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Moffite v. State

Court of Appeals of Mississippi

December 3, 2019


          DATE OF JUDGMENT: 02/06/2018





         EN BANC.

          MCCARTY, J.

         ¶1. 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.


         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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 everything."


         I. The evidence was sufficient to support an aggravated assault conviction.

         ¶7. 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.

         ¶8. 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).

         ¶9. 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).[1] 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.

         ¶10. 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 any officer.

         ¶11. 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."

         ¶12. 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).[2] 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).

         ¶13. 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.

         ¶14. 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."

         ¶15. 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 to affirm.

         ¶16. 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.

         II. Moffite was properly indicted as a habitual offender.

         ¶17. 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.

         ¶18. Rule 14.4(a) of the Mississippi Rules of Criminal Procedure states:

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 surprised.

         ¶19. 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 ...

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