Shana Davis v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-02551-COA
SHANA DAVIS
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
10/31/2003
HON. W. ASHLEY HINES
SUNFLOWER COUNTY CIRCUIT COURT
BOYD P. ATKINSON
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
JOYCE IVY CHILES
CRIMINAL - FELONY
DEFENDANT SENTENCED TO SERVE A TERM
OF FIFTEEN YEARS IN THE CUSTODY OF THE
MDOC; SEVEN YEARS TO BE SUSPENDED
WITH THREE YEARS OF POST-RELEASE
SUPERVISION
AFFIRMED-08/23/2005
BEFORE LEE, P.J., GRIFFIS, AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Petitioner was convicted of aggravated assault. Finding no error, we affirm.
STATEMENT OF FACTS
¶2.
In the early morning hours of March 6, 2003, Jaretta Peggy and Timothy Jones were together in
a house in Ruleville, Mississippi. At approximately 5:00 a.m., Shana Davis entered the house and
discovered Peggy and Jones together. Davis proceeded to attack Peggy, and during the altercation,
Peggy’s face was lacerated from her right ear to her jaw line. Following the altercation, Peggy went to the
police station in Ruleville in order to press charges against Davis. Officer Trotter took her statement and
photographed her wound. Peggy then sought emergency medical treatment at the local hospital; the
laceration required approximately twenty stitches to close.
¶3.
Davis was charged with aggravated assault and tried before a jury in the Sunflower County Circuit
Court. At the conclusion of the State’s evidence, Davis moved for a directed verdict. The circuit court
denied the motion. The jury subsequently returned a guilty verdict. Davis then filed a motion for a
judgment notwithstanding the verdict or, in the alternative, a new trial. This motion was also denied.
Aggrieved by her conviction, Davis now appeals asserting the following issues: (1) whether the trial court
erred in denying Davis’s motion for a directed verdict; and (2) whether the trial court committed reversible
error in its instructions to the jury.
ISSUES AND ANALYSIS
I.
¶4.
Whether the trial court erred in denying Davis’s motion for a directed verdict.
Miss. Code Ann. § 97-3-7(2) (Rev. 2000) states that a person is guilty of aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury purposely,
knowingly or recklessly under circumstances manifesting extreme indifference to the value
of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a
deadly weapon or other means likely to produce death or serious bodily harm . . .
¶5.
Davis maintains that the prosecution failed to prove that she committed aggravated assault.
Specifically, Davis argues that she was the victim of an assault by Peggy and that she was acting in selfdefense. Davis further argues that no blade was ever offered into evidence, and the only person who
testified to seeing Davis use a blade to cut Peggy was Peggy herself. Davis points out that the only other
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witness at the scene, Jones, testified that he never saw a blade. Davis argues that the record in this case
did not contain sufficient, credible evidence offered by the State to justify the submission of the case to the
jury, and that as a result, the verdict evidenced bias and prejudice against Davis, and the verdict was based
solely upon conjecture and speculation.
¶6.
The standard of review for a motion for directed verdict is as follows: once the jury has returned
a guilty verdict this Court is not at liberty to direct that the defendant be found not guilty unless viewed in
the light most favorable to the verdict no reasonable, hypothetical juror could find beyond a reasonable
doubt that the defendant was guilty. Conners v. State, 822 So. 2d 290, 293 (¶6) (Miss. Ct. App. 2001).
When considering the denial of a motion for a directed verdict, the evidence is viewed in the light most
favorable to the State, and all evidence supporting a guilty verdict is accepted as true. McClain v. State,
625 So. 2d 774, 778 (Miss. 1993). The prosecution must be given the benefit of all reasonable inferences
that can be reasonably drawn from the evidence. Id. When determining whether a jury verdict is against
the overwhelming weight of the evidence, the reviewing court must accept as true the evidence which
supports the verdict and will reverse only when convinced that the trial court has abused its discretion in
failing to grant a new trial.
Montana v. State, 822 So. 2d 954, 967-68 (¶61) (Miss. 2002). The
reviewing court must find that the verdict is against the overwhelming weight of the evidence so that allowing
the verdict to stand would sanction an unconscionable injustice. Id.
¶7.
The record clearly reflects that Peggy testified that she saw a razor in Davis’s hand. Davis admitted
in her testimony that she fought with Peggy, but stated that she only scratched Peggy with a broken baseball
trophy. Jones, who was living with Davis at the time of trial, testified that he saw the two women fighting,
but that he did not see when Peggy was cut. The police officer who took Peggy’s statement and
photographed her face testified that she told him that she was cut by a razor. The police officer further
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testified that he believed the laceration was made by some sharp object. The emergency room physician
who treated Peggy testified that Peggy told him that she had been cut by a razor, and he too testified that
he believed that she was cut by a sharp object. Furthermore, the photograph of Peggy’s lacerated face
was admitted into evidence for the jury to view and consider.
