IN THE SUPREME COURT OF MISSISSIPPI
NO. 2023-KA-00712-SCT
RUDY DESMOND TOLER a/k/a RUBY DESMOND TOLER a/k/a RUDY D. TOLER a/k/a RUDY TOLER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/12/2023 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT TRIAL COURT ATTORNEYS: IAN LAWRENCE BAKER DAVID CHRISTOPHER DANIEL TYLER RAY HEFLIN WILLIAM CROSBY PARKER MICHAEL W. CROSBY COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON DISTRICT ATTORNEY: WILLIAM CROSBY PARKER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 11/14/2024 MOTION FOR REHEARING FILED:
BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1. In 2021, Rudy Toler fired his handgun at four youths while traveling on Highway 90
between Pass Christian and Gulfport. Following that incident was a high-speed chase by law enforcement officers during which Toler fired two more shots upon the pursuing officers.
A Harrison County grand jury indicted Toler on ten felony charges:
Count 1: aggravated assault against Madison Pitre
Count 2: aggravated assault against Caleb Hanley
Count 3: aggravated assault against Faithanne Reis
Count 4: aggravated assault against Elijah Monell
Count 5: shooting into a motor vehicle
Count 6: aggravated assault against Officer Jeremy Bammert
Count 7: aggravated assault against Officer Will Gossett
Count 8: aggravated assault against Officer Wesley McNeece
Count 9: aggravated assault against Officer David Butler
Count 10: failure to stop a motor vehicle for law enforcement
In 2023, a jury found Toler guilty of counts one through seven, nine, and ten. The jury
acquitted Toler on count eight. Toler contends that (1) the evidence was insufficient to
convict him on counts six, seven, and nine; (2) the evidence was insufficient to convict him
on counts one through four or, in the alternative, that he was erroneously charged and
convicted of four counts of aggravated assault against the four youths when the evidence was
insufficient to support more than one count of aggravated assault; and (3) the trial court
abused its discretion by excluding evidence of Toler’s peaceful character.
FACTS AND PROCEDURAL HISTORY
2 ¶2. On June 12, 2021, seventeen-year-old Madison Pitre, along with three teenage friends,
Faithanne Reis, Elijah Monell, and Caleb Hanley, left Pearlington, Mississippi, in a 2007
Honda Civic to attend an event in Biloxi at the Coliseum. Pitre drove while Reis sat in the
right front passenger seat. In the back seat, Hanley was behind Pitre, and Monell was behind
Reis.
¶3. They were traveling in the left lane on U.S. Highway 90 during afternoon traffic.
After descending the Bay St. Louis Bridge, the car in front of their vehicle abruptly turned
left, causing Pitre to brake quickly. A black Hyundai Elantra traveling behind them then
pulled alongside the Civic. Monell yelled that a man driving the Elantra, later identified as
Rudy Toler, was aiming a handgun toward them. All observed the man pointing a weapon
at them. Moments later, the man sped off.
¶4. Pitre immediately contacted 911. She related to dispatch that a man pointed a black
handgun at her friends and her and provided a description of the Elantra. After the Elantra
had passed the Civic, it pulled off the road into one of the parking bays along Highway 90.
As Pitre’s vehicle approached the parked Elantra, all of the youths saw the same man aim a
gun directly at them through his rolled-down window. Pitre sped up to avoid being shot, as
the other three ducked to prevent being shot. The man then fired one shot at the youths.
Pitre called 911 again, anxiously informing dispatch that the same man had aimed and fired
the handgun at them. The bullet struck the front right wheel-well of the Civic only a few
inches from where Reis had ducked. The bullet’s impact punctured the front right tire of the
Civic.
3 ¶5. The man then pulled along side the Civic once more, brandishing the handgun at the
youths again and causing panic from everyone in Pitre’s vehicle. Pitre then noticed blue
lights in her rear-view mirror before the man passed the Civic as pursuing law enforcement
were closing in.
¶6. Pitre parked her vehicle at Long Beach harbor. Monell and Hanley proceeded to
change Pitre’s flat tire as the four waited for law enforcement. Upon their arrival,
investigators took statements from each of the youths and photographed the bullethole and
shrapnel damage to the Civic. Each youth separately testified at trial that Toler aimed the
handgun at them and that Toler had fired at them. Each testified that they feared for their life
and for the lives of their friends.
