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Ross v. State

Court of Appeals of Mississippi

September 10, 2013

Otis ROSS a/k/a Otis Lee Ross Sr. a/k/a Othis Polk Ross Sr., Appellant
v.
STATE of Mississippi, Appellee.

Page 279

George T. Holmes, Jackson, Eugene A. Perrier, Vicksburg, Benjamin Allen Suber, attorneys for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Page 280

Before LEE, C.J., ISHEE and ROBERTS, JJ.

ROBERTS, J.

¶ 1. A Warren County grand jury indicted Otis Lee Ross Sr., as a habitual offender, on one count of aggravated assault against Richard Bradford. Ross was convicted on this count by a jury in the Warren County Circuit Court. He was subsequently sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender. The circuit court denied Ross's motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. He did not timely file a notice of appeal; however, his later motion for an out-of-time appeal was granted. Aggrieved by his conviction, Ross executed the current appeal. Finding no error, we affirm Ross's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 14, 2007, Bradford and Ross were at an apartment complex on Bowmar Avenue in Warren County. The incidents occurring that day were disputed at trial. Bradford testified that he had given Ross five dollars to purchase some beer for him. And when Ross returned from the store with no beer, he denied that Bradford had given him any money. Disgruntled with Ross's failure to bring beer or return his five dollars, Bradford followed Ross to the door of his apartment and again requested his money. According to Bradford, the two men exchanged words and Bradford shoved Ross before turning around and walking away from the door. Bradford testified that he then heard someone say to look out, and when he turned around, he saw Ross coming toward him with a butcher knife. The two men wrestled and Bradford received multiple stab wounds before the knife's blade and handle broke. Bradford testified that when the knife broke, Ross ran back into his apartment.

¶ 3. Ross testified as to a different series of events. According to Ross, he had never seen or met Bradford until that day, and he was not outside drinking beer with Bradford that day, as Bradford testified. Ross stated that he was asleep in the apartment and that a phone call between one and two in the afternoon woke him up from his sleep. He then testified that he went outside to tell his sister's boyfriend that someone was on the way to pick them up and take them to the hospital to see his sister. After telling his sister's boyfriend the information, Ross claimed that Bradford, a man he had never seen or met before, stood up and asked for the five dollars. After exchanging words, Ross attempted to go back inside the apartment when Bradford grabbed him by his shirt and threw him down by another apartment and near some vehicles. According to Ross, Bradford then pulled out a butcher knife, and Ross began wrestling with Bradford for control of the knife. Ross testified he was cut on the hand as a result of the scuffle, and that the injuries Bradford suffered occurred when Bradford fell on the knife during the scuffle. Ross was able to get back into his apartment, where he went to treat his hand injury.

¶ 4. After the altercation, a bloody Bradford approached a parked police car across the street from the apartment complex. After being asked by the police officer, Bradford was able to indicate which apartment the person who stabbed him went into. After repeatedly knocking on the apartment door, the police were eventually able to have Ross answer the door. They then immediately detained him and ultimately arrested him for aggravated assault. Bradford had received injuries to his eye, nose, arm, shoulder, and leg.

Page 281

¶ 5. A grand jury indicted Ross on July 24, 2007, on one count of aggravated assault, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Following a two-day trial, a jury convicted Ross of one count of aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2) (Supp.2012). Ross was sentenced to serve fifteen years as a habitual offender in the custody of the MDOC.[1] On January 1, 2009, Ross filed a motion for a JNOV or, in the alternative, a motion for a new trial; the circuit court denied that motion. After failing to timely file a notice of appeal, Ross filed a motion for an out-of-time appeal. This motion was granted, and Ross filed the current appeal.

¶ 6. On appeal, Ross raises two issues:

I. The evidence was insufficient to support a conviction of ...

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