¶8.
Before proceeding, we are reminded that the jury is the sole judge of the credibility of the witnesses
and the weight to be attached to their testimony, and this Court may only reverse when, with respect to one
or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair
minded jurors could only find the accused not guilty. Alexander v. State, 759 So. 2d 411, 421 (¶36)
(Miss. 2000).
¶9.
In this case, there is record testimony from Davis, Peggy, and Jones establishing an altercation
between Davis and Peggy. There is further testimony from Peggy that Davis cut Peggy’s face with a razor.
This testimony as to the nature of the wound was partially corroborated by the police officer and the
emergency room physician. There was documentary evidence presented to the jury further evidencing the
nature of the wound. Furthermore, we note that the witnesses were subjected to cross-examination and
the defense had every opportunity to present its legal theories of the case. Having acknowledged the jury’s
province of assessing credibility and weighing the evidence, this Court finds, after affording the prosecution
the benefit of all reasonable inferences that can be reasonably drawn from the evidence, and after viewing
the evidence which supports the verdict as true, that the trial court appropriately denied Davis’s motion for
a new trial. We agree that there was sufficient, credible evidence for a reasonable, hypothetical juror to
find Davis guilty of aggravated assault.
II.
Whether the trial court committed reversible error in its instructions to the jury.
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¶10.
Davis argues that the trial court committed reversible error in three respects regarding its
instructions to the jury: the aggravated assault instruction, the self-defense instruction, and the lesserincluded offense of simple assault instruction. We will discuss the standard of review and then address each
jury instruction in turn.
¶11.
The standard of review regarding jury instructions is well settled and is as follows: a trial court may
refuse an instruction which misstates the law, is fairly addressed in another instruction, or has no evidentiary
foundation. Poole v. State, 826 So. 2d 1222, 1230 (¶27) (Miss. 2002). "In determining whether error
lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole.
When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible
error will be found." Johnson v. State, 823 So. 2d 582, 584 (¶4) (Miss. Ct. App. 2002).
1. Aggravated assault instruction.
¶12.
Davis argues that the trial court committed reversible error in failing to properly instruct the jury
on the law of aggravated assault. Instruction # 3 was given to the jury in this case and reads as follows:
The Court instructs the [j]ury that if you believe from the evidence in this case beyond a
reasonable doubt that on the date testified about, the Defendant, SHANA DAVIS, did
unlawfully, wilfully and feloniously cause or attempt to cause bodily injury to Jaretta Peggy
by cutting her with a razor type instrument, a deadly weapon, then it is your sworn duty to
find the Defendant, SHANA DAVIS, guilty as charged.
¶13.
We note first that Davis is procedurally barred from appellate review of this issue having failed to
object to any arguable defect in this instruction in the trial court, and as a result, any objection to this Court
is now waived. Bell v. State, 725 So. 2d 836, 854 (¶54) (Miss. 1998). In addition, we find substantively
that this instruction, when read in context with all of the other instructions given in this case, does fairly
announce the law of aggravated assault. See Miss. Code Ann. § 97-3-7(2); Johnson, 823 So. 2d at 584
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(¶4). The Mississippi Supreme Court has held that aggravated assault must be defined within the
instructions. Reddix v. State, 731 So. 2d 591, 592 (¶¶6-7) (Miss. 1999). In Reddix, the erroneous
instruction stated only that the jury must find “that the defendant committed an aggravated assault . . . with
a certain deadly weapon.” Id. That instruction made no attempt to address the mental state required to
find a defendant guilty of aggravated assault, nor in any manner did it attempt to instruct the jury on the
elements of the crime. Such is not the case here. While Instruction # 3 includes the words “wilfully and
feloniously” rather than the statutory language “purposely or knowingly,” we find that such a deviation from
the statutory language nevertheless fairly announced the requisite mental state for the crime. In Ousley v.
State, 154 Miss. 451, 122 So. 731, 732 (Miss. 1929), a case involving conviction of a defendant for
unlawful possession of “a still for the manufacture of intoxicating liquor,” an indictment used the words
“willfully, unlawfully and feloniously” rather than the statutory “knowingly.” In that case, the Mississippi
Supreme Court stated that “knowingly” and “willfully” have substantially the same meaning in criminal
statutes. Id. at 732. The Mississippi Supreme Court further stated that “[a] willful act is one that is done
knowingly and purposely with the direct object in view of injuring another.” Id. at 732 (quoting Hazle
v. So. Pac. Co., 173 F. 431 (C.C. Or. 1909)) (emphasis added). While Ousley involved an indictment
rather than a jury instruction, the definitional aspects nevertheless make clear that the terms “wilfully” and
“purposely or knowingly” have substantially the same meanings. We find that the instruction which was
given in this case fairly announced the law, and that Davis suffered no injustice.