¶7. Officer Gossett of the Long Beach Police Department (LBPD) was inside department
headquarters when he heard a radio dispatch describe a reckless driving incident involving
a black Elantra and possible gunshots at another vehicle. Gossett got into a patrol vehicle
and began searching for the suspect vehicle with Officer Bammert following closely behind.
¶8. The two officers located the Elantra amongst a group of cars on Highway 90. The
officers initiated their blue lights and sirens. The posted speed limit in that portion of
Highway 90 was forty-five miles per hour. The Elantra began traveling at ninety miles per
hour in heavy afternoon traffic, ignoring the lights and sirens of patrol vehicles, running red
lights, and weaving in and out of heavy traffic. Officer Butler of LBPD joined the pursuit
as well as Officer McNeece. After running the Elantra’s tag, dispatch confirmed over the
radio that “the driver was going to be one Rudy Toler.”
4 ¶9. Toler turned onto Woodward Avenue in Gulfport, Mississippi, nearly striking a child
and an adult riding their bicycles in a residential neighborhood. Toler continued to lead the
pursuit through residential neighborhoods.
¶10. From 43rd Avenue, Toler turned onto Railroad Street. Gossett had already made the
turn followed by Bammert, and, as Butler was about to make the turn, Toler took aim and
fired two shots outside his window at the officers while his vehicle was in motion. Butler
confirmed over the radio that shots had been fired. No officer or vehicle was struck by the
bullets. The officers continued the pursuit, positioning their patrol vehicles to shield each
other in anticipation of additional shots fired in their direction. Toler slowed down
drastically and then made an abrupt u-turn through a grassy field. Now facing the officers,
Toler raised his gun and took aim once again.
¶11. The officers vaulted out of their vehicles, unloading multiple rounds at Toler. Toler
put his hands in the air, which resulted in the officers immediately ceasing their fire. Gossett
and Bammert removed Toler from his vehicle while Butler retrieved a Hi-Point .45 semi-
automatic pistol on the passenger floorboard of the Elantra.
¶12. The officers observed that Toler had been grazed by a bullet above his right ear. The
officers called for an ambulance and began to provide medical attention to Toler. During that
time, law enforcement officers from multiple jurisdictions had arrived to the scene. One of
those officers was Richard Tinsley of the Gulfport Police Department (GPD).
¶13. Tinsley received instruction to accompany Toler in the ambulance to Memorial
Hospital. Toler responded to the questions of medical personal in the ambulance and later
5 at the hospital without issue. He was not provided any substance or medication, so he
maintained complete sobriety. Tinsley accompanied Toler for a CAT scan. As Toler and
Tinsely were walking out of the examination room, Toler looked at Tinsely and said, “[h]ey,
I’m sorry for shooting at y’all.” Tinsely responded that he did not have to apologize to him;
he had shot at Long Beach officers. Toler reiterated, “tell them I’m sorry.”
¶14. Medical personnel confirmed that Toler received a superficial, non-life-threatening
graze above his right ear. Toler was discharged from the hospital and was interviewed at the
Gulfport Police Department by Investigator Walker with the Harrison County Sheriff’s
Office (HCSO), Investigator Prine with GPD, Investigator Westbrook with the Mississippi
Bureau of Investigation (MBI), and Investigator Frazier with the Harrison County District
Attorney’s Office.
¶15. Prine read Toler his rights. Toler then signed the waiver form. Video recording of
the interview was played for the jury at trial. Additionally, a complete transcript of the
interview was presented to the jury. Toler expressed that “I know what I did wasn’t right.
My actions aren’t excused by no means. I was having a bad day. I’m depressed.” During
the interview, when addressing his protracted altercation with the youths, Toler stated in part
that “I shouldn’t have shot at them at all” and that “I pulled off on the shoulder, and was kind
of like easing along until they got beside me and then I popped another shot at them.”
(Emphasis added.) Later, Toler stated, however, “I shot at the kids probably one time.”
(Emphasis added.) Toler expressed that he wanted to “[s]care the shit out of them,” asserting
that he merely “tried to shoot the engine in their car.”
