Elonzo A. Latham a/k/a Elonzo Latham v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-KA-00719-COA

ELONZO A. LATHAM A/K/A ELONZO APPELLANT
LATHAM

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/29/2024
TRIAL JUDGE: HON. MICHELLE DEAN EASTERLING
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ELONZO A. LATHAM (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ASHLEY LAUREN SULSER
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/25/2025
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On May 29, 2024, after a jury trial, Elonzo Latham was found guilty by a Lowndes

County, Mississippi jury of sexual battery pursuant to Mississippi Code Annotated section

97-3-95 and was sentenced to serve thirty years in the custody of the Mississippi Department

of Corrections (MDOC). Latham’s appellate counsel filed a brief pursuant to Lindsey v.

State, 939 So. 2d 743 (Miss. 2005). Latham filed a pro se supplemental brief raising two

issues. First, he argues that his indictment was defective. Second, he argues that the trial

court erred in failing to properly instruct the jury on one of the elements of sexual battery.
Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2. On October 27, 2022, a Lowndes County, Mississippi, grand jury charged Latham

with sexual battery. Latham’s trial was held on May 20 and 21, 2024. At trial, KG1 testified

that in 2021, she lived with her mother and her mother’s boyfriend, who was Latham’s

brother. She explained that Latham was “like an uncle” to her, and she saw him often

because he would frequently come over to their house. KG testified that she turned thirteen

on October 3, 2021. KG explained that on “the night of or the day after [her thirteenth]

birthday[,]” Latham spent the night in the living room of KG’s mother’s house. She testified

that Latham came into her room, woke her up, and “inserted his penis into [her] vagina.” In

December 2021, Latham again forced KG to have sexual intercourse with him. KG did not

tell anyone about either incident because she “figured that nobody would believe [her].”

¶3. A couple of months later, KG informed her mother that she missed her menstrual

cycle. KG testified that her mother told Latham’s sister that KG missed her menstrual cycle.

Latham’s sister brought KG to her house, where KG took a pregnancy test, which tested

positive. After KG received the positive result, she told Latham’s sister that “her brother

forced [her] to have sex” with him. KG’s mother took KG to a clinic in Alabama, where KG

had an abortion. Samples from the abortion were genetically tested and showed a

99.9999993% probability of Latham’s paternity as compared to a randomly selected,

unrelated man of the same race.

1
This case involves a crime against a minor. Therefore, initials will be used to protect
the minor’s anonymity.

2
¶4. The jury found Latham guilty of sexual battery, and he was sentenced to serve thirty

years day for day in the custody of the Mississippi Department of Corrections (MDOC). On

May 22, 2024, Latham moved for a judgment notwithstanding the verdict or, alternatively,

for a new trial. The court denied Latham’s motion. Latham appealed the verdict, and

Latham’s appellate counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss.

2005), stating that there were no arguable issues to support the appeal. Latham filed a pro se

supplemental brief raising two issues. First, he argues that his indictment was defective.

Second, he argues that the trial court erred in failing to properly instruct the jury on one of

the elements of sexual battery.

ANALYSIS

¶5. In Lindsey, 939 So. 2d at 748 (¶18), the Mississippi Supreme Court identified the

“procedure to govern cases where appellate counsel represents an indigent criminal

defendant and does not believe his or her client’s case presents any arguable issues on

appeal.” This procedure instructs the appellate counsel to “file and serve a brief in

compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-[(5), (8)]” and

demonstrate that

there are no arguable issues supporting the client’s appeal, and he or she has
reached this conclusion after scouring the record thoroughly, specifically
examining: (a) the reason for the arrest and the circumstances surrounding
arrest; (b) any possible violations of the client’s right to counsel; (c) the entire
trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial
misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into
evidence or not; and (h) possible misapplication of the law in sentencing.

Id. The defendant’s counsel must also “send a copy of his or her brief to the defendant” to

3
inform the defendant that no arguable issues were found, and “counsel must notify the

defendant of his right to file a pro se brief.” Id. “The appellate court must then determine if

there is any arguable issue based on its review of the record and any pro se brief filed, and,

if so, require supplemental briefing.” Id.

¶6. In this case, Latham’s counsel complied with the Lindsey procedure and certified that

there were no arguable issues to present on appeal. Latham’s counsel also certified in the

brief that he “mailed by first class mail, postage prepaid, a copy of this brief, a copy of the

trial transcript, and correspondence informing” Latham that no arguable issues in the record

were found and that Latham has a right to file a pro se brief. This Court entered an order

granting Latham time to file a pro se supplemental brief.

¶7. Latham filed a pro se brief and argued two issues. First, he argued that his indictment

was defective because it failed to identify him as the defendant and omitted the words

“without her consent.” “This Court reviews . . . the question of whether an indictment is

fatally defective [de novo].” Townsend v. State, 188 So. 3d 616, 619 (¶10) (Miss. Ct. App.

