Bobby Rice v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-02099-COA
BOBBY RICE
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
11/05/1999
TRIAL JUDGE:
HON. C. E. MORGAN III
COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
RICHARD BURDINE
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
DOUG EVANS
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
AGGRAVATED ASSAULT: SENTENCED TO 15 YEARS
WITH 5 YEARS SUSPENDED AND 10 YEARS TO SERVE
AND PLACED ON 5 YEARS OF SUPERVISED
PROBATION. DEFENDANT TO PAY RESTITUTION IN
THE AMOUNT OF $4,346.10 TO BAPTIST MEMORIAL
HOSPITAL.
DISPOSITION:
AFFIRMED - 01/09/2001
MOTION FOR REHEARING FILED: 2/8/2001; denied 4/3/2001
CERTIORARI FILED:
MANDATE ISSUED:
4/24/2001
BEFORE KING, P.J., IRVING, AND PAYNE, JJ.
PAYNE, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1. On July 30, 1998, Bobby Rice was indicted in the Winston County Circuit Court for aggravated
assault, pursuant to Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2000). A jury convicted Rice of aggravated
assault, and he was sentenced to serve fifteen years in the custody of the Mississippi Department of
Corrections and ordered to pay restitution in the amount of $4,346.10 for the victim's hospital bill. Rice's
motion for a judgment notwithstanding the verdict or in the alternative a new trial was denied. Feeling
aggrieved, Rice has appealed to this Court asking for either a reversal of the jury's verdict or, alternatively,
a new trial.
FACTS
¶2. Bobby Rice lived with his "common law" wife,(1) Etherine Ingram, in Winston County, Mississippi.
James Anderson, the victim in this case, is Ingram's nephew. On June 30, 1998, Anderson was at Ingram's
home getting his hair styled when Rice came into the house, aimed a gun at Anderson and began shooting at
him. As the others in the house rushed to get away, Anderson escaped through a bathroom window. Rice
later turned himself in to the police, and the next day told the police that he shot Anderson in self-defense
because Anderson had previously threatened Rice's life. Testimony from several witnesses contradicted
Rice's theory of self-defense.
ANALYSIS OF THE ISSUES PRESENTED
STANDARD OF REVIEW
¶3. Bobby Rice only cites one issue for our review: whether the weight of the evidence supported the
verdict. However, looking further he actually also argues that the sufficiency of the evidence did not support
his verdict.
¶4. First, looking to the weight of the evidence, a motion for new trial deals with the weight of the evidence:
Matters regarding the weight and credibility of the evidence are to be resolved by the jury . . . .
Moreover, the challenge to the weight of the evidence via motion for a new trial implicates the trial
court's sound discretion. Procedurally such challenge necessarily invokes [Uniform Circuit and
County Court Rule 10.05]. New trial decisions rest in the sound discretion of the trial court, and the
motion should not be granted except to prevent an unconscionable injustice. We reverse only for
abuse of discretion . . . .
McClain v. State, 625 So. 2d 774, 778-81 (Miss. 1993) (citations omitted).
¶5. A motion for JNOV deals with sufficiency of the evidence. Our standard of review concerning the trial
court's denial of JNOV is also described in McClain:
In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is
viewed and tested in a light most favorable to the State. The credible evidence consistent with
[defendant's] guilt must be accepted as true. The prosecution must be given the benefit of all favorable
inferences that may be reasonably drawn from the evidence . . . . We are authorized to reverse only
where, 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.
McClain, 625 So. 2d at 778 (citations omitted).
DISCUSSION OF THE ISSUES
¶6. Looking first to the weight of the evidence and to Rice's motion for new trial, it is clear that the trial
judge's overruling this motion was not an abuse of discretion as to produce an unconscionable injustice.
Rice's motion is a one page document that provides no facts whatsoever in support of his argument, only
stating in a single sentence that the jury's verdict is against the weight and sufficiency of the evidence. Since
Rice made no argument with this motion, the trial judge was without recourse to grant such motion. Thus,
Rice's challenge to the weight of the evidence is without merit, and the motion was rightly denied.
¶7. Next, looking to the sufficiency of the evidence, Rice claims that no evidence was presented showing he
had any intent to harm Anderson. Rice further claims that he shot Anderson in self-defense, since Anderson
also had a gun and shot back at him. Looking to the evidence, Rice's recollection of the event and the
testimonies of witnesses who were present are starkly contradictory. Every person who testified, except for
Rice himself, said that Rice was unprovoked when he drew a gun and began shooting at Anderson, and that
Rice was the initial aggressor.