6 ¶16. Regarding his pursuit by the officers, Toler explained that “I just kind of took off from
them and I was running from ’em, and uh after about five minutes of pursuit I finally popped
one out the window at ’em.” (Emphasis added.) He revealed that he ran from the officers
“because I knew I was going to jail” and determined that “I can either pull over and go to jail,
or I can run from ’em and get killed.” Toler further explained that “I tried to shoot at the
officers across my whole body out the window.” (Emphasis added.) When asked whether
he understood that he was being pursued by law enforcement officers, Toler responded,
“[a]bsolutely.”
¶17. On January 22, 2022, a grand jury in the First Judicial District of Harrison County
indicted Toler on ten felony counts. Toler was indicted for aggravated assault on counts one
through four respectively against Pitre, Hanley, Reis, and Monell under Mississippi Code
Section 97-3-7(2)(a) (Rev. 2020). Toler was indicted for shooting into a motor vehicle under
Mississippi Code Section 97-25-47 (Rev. 2020) on count five. Toler was further indicted for
aggravated assault in counts six through nine, respectively, against law enforcement officers
Bammert, Gossett, McNeece, and Butler under Mississippi Code Section 97-3-7(2)(b) (Rev.
2020). Lastly, Toler was indicted in count ten for failure to stop motor vehicle pursuant to
signal of law enforcement under Mississippi Code Section 97-9-72(2) (Rev. 2020).
¶18. Toler stood trial on January 24, 2023. Evidence was presented of the four youths’
testimony, the four pursuing officers’ testimony, the testimony of crime scene investigator
Kaylee Vaughn, Officer Tinsley and Investigator Prine, and a crime scene analyst with the
MBI. Evidence was also presented of crime scene photographs capturing where the bullet
7 had struck Pitre’s vehicle, audio from Pitre’s 911 calls, video and audio from Bammert’s,
Gossett’s, and Butler’s body cameras, as well as video, audio, and transcript of Toler’s
interview. After the State rested its case-in-chief, Toler moved for a directed verdict. The
trial judge denied his motion. The jury found Toler guilty on counts one through seven, nine,
and ten. The jury acquitted Toler of the aggravated assault charge against McNeese in count
eight. Toler moved for a judgment notwithstanding the verdict or, in the alternative, for a
new trial. The trial judge denied that motion as well.
¶19. The trial judge sentenced Toler to twenty years each on counts one through four and
thirty years each on counts six, seven, and nine—all to be served concurrently, which equates
to a total of thirty years. Additionally, the trial judge sentenced Toler to five years on count
five as well as five years for count ten to run consecutively. Accordingly, Toler was
sentenced to serve a total of forty years in the Mississippi Department of Corrections. Toler
now appeals, contending: (1) the evidence was insufficient to support the verdict on counts
six, seven, and nine; (2) the evidence was insufficient to support the verdicts on counts one
through four or, in the alternative, that he was erroneously charged and convicted of four
counts when the evidence was insufficient to support more than one count of aggravated
assault; and (3) the trial court abused its discretion by excluding evidence of Toler’s peaceful
character.
STANDARD OF REVIEW
¶20. This Court reviews whether the evidence is sufficient to support a verdict de novo.
Turner v. State, 387 So. 3d 1009, 1012 (Miss. 2024). In doing so, we view the evidence in
8 the light most favorable to the prosecution and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Robinson
v. State, 384 So. 3d 505, 511 (Miss. 2024) (quoting Ambrose v. State, 133 So. 3d 786, 791
(Miss. 2013)). The Court will not reverse unless the evidence presented at trial reveals that
reasonable and fair-minded jurors could only find the accused not guilty with respect to one
or more of the elements of the offense charged. Hawkins v. State, 377 So. 3d 969, 971
(Miss. 2024) (quoting Campbell v. State, 125 So. 3d 46, 51 (Miss. 2013)). Additionally, we
review a trial judge’s decision to exclude evidence for abuse of discretion. Bland v. State,
355 So. 3d 212, 215 (Miss. 2022). This Court will not reverse a trial judge’s decision to
exclude evidence unless we find that the trial judge’s decision was arbitrary and clearly
erroneous. Clark v. State, 315 So. 3d 987, 994 (Miss. 2021).
