Reggie Andre Carter v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01318-COA
REGGIE ANDRE CARTER
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:
7/18/2007
HON. MARCUS D. GORDON
NESHOBA COUNTY CIRCUIT COURT
CHRISTOPHER A. COLLINS
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
MARK SHELDON DUNCAN
CRIMINAL - FELONY
CONVICTED OF AGGRAVATED
ASSAULT AND SENTENCED TO TWELVE
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY A FINE OF
$5,000
AFFIRMED - 11/25/2008
BEFORE LEE, P.J., CHANDLER AND ISHEE, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On July 13, 2007, a jury in the Neshoba County Circuit Court found Reggie Andre
Carter guilty of aggravated assault. Carter was sentenced to serve twelve years in the
custody of the Mississippi Department of Corrections. Aggrieved, Carter now appeals,
asserting the following issues: (1) the trial judge erred in excluding testimony regarding the
victim’s conduct after the aggravated assault, and (2) the trial judge erred in refusing to grant
a simple assault jury instruction. Finding no error, we affirm.
FACTS
¶2.
On January 30, 2007, India1 Lyons was sitting in her car outside her place of work in
Philadelphia, Mississippi, taking her lunch break. Carter, Lyons’s live-in boyfriend and
father to her child, approached Lyons’s car and got into the front passenger seat. Lyons
testified that she and Carter had been arguing that morning. Lyons stated that Carter had
been calling her cell phone all morning, but she had refused to answer his calls. When
Lyons took her lunch break, she returned Carter’s calls. They began arguing, and Lyons told
Carter to move out of their house. While the two were arguing, Carter arrived at Lyons’s
place of work and proceeded to get into her car.
¶3.
After Carter got into Lyons’s car, the two began to argue again. Carter began to strike
Lyons with his fist, first in the right eye and then repeatedly on her face and upper body.
Lyons testified that her right eye was swollen shut; she had a cut over her left eye; her lips
were burst; and she could hardly see because of all the blood on her face. Lyons also stated
that, as he repeatedly beat her, Carter was insulting her and calling her derogatory names.
At one point, Carter stepped out of the car, walked over to the driver’s side, and pulled
Lyons out of her car by her legs. Carter then continued to beat her. Lyons thought that
Carter also kicked her repeatedly. Lyons testified that Carter said, “You’re going to need
1
In the record, India’s name is also spelled “Endia.” For consistency, we will use
“India.”
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the [L]ord, bitch, because I’m going to kill you.” Carter eventually left, and Lyons called
for help.
¶4.
Lyons was taken to the hospital for treatment. Lyons received a broken arm, multiple
lacerations, and serious injury to her right eye. Lyons testified that her broken arm would
not heal properly, and she had to get pins put in it. Lyons also stated that she was still
seeking medical treatment for the damage to her right eye. In regard to the damage to her
right eye, Lyons testified that “it’s still off somewhat.”
¶5.
Officer Marsha Barvetta, a sergeant with the Philadelphia Police Department, went
to the hospital to interview and photograph Lyons. Officer Barvetta testified that Lyons had
a deep laceration over her left eye; her right eye was very swollen and bruised; and her left
forearm was swollen, bruised, and “kind of out of shape looking.” Officer Barvetta also felt
numerous contusions on the back of Lyons’s head. Officer Barvetta testified that Lyons
“was in fear for her life.”
DISCUSSION
I. DID THE TRIAL JUDGE ERR IN EXCLUDING TESTIMONY
REGARDING THE VICTIM’S CONDUCT AFTER THE AGGRAVATED
ASSAULT?
¶6.
In his first issue on appeal, Carter argues that the trial judge erred in excluding
testimony regarding Lyons’s conduct after the aggravated assault. Carter contends that
Lyons’s continued intimacy with him after the assault might be relevant in assessing her
veracity. Carter appears to conclude that Lyons’s actions after the assault indicate that the
attack was not as violent as she described.
¶7.
“The relevancy and admissibility of evidence are largely within the discretion of the
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trial court and reversal may be had only where that discretion has been abused.” Johnston
v. State, 567 So. 2d 237, 238 (Miss. 1990). According to Rule 401 of the Mississippi Rules
of Evidence, relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” The trial judge would not allow this
testimony into evidence finding that any subsequent fraternization between Lyons and Carter
was irrelevant. The trial judge stated that this crime was committed not only against this
victim but also against the laws of the State of Mississippi. As Carter has cited no relevant
authority for us to determine otherwise, we cannot find that the trial judge abused his
discretion in excluding this particular testimony. This issue is without merit.
II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A SIMPLE
ASSAULT JURY INSTRUCTION?
¶8.
In his other issue on appeal, Carter argues that the trial judge should have granted his
simple assault jury instruction. Carter contends that a lesser-included-offense instruction
should have been given for the jury to consider simple assault.
¶9.
In reviewing the denial of a jury instruction, the appellate court must consider not
only the denied instruction but all of the instructions which were given to ascertain if error
lies in the refusal to give the requested instruction. See Coleman v. State, 697 So. 2d 777,
782 (Miss. 1997). The defendant is entitled to have instructions given that present his theory
of the case unless an instruction “incorrectly states the law, is covered fairly elsewhere in the
instructions, or is without foundation in the evidence.” Livingston v. State, 943 So. 2d 66,
71 (¶14) (Miss. Ct. App. 2006). Furthermore, “lesser-included[-]offense instructions should
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not be indiscriminately granted. Rather, they should be submitted to the jury only where
there is an evidentiary basis in the record therefor.” Lee v. State, 469 So. 2d 1225, 1230
(Miss. 1985).
¶10.
Carter was indicted pursuant to Mississippi Code Annotated section 97-3-7(2)(b)
(Supp. 2007), which states that “[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 . . . .” In denying
Carter’s request for a jury instruction on simple assault, the trial judge found that the
evidence did not support simple assault. The trial judge stated, “I find no evidence of
[simple assault]. I find evidence of somebody beaten unmercifully. . . . [The victim had a]
broke[n] arm, hospital bills, permanent injuries, [and] medical treatment going on now for
seven months after the accident.” We cannot find that the trial judge erred in denying
Carter’s request for a simple assault jury instruction. This issue is without merit.
¶11. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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