Joseph EDWARDS a/k/a Joey Edwards a/k/a Joey A. Edwards a/k/a Joseph A. Edwards, Appellant
STATE of Mississippi, Appellee.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Jim Waide, Rachel Pierce Waide, Tupelo, attorneys for appellant.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
Before IRVING, P.J., BARNES and MAXWELL, JJ.
¶ 1. At the close of Joseph Edwards's trial for simple assault on a law enforcement officer, the State— over Edwards's objection— requested and was granted an instruction on misdemeanor resisting arrest as a lesser-included offense. Edwards was convicted of resisting arrest and, on appeal, argues the judge erred in giving what was actually a lesser- non -included offense instruction— which the State is not entitled to request.
¶ 2. While this court and the supreme court have previously deemed resisting arrest a lesser-included offense of simple assault on a law enforcement officer, Edwards argues those cases were wrongly decided. He asks that we strictly compare the elements of the two statutory crimes without considering the particular facts of the charged assault. But the Mississippi Supreme Court instructs that we not consider the elements of the crimes in isolation but instead in the context of " the circumstances" under which they were allegedly committed.
¶ 3. Because the State offered proof Edwards swung wildly and struck an officer who was arresting him, the elements of resisting arrest were necessarily included in those of simple assault on a law enforcement officer. Under these circumstances, Edwards could not have committed assault without resisting arrest. So we find the trial judge did not abuse his discretion in giving the instruction. We also find no error in the trial judge admitting the recording of the 911 call that precipitated Edwards's arrest. We affirm.
¶ 4. On March 22, 2010, Gina Edwards called 911 to report a violent domestic dispute with her estranged husband, Edwards. Two Tupelo Police Department officers responded and found Edwards on the next-door neighbor's porch. One officer detained Edwards while the other, Officer Johnny Bruce, interviewed Gina. Gina was emotional as she described the struggle with Edwards and showed Officer Bruce the wrecked interior of her home.
¶ 5. When Officer Bruce told Edwards he was arresting him for domestic violence, a scuffle broke out between the two. Officer Bruce testified that Edwards began violently swinging, striking him in the face. At this point, Officer Bruce punched back, busting Edwards's lip, which required medical attention. The officers arrested Edwards for domestic violence and simple assault on a law enforcement officer.
¶ 6. Gina ultimately dropped the domestic-violence charge. But the State indicted Edwards for simple assault on a law enforcement officer, a felony. See Miss.Code Ann. § 97-3-7(1)(b) (Rev.2006). At the close of trial, the State requested and was granted an instruction on the lesser misdemeanor crime of resisting arrest. See Miss.Code Ann. § 97-9-73 (Rev.2006). And the jury found Edwards guilty of resisting arrest. The circuit judge sentenced Edwards to six months in the custody of the Lee County Sheriff's Department and imposed a $500 fine. However,
the judge suspended the jail sentence on the condition Edwards be evaluated for and complete a mental-health treatment program.
¶ 7. Edwards timely appealed.
I. Resisting-Arrest Instruction
¶ 8. The main focus of Edwards's appeal is on the resisting-arrest instruction, given at the State's request. As he sees it, resisting arrest is not a lesser-included offense of simple assault on a law enforcement officer. So he insists the court erred in granting the State a lesser-crime instruction. He asks that we reverse his conviction.
A. Lesser-Included Offense
¶ 9. Under Mississippi law, the State or defendant may request and obtain a lesser-included offense instruction. Buchanan v. State, 84 So.3d 812, 815 (¶ 8) (Miss.Ct.App.2011). The " principal requirement" for granting the instruction is that there is " evidence to support it." Id. Here, Edwards does not argue the " principal requirement" of evidentiary support was not met. Instead, he suggests the instruction really charged a lesser-non-included offense— not a lesser-included offense. And since only the defendant, not the State, can obtain an instruction on a lesser-non-included offense, the judge erred in not sustaining his objection to this instruction.
¶ 10. To appreciate Edwards's argument, the distinction needs to be made between lesser-included and lesser-non-included offenses. While both categories of offenses carry a lesser penalty than the offense for which the defendant was indicted, traditionally, with a lesser- included offense, all elements of the lesser crime are included in the greater crime's elements. Under this elements-based test, the defendant " could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser[-]included offense." Payton v. State, 642 So.2d 1328, 1334 (Miss.1994). Because the greater offense contains all elements of the lesser-included offense, an indictment for the greater offense implicitly includes a charge of the lesser-included offense, even though it is not listed as a separately charged crime. Thus, a defendant is on notice of the possibility of conviction of the lesser-included offense. See Miss.Code Ann. § 99-19-5 (Rev.2007) (expressly permitting the jury to find the defendant " guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment ... without any additional count in the indictment for that purpose" ).
B. Lesser-Non-Included Offense
¶ 11. In contrast, a lesser-non-included offense (also called a " lesser-related offense" or simply a " lesser offense" ) has elements not contained in the greater crime. This means the defendant could be guilty of the greater crime without having committed the lesser-non-included offense. Payton, 642 So.2d at 1334. Because the lesser offense is not necessarily included in the charged offense, a defendant is not on notice that he or she may be criminally liable for the lesser-non-included crime. Id.
¶ 12. There is also a procedural distinction between the two instructions. Either the defendant or the State is entitled to a ...