2016). We recognize that “[a]n indictment must contain (1) the essential elements of the

offense charged, (2) sufficient facts to fairly inform the defendant of the charge against

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.” Davis v. State, 171 So. 3d 537, 540 (¶11)

(Miss. Ct. App. 2015) (quoting Gilmer v. State, 955 So. 2d 829, 836-37 (¶24) (Miss. 2007)).

¶8. Latham did not object to the contents of the indictment at the trial level and therefore

has waived this issue on appeal. See Jerninghan v. State, 910 So. 2d 748, 750 (¶4) (Miss. Ct.

4
App. 2005). Notwithstanding the procedural bar, we find that Latham’s indictment was

sufficient.

¶9. Latham argues that the indictment was defective because it failed to identify him as

the defendant since his first name was spelled as “Elonza” rather than “Elonzo.” This Court

addressed a similar argument in Forkner v. State, 902 So. 2d 615, 620 (¶9) (Miss. Ct. App.

2004), when Forkner asserted on appeal that “the indictment issued against him was

defective, as the indictment misspelled his last name as ‘Folkner’ rather than ‘Forkner.’” Id.

The issue was thus deemed “not properly before this Court” because the indictment did not

contain a “substantive error.” Id. at (¶10). “[A] misspelled name in the indictment is a matter

which may be corrected by the trial court on motion by the prosecutor[,]” Id. at (¶11) (citing

Evans v. State, 499 So. 2d 781, 784-85 (Miss. 1986)), and “as such a matter is correctable,

it may not be deemed as substantive.” Id. Because the misspelling of Latham’s first name

was an error that could be corrected, the error is not substantive, and this argument is without

merit. See id.

¶10. Latham also argues that the indictment is defective because it did not contain the “lack

of consent” element of sexual battery. This element was not required to be in the indictment

because it is not an essential element of sexual battery under section Mississippi Code

Annotated section 97-3-95(1)(d). Indeed, section 97-3-95(1)(d) sets forth that: “(1) A person

is guilty of sexual battery if he or she engages in sexual penetration with: . . . (d) A child

under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months

older than the child.” See Carter v. State, 204 So. 3d 791, 796 (¶21) (Miss. App. 2016)

5
(citing Palmer v. State, 140 So. 3d 448, 452 (¶6) (Miss. Ct. App. 2014)) (holding “the

element of consent is not an essential element of the charged crime of sexual battery of a

child under the age of fourteen years old”). We find no merit to Latham’s defective

indictment arguments.

¶11. Latham’s second argument is that the trial court erred in failing to properly instruct

the jury on the elements of sexual battery. He asserts that the jury instruction does not track

the language of section 97-3-95 because it does not instruct the jury that it must find that

Latham engaged in sexual penetration with KG “without her consent,” and it does not inform

the jury of KG’s age.

¶12. This Court reviews challenges to jury instructions under an abuse-of-discretion

standard. Baker v. State, 315 So. 3d 558, 563 (¶13) (Miss. Ct. App. 2021) (citing Newell v.

State, 49 So. 3d 66, 73 (¶20) (Miss. 2010)). If the instructions as a whole “fairly announce

the law of the case and create no injustice,” this Court will not reverse. Id. The Mississippi

Supreme Court has stated that a defendant’s “failure to object to [a jury] instruction at trial

bars that issue on appeal.” Missala Marine Servs. Inc. v. Odom, 861 So. 2d 290, 296 (¶25)

(Miss. 2003) (citing Jones v. State, 776 So. 2d 643, 653 (Miss. 2000)).

¶13. Latham did not object to the jury instructions at trial. Furthermore, in his supplemental

brief he admits that he “did not object to the jury instruction before or during trial.”

Therefore, this issue is waived. Id.

¶14. Notwithstanding the procedural bar, this issue is without merit. First, as stated earlier,

“lack of consent” is not an element of sexual battery under section 97-3-95(1)(d), which is

6
the section Latham was charged with violating. See Carter, 204 So. 3d at 796 (¶21). Second,

he argued that the instruction did not contain the “age” element. However, the jury

instruction did include the age requirement by stating:

If you find beyond a reasonable doubt from the evidence in this case that:
....

3. When Elonzo Latham unlawfully engaged in sexual penetration with [KG]:
a. Elonzo Latham was 24 or more months older than [KG];
b. [KG] was under the age of 14 years old; and
c. Elonzo Latham was not the spouse of [KG],
then you shall find Elonzo Latham guilty as charged.

Latham’s argument that the trial court erred in failing to properly instruct the jury on the

elements of sexual battery is without merit.

CONCLUSION

¶15. Latham waived both issues he raised in his pro se supplemental brief because he did

not raise them at trial. Even if the issues were not waived, they are meritless because the

indictment was not defective, and the jury was properly instructed on the elements of sexual

battery under Mississippi Code Annotated section 97-3-95(1)(d). Accordingly, we affirm

Latham’s conviction and sentence.

¶16. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ.,
CONCUR.

7