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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01297 COA ANDREW ANTHONY ALBANESE APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JAMES E. THOMAS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM DAVIS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN DISTRICT ATTORNEY: CONO CARANNA NATURE OF THE CASE: CRIMINAL (FELONY) TRIAL COURT DISPOSITION: DEFENDANT CONVICTED OF THE CRIME OF INTERSTATE REMOVAL OF A CHILD UNDER THE AGE OF FOURTEEN BY A NONCUSTODIAL PARENT OR RELATIVE IN VIOLATION OF SECTION 97-3-51 OF THE MISSISSIPPI CODE AND SENTENCED TO SERVE THREE YEARS IN THE CUSTODY OF MDOC.

BEFORE BRIDGES, P.J., BARBER, AND MCMILLIN, JJ. MCMILLIN, J., FOR THE COURT:

This case is an appeal from a criminal conviction in the Circuit Court of Harrison County of Andrew Anthony Albanese for violating the provisions of section 97-3-51 of the Mississippi Code of 1972. This section makes it a crime for a noncustodial parent to remove a child from the State in wilful violation of a court order. The defendant alleges four grounds for reversal, all of which this Court finds to be without merit. We will discuss our conclusions on each of the issues presented for our consideration after a brief recitation of the pertinent facts. I. The Facts

The defendant and his wife, in a contested Mississippi adoption concluded in 1992, had their parental rights terminated to their natural child, who was approximately thirteen years old at the time. The chancery court ordered the child to be adopted by his grandparents, Mississippi residents with whom the child had resided for a large part of its life. The defendant was a resident of the State of New York, but personally appeared in the Mississippi adoption proceeding. A few months after the adoption judgment, the defendant and his wife came to Mississippi on business. While in the State, they traveled to a ballfield where the child was engaged in a sporting activity, persuaded the child to enter their car, drove first to Louisiana, and then to New York. They were both indicted under section 97-3-51. On motion of the State and over the objection of both defendants, the two cases were severed for purposes of trial, and the defendant, Andrew Anthony Albanese, was convicted. II. The Severance

The defendant and his wife were jointly indicted. The State moved to sever the two trials, and the trial court granted the motion. Both this defendant and his wife opposed the severance. Such matters, whether requested by the State or the defendant, lie within the sound discretion of the trial court. Gossett v. State, 660 So. 2d 1285, 1289 (Miss. 1995) (citations omitted); Price v. State, 336 So. 2d 1311, 1312 (Miss. 1976) (citations omitted). The defendant has not advanced any meaningful argument as how his rights were adversely affected by the severance, and we can independently discover no such prejudice from our review of the record. Absent such a conclusion, there is no basis

to hold that the trial court abused its discretion in granting the State's severance motion. III. The Failure of the Trial Court to Direct a Verdict for the Defendant

Actually, the defendant raises several separate issues under the umbrella of this general issue, going to the impropriety of the indictment, the sufficiency of the evidence, and a unique challenge to the applicability of the statute to him. A. The Indictment

The defendant claims that his alleged crime was equally cognizable under section 97-5-39, which deals with contributing to the delinquency or neglect of a minor. A violation of section 97-3-51 is a felony, yet section 97-5-39 is only a misdemeanor. The defendant argues that the rule announced in Grillis v. State suggests the necessity of charging him under the less serious statute. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 527 (1944). Grillis provides that "[w]hen the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment." Id. at 527. We do not agree that the facts of this case necessarily fall under section 97-5-39. That section involves either the element of purposely facilitating a minor in improper conduct (delinquency) or engaging in activity that may be detrimental to the child's physical or mental welfare (neglect). See Miss. Code Ann.

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