Davis v. State

866 So. 2d 1107, 2003 WL 22232855
Court of Appeals of Mississippi·Decided September 30, 2003·No. 2002-KA-00209-COA·Published·Cited by 53 cases

Opinion

866 So.2d 1107 (2003)

Eric Shawn DAVIS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-00209-COA.

Court of Appeals of Mississippi.

September 30, 2003.
Rehearing Denied December 16, 2003.

*1108 Pamela A. Ferrington, Natchez, attorney for appellant.

*1109 Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before KING, P.J., BRIDGES and IRVING, JJ.

IRVING, J., for the court.

¶ 1. Eric Shawn Davis was convicted by an Adams County jury of two counts of simple assault, one count of aggravated assault and one count of possession of a deadly weapon by a convicted felon. Feeling aggrieved, Davis has appealed and alleges (1) that the indictment was defective and should have been quashed, (2) that the jury's verdict was against the weight of the evidence, and (3) that the evidence was legally insufficient to sustain the convictions.

¶ 2. Detecting no reversible error, this Court affirms the trial court's judgment.

FACTS

¶ 3. On November 3, 1999, around 7:20 a.m., Vanessa James was treated in Natchez Regional Medical Center for bruises to her face, neck, hemorrhaging in the whites of her eyes, and a small puncture wound above her left breast. James told the hospital staff that her injuries were from a fight she had two days earlier.

¶ 4. James identified her attacker as Eric Shawn Davis. James and Davis were involved in a sexual affair. James testified that, on the night of the assault, she picked up Davis while he was walking on the side of the road. They then went to his aunt's house where Davis retrieved a shotgun. Afterwards, they went to a convenience store to get gas for James's car. While at the convenience store, James spoke to a male friend, Kenneth Evans. Davis became upset upon observing James's speaking with Evans and began verbally attacking her, stating "you are going to disrespect me like this." James quickly ended her conversation with Evans and went to pay for the gas. Davis then stopped James again and said, "You stupid b-t-h. How you going to disrespect me like this?" Davis pushed and shoved James as she walked into the convenience store. Later, while James was talking with the cashier, Latonya Ellis, Davis stated, "Well, I'm going to kill your a—tonight."

¶ 5. James and Davis then left the gas station. While James was driving, Davis put the shotgun to her head and asked her if she thought he was playing with her regarding the disrespect she had shown him earlier at the convenience store. James brushed the gun away from her head. Davis then shot the driver's side window out and asked James if she still thought that he was playing.

¶ 6. After the shot, James continued to drive the car until instructed by Davis to pull over to the side of the road. Davis commanded James out of the car. When James exited the car, Davis punched her in the face while repeating his disbelief at her disrespect of him earlier at the convenience store. Davis then threw James on the ground and began choking her. After Davis stopped choking her, she got up off the ground, but then he stabbed her left breast with a screwdriver-like object. Afterwards, Davis forced James to lie on the ground in the front of the car and attempted to run over her, but James jumped behind some trees to avoid being hit. Davis instructed James to get back in front of the car and again drove towards her. Again James jumped behind the trees to avoid being hit.

¶ 7. After his second attempt to run over James, Davis told James to get into the car, and they drove off. Other pertinent facts will be related during the discussion of the issues.

*1110 ANALYSIS AND DISCUSSION OF THE ISSUES

1. Defective Indictment

¶ 8. Davis argues that the indictment is facially defective and should have been quashed. The indictment charged that the assault of James occurred on or about November 3, 1999. Davis claims that the date recited in the indictment is significant, for it demonstrates that the crimes with which he was charged could not possibly have been committed on the third of November.

¶ 9. Before we assess the merits of this issue, we address the contention made by Davis that he is not procedurally barred from challenging the sufficiency of the indictment on appeal. The record reveals that Davis did not object to the indictment. Any variance in an indictment not objected to at trial is waived. Washington v. State, 800 So.2d 1140, 1145(¶ 14) (Miss.2001) (citing Ellis v. State, 254 So.2d 902, 903 (Miss.1971)). Notwithstanding this waiver, we review this issue and find it to be without merit.

¶ 10. As previously noted, the amended indictment alleges that the offenses occurred on or about the 3rd day of November 1999.[1] Rule 7.06 of the Uniform Circuit and County Court Rules provides that the "[f]ailure to state the correct date shall not render [an] indictment insufficient." Mississippi Code Annotated section 99-7-5 states:

An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.

Miss.Code Ann. § 99-7-5 (Rev.2000) (emphasis added).

¶ 11. The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court. Nguyen v. State, 761 So.2d 873, 874(¶ 3) (Miss.2000) (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996)). The Mississippi Supreme Court has held time and time again that a variance in the date on an indictment will not be a cause for reversal where there is no prejudice by such variance. Crowder v. State, 239 So.2d 920, 921 (Miss. 1970); see also Smith v. State, 144 Miss. 872, 110 So. 690 (1926); Peebles v. State, 105 Miss. 834, 63 So. 271 (1913). In Daniel v. State, 536 So.2d 1319 (Miss.1988), an indictment, charging the defendant with committing sexual battery "on or about" a certain date, was found to be sufficiently specific to put the defendant on notice of the charge against him and the date that the crime took place, even though the evidence at trial indicated that the crime occurred four days after the date named in the indictment. Id. at 1326. Also, in Deaton v. State, 242 So.2d 452 (Miss.1970), the court held that an indictment, charging the defendant with theft of quail, was sufficient even though the indictment alleged that the offense occurred on a date other than that shown by the evidence. The record showed that the defendant was not *1111 surprised or prejudiced by the date discrepancy. Id. at 453.

¶ 12. A review of the facts reveals that Davis was not prejudiced by the lack of specificity in the listing of the date of the offenses charged in the indictment. "If an indictment reasonably provides the accused actual notice and includes the seven specific enumerated it

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