Yalanda Johnson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01287-COA
YALANDA JOHNSON
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF 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:
MANDATE ISSUED:
04/08/2009
HON. DAVID H. STRONG JR.
LINCOLN COUNTY CIRCUIT COURT
HUNTER NOLAN AIKENS
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DEE BATES
CRIMINAL - FELONY
CONVICTED OF AGGRAVATED ASSAULT
AND SENTENCED TO TEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
THREE YEARS TO SERVE, SEVEN YEARS
SUSPENDED, AND FIVE YEARS OF
SUPERVISED PROBATION, AND TO PAY
A $2,500 FINE AND $250 TO THE
MISSISSIPPI CRIME VICTIMS’
COMPENSATION FUND
AFFIRMED - 09/07/2010
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Yalanda Johnson was found guilty in the Lincoln County Circuit Court of aggravated
assault. Johnson was sentenced to ten years in the custody of the Mississippi Department of
Corrections, with seven years suspended, three years to serve, and five years of supervised
probation. Johnson was also ordered to pay a $2,500 fine and $250 in restitution. Johnson
filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a
new trial, which was denied by the trial court. Johnson now appeals her conviction, alleging
the following errors: (1) the trial court substantively amended the indictment; (2) the
evidence was insufficient to support the verdict; and (3) the verdict is against the
overwhelming weight of the evidence.
¶2.
Finding no error, we affirm.
FACTS
¶3.
Charity Plaisance, an area supervisor for Speedee Cash, received information that
Johnson, an employee of the Speedee Cash in Brookhaven, Mississippi, had stolen office
equipment and written loans to family members without supervisor approval. On April 17,
2008, Plaisance confronted Johnson at the Brookhaven store, and the situation escalated after
Johnson denied having violated company policy. Johnson began shouting at Plaisance, who
backed away and fell to the floor between a desk and the wall. While Plaisance was on the
floor attempting to shield herself, Johnson hit Plaisance in the back of the head several times
with a plastic telephone receiver. Plaisance’s head also hit a neon sign hanging in the store
window. The parties disputed whether Johnson deliberately pushed Plaisance into the sign
or whether Plaisance’s head hit the sign as she backed away from Johnson.
¶4.
While Plaisance was still on the floor, Johnson called and told her mother that she
would need to be picked up from jail because she had just beaten her supervisor. When the
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police and medical assistance arrived, Plaisance was taken to the hospital and treated for her
injuries. She sustained a bruise on her arm and two head lacerations that required four
staples each. Johnson did not require medical treatment and was taken into custody.
DISCUSSION
I. INDICTMENT
¶5.
Johnson was indicted for aggravated assault under Mississippi Code Annotated
section 97-3-7 (Rev. 2006). The indictment did not state under which subsection the charge
of aggravated assault was brought; however, the State specified that it was proceeding under
section 97-3-7(2)(a). Johnson argues that the trial court erred by indirectly amending the
indictment during trial to allow the State to proceed under section 97-3-7(2)(b) rather than
section 97-3-7(2)(a).
¶6.
A trial court may not alter the substance of the charge against the defendant by
directly or indirectly amending the indictment. Rushing v. State, 753 So. 2d 1136, 1146
(¶47) (Miss. Ct. App. 2000) (citing Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990)).
¶7.
Johnson’s indictment stated that she “did wilfully, unlawfully, and feloniously attempt
to cause serious bodily injury to [Plaisance] by beating her about the head with a telephone
and slamming her head against a hard object, contrary to and in violation of [s]ection 97-3-7
. . . .”
¶8.
Section 97-3-7(2) states:
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 . . . .
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¶9.
During her motion for a directed verdict, Johnson argued that the State had failed to
prove she was guilty of aggravated assault under section 97-3-7(2)(a). In denying the
motion, the trial court stated: “the injuries which were sustained by Ms. Charity Plaisance
have been testified to, and it is within the province of the jury to determine whether or not
the telephone was a sufficient bludgeoning instrument . . . .” The following exchange then
took place between the trial court and Johnson’s attorney:
BY [JOHNSON’S ATTORNEY]: Your Honor, are you then changing the
Indictment from a 2(a) to a 2(b) Indictment? Because it was our understanding
that the State was pursuing it as a 2(a) Indictment, not a 2(b) . . . .
BY THE COURT: I’m not changing the Indictment to anything . . . .
The trial court also questioned the State as to which subsection that it was proceeding under,
and the State responded subsection 2(a).
¶10.
