Demarcus Johnson v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-KA-01525-COA
DEMARCUS JOHNSON A/K/A SONNY JAKE JOHNSON
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
09/21/1998
TRIAL JUDGE:
HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
EDWARD DUDLEY LANCASTER
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: MICHAEL C. MOORE
W. GLENN WATTS
DISTRICT ATTORNEY:
JAMES M. HOOD III
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
09/21/1998: AGGRAVATED ASSAULT: SENTENCED TO
SERVE A TERM OF (20) YEARS IN THE MDOC, WITH
(8) YEARS OF SAID SENTENCE SUSPENDED UPON
THE DEFENDANT'S GOOD BEHAVIOR AND FURTHER
CONDITIONED UPON THE TERMS AND CONDITIONS
SET FORTH IN ORDER. DEFENDANT IS PLACED
UNDER A TERM OF (5) YEARS POST RELEASE
SUPERVISION.
DISPOSITION:
AFFIRMED - 11/16/99
MOTION FOR REHEARING FILED: 12/02/99; denied 2/1/2000
CERTIORARI FILED:
2/28/2000; denied 5/4/2000
MANDATE ISSUED:
2/22/2000
BEFORE KING, P.J., DIAZ, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. On August 4, 1998, this Court reversed and remanded Johnson's conviction for aggravated assault on
Joseph Pratt because we found Johnson's written confession was improperly induced. We specifically
found, however, that on the facts presented, Johnson was not entitled to a lesser-included-offense
instruction. Johnson v. State, 721 So. 2d 650, 655 (Miss. Ct. App. 1998) ("Johnson I"). Upon return to
trial, Johnson again was convicted of aggravated assault and now appeals his conviction, raising the
following issues which are stated verbatim from his brief:
I. That a new trial in this matter should have been allowed due to the failure of the Court to allow
a lesser included instruction, although requested by the defendant.
II. During the proceedings the counsel for the Defendant, upon the close of the case in chief of
the State of Mississippi, moved for a directed verdict for failure to prove the elements of
aggravated assault, and failure to prove corpus delicti due to there having been no pistol or bullet
produced. This was overruled.
Finding no error, we affirm.
FACTS
¶2. On the night of December 26, 1995, Demarcus Johnson and Joseph Pratt were at Quinn's Pool Hall in
Houston, Mississippi. While Pratt was outside the pool hall, Lavaras Yates came out and told Pratt that
Johnson wanted to talk to him inside. When Pratt entered the club, Johnson approached him, and an
argument ensued. According to Pratt, Yates pulled a pistol out of his coat, and consequently, the owner of
the pool hall told them all to leave. Before Pratt could leave, he heard something pop. After he heard the
pop, he turned around and found Johnson holding a gun up against Pratt's temple. Johnson said to him "If
you don't leave, I'll blow your such and such brains out." At that point, Pratt pushed Johnson away, and
they began to scuffle over the gun. Pratt stated that he fell to the floor, and before he could get up, Yates
struck him three times with a pool stick causing him to fall again. Pratt testified that when he got up, he saw
Johnson running towards him with the gun pointed at him and that Johnson then shot him in the leg. Pratt ran
out of the pool hall and down the road. As he was running down the road, several shots were fired, and one
struck him in his back.
¶3. Chris Harris and William Pickens, who were also at the pool hall on the night of December 26, testified
for the State. Both Harris and Pickens testified to essentially the same events as did Pratt. They both
testified that after Johnson and Pratt tussled over the gun, Johnson dropped the gun, picked it up and, while
in sole control over it, shot Pratt twice, once in the knee and then again in the back.
¶4. Johnson's version of the facts, as might be expected, was different from the State's version. Johnson
testified that he found the gun on the ground behind the pool hall and put it in his pocket. Johnson stated that
Pratt entered the pool hall and asked Johnson where he was from. Johnson told Pratt that he was from
Mantee; thereafter, Pratt told him that persons from Mantee were not allowed in the pool hall. Johnson
testified that Pratt lifted a bar stool above Pratt's head as if he were going to strike Johnson with it;
however, Pratt put the stool down without further incident. After Pratt put the stool down, Johnson saw
Pratt put his hand in his pocket. In response, Johnson took the gun from his own pocket in order to scare
Pratt. Thereafter, Johnson stated, they tussled over the gun, and the gun discharged, wounding Pratt.
