Eugene Davis v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-01057-COA
EUGENE DAVIS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/6/2004
HON. JAMES T. KITCHENS, JR.
OKTIBBEHA COUNTY CIRCUIT COURT
PEARSON LIDDELL
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
CRIMINAL - FELONY
CONVICTION OF SIMPLE ASSAULT, AND
SENTENCED TO LIFE IN THE CUSTODY OF
MISSISSIPPI DEPARTMENT OF CORRECTIONS
AFFIRMED - 10/25/2005
BEFORE LEE, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
On February 5, 2004, Eugene Davis was found guilty of aggravated assault in the Circuit Court
of Oktibbeha County. On February 6, 2004, the court sentenced Davis, in accordance with Mississippi
Code Annotated § 99-19-83, to serve the remainder of his life without eligibility for parole or probation
in the custody of the Mississippi Department of Corrections. On May 5, 2004, the court denied Davis’s
motion for a new trial. Aggrieved by the trial court’s decision, Davis raises one issue on appeal:
I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY
INSTRUCTION ALLOWING THE JURY TO CONSIDER THE LESSER–INCLUDED OFFENSE
OF RESISTING ARREST.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
On November 24, 2003, Moultrie Lacey, an officer with the Starkville Police Department,
escorted prisoners from city court to the Oktibbeha County Jail. As Officer Lacey was escorting the
prisoners to his car, he saw Davis pick up a cigarette butt off of the ground and place it in his pants. After
Officer Lacey arrived at the jail with the prisoners, he told the jailers that Davis should be searched, since
the Oktibbeha County Jail is a smoke–free facility. One of the jailers, Ed Blasingame was attempting to
search Davis when Davis attacked him. Blasingame then sprayed Davis with pepper spray, and Davis
attempted to run from the room where he was being searched. Officer Lacey intercepted him. Blasingame
and Lacey then tried to take Davis down to the padded cell. A fight ensued, and Davis began kicking and
punching Lacey. Davis also grabbed another jailer’s asp baton and attempted to hit Lacey with it. The
other jailers and a prisoner finally restrained Davis. Lacey was not hit by the baton but suffered injuries as
a result of this attack. Davis was subsequently charged with aggravated assault. On February 5, 2004,
a jury in Oktibbeha County Circuit Court found Davis guiltyof the lesser-included offense of simple assault.
On February 6, 2004, Davis was sentenced as a habitual offender under Mississippi Code Annotated §
99-19-83 (Rev. 2000), to a life sentence in the custody of the Mississippi Department of Corrections.
LEGAL ANALYSIS
I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY
INSTRUCTION ALLOWING THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSE
OF RESISTING ARREST.
2
¶4.
Davis claims that the jury should have been instructed to consider the lesser-included offense of
resisting arrest. Davis claims this exclusion was important since the crime of resisting arrest is a
misdemeanor. Had Davis been convicted of this crime he would not have faced life in prison without the
possibility of parole. The State asserts that there is no evidence that Davis was being arrested; therefore,
the trial court’s ruling refusing the instruction was proper.
STANDARD OF REVIEW
¶5.
This Court reviews jury instructions by reading the instructions as a whole in determining whether
the trial court erred in granting or refusing to grant certain instructions. Collins v. State, 691 So.2d 918,
922 (Miss. 1997). If the instructions create no injustice, and they fairly announce the law of the case, then
no reversible error will be found. Id.
DISCUSSION
¶6.
An instruction for a lesser-included offense may only be given by the trial court when there is an
evidentiary basis for that instruction, and such instruction cannot be given based upon speculation. Reddix
v. State, 731 So.2d 591, 594 (¶15) (Miss. 1999); see Taylor v. State, 763 So.2d 913 (Miss. Ct. App.
2000); Lee v. State, 469 So.2d 1225, 1230 (Miss. 1985). The facts presented need to support the
lesser-included offense. Davis is asking this Court to rule that the instruction regarding resisting arrest
should have been given to the jury. His argument is meritless. Davis was in custody when this altercation
occurred, not being arrested.
¶7.
Davis’s reliance on Odem v. State, 881 So.2d 940 (Miss. Ct. App. 2004) is misplaced. Davis
relied on Odem in explaining that resisting arrest is a lesser-included offense of simple assault, which is what
the jury found Davis guilty of. Id. at 944 (¶11). Resisting arrest is considered a lesser- included offense
of simple assault when the defendant is being arrested when the incident occurs. In Odem, the defendant
3
was being arrested when the altercation occurred. Id. That is a crucial difference to the present case.
According to Mississippi Code Annotated § 97-9-73 (Rev. 2000), it is unlawful for any person to resist
or obstruct by violence, force or in any other manner his lawful arrest. Davis had previously been arrested
and was in police custody when this incident occurred. This statute therefore does not apply to him. Since
there was no evidence shown that Davis was being arrested at the time the assault occurred, the denial of
the jury instruction by the trial court was proper. See Henderson v. State, 758 So.2d 1047 (Miss. Ct.
App. 2000). Therefore, we do not find that the trial court abused its discretion in not granting Davis’s jury
instruction regarding resisting arrest.
¶8.
THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF
CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND
SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
