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Horn v. State

Court of Appeals of Mississippi

November 27, 2018

JEFFREY PEYTON HORN A/K/A JEFFERY HORN A/K/A JEFFERY P. HORN A/K/A JEP HORN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/22/2017

          CHICKASAW COUNTY CIRCUIT COURT, HON. JOHN KELLY LUTHER TRIAL JUDGE

          ATTORNEY FOR APPELLANT: EDWARD D. LANCASTER

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

          DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. A Chickasaw County jury convicted Jeffrey Horn of aggravated assault with a deadly weapon; specifically, shooting his girlfriend in the thigh during a domestic altercation. The trial-court judge sentenced Horn to serve twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended, twelve years to serve, and five years of postrelease supervision. He was also ordered to pay court costs, medical expenses, and restitution.

         ¶2. Horn appeals, arguing the trial court erred in not removing a "sleeping juror" from the jury panel and in granting a pre-arming jury instruction. Horn also argues a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, should have been granted due to a juror's relationship with the victim. Finally, Horn argues cumulative error warrants reversal. We find no merit to Horn's arguments and affirm his conviction and sentence.

         FACTS

         ¶3. The shooting in this case stems from a relationship Horn had with the victim, Regenia Higginbotham. They began seeing each other in September 2014. Horn maintains their relationship was turbulent and mainly sexual, while Regenia claims they did not argue much and that she "truly loved" him. It was undisputed, however, that Regenia was frustrated because she wanted a more committed relationship than Horn was willing to offer and that Horn had a drinking problem.

         ¶4. Regenia claims their first physical altercation occurred at Horn's home in Houston, Mississippi, in November 2014, approximately four months before the instant assault. Horn claimed Regenia knew he was seeing other women, but she was in "constant contact" with him by telephone, text, or visits. Regenia had not seen Horn in a few days and decided to drive to his house and "check on him" unannounced. When Regenia knocked on the window of the utility-room door, Horn was inside entertaining a woman named Chelsea. Horn answered the door but was reluctant to let Regenia in. A scuffle ensued as Regenia attempted to come inside the house. According to Regenia, Horn grabbed her by the hair and placed her in a "choke-hold"; so, she took a broken window-pane glass shard and stabbed him in the ankle. According to Horn, Regenia went running through the house in an "absolute rage" screaming "where is she at, Jep?" Bleeding profusely, Horn walked through the house yelling at Regenia. He retrieved a nine-millimeter gun that was kept hidden under the mattress in his bedroom. Regenia-a nurse-satisfied no other woman was at Horn's house, [1] calmed down and began tending to Horn's wound. Regenia began cleaning the blood from the floors with peroxide. Horn, angry, called 911. Horn told her she could leave before law enforcement arrived, but she declined. Law enforcement arrived and, unbeknownst to Horn, saw him holding a gun over Regenia's head while she cleaned the floor. Regenia was arrested for simple assault, but Horn later dropped the charges because Regenia would lose her nursing license. He claims Regenia called him four days later wanting to reconcile, but he adamantly declined.

         ¶5. However, in early 2015, the couple began communicating with each other again. By February, Horn stated they were having sex in his used-car business office, located in front of his house, several times a week during the lunch hour. On March 12, 2015, the sex- and alcohol-filled weekend that led to the instant assault began when, according to Regenia, Horn called and told her "to get her butt over [to his house]." Regenia complied. Both claimed to enjoy riding around the back roads of the area "looking at nature and stuff." Regenia would drive while Horn would drink. On this day, they took a long drive. Horn was drinking, but they were not arguing. According to Horn, they "had a lot of sex" that evening.

