Ronald Moore v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00851-COA

RONALD MOORE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/29/2018
TRIAL JUDGE: HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHUCK McRAE
DREW McLEMORE MARTIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LOUIS P. FRASCOGNA
DISTRICT ATTORNEY: JOHN D. WEDDLE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 06/23/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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 pre-

determined 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

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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 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.

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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 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

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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

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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 testimony and 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 testimony which 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 jury did 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.

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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” from its 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

jury with 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).

CONCLUSION

¶30. 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 to

the cumulative effect of errors during trial. Accordingly, we affirm Moore’s conviction.

¶31. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE AND McCARTY, JJ., CONCUR. McDONALD, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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