Reginald Demond Sims v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-02749-COA
REGINALD DEMOND SIMS A/K/A REGINALD
SIMMS
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
9/30/2003
HON. ISADORE W. PATRICK, JR.
WARREN COUNTY CIRCUIT COURT
FRANK J. CAMPBELL
OFFICE OF ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CRIMINAL - FELONY
COUNT I - AGGRAVATED ASSAULT:
SENTENCED TO TWELVE (12) YEARS.
COUNT II - AGGRAVATED ASSAULT:
SENTENCED TO FIVE (5) YEARS,
CONSECUTIVE TO COURT I FOR A TOTAL OF
SEVENTEEN (17) YEARS, NOT AS A FIRST
OFFENDER IN THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS.
AFFIRMED - 07/26/2005
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
Reginald Sims was convicted in the Circuit Court of Warren County of two counts of aggravated
assault in a shooting involving two victims, Derrick Williams and Ivory Walker. Sims appeals, asserting
a single issue: whether the evidence introduced at trial was sufficient to grant an aiding and abetting jury
instruction, Jury Instruction S-3. Sims contends that there was no factual basis for the instruction, because
his co-indictee, Bobby Nelson, testified there had not been any common plan to commit the assaults.
Finding that the State did introduce evidence that could allow the jury to infer that there had been a
common plan to commit the assaults, we affirm.
FACTS
¶2.
On the evening of October 7, 2002, Williams and Walker were driving around Vicksburg in a car
and drinking alcoholic beverages with their friends, Shacandy Harris, Shawanda Harris, Roosevelt Qualls
and Menica Jackson. They exited the vehicle at Qualls’ mother’s house, along Sky Farm Avenue, and
were approached by a group of approximately twenty people. Foul language was exchanged, and one of
the women in the crowd attempted to strike Walker. Walker’s girlfriend, Jackson, struck the woman
several times, knocking her to the ground. Sims moved to confront Jackson, and Williams offered to fight
with Sims. Sims declined and ran off, saying “I’ll be right back.”
¶3.
The two groups then seperated, with William’s and Walker’s group remaining at Qualls’ mother’s
house, and the other group moving back along Sky Farm Avenue in the direction from which it had
approached. Shortly thereafter, Sims drove by Qualls’ mother’s house, and said “something about shooting
the block up.” Williams, Qualls, Shacandy Harris and Shawanda Harris then went to report the threat to
the Vicksburg Police Department, and then returned to Qualls’ mother’s house.
¶4.
Prior to his trial, Bobby Nelson pled guilty to a charge stemming from the same incident. The
record is unclear as to what exact charge Nelson pled guilty to, but he received a sentence of three years
probation. Nelson was called as a witness for the State. He testified that he returned home and found that
his caller I.D. showed he had received a telephone call. He returned the call and spoke with Sims’ sister,
who told him Sims “had just got into it” with Williams and Walker. Nelson took his hand gun and left his
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home, and ultimately met Sims. The two men then went together to Qualls’ mother’s house. Sims asked
him for the hand gun, and Nelson gave it to him. Sims told Nelson to go to the front of the house and speak
with Qualls, while he would wait behind. Nelson further testified that he went to the front yard, and was
“jumped” by Williams and Walker. He heard gunshots, and assumed Sims was shooting. He then ran
away. Nelson explicitly denied that he and Sims made any common plan to commit the assaults. Sims did
not testify.
¶5.
Williams testified that Nelson came to the house, wishing to fight with Qualls, but Qualls had gone
inside to feed or change the diaper on his child. Nelson exchanged unpleasantries with Walker and Jeffrey
Wiggins. Nelson tried to hit Walker, and those two men began fighting. Williams testified that he saw
Walker knock Nelson to the ground, and saw Sims walk from around a house with a pistol. Williams said
Sims was trying to fire the hand gun, but “the gun was jammed up.” Williams ran to Walker, and pulled
him off of Nelson, and told him to run. As the two men ran, Sims shot Williams in the back. Williams fell
to the gound. Sims walked to the prostrate Williams and shot him in the face. Williams suffered partial
paralysis and lost his right eye.