I. Counts Six, Seven, and Nine
¶21. The jury found Toler guilty of aggravated assault against Bammert, Gossett, and
Butler, and it acquitted Toler on count eight against McNeece. Toler contends that the
evidence was insufficient to show that he intended to cause serious bodily injury to any
officer. Specifically, Toler argues that because neither of his shots hit any police vehicle, he
did not intend to fire at the officers. Toler further argues that, rather than attempting to shoot
at the officers, he attempted to provoke the officers to shoot him by firing at the ground and
out his window.
¶22. “A person is guilty of aggravated assault if he or she (i) attempts to cause serious
bodily injury to another or causes such injury . . . .” Miss. Code Ann. § 97-3-7(2)(a) (Rev.
9 2020). “The statute makes no distinction between aggravated assault and attempted
aggravated assault; substantively, they are the same crime.” Wilson v. State, 904 So. 2d 987,
996 (Miss. 2004). To prove an attempt, the prosecution must show intent to commit a
particular crime, a direct ineffectual act done toward its commission, and failure to
consummate its commission. Morris v. State, 748 So. 2d 143, 146 (Miss. 1999).
¶23. Under Mississippi Code Section 97-3-7(2)(b), “a person convicted of aggravated
assault upon any of the persons listed in subsection (14) of this section under the
circumstances enumerated in subsection (14) shall be punished . . . by imprisonment for not
more than thirty (30) years . . . .” Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2020). Mississippi
Code Section 97-3-7(14)(a) reads that “[a]ssault upon any of the following listed persons is
an aggravating circumstance for charging under subsections (1)(b) and (2)(b) of this section:
(a) [w]hen acting within the scope of his or her duty, office or employment at the time of the
assault: a . . . law enforcement officer . . . .” Miss. Code Ann. § 97-3-7(14)(a) (Rev. 2020).
It is uncontested that the victims in counts six, seven, and nine were law enforcement officers
for the Long Beach Police Department and were acting within the scope of their duties.
¶24. Evidence was presented of Bammert’s body camera video that revealed, in addition
to the entirety of the high-speed pursuit, audio of Toler firing two shots when he turned onto
Railroad Street from 43rd Avenue. After the officers had Toler under arrest, Bammert’s
body camera video reveals the officers checking each other for injuries. When asked why
they had done so, Gossett answered, “[t]o make sure we weren’t shot” and that he believed
Toler had shot at him.
10 ¶25. Bammert’s testimony also confirmed the events depicted in his body camera video,
testifying that “I could hear the two shots being fired while I was starting to make my
transition into the turn to go onto Railroad Street, just a little off to the right of Officer
Gossett.” When asked the distances between his and Toler’s vehicles, Bammert responded,
“[n]o more than about 30 yards” and that Gossett’s vehicle was “[n]o more than five yards”
from Toler.
¶26. Butler testified that “as we were making our turn onto Railroad Street from 43rd
Avenue, Mr. Toler had already made his turn onto 43rd, Officer Gossett had also made his
turn, Officer Bammert was about to make his turn, or was in the middle of making his turn
as I was coming up to the stop sign, and Mr. Toler fired two shots towards the officers.”
Butler further testified that “I was able to look through the rear driver side window, and I was
able to see a hand with a firearm in it. A semi-automatic dark colored firearm.” When asked
where Toler was aiming the handgun, Butler responded, “[d]irectly towards officers.” When
asked whether he observed Toler fire, Butler answered, “[t]wice. Yes.”
¶27. Additionally, after receiving a CAT scan examination at Memorial Hospital, Toler
told Tinsley, “[h]ey, I’m sorry for shooting at y’all.” In his subsequent interview with
investigators at the Gulfport Police Department, Toler admitted that “after about five minutes
of pursuit I finally popped one out the window at ’em.” Toler quickly corrected himself,
stating, “[n]ot really at them, just kind of at the ground.” When asked where he was when
he first shot at the police, Toler answered, “I want to say I turned right by Waffle House on
90, when I pretty much shot out the door.” When asked whether he shot across his body at
11 the officers or at the youths, Toler admitted, “[t]hat’s when I tried to shoot at the officers
across my whole body out the window.” Toler again quickly corrected himself, stating,
“[d]ischarge it, not aiming. . . . There’s no way for me to aim. I mean I’m sure you might
could, but with training or something [inaudible], but I ain’t got no training like that.” When
asked whether he understood that he was being pursued by law enforcement officers, Toler
responded, “[a]bsolutely.”
¶28. Despite an abundance of evidence presented to the contrary, Toler asserts that his self-
correcting statements following his admissions shed light on his true intention—that he never
shot at the pursuing law enforcement officers. “[W]hen the evidence is conflicting, the jury
will be the sole judge of the credibility of witnesses and the weight and worth of their
testimony.” Little v. State, 233 So. 3d 288, 292 (Miss. 2017) (internal quotation marks
omitted) (quoting Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)). “[T]he
credibility of a witness is solely for the jury to weigh and consider.” Miller v. State, 983 So.
2d 1051, 1054 (Miss. 2008) (citing Harris v. State, 970 So. 2d 151, 156 (Miss. 2007)).
¶29. The jury resolved the conflict in the evidence by finding Toler guilty of aggravated
assault as to counts six, seven, and nine. Viewing the evidence in the light most favorable
to the prosecution, we find that sufficient evidence was presented for the jury to make that
determination. From the evidence presented in this case, we find that a reasonable juror
could find beyond a reasonable doubt that Toler intended to cause serious bodily harm to
Gossett, Bammert, and Butler when he fired two shots at the officers while they pursued him
in close proximity to his vehicle.
12 II. Counts One Through Four
¶30. Toler was indicted and convicted of aggravated assault under Mississippi Code
Section 97-3-7(2)(a) (Rev. 2020) as to counts one through four. Toler contends that because
he fired just one shot, the evidence was insufficient to support more than one count of
aggravated assault as to counts one through four.
¶31. The Court finds that Toler’s indictment was multiplicitous. “An indictment is
multiplicitous if it charges a single offense in more than one count.” McGlasten v. State, 328
So. 3d 101, 103 (Miss. 2021) (internal quotation marks omitted) (quoting 41 Am. Jur. 2d
Indictments and Informations § 196 (2015)). Courts guard against mutliplicitous charges due
to the possibility that a defendant may receive more than once sentence for a single offense
in violation of the Fifth Amendment’s prohibition against double jeopardy. Id.
¶32. Mississippi criminal law lacks a multitude of precedent on multiplicitous charging.
See McGlasten, 328 So. 3d at 103. The United States Court of Appeals for the Fifth Circuit
has identified two categories of multiplicity challenges. United States v. Woerner, 709 F.3d
527, 539 (5th Cir. 2013). The first deals with charging under two different statutes, which
is addressed in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932). Woerner, 709 F.3d at 539.
¶33. At issue in the case sub judice, however, “[t]he second type of multiplicity challenge
arises when charges for multiple violations of the same statute are predicated on arguably the
same criminal conduct.” Id. “In that circumstance, the court inquires ‘whether separate and
distinct prohibited acts, made punishable by law, have been committed.’” Id. (quoting
13 United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)). The United States Court of
Appeals for the Eleventh Circuit has found that “charges in an indictment are not
multiplicitous if the charges differ by even a single element or alleged fact.” United States
v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012) (citing United States v. Costa, 947 F.2d 919,
926 (11th Cir. 1991)).
¶34. In Foreman v. State, Foreman was found guilty of six felonies—four counts of
aggravated assault, one count of murder, and one count of shooting into a vehicle—arising
from his initially unsuccessful attempt to fire a handgun and subsequent successful discharge
of the firearm into a vehicle containing five persons pulling out of a driveway at a party that
Foreman attended. Foreman v. State, 51 So. 3d 957, 958-59 (Miss. 2011). Specifically,
Shanique Kelly testified that after she and her cousins got into the car, she saw Foreman pull out a gun, point it at the car, and try to shoot it. She stated that Foreman then cocked the gun again and shot it, and the bullet went through the back windshield. Jessica Earls, a bystander, also testified that she saw Foreman shoot into Jones’s car. The bullet struck Edward in the side of the head and killed him.
Id. at 959.
¶35. On appeal, Foreman contended that he was erroneously indicted and convicted of six
counts based on the same act of firing one shot into a vehicle. Id. The Court wrote that
“Foreman ignores the evidence before the jury that he had tried to shoot the gun once before
firing the fatal shot” and that “Foreman’s first effort to discharge the gun would support a
jury verdict for a charge of aggravated assault with a deadly weapon.” Id. The Court held,
however, that “we do find that the State erroneously charged (and Foreman was erroneously
14 convicted of) four counts of aggravated assault when the evidence supports only one
attempt.” Id. at 960.
¶36. In today’s case, the evidence supports only one conviction and sentence of aggravated
assault as to counts one through four. Each of those charges in Toler’s indictment do not
differ in fact. The record does not reveal any criminal act Toler took against any individual
one of the youths that was separate and distinct from the others. And there was no differing
elements as to counts one through four because Toler was indicted under the same statute for
each of those charges.
¶37. Toler contends, however, that the evidence was insufficient to establish beyond a
reasonable doubt that he intended to cause serious bodily injury to anyone in Pitre’s car
because he never intended to shoot at the youths directly but merely at their vehicle to scare
them. “A defendant’s intent to commit a crime is a jury question and may be determined
from the defendant’s acts and conduct.” Thomas v. State, 277 So. 3d 532, 533 (Miss. 2019)
(citing Hughes v. State, 983 So. 2d 270, 278-79 (Miss. 2008)). “Inferences of guilt may also
be deduced from the surrounding circumstances and facts.” Id. (citing Ryals v. State, 305
So. 2d 354, 356 (Miss. 1974)).
¶38. A similar argument was raised by the defendant in Harris. During a domestic
disturbance, Harris broke into his estranged wife’s residence and began a physical altercation
with the people inside. Harris, 970 So. 2d at 153-54. One such individual, Grant, punched
Harris in the face before fleeing out of the back door along with Harris’s stepson. Id. Harris
recovered and began firing at the two but failed to hit either. Id. On appeal, Harris
15 challenged his conviction of aggravated assault, contending that he merely intended to scare
Grant rather than shoot him. Id. at 155. This Court found that
The defendant admitted to discharging his weapon with the intent to scare Grant, and aggravated the conditions of the crime by employing a deadly weapon. There were discrepancies in the testimony as to whether Harris intended to harm Grant. Harris testified that he shot into the air at an angle, intending only to scare Grant. However, Cassandra and Katrina both testified that from their vantage point within the home, Harris appeared to be shooting directly toward Grant, not away from him.
Id. at 156. Accordingly, the Court held that “[b]ecause there was evidence that Harris
attempted ‘to cause serious bodily injury’ to Grant, this argument is without merit.” Id.
¶39. In the case sub judice, the evidence presented supports a conviction and sentence of
aggravated assault against Toler for shooting at the occupants of Pitre’s vehicle. Toler did
not just brandish his weapon and take aim at the youths—elements of simple assault. See
Miss. Code Ann. § 97-3-7(1)(a)(iii) (Rev. 2020). Evidence was presented via video and
transcript of Toler’s interview with law enforcement officers in which Toler admitted that
“I shot at the kids probably one time.” Earlier in the interview Toler admitted, “I pulled off
on the shoulder, and was kind of like easing along until they got behind me and then I popped
another shot at them, and then I took off.”1
¶40. “Any conflicts in the evidence are for the jury to resolve.” Williams v. State, 391 So.
3d 1151, 1158 (Miss. 2024) (internal quotation marks omitted) (quoting Clements v. State,
237 So. 3d 175, 183 (Miss. Ct. App. 2017)). Like in Harris, conflicting evidence was
1 The prosecution’s official position is that Toler fired one shot at the youths. Toler appears to misremember in his interview how many times he fired at them. Each occupant of Pitre’s vehicle testified that they were shot at once.
16 presented regarding Toler’s intent to cause serious bodily harm. He states that “I tried to
shoot the engine in their car” and that “I shot kind of behind it, which I didn’t injure none of
them I know.” But one sentence later Toler remorsefully admitted that “I shouldn’t have shot
at them at all.” Additionally, each occupant of Pitre’s vehicle testified that they observed
Toler aiming his handgun at them before he shot. While Pitre sped up to avoid being shot,
the other three occupants ducked. Each separately testified that in that moment, they feared
for their own life and for the lives of their friends.
¶41. We find that the evidence presented was sufficient for a reasonable juror to find
beyond a reasonable doubt that Toler intended to cause serious bodily injury to the occupants
of Pitre’s vehicle when, by his own admission, he fired at the occupants of the vehicle.