Johnson stated that at the time the gun discharged, both he and Pratt had their hands on the gun.
ANALYSIS OF THE ISSUES PRESENTED
I. Lesser-included-offense instruction.
¶5. Johnson argues that the trial court erred in not granting a lesser-included-offense instruction for simple
assault. Miss. Code Ann. § 97-3-7(1) (Rev. 1994) provides that:
A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly
weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical
menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be
punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the
county jail of not more than six (6) months, or both.
Johnson argues that there was sufficient evidence to allow the jury to consider the issue of simple assault.
The facts now are essentially the same as they were in Johnson I. See Johnson, 721 So. 2d at 652. In
Johnson I, we affirmed the trial court's ruling that a lesser-included-offense instruction on simple assault
was not warranted by the evidence. Id. at 655. We stated that before a lessor-included-offense instruction
is given it must be warranted by the evidence. Id. at 653. We concluded that a jury composed of
reasonable minded persons could not have concluded that Johnson's act of introducing a deadly weapon
into the altercation, pointing a gun in Pratt's face and engaging in a fight that led to the discharge of the gun
was negligent conduct. Id. at 654.
¶6. Since no new facts were presented in the case before, we see no reason for changing the decision we
reached on this issue when it was first presented in Johnson I. Accordingly, the trial court's ruling, that a
lesser-included-offense instruction for simple assault was not warranted, is affirmed.
II. Directed verdict.
¶7. When reviewing challenges to the sufficiency of the evidence, the reviewing court considers all of the
evidence, as to each element of the offense, in the light most favorable to the verdict. Weltz v. State, 503
So. 2d 803, 808 (Miss. 1987). We will reverse only where, with respect to an element of the offense
charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.
Id.
¶8. Johnson argues that the trial court erred in refusing his request for directed verdict. Johnson contends
that the State failed to prove corpus delicti due to the fact that no pistol or bullet was produced. Johnson
also contends that criminal agency was proven by photographs that were erroneously introduced into
evidence. Johnson states that the photographs were not introduced through the proper chain of custody, but
instead introduced by the victim.
¶9. The corpus delicti is the body or the substance of a crime. Cotton v. State, 675 So. 2d 308, 313
(Miss. 1996). Corpus delicti contains two elements which must be proved beyond a reasonable doubt in
order to show that a crime has actually been committed: (a) the existence of a certain act or result forming
the basis of a criminal charge and (b) the existence of criminal agency as the cause of this act or result. Id.
Corpus delicti is established where there is any corroborative proof that the crime charged has occurred.
Id. at 314.
¶10. In the case at bar, Pratt testified to seeing Johnson aim a gun and shoot him in the leg. The State also
produced two other witness, Harris and Pickens, who corroborated Pratt's testimony that Johnson shot
him. Johnson also testified and admitted to introducing a gun into the conflict. Sufficient corroborative proof
exists to establish that the crime of aggravated assault had been committed.
¶11. Further, the trial court did not err in allowing the introduction of the photographs. Before the photos
were shown to the jury, Pratt was asked to show the bullet hole in his knee and the area of his back in
which the bullet had entered. Pratt also was asked whether the photos "fairly and accurately" showed his
bullet wounds, to which he answered in the affirmative. Clearly, Pratt knew whether the photos depicted his
wounds. We find this claim lacking in merit.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE TO A TERM OF 20 YEARS
IN THE MISSISSIPPI DEPARTMENT OF CORRECTION, WITH 8 YEARS SUSPENDED
AND 5 YEARS POST RELEASE SUPERVISION ARE AFFIRMED. ALL COSTS OF THIS
APPEAL ARE TAXED TO CHICKASAW COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, LEE, MOORE,
PAYNE, AND THOMAS, JJ., CONCUR.
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