2. Self-defense instruction.
¶14.
Davis also maintains that the trial court erred in failing to properly instruct the jury regarding the law
of self-defense. See Reddix, 731 So. 2d at 594 (¶¶19-21). Instruction #7 was given to the jury in this
case and reads as follows:
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The Court instructs the jury that if you believe that the defendant in this case acted in
necessary self-defense of injury to her person, then you shall find the defendant, SHANA
DAVIS, Not Guilty.
¶15.
As Davis points out, the Reddix court objected to the instruction given in that case because it was
“couched in prosecutorial terms and fail[ed] to state that self-defense is, in fact, a defense. In other words,
the instruction failed to notify the jury it was bound to acquit Reddix if it found that he acted in self defense.”
Reddix, 731 So. 2d at 594 (¶20). Such is not the case regarding the instruction given in this case. The
instruction given in this case was clearly straightforward, and was not phrased in obscure, esoteric,
prosecutorial language. Furthermore, the instruction unambiguously required the jury to find Davis not guilty
if they concluded that she acted in self-defense. The self-defense instruction given in this case reflected the
defense’s legal argument, fairly announced the law, and this Court finds Davis suffered no injustice.
3. Simple assault instruction.
¶16.
Finally, Davis argues that the trial court committed reversible error in failing to properly instruct the
jury as to the law concerning the lesser-included offense of simple assault. Instruction # 6 was given to the
jury in this case and reads as follows:
The Court instructs the jury that if you believe that the State has failed to prove each and
every element of the crime of [a]ggravated [a]ssault, then you may continue your
deliberations to consider whether or not the defendant in this case, SHANA DAVIS, is
guilty of the lesser included offense of [s]imple [a]ssault. If you believe that Shana Davis
did unlawfully and willingly attempt to cause or purposefully, knowingly, or recklessly
caused bodily injury to Jaretta Peggy; or you believe SHANA DAVIS negligently caused
bodily injury to Jaretta Peggy with a deadly weapon or other means likely to produce
death or serious bodily harm then you may find her guilty of simple assault.
¶17.
Our analysis of this issue is two-fold. First, we must consider whether the record facts support the
granting of the lesser-included offense of simple assault instruction. Second, if we determine that the
instruction was warranted, we must consider whether the instruction correctly stated the law of the case.
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A. Factual support for the instruction.
¶18.
The MississippiSupreme Court has held that a lesser-included offense instruction should be granted
by the trial court if, after taking the evidence in the light most favorable to the accused, and considering all
reasonably favorable inferences which may be drawn in favor of the accused from the evidence, no
reasonable juror could find the defendant guilty of the lessor-included offense and not guilty of at least one
essential element of the principal charge. Hutchinson, 594 So. 2d 17, 19 (Miss. 1992).
¶19.
The record reveals that Davis offered testimony which would justify the jury’s consideration of a
simple assault instruction. Davis testified that Peggy was cut by a broken baseball trophy while they fought,
rather than purposefully by Davis with a razor. Furthermore, Davis points out that no deadly weapon was
offered into evidence. Taking the evidence in the light most favorable to the accused, and considering all
reasonably favorable inferences which may be drawn in favor of the accused from the evidence, the record
offers evidence in support of Davis’s theory that she did not wilfully cause bodily injury to Peggy with a
deadly weapon. Based on Hutchinson, we find that there is evidentiary support for the instruction in the
record.
B. Proper instruction.
¶20.
Having determined that the instruction was warranted, we now turn to consider whether the
instruction given correctly stated the law of the case. The Mississippi Supreme Court has discussed the
distinction between aggravated assault and simple assault and has made it clear that the simple assault
definition in Miss. Code Ann § 97-3-7(1) (Rev. 2000) may include a negligent injury. Hutchinson, 594
So. 2d at 18.
¶21.
Returning to the simple assault instruction which was given in this case, one sees that it clearly
reflects the definition of simple assault as found in Miss. Code Ann. § 97-3-7(1). Based on the record,
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this Court concludes that the jury was properly instructed and that the simple assault instruction fairly
announced the law of the case. Therefore, this Court affirms the circuit court’s decision.
¶22. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND THE SENTENCE OF FIFTEEN YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; SEVEN
YEARS TO BE SUSPENDED WITH THREE YEARS OF POST-RELEASE SUPERVISION
ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER
COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS AND
BARNES, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
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