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Shaw v. State

Court of Appeals of Mississippi

October 8, 2013

BRETT ANTHONY SHAW A/K/A BRET SHAW A/K/A BRETT SHAW A/K/A BRETT A. SHAW, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 80

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/27/2011. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCED TO TWENTY YEARS WITH TEN YEARS SUSPENDED, AND COUNT II, MALICIOUS MISCHIEF, AND SENTENCED TO FIVE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

FOR APPELLANT: J. EDWARD RAINER, GARY LEE WILLIAMS.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.

BARNES, J. IRVING AND GRIFFIS, P.JJ., ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J. ISHEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND JAMES, J.

OPINION

Page 81

NATURE OF THE CASE: CRIMINAL - FELONY

EN BANC.

BARNES, J.

¶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,

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with 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 Hardwick 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 Killingsworth from behind. Killingsworth, keeping his hold on Shaw, turned to see who was striking him. When Killinsgworth twisted back around, Shaw bit his ear.

¶5. With Shaw still restrained by Killingsworth, 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

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because 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 Killingsworth'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 Killingsworth to release him and not to cause bodily injury. As such, Shaw argues that

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since 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. As the State observes, Shaw's intent to cause serious bodily injury can be inferred from testimony given regarding Shaw's anger and antagonizing behavior towards Killingsworth. " Intent ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them." Wales v. State, 73 So.3d 1113, 1121 (¶ 22) (Miss. 2011) (citation omitted). Even if intent is not expressly evident, it may be proven " by showing the acts of the person involved at the time, and by showing the circumstances surrounding the incident." Johnson v. State, 44 So.3d 400, 408 (¶ 24) (Miss. Ct. App. 2010) (quoting Boyd v. State, 977 So.2d 329, 335 (¶ 23) (Miss. 2008)). Whether a person intended to commit an act is " a question of fact to be gleaned by the jury from the facts shown in the case." Id. " The presumption of the law is that each person intends the natural consequences of his actions." Staten v. State, 813 So.2d 775, 777 (¶ 8) (Miss. Ct. App. 2002) (citing Hydrick v. State, 246 Miss. 448, 450-451, 150 So.2d 423, 424 (1963)). " The State must be given the benefit of all reasonable inferences that may be drawn from the evidence." McBride v. State, 78 So.3d 359, 361 (¶ 7) (Miss. Ct. App. 2011) (citing Christian v. State, 859 So.2d 1068, 1071 (¶ 12) (Miss. Ct. App. 2003)). " [E]ven 'slim' evidence can be used to uphold a guilty verdict so long as it can reasonably be inferred to support such a finding." Sanders v. State, 949 So.2d 92, 95 (¶ 5) (Miss. Ct. App. 2006) (citation omitted).

¶14. Brooke Patterson, Shaw's ex-girlfriend, testified that when the couple initially approached the party, he told her that " he was probably going to end up getting in a fight with this douchebag [(referring to Killingsworth)] before the night was over." Later that evening, Shaw behaved in a threatening manner toward Killingsworth and had to be forcibly removed from the apartment to avoid further conflict. Witnesses stated it was at that point Shaw kicked and jumped on Killingsworth's car.

¶15. Admittedly, both men had been arguing all evening. But, when Killingsworth confronted Shaw about damaging his car, he repeatedly told Shaw that he did not want to fight. Witnesses testified that during this confrontation, Shaw was " antagonizing" Killingsworth and beating his own chest, saying things like " Come on" and " Do something." Killingsworth, upon this taunting, did initiate contact with Shaw by shoving him and then wrapping his arms around Shaw in an attempt to restrain him and to prevent Shaw from hitting him. However, while he was holding Shaw's arms, Gill began hitting Killingsworth on the head in an attempt to make Killingsworth let Shaw go. When Killingsworth turned his head to look at Gill, Shaw took advantage of his inattention to retaliate and bite off part of Killingsworth's ear. Thus, the fight was essentially two against one. In fact, one witness stated Gill was swinging away so wildly that he almost hit a female bystander. Even after the fight was broken up by police, Shaw continued to be verbally belligerent and uncooperative, saying " F*ck you" to the arresting officer. Killingsworth, on the other hand, was cooperative and quiet.

¶16. The determination of Shaw's intent and whether he was acting in self-defense was a question of fact to be

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decided by the jury. See Franklin v. State, 72 So.3d 1129, 1136 (¶ 29) (Miss. Ct. App. 2011) ( " [T]he question of whether a defendant acted in self-defense or in defense of others is a question for the jury to resolve." ) (citing White v. State, 976 So.2d 415, 420 (¶ 23) (Miss. Ct. App. 2008))).

To make an assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or [the] defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.

Anderson v. State, 571 So.2d 961, 963 (Miss. 1990) (citations omitted). It is apparent from the verdict the jury members determined that Shaw was not acting in self-defense and had the intent to seriously injure Killingsworth. We find there to be sufficient evidence to support this conclusion.

¶17. Giving the State all reasonable inferences that may be drawn from the evidence, we find the evidence is sufficient to support the verdict. We also conclude that the verdict was not contrary to the overwhelming weight of the evidence and does not sanction an unconscionable injustice.

B. Malicious Mischief

¶18. Shaw also argues that the evidence was insufficient to support his conviction of malicious mischief. Although Shaw argues that the jury's verdict is against the weight of the evidence, we find that his arguments actually only address the sufficiency of the evidence. As noted previously, evidence will be deemed sufficient where it shows, beyond a reasonable doubt, that the accused committed the act and every element of the offense existed. Bush, 895 So.2d at 843 (¶ 16).

¶19. Shaw was convicted under Mississippi Code Annotated section 97-17-67 (Supp. 2012), which provides in pertinent parts:

(1) Every person who shall maliciously or mischievously destroy, disfigure, or injure, or cause to be destroyed, disfigured, or injured, any property of another, either real or personal, shall be guilty of malicious mischief.
. . . .
(3) If the value of the property destroyed, disfigured or injured is in excess of Five Hundred Dollars ($500.00), it shall be a felony punishable by a fine not exceeding Ten Thousand Dollars ($10,000.00) or imprisonment ...

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