Shaw v. State

139 So. 3d 79, 2013 WL 5533080, 2013 Miss. App. LEXIS 662
CourtCourt of Appeals of Mississippi
DecidedOctober 8, 2013
DocketNo. 2011-KA-01536-COA
StatusPublished
Cited by5 cases

This text of 139 So. 3d 79 (Shaw 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
Shaw v. State, 139 So. 3d 79, 2013 WL 5533080, 2013 Miss. App. LEXIS 662 (Mich. Ct. App. 2013).

Opinions

BARNES, J.,

for the Court:

¶ 1. Brett Anthony Shaw was convicted by a jury in the Rankin County Circuit Court of Count I, aggravated assault, and Count II, felony malicious mischief. He was sentenced to twenty years for Count I, [82]*82with ten years suspended, and five years for Count II, followed by five years of supervised probation, all in the custody of the Mississippi Department of Corrections (MDOC). Shaw filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Aggrieved, Shaw appeals. Finding no reversible error, we affirm Shaw’s convictions.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 18, 2010, Shaw, Alex Gill, Shaun Killingsworth, and Steven Dortch were among a number of people attending a party at the apartment of Hannah Hard-wick in Richland, Mississippi. Another party was also being held upstairs in the same building at the apartment of Ian Elward. Both parties involved alcohol.

¶ 3. At one point during Hardwick’s party, Shaw, Gill, and Killingsworth were outside her apartment when Gill threw an empty beer bottle in some nearby bushes. Killingsworth told him to pick up the bottle. Shaw informed Killingsworth that Gill was only seventeen years old and asked Killingsworth to leave Gill alone. Later, in Hardwick’s kitchen, a verbal altercation ensued between Shaw and Killingsworth when Shaw held up his empty beer bottle in a threatening manner. With the situation becoming confrontational, the two men were separated by Dortch and Skylar Slay, another person at the party; Shaw was then escorted from the party by Dortch.

¶ 4. Shortly after, Hunter Elward and Trevor Bell, two people attending the party at Ian’s apartment, came to Hardwick’s apartment and told Killingsworth that Shaw was jumping up and down on the hood of Killingsworth’s car. Killingsworth went outside to confront Shaw, who was still in the parking lot, standing behind the car. Angry and shouting, Shaw approached Killingsworth, who informed Shaw that he did not want to fight. As Shaw continued to yell and beat his chest, Killingsworth pushed Shaw, grabbed him, and pinned him against another car in the parking lot. Gill, who was standing nearby, demanded that Killingsworth release Shaw and proceeded to attack Killings-worth from behind. Killingsworth, keeping his hold on Shaw, turned to see who was striking him. When Killingsworth twisted back around, Shaw bit his ear.

¶ 5. With Shaw still restrained by Kill-ingsworth, the two men fell to the ground and struggled in the grass. Lieutenant David East of the Richland Police Department arrived on the scene and ordered the men to separate. Both men yielded and were handcuffed. Killingsworth was bleeding from his ear, and Lieutenant East called an ambulance to transport him to the hospital. It was later discovered that Killingsworth had lost a portion of his right ear. Shaw was uninjured.

¶ 6. Subsequently, Shaw was arrested and charged with aggravated assault, for biting off a portion of Killingsworth’s ear, and with malicious mischief, for damaging Killingsworth’s car. A trial took place on June 19-22, 2011. At the close of the trial, the jury returned a guilty verdict on both counts. Shaw was sentenced to twenty years, with ten years suspended, for the charge of aggravated assault, and five years, for the charge of malicious mischief, with the sentences to run concurrently, all to be served in the custody of the MDOC. He was also ordered to served five years of supervised probation. Shaw filed a motion for a JNOV, or in the alternative, a new trial, which was denied.

¶ 7. Shaw now appeals, arguing: (1) the trial court erred by denying his motion for a directed verdict and his motion for a JNOV, or in the alternative, a new trial [83]*83because the evidence was insufficient to support the convictions of aggravated assault and malicious mischief and the jury’s verdict regarding aggravated assault was against the overwhelming weight of the evidence because he was acting in self-defense; (2) the trial court erred by allowing the State to call witnesses, including expert witnesses, in violation of discovery rules; (3) the prosecutor misconstrued the evidence and prejudiced the jury; (4) a mistrial should have been granted based on juror misconduct and an improper line of questioning; (5) teeth are not a mechanism likely to produce death or serious bodily harm; (6) the trial court erred in denying two “words of provocation” jury instructions; and (7) the cumulative errors warrant reversal.1

¶ 8. Finding no error, we affirm the judgment.

DISCUSSION

I. Whether the trial court erred in denying Shaw’s motion for a JNOV, or in the alternative, a new trial.

¶ 9. Shaw contends that the trial court erred in denying his motion for a JNOV, or in the alternative, a new trial. A motion for a JNOV challenges the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). In order for the evidence to be found sufficient to sustain a conviction, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. This Court will reverse a conviction if the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 10. A motion for a new trial challenges the weight of the evidence. Minor v. State, 89 So.3d 710, 716 (¶ 20) (Miss.Ct.App.2012). Viewing the evidence “in the light most favorable to the verdict,” a new trial will only be ordered “where ‘the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.’ ” Id. (citations omitted).

A. Aggravated Assault

¶ 11. Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) provides that “[a] person is guilty of aggravated assault if he ... 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[.]” Shaw was charged with purposely or knowingly “biting a portion of Kill-ingsworth’s right ear off, a means likely to produce death or serious bodily harm.” The State was required to prove, beyond a reasonable doubt, that Shaw acted with either requisite mental state provided for in section 97-3-7(2)(b).

¶ 12. Shaw argues that the State did not put forth any evidence to support the “purposely or knowingly” elements of the charge of aggravated assault. Shaw asserts that it is reasonable that Shaw bit Killingsworth in an attempt to get Kill-ingsworth to release him and not to cause bodily injury. As such, Shaw argues that [84]*84since he acted in self-defense without the intent to cause serious bodily harm, the evidence was insufficient to sustain his conviction of aggravated assault. We disagree, finding that the evidence was sufficient for the jury to conclude that Shaw intended to inflict serious bodily harm on Killingsworth.

¶ 13.

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139 So. 3d 79, 2013 WL 5533080, 2013 Miss. App. LEXIS 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-state-missctapp-2013.