¶42. As Toler’s indictment as to counts one through four was multiplicitous, we find that
merger applies. “The correct and widely followed approach to dealing with multiplicitous
counts is to merge the wrongly charged multiplicitous counts into one single count of
conviction.” McGlasten, 328 So. 3d at 108. Accordingly, we remand the case to the trial
court with instructions to vacate Toler’s sentences as to counts one through four, merge the
four multiplicitous counts together for one count of conviction, and resentence Toler on the
remaining conviction of aggravated assault as to counts one through four.
III. Whether the trial court abused its discretion by excluding evidence of Toler’s peaceful character.
¶43. Toler contends that the trial court abused its discretion when it excluded evidence of
his peaceful character through Richard Ladner, Ricky Ladner, and Jeremy Seymour. Outside
the presence of the jury, Toler’s counsel proffered that those witnesses would testify to
17 Toler’s reputation for truthfulness and peacefulness. The prosecution contended that because
Toler’s theory of the case was that he shot to scare the youths and to provoke the officers
rather than shooting at them directly, reputation evidence of a peaceful character would be
irrelevant.
¶44. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the
case.” Miss. R. Evid. 401. “Relevant evidence is admissible unless any of the following
provides otherwise: the United States Constitution; the Mississippi Constitution; or these
rules. Irrelevant evidence is not admissible.” Miss. R. Evid. 402.
¶45. Generally, “[e]vidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or trait.”
Miss. R. Evid. 404(a)(1). However, “a defendant may offer evidence of the defendant’s
pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
. . . .” Miss. R. Evid. 404(a)(2)(A). “When evidence of a person’s character or character trait
is admissible, it may be proved by testimony about the person’s reputation or by testimony
in the form of an opinion.” Miss. R. Evid. 405(a). Although a defendant may introduce
evidence of good character, “[p]roof of a character trait . . . may not be made by proof of
specific past actions. The defendant is limited to offering testimony as to general
reputation.” Bennett v. State, 933 So. 2d 930, 945 (Miss. 2006) (alterations in original)
(internal quotation marks omitted) (quoting Winters v. State, 449 So. 2d 766, 768 (Miss.
1984)).
18 ¶46. After considering arguments from counsel, the trial judge found that
[A]s to the peacefulness opinion or reputation under 404(a)(2)(A) and 405, it’s been, I think everyone’s experience, that that type of reputation or that type of character evidence, rather, is important in cases of self-defense where the defendant is attempting to show that he is a peaceful person and that his self- defense claim has merit. That’s a whole different scenario than we have here whereby the defendant’s own admissions he admitted to possessing, brandishing, and firing a pistol at least three times at five separate cars, arguably. And his admissions are that he committed acts of violence. So to say that he is not a violent person, I think, does not do justice to the rule.
¶47. We agree with the trial judge. “[T]he standard of review regarding the admission or
exclusion of evidence is abuse of discretion.” Jones v. State, 904 So. 2d 149, 153 (Miss.
2005) (citing Herring v. Poirrier, 797 So. 2d 797, 804 (Miss. 2000)). This Court will not
reverse a trial judge’s decision to exclude evidence unless we find that the trial judge’s
decision was arbitrary and clearly erroneous. Clark, 315 So. 3d at 994. Because Toler
admitted to brandishing, aiming, and firing a handgun, in addition to his theory of the case
that he merely intended to scare the youths and to provoke the law enforcement officers to
shoot him, the trial judge’s decision to exclude evidence of Toler’s character of peacefulness
was not arbitrary and clearly erroneous. Accordingly, we find that the trial judge did not
abuse his discretion.
CONCLUSION
¶48. The evidence presented was sufficient for a reasonable juror to find beyond a
reasonable doubt that Toler intended to cause serious bodily harm to the law enforcement
officers as to counts six, seven, and nine. Additionally, the evidence presented was sufficient
for a reasonable juror to find beyond a reasonable doubt that Toler was guilty of one count
19 of aggravated assault against the occupants of Pitre’s vehicle as to counts one through four.
Therefore, we remand the case to the trial court with instructions to vacate Toler’s sentences
as to counts one through four, to merge the four multiplicitous counts together into one count
of conviction, and to resentence Toler on the remaining conviction of aggravated assault as
to counts one through four. Lastly, we find that the trial court did not abuse its discretion by
excluding evidence of Toler’s peaceful character when Toler admitted to possessing,
brandishing, and firing a handgun at least three times at multiple different vehicles.
¶49. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.