¶8. Patricia Bogan testified that she was styling Anderson's hair at the time he was shot. Bogan recalled that
Rice came in from the back of the house and told Anderson to get out. At that point, Bogan testified that
Anderson may have reached for Rice's gun, trying to knock it from Rice's hand. Rice then shot Anderson
twice, and Bogan fled the house after she saw Rice fire the first shot. Bogan testified that at no time before
this incident had she ever seen Anderson assault, threaten or provoke Rice in any way.
¶9. Janette Triplett, Anderson's girlfriend, was also present at Ingram's home the evening Anderson was
shot. Triplett testified that Rice aimed the gun at Anderson, Anderson tried to push it away, then Rice shot
Anderson in the side, then in the mouth.
¶10. Gary Clark, an investigator with the Winston County Sheriff's Department, investigated the shooting
incident at Ingram's house. Clark testified that Anderson told him that Rice had shot him. Clark also attested
that Anderson indeed had gunshot wounds in his side and in his mouth, and that Rice confessed to him of
the shooting and told him where the gun was hidden.
¶11. James Anderson, the victim, testified that while he was getting his hair done, he heard Rice and Ingram
arguing. When Rice's young son told Anderson that his father was acting crazy, Anderson assured the boy
that as soon as his hair was done he and the boy would leave. Then, Rice came from the back of the room
where Anderson was, aimed the gun at Anderson and shot him. Anderson testified that he was not armed
that day and had not previously threatened Rice.
¶12. Christopher Rice, Ingram and Rice's son, was eleven years old at the time of the trial. Christopher
testified in his own words that "his daddy" shot Anderson and that Anderson was not doing anything to "his
daddy" at the time "his daddy" shot Anderson.
¶13. Etherine Ingram, Rice's wife,(2) testified that she had gone to bed that night and that Rice came into the
bedroom to ask her to tell Anderson to leave, which she refused to do stating that Anderson was her
nephew and Anderson could stay if he wanted to. Ingram said Rice got her gun from under the bed and
then left the bedroom, went to the kitchen and then shot Anderson.
¶14. Bobby Rice, the appellant, testified that he knew Anderson before this incident, that Anderson had
previously threatened his life, and that he had never seen Anderson previously when he was not armed.
Rice claims that earlier that evening Anderson had pulled a gun on him and that is why Rice pulled his gun
on Anderson. Rice claimed that a struggle for the guns ensued and Anderson was accidentally shot.
¶15. Reviewing all the testimonies in this case, all of the witnesses seem to have the same story, except for
Rice himself. No one else even said that they saw Anderson with a gun. The testimony was that Anderson
had his shirt off and was having his hair styled. Thus, he was not able to hide a weapon on his person
except for in his pants, where it would certainly be in view of at least one of the witnesses. The evidence
plainly does not contradict the jury's finding.
¶16. In another vein, Rice makes a self-defense argument, claiming that Anderson's verbal threats on him
were enough to require that Rice defend himself. However, the supreme court has said that verbal threats
alone are not enough to provoke one to defend himself.
To make an assault justifiable on grounds of self-defense, danger to the defendant must be either
actual, present and urgent, or defendant must have reasonable grounds to apprehend design on the
part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be
immiment [sic] danger of such design being accomplished. On the other hand, if a person provokes a
difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his
adversary, he becomes the aggressor and deprives himself of the right of self-defense.
Anderson v. State, 571 So. 2d 961, 963 (Miss. 1990) (citations omitted). Rice was armed, and he
admitted that Anderson had threatened him before. Thus, Rice can be said to have been "arming himself in
advance, and intending, if necessary, to use his weapon and overcome his adversary." Id. This self-defense
theory is not reasonable.
¶17. Rice also alleges that the State failed to prove every element of the crime with which he was charged.
If we review the statute, we find that the State had to prove the following:
(2) A person is guilty of aggravated assault if he . . . (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; and, upon conviction, he shall be punished by imprisonment in the county jail for
not more than one (1) year or in the penitentiary for not more than twenty (20) years.
Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2000). As described previously, the State did prove that Rice
purposely caused bodily injury to Rice with a deadly weapon, a gun. Taking the evidence in the light most
favorable to the State, the jury's verdict was the correct one in light of the facts and testimonies presented.
CONCLUSION
¶18. Finding no error with the trial judge's decision to deny Rice's motion for judgment notwithstanding the
verdict or in the alternative a new trial, we affirm.
¶19. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT OF CONVICTION
OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS AND FIVE YEARS
POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND ORDER TO
PAY RESTITUTION IN THE AMOUNT OF $4,346.10 IS AFFIRMED. COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, LEE, MYERS,
AND THOMAS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.
1. We recognize that pursuant to Miss. Code Ann. § 93-1-15 (Rev. 1994), Mississippi does not
recognize this type of marital union; however, we use this wording only to reflect the appellant's
description of his approximate fifteen-year relationship with Ms. Ingram.
2. See footnote 1.
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