Act definition of [‘games’] is applicable to the criminal statute” and stating that “[o]nly if
that definition overrides established interpretations of the criminal statute would we need to
make a holding regarding its applicability”); see also Moore v. Miss. Gaming Comm’n, 64
So. 3d 537, 539-40 (¶9) (Miss. Ct. App. 2011) (applying definition of “slot machine” in
section 75-76-5(ff) (Rev. 2002) in affirming that machines seized from internet café were
illegal gambling devices) (citing Miss. Gaming Comm’n v. Henson, 800 So. 2d 110, 113
(¶10) (Miss. 2001)). In turn, section 75-76-55(1) provides that
it is unlawful for any person, either as owner, lessee[,] or employee, whether
for hire or not, either solely or in conjunction with others, without having first
procured and thereafter maintaining in effect a state gaming license:
(a) To deal, operate, carry on, conduct, maintain[,] or expose for play
in the State of Mississippi any gambling game, including, without
limitation, any gaming device, slot machine, race book or sports
pool . . . .
See also Miss. Code Ann. § 97-33-13 (Rev. 2014).4 Based upon these statutes, we conclude
that instruction S-10, considered with the other instructions given at trial, fairly stated the law
in Section 97-33-8” fromits definition of “game” or “gambling games” simply to clarify that
section 97-33-8 contains its own defined terms in providing that “the operation of ‘Internet
sweepstakes cafes’ is an illegal gambling activity under state law.” Miss. Code Ann. § 97-
33-8(1), (3).
4
Section 97-33-13 provides:
Any owner, lessee, or occupant of any outhouse or other building, who shall
knowingly permit or suffer any of the before mentioned . . . games, or any
other game prohibited by law, to be carried on, kept, or exhibited in his said
. . . building, or on his lot or premises, being thereof convicted, shall be fined
not less than [$100] nor more than [$2,000].
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applicable to this case and thus created no injustice.
iii. Instruction D-7
¶25. Third, Moore contends “the [c]ourt erred in denying instruction D-7, which provided
an ‘advice of counsel instruction,’ which was important for Mr. Moore’s defense to the RICO
[(Mississippi Racketeer Influenced and Corrupt Organization Act)] charge and to counter the
allegation of criminal intent.” We disagree.
¶26. To begin, we note that Mississippi does not have precedent on advice of counsel as
a defense to a criminal act. But the court allowed Moore to testify about the legal advice he
received from former Supreme Court Justice McRae, who indicated that Moore’s gaming
systems complied with Mississippi law.5 Moore relied on this testimony to counter the
State’s allegation of Moore’s criminal intent, contending that his reliance on McRae’s advice
showed that Moore lacked the criminal intent necessary for a racketeering violation.
¶27. Further, the court instructed the jury that, to find Moore guilty of racketeering, it had
to find that Moore
1. With criminal intent
2. Receive[d] proceeds derived directly or indirectly, from
3. Engaging in at least two (2) or more incidents of operating an illegal
internet sweepstakes café
4. To use or invest, whether directly or indirectly, part of such proceeds
or the proceeds derived from the investment or use thereof
5 Apparently, the legal advice that McRae provided Moore regarded a different
establishment in West Point, Mississippi, not the Junction Café. (It is Moore’s position that
the gaming systems used at the two establishments are identical.)
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5. In the establishment or operation of an enterprise[.]
(Emphasis added). In other words, the court allowed Moore to testify about his reliance on
advice of counsel and argue that the legal advice negated criminal intent, and the court then
placed the issue of criminal intent before the jury for its decision. We therefore find this
issue to be without merit.
iv. Requested Statute
¶28. Lastly, Moore asserts that “the court compounded the errors when it refused to
provide the jury with a copy of a statute it requested during instructions, instead referring the
jury back to other instructions.” Upon review of the record, the jury actually asked for “a
copy of all law (MS) referenced in the trial.” The court discussed the jury’s request with
counsel for both parties:
THE COURT:
. . . We have talked about this. The attorneys and I have talked about this.
There is some agreement about providing Chapter 33 with some deletions to
them. But while that discussion was going on, I received a request for all,
which I don’t intend to do. I - - if everyone is in agreement, I will pass this to
the jury, but I’m not particularly fond of it.
I think the better practice would be for me to tell them I cannot provide those
statutes and that they can refer to [c]ourt’s [i]nstructions . . . . And I think
that’s all of the - - anybody think of anything else that needs to be included?
¶29. During this discussion, Moore’s counsel did not object to the court not providing the
jurywith the requested law but asked to submit an amended jury instruction regarding section
97-33-8. The court denied this request, and Moore’s counsel made no objection to the denial.
The alleged error is therefore procedurally barred. Walker v. State, 671 So. 2d 581, 596
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(Miss. 1995).
Outcome: The Attorney General had both the authority, grounded in common law and statute,
and the district attorney’s consent, to prosecute Moore in this matter. Therefore, Moore’s contention that the circuit court lacked jurisdiction over this matter is without merit.
Likewise, we find no merit in Moore’s assertion that his conviction must be reversed
due tothe cumulative effect of errors during trial. Accordingly, we affirm Moore’s conviction.
Plaintiff's Experts:
Defendant's Experts:
Comments: