Adams v. State

726 So. 2d 1275, 1998 WL 906441
CourtCourt of Appeals of Mississippi
DecidedDecember 30, 1998
Docket97-KA-00443 COA, 97-KA-01069
StatusPublished
Cited by6 cases

This text of 726 So. 2d 1275 (Adams v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. State, 726 So. 2d 1275, 1998 WL 906441 (Mich. Ct. App. 1998).

Opinion

726 So.2d 1275 (1998)

Falandis ADAMS a/k/a Falandis Mandrell Adams a/k/a "Dink" and Derrick Gathings a/k/a Derrick Gaithings, Appellants,
v.
STATE of Mississippi, Appellee.
Falaunce Burnside and Albert Burnside a/k/a Albert James Burnside a/k/a "Big Burnside", Appellants,
v.
State of Mississippi, Appellee.

Nos. 97-KA-00443 COA, 97-KA-01069.

Court of Appeals of Mississippi.

December 30, 1998.

*1277 Richard B. Lewis, Azki Shah, Allan D. Shackelford, Clarksdale, Attorneys for Appellants.

Office of the Attorney General By Billy L. Gore, Jeffrey A. Klingfuss, Jackson, Attorneys for Appellee.

Before THOMAS, P.J., and COLEMAN and HINKEBEIN, JJ.

HINKEBEIN, J., for the Court:

¶ 1. Falandis Adams, Derrick Gathings, Falaunce Burnside and Albert Burnside were jointly indicted and tried for armed robbery, and they were all convicted of the lesser-included-offense of aggravated assault. Both at trial and on appeal, Adams and Gathings were and are independently represented by counsel, while Falaunce Burnside and Albert Burnside were and are jointly represented. On appeal, they assert the trial court should have granted their motions for directed verdicts upon simple assault or, in the alternative granted their motions for new trials. The essence of all these arguments is that each of the appellants gave statements admitting to striking, kicking, or attempting to strike Earnest Lewis, but they argue that the damage they each individually inflicted upon him was insufficient to convict them of aggravated assault.

FACTS

¶ 2. On the evening of July 27, 1996 after consuming a quantity of alcohol, Earnest Lewis was walking upon a railroad track in Clarksdale, Mississippi when he was struck in the back of the head, severely beaten, and robbed. Lewis testified that as he was walking he heard sounds behind him, and when he turned around, he saw Gathings and Adams, as well as two other young men whom he did not know. He turned away from the four men and was struck by "an object or something real hard," and he lost consciousness "before [he] hit the ground." He could not tell who actually attacked him, but he was sure that approximately ten dollars was missing from one of his pockets.

¶ 3. Evelyn Davis testified that she saw Gathings hit Lewis in the back of the head with a board, and then "the rest of them boys started stomping him." Davis identified the other three appellants as Gathings's accomplices in the attack. Davis testified that at the conclusion of the attack, Gathings reached down into Lewis's pocket.

¶ 4. At various times Davis was inconsistent as to exactly where she was when she viewed the attack. She initially told the police that she had been in her house and looking through a door, and first testified *1278 that she had been sitting on her porch, but later testified that she had been standing on her porch. The appellants contend these discrepancies are material because they contend that Davis's view of the crime scene was at least partially blocked by tall grass and the railroad bed's elevation. However, Davis remained consistent in her testimony that Gathings hit Lewis with a board and her identification of the other appellants. Additionally, the State introduced photographs and testimony of a police investigator tending to show a clear line of sight from Davis's home to the crime scene.

GATHINGS

¶ 5. Gathings argues that he told the police he tried to hit Lewis with his hand one time, but he missed, and he denied hitting Lewis with a board. Gathings argues that since no evidence showed Lewis was treated for injuries to the back of his head, the weight of evidence tended to show Lewis was not struck with the board. Gathings also argues that the jury must not have believed Davis's testimony that he struck Lewis with the board because Davis not only testified he struck Lewis but also that he reached into one of Lewis's pockets, yet the jury rejected the robbery charge and returned a guilty verdict upon the lesser included offense of aggravated assault. Gathings additionally argues that Davis's testimony was unreliable both because her view of the crime scene was blocked by uncut brush and because she was once convicted of forgery.

¶ 6. Aggravated assault occurs when one "attempts to cause or purposefully or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily injury." Miss.Code Ann. § 97-3-7(2)(b) (Supp.1998). A blunt instrument such as club may constitute a dangerous weapon, and this determination is for the jury. Griffin v. State, 540 So.2d 17, 19 (Miss.1989). Gathings contends that no evidence was introduced to show bodily injury occurred to the back of Lewis's head, so he reasons there was insufficient evidence to conclude Gathings used the board as a deadly weapon to assault Lewis. However, Davis testified she saw Gathings strike the blow, and Lewis testified he "felt the lick" from a blow delivered with something harder than a hand and was immediately rendered unconscious. Sufficient evidence was introduced for the jury to find that Gathings did use the board in a way "likely to produce death or serious bodily injury" when he struck Lewis.

¶ 7. Nevertheless, Gathings contends that since the jury apparently rejected Davis's testimony that he reached into Lewis's pocket, it could not have accepted her testimony that he hit Lewis in the head with the board. However, juries are free to accept only part of a witness's testimony. Gandy v. State, 373 So.2d 1042, 1045 (Miss. 1979). As such, the jury could accept Davis's identification of Gathings as the man who hit Lewis with a board without also finding he took money from one of Lewis's pockets. In fact, the testimony and photographs showing whether grass blocked the line of sight from Davis's home to the crime scene gave a logical basis for the jury making these factual distinctions because if the grass was approximately one foot tall, as Investigator Fernando Harris described, Davis might have had difficulty seeing Gathings reach down into the pocket of the unconscious Lewis, but she would still have had a clear view of Gathings hitting Lewis as he was walking. If the jury concluded Davis was mistaken in her belief that she saw Gathings reach inside Lewis's pocket, the jury may still have believed her testimony that Gathings struck Lewis with the board.

¶ 8. Additionally, even if the jury discounted Davis's and Lewis's testimony concerning the use of the board as a dangerous weapon, the jury could still have concluded the assault rose to the level of aggravated assault.

While ordinarily an assault under § 97-3-7(2)(b) involves the use of a weapon the statutory words "or other means likely to produce death or serious bodily harm" *1279 have been used with a definite purpose and meaning in mind. We hold that a violent and aggravated assault committed with one's fists may constitute a crime under § 97-3-7(2)(b).

Jackson, 594 So.2d at 23[1]

¶ 9. Jackson also makes clear that the determination of whether the assault was of sufficient magnitude to constitute aggravated assault is for the jury. Id. at 24-25. Lewis stated his injuries from the beating included surgery to both "reset" one of his eyes and wire his jaw together, which necessitated having several teeth removed. Photographs were introduced graphically illustrating these injuries.

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Related

Shaw v. State
139 So. 3d 79 (Court of Appeals of Mississippi, 2013)
Buchanan v. State
84 So. 3d 812 (Court of Appeals of Mississippi, 2011)
Westbrook v. State
29 So. 3d 828 (Court of Appeals of Mississippi, 2009)

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Bluebook (online)
726 So. 2d 1275, 1998 WL 906441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-state-missctapp-1998.