         ¶6. Horn testified the next day Regenia began "hammer[ing]" him "constantly" about a more exclusive relationship. They had "more sex" and drove around. Horn was drinking heavily. That afternoon, they ended up at "The Pony," a strip club in West Point, Mississippi.[2] Regenia became irritated because Horn was frequently going to "the back" to enjoy lap dances. Later in the evening, Horn was removed from the strip club for slapping a dancer's buttocks during a lap dance. On the drive home, Horn testified that Regenia, apparently jealous from the lap dances, "just out of the blue . . . tore me up" with her fingernails while she was driving. Regenia testified that Horn was the one who was angry-he was yelling and hitting the dash of the car while hitting and biting her right arm. Regenia admitted grabbing his face to make him quit hitting her. Photographs of Regenia's heavily bruised right arm and Horn's scratched face were entered into evidence. They returned to his home and calmed down. Later, Horn admitted to Regenia he did not remember hitting her arm in the car when she showed him her bruised arm.

         ¶7. On the morning of March 14, 2015, they woke up, had sex, and drove around back roads again until 8:00 p.m. According to Regenia, that day Horn consumed two pints of vodka, one-half of a case of beer, and approximately four Lime-a-ritas. According to Horn, Regenia had been "hammering" him more about "being together." Regenia testified that during a stop at the Dollar General store, Horn became paranoid that people were "coming after" him. Embarrassed, Regenia "fussed" at Horn about the incident. Horn became angry and told Regenia he was going to "whoop her butt" when they got home. Later, Horn admitted he did not remember going to the Dollar General store.

         ¶8. Upon arriving at Horn's house, Regenia said Horn suddenly pulled a gun on her from behind his back and pointed it at her. Initially, she headed toward the bathroom thinking she could escape from him there, but she realized he could shoot the door open and she would be trapped. Remembering there was a gun underneath the mattress in Horn's bedroom, she ran there instead. Regenia was uncertain if Horn was following her, but as she lifted the mattress she heard him at the doorway to the bedroom. The next thing Regenia knew she was shot in the thigh, and fell to the ground.

         ¶9. Horn's version of the shooting differed. Regenia was angry about the state of their relationship when they returned home. Horn was drinking a beer and smoking a cigarette in the utility room when Regenia entered, talking about "the same thing"-a more serious relationship. He told her "that's not what I want." Horn testified: "She quits talking. I see her. She opens the door. She walks into it, walks into the house, shuts the door like normal, and she takes off running." Describing her demeanor, Horn testified, "She's getting mad. . . . She actually puffs up . . . but when she took off running, I knew where she was going . . . to get that gun." He continued:

When I see her take off running, I get up; and I get my pistol; and I go into the house; and as I'm going into the house, I can see she made it through the dining area; and I see her turn down the hall. I follow her . . . I'm walking down the hall fast; but as I get to where you can actually see into the bedroom, probably . . . 6 or 7 feet before you actually get to the door frame, I mean she's right there. She's getting the gun. As I walk up to the door, she's got her back to me. She turns around, and she's pointing it directly at my head. I try to take cover. . . . I put mine on her. She's got the craziest look. . . . When I see those eyes, I actually lunge; and I shoot her. . . . I shoot her right in the middle.

         He later testified "I popped her" because "she [was] fixing to kill me."

         ¶10. The bullet actually struck Regenia's left thigh. She collapsed in pain, dropping the pistol. Horn picked it up and put both guns on top of the washing machine in the utility room. Horn claimed he called 911 within seconds; Regenia claimed it was more like fifteen to thirty minutes. A recording of the 911 call, placed at 9:40 p.m. on March 14, 2015, was played for the jury and entered into evidence. Horn admitted a "woman's been shot," but was reluctant to give his name. He also exclaimed to Regenia "Do you not fu--ing see what you're doing to me?" He told the ambulance dispatcher that he had shot Regenia "in the gut." When asked if it was an accident he replied, "Well, I mean I wouldn't say that." Due to the bullet wound, Regenia's leg bone was shattered, and required two surgeries to insert a plate, rod, seven screws, and a wire into her thigh.

         ¶11. Horn was arrested and, once sober two days later, was interviewed by law enforcement. Horn admitted he meant to shoot Regenia in the leg to stop her, not her "gut." Horn maintained, however, that Regenia was "fixing to kill" him with the loaded nine-millimeter gun.

         DISCUSSION

         I.Alleged ...


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