DERRICK DEWAYNE MOFFITE A/K/A DERRICK DEWAYEN MOFFITE A/K/A DERRICK D. MOFFITE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/06/2018
LAUDERDALE COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LESTER F.
WILLIAMSON JR. Judge
ATTORNEY FOR APPELLANT: JAMES A. WILLIAMS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
DISTRICT ATTORNEY: BILBO MITCHELL
A jury of his peers convicted Derrick Moffite of aggravated
assault on a correctional officer by putting her into a
chokehold. The trial court sentenced him as a habitual
offender to life imprisonment without eligibility for parole.
Aggrieved, Moffite appeals, arguing (1) the evidence was
insufficient to support an aggravated-assault conviction; (2)
he was improperly indicted as a habitual offender; (3) the
trial court improperly denied his proposed jury instructions;
(4) the trial court was not impartial; (5) the State
committed a discovery violation; and (6) he was improperly
sentenced. Finding no error, we affirm.
While in custody at the Lauderdale County Detention Facility,
Moffite made comments about committing suicide to a
lieutenant, who immediately informed his superior. Moffite
made statements such as "A life for a life,"
"I'm done," and "I have nothing else to
lose." As a result, Sergeant Jodi Dowdy was ordered to
place Moffite on suicide observation. Sergeant Dowdy, along
with three other officers, tried to get Moffite to enter the
suicide cell on his own accord. Moffite refused.
The officers then tried to physically place Moffite in the
cell, but he managed to break away and chased Sergeant Dowdy.
Another correctional officer heard Moffite say to Sergeant
Dowdy, "That mace won't stop me from getting
you." Sergeant Dowdy testified that Moffite then
"slammed me to the floor and jumped on top of me."
Moffite wrapped his arm around Sergeant Dowdy's throat.
Sergeant Dowdy testified that "he wrapped his leg around
me and then . . . [took] his arm and wrap[ped] it around my
throat, choked me to the point where it did cut off my blood
flow and my breathing." She reiterated, "I
couldn't breathe." She struggled to get out of the
chokehold. In the end, it took three officers to pull Moffite
off of the officer and get him to release his chokehold on
Sergeant Dowdy testified that when she got up, she was
"very disoriented . . . everything was a little
fuzzy." She had trouble swallowing for several days
after. Moffite's actions also resulted in "choking,
neck pain, [and] some nightmares up to about two weeks
after." At the time of trial, approximately six months
after her assault, Sergeant Dowdy testified that she had scar
tissue on her neck-a knot under her left jaw.
Another officer, Charlie Eakins, witnessed the assault and
testified that Sergeant Dowdy's eyes were bulging out
while Moffite choked her. Officer Eakins was able to pull
Moffite's arm away from Sergeant Dowdy's neck while
two other officers helped restrain Moffite.
After the attack, officers reviewed footage of numerous phone
calls Moffite made while in the holding facility. Moffite
made comments indicating his intent to hurt a correctional
officer-"I'm going to fight one of these
police," and "I'm fixing to beat girls up and
The evidence was sufficient to support an aggravated
Moffite argues on appeal that his conviction for aggravated
assault was unsupported because the evidence was insufficient
to show that Sergeant Dowdy suffered serious bodily injury.
Our standard of review is whether any rational trier of fact
could have found, beyond a reasonable doubt, that Moffite was
guilty of aggravated assault. Johnson v. State, 264
So.3d 822, 826 (¶18) (Miss. Ct. App. 2018). Under
Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014),
"[a] person is guilty of aggravated assault if he . . .
attempts to cause serious bodily injury to another, or causes
such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value
of human life . . . ." The Mississippi Supreme Court has
defined "serious bodily injury" as an "injury
which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or
organ." Fleming v. State, 604 So.2d 280, 292
(Miss. 1992) (emphasis added); see also Johnson v.
State, 252 So.3d 597, 600 (¶13) (Miss. Ct. App.
2017) (reiterating the definition of "serious bodily
injury" in aggravated-assault cases).
The statute does not define the means by which serious bodily
injury must be inflicted to constitute aggravated assault.
Bright v. State, 986 So.2d 1042, 1047 (¶18)
(Miss. Ct. App. 2008). Aggravated assault based on the use of
hands and fists does not require a finding that the hands and
fists constitute the use of a deadly weapon; it is enough if
their use constitutes means likely to produce either death or
serious bodily injury. Jackson v. State, 594 So.2d
20, 24 (Miss. 1992). Under our precedent, the State does not
have to prove the victim suffered "serious" bodily
injury so long as it was possible. Id. "Mere
'bodily injury' is sufficient so long as it was
caused with other means likely to produce death or serious
bodily harm." Id. (internal quotation mark
omitted). Whether hands and arms are considered a "means
likely to produce serious bodily harm" is a question for
the jury. Id. Moffite's intention to commit
aggravated assault is also question for the jury.