ANALYSIS
Jury Instruction S-3
¶6.
Sims contends that an aiding and abetting jury instruction, Jury Instruction S-3, should not have
been given. Central to Sim’s contention is the fact that on the night of the shooting several witnesses told
investigating police officer that Nelson, not Sims, shot Williams. At trial, two of these witnesses testified
for the State, and both identified Sims as the shooter. Sims cross-examination brought out these
inconsistent identifications. Later in the trial, during Sims’ case-in-chief, Nelson was called to testify, and
in his direct testimony denied having shot Williams, and said he could not identify the shooter. The State
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requested the aiding and abetting instruction because the conflicting evidence could have led to a finding
that Sims did not shoot Williams. S-3 provided:
The Court instructs the Jury that the guilt of a defendant in a criminal case may be
established without proof that the defendant personally did every act constituting the
offense alleged. The law recognizes that, ordinarily, anything a person can do for himself
may also be accomplished by that person through the direction of another person as his or
her agent, by acting in concert with, or under the direction of, another person or persons
in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant
joins another person and performs acts with the intent to commit a crime, then the law
holds the defendant responsible for the acts and conduct of such other persons just as
though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it
is necessary that the accused deliberately associate himself in some way with the crime and
participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is
being committed are not sufficient to establish that a defendant either directed or aided and
abetted the crime unless you find beyond a reasonable doubt that the defendant was a
participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a
reasonable doubt that every element of the offense as defined in these instructions was
committed by some person or persons, and that the defendant voluntarily participated in
its commission with the intent to violate the law.
This jury instruction was adopted by the Supreme Court in Milano v. State, 790 So. 2d 179 (¶21) (Miss.
2001).
¶7.
Sims contends that because Nelson explicitly denied there was any common plan or scheme, there
was no evidentiary basis to support S-6. Moreover, because Walker and other eyewitnesses initially
identified Nelson as the person who shot Williams, Sims contends that but for the aiding and abetting
instruction, it is possible that he would not have been convicted. This argument is misplaced. Merely
because a fact is in dispute does not require that the determination of that fact be removed from the jury’s
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consideration. In fact, the exact opposite is true: where facts are in dispute, it is the jury’s province to
decide them. McFee v. State, 511 So.2d 130, 133-34 (Miss.1987). Furthermore, it is well settled that
when facts are in dispute it is proper to grant a jury instruction on a theory of the case so that the
determination of the question is presented to the jury. See e.g., Arbuckle v. State, 894 So. 2d 619 (¶11)
(Miss. Ct. App. 2004).
¶8.
In this case, the trial judge found that testimony had been introduced that would support an
inference that Sims and Nelson acted in consert in committing the aggravated assault. The trial judge stated:
The jury is entitled to make reasonable inferences based on the testimony that they
have heard. They have heard the testimony of Bobby Nelson, that the Defendant called
him, arranged to meet him, did meet him, asked if he had his gun, took his gun. They both
went behind the apartments at 1519 Sky Farm. Reginald had the gun. He sent Bobby
around the front to ask for Roosevelt Qualls and he stayed back there. He was
participating in a plan. Reginald is– they are entitled to inferences from the evidence. And
the evidence is that Bobby did what Reginald told him to do. He gave him his gun. They
went to the location where the shooting took place. Bobby circled around in front.
Reginald went behind the building. And, yes, sir, I think that is enough for a common plan.
The circuit court correctly found that the evidence supported granting the aiding and abetting jury
instruction. This assignment of error is without merit.
¶9. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION
OF COUNT I OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS AND
COUNT II OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE
YEARS, WITH SENTENCE TO RUN CONSECUTIVE TO COUNT I, FOR A TOTAL OF
SEVENTEEN YEARS, NOT AS A FIRST OFFENDER, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COST OF THIS
APPEALS ARE ASSESSED TO WARREN COUNTY.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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