Before Thomas, P.j., Coleman, And Hinkebein, JJ.
The opinion of the court was delivered by: Hinkebein, J., For The Court:
DATE OF JUDGMENT: 03/13/97
TRIAL JUDGE: HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: LAWRENCE Y. MELLEN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION ADAMS AGGRAVATED ASSAULT: SENTENCED TO 15 YRS IN MDOC, 5 YRS SUSPENSION & 10 YRS TO SERVE; GATHINGS AGGRAVATED ASSAULT SENTENCED TO 15 YRS IN MDOC5 YRS SUSPENSION & 10 YRS TO SERVE; FALAUNCE BURNSIDE AGGRAVATED ASSAULT SENTENCED TO 15 YRS IN MDOC, 5 YRS SUSPENSION & 10 YRS TO SERVE; ALBERT JAMES BURNSIDE AGGRAVATED ASSAULT SENTENCED TO 15 IN MDOC 5 YRS SUSPENSION & 10 YRS TO SERVE
¶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.
¶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 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.
¶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 ...