Chambliss v. State, 919 So.2d 30, 35 (¶15)
(Miss. 2005). Intent is determined by "the act itself,
surrounding circumstances, and expressions made by the actor
with reference to his intent." Id.
There is no doubt that Moffite planned the confrontation.
Recorded phone conversations between Moffite and an unknown
individual revealed Moffite's stated intent to
"fight one of these police." He admitted that he
disobeyed the officers' instructions several times and
that once he started the fight, he grabbed Sergeant Dowdy to
use her as a shield. Moffite testified that it did not matter
which officer was near him at the time-he would have grabbed
An officer testified that Moffite broke away from the group
of officers, chased Sergeant Dowdy, and grabbed her. He
further testified that Moffite had Sergeant Dowdy in a
chokehold, her eyes were bulging, and she appeared scared.
Moffite did not release Sergeant Dowdy of his own accord, but
had to be physically pulled off of her by three other
officers. Sergeant Dowdy attested that Moffite
"proceeded to . . . take his arm and wrap it around her
throat, choke her to the point where it did cut off her blood
flow and her breathing."
In similar cases, defendants were charged and convicted of
aggravated assault for choking their victims. Pritchett
v. State, 171 So.3d 594, 596 (¶4) (Miss. Ct. App.
2015); Sellers v. State, 108 So.3d 456, 457
(¶1) (Miss. Ct. App. 2012). In Pritchett, the
defendant grabbed a correctional officer in a chokehold, but
she managed to escape. Pritchett, 171 So.3d at 595
(¶¶1-2). Like Moffite, the defendant also made a
statement indicating his intent to harm the correctional
officer. Id. at 597 (¶9). And like Moffite, the
defendant asserted he was guilty of simple assault at most.
Id. at 596 (¶7). But we found sufficient
evidence supported the guilty verdict: surveillance video
showed the defendant choking the victim; the victim was
clearly in distress; the victim believed the defendant was
going to rape her then kill her; and the victim was bleeding
from her ears. Id. at 597 (¶¶8-9).
In Sellers, the defendant disputed the State's
witnesses' testimony, arguing that the victim's
injuries were not serious and that the choking was not likely
to produce death or seriously bodily injury. Id. at
457 (¶4). Yet, one witness testified the victim was
"turning blue." Id. at 457 (¶3). The
victim testified that she was in a chokehold, felt like she
would pass out, and the defendant was "choking her to
death." Id. The defendant did not release the
victim until she shot him in the leg. Id. We
recognized that "[the jury obviously found Sellers
intended to injure [the victim] 'by choking her with his
hands until she nearly passed out,' as alleged in the
indictment." Id. at 459 (¶9). This was
sufficient evidence to affirm. Id.
Tracking our definition of "serious bodily injury,"
the jury here was instructed "that 'serious bodily
injury' means bodily injury which creates a
substantial risk of death, OR, which causes serious,
permanent disfigurement; OR, protracted loss or impairment of
the function of any bodily member or organ of the body."
(Emphasis added). Based on the record, a reasonable juror
could find that Moffite intentionally caused bodily injury by
creating a substantial risk of death to Sergeant Dowdy. He
planned to attack an officer, later admitted he did it, and
the facility's video showed he did it. It is also
reasonable to believe that being placed in a chokehold during
a high-tense situation could "create[ ]a substantial
risk of death."
The jury was free to consider the evidence, and they
determined that Moffite caused serious bodily injury to
Sergeant Dowdy by placing her in a chokehold that cut off
blood and airflow to her brain. This evidence is sufficient
Moffite also asks that we reverse and remand for a trial on
whether he committed the lesser-included offense of simple
assault. Because we found that the evidence was sufficient to
affirm his aggravated-assault conviction, we decline to
address this issue.
Moffite was properly indicted as a habitual
Moffite challenges his indictment, claiming that the grand
jury elected to charge him as a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2014),
which would allow him to be eligible for parole, and that the
State wrongly amended his indictment to include an
enhancement to serve life without parole eligibility
against the grand jury's wishes.
Rule 14.4(a) of the Mississippi Rules of Criminal Procedure
For good cause shown, indictments may be amended as to form
but not as to the substance of the offense charged. Amendment
may be allowed only if the defendant is afforded a fair
opportunity to present a defense and is not unfairly
Two months after Moffite's original indictment, the State
amended it to remove extraneous language. It removed the
phrase "while confined as an offender in the Lauderdale
County Detention Facility, Meridian, Mississippi, and in the
custody of the Mississippi Department of Corrections."
The record lacks any documentation to support Moffite's
allegation that he was initially charged under section