Johnson argues that despite the trial court’s statement that it was not altering the
indictment, the statement that the jury must decide if “the telephone was a sufficient
bludgeoning instrument” showed that the trial court was requiring proof under section 97-37(2)(b) - assault “with a deadly weapon.” Johnson argues that as a result of the trial court’s
statement, jury instruction nine was erroneously proposed by the defense and granted by the
trial court. Jury instruction nine states: “It is a question of fact for you to determine whether
the telephone receiver and/or the neon sign casing, claimed to have been used by Yalanda
Johnson, constituted a means likely to produce death or serious bodily harm.” As this
instruction was proposed by Johnson, we must note that “[i]t is a familiar rule of law that one
may not complain of his own instruction.” Caston v. State, 823 So. 2d 473, 508 (¶121)
(Miss. 2002) (quoting Hall v. State, 420 So. 2d 1381, 1386 (Miss. 1982)).
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¶11.
Johnson proposed jury instruction nine and cannot now complain that the trial court
erred in granting the instruction. Nevertheless, we find that any possible confusion caused
by jury instruction nine was remedied by the State’s aggravated-assault instruction, which
followed the language of section 97-3-7(2)(a). Also, an instruction was given on the
meaning of “serious bodily injury,” which is an element of section 97-3-7(2)(a).
¶12.
When reviewing a trial court’s decision regarding the denial or granting of jury
instructions, “the instructions actually given must be read as a whole.” Beard v. State, 795
So. 2d 551, 553 (¶9) (Miss. Ct. App. 2001). “When so read, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found.” Id.
(quoting Fielder v. Magnolia Beverage Co., 757 So. 2d 925, 929 (¶10) (Miss. 1999)). We
find that when taken as a whole, the jury instructions followed the indictment and fairly
announced the law of the case. This issue is without merit.
II. LEGAL SUFFICIENCY OF THE EVIDENCE
¶13.
Johnson next argues that the trial court erred in denying her motion for a JNOV
because the State failed to prove the elements of aggravated assault. “[I]t is a fundamental
principle of law that jury verdicts will not be disturbed except under the most dire of
circumstances.” King v. State, 798 So. 2d 1258, 1261 (¶12) (Miss. 2001) (citing Manning
v. State, 735 So. 2d 323, 333 (¶10) (Miss. 1999)). For this Court to uphold the denial of a
motion for a JNOV, the evidence must show “beyond a reasonable doubt that [the] accused
committed the act charged, and that he did so under such circumstances that every element
of the offense existed; and where the evidence fails to meet this test it is insufficient to
support a conviction.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). In determining
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whether a conviction has sufficient support, the evidence is considered in the light most
favorable to the State. King, 798 So. 2d at 1261 (¶12). If a rational trier of fact could have
found, beyond a reasonable doubt, that the essential elements of the crime existed, the verdict
will be beyond the court’s authority to disturb. Id.
¶14.
Plaisance testified that Johnson pushed her head into a neon sign hanging in the
window and hit her multiple times in the back of the head with a telephone receiver. The
jury also heard testimony that Johnson sustained no injuries, while Plaisance required
medical attention for injuries to both her head and arm. A rational trier of fact, viewing this
evidence in the light most favorable to the State, could have found beyond a reasonable doubt
that Johnson was guilty of committing all the elements set forth in section 97-3-7(2)(a).
Therefore, this issue is without merit.
III. WEIGHT OF THE EVIDENCE
¶15.
Johnson argues that the trial court erred in denying her motion for a new trial because
the evidence did not support the jury’s verdict of aggravated assault. She argues that, at the
most, the evidence supported a conviction of simple assault.
¶16.
“When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18).
¶17.
Viewing the evidence in the light most favorable to the verdict, we find the verdict is
not against the overwhelming weight of the evidence. At trial, Johnson admitted that after
Plaisance confronted her about the alleged violations of company policy, she began yelling
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at Plaisance. Johnson further admitted she hit Plaisance in the back of the head with a
telephone receiver. The parties disputed the number of times Johnson hit Plaisance. Johnson
testified that she only hit Plaisance once or twice and that she was not seriously trying to
injure Plaisance. Plaisance, however, testified that she was hit approximately six times.
¶18.
The jury received instructions on aggravated assault, simple assault, and self-defense;
and the testimony at trial presented a factual dispute for the jury to resolve. It is the jury’s
duty to weigh a witness’s credibility and to resolve questions of fact. Davis v. State, 866 So.
2d 1107, 1112 (¶17) (Miss. Ct. App. 2003). Looking at the evidence in the light most
favorable to the verdict, we cannot find that allowing the jury’s verdict to stand would
sanction an unconscionable injustice. Accordingly, this issue is without merit.
¶19. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
WITH THREE YEARS TO SERVE, SEVEN YEARS SUSPENDED, AND FIVE
YEARS OF SUPERVISED PROBATION AND TO PAY A $2,500 FINE AND $250 TO
THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.
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