Calvin Hunter v. State of Mississippi , 2015 Miss. App. LEXIS 602 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-00508-COA
CALVIN HUNTER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/11/2014
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: P. SHAWN HARRIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, ATTEMPTED
AGGRAVATED ASSAULT ON A LAW
ENFORCEMENT OFFICER, AND
SENTENCED TO TWENTY YEARS, AND
COUNT II, ATTEMPTED AGGRAVATED
ASSAULT ON A LAW ENFORCEMENT
OFFICER, AND SENTENCED TO FIFTEEN
YEARS, WITH THE SENTENCE IN COUNT
II TO RUN CONSECUTIVELY TO THE
SENTENCE IN COUNT I, BOTH IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. A Newton County jury convicted Calvin Hunter of two counts of attempted
aggravated assault on a law enforcement officer. See Miss. Code Ann. § 97-3-7(2) (Supp.
2013). Hunter now appeals and argues that his convictions are against the overwhelming
weight of the evidence. Finding no error, we affirm.
FACTS
¶2. A grand jury indicted Hunter for two counts of attempted aggravated assault on a law
enforcement officer. See Miss. Code Ann. § 97-3-7(2). Each count of the indictment
charged that Hunter “did willfully, unlawfully, feloniously, purposely[,] and knowingly
attempt to cause bodily injury” to a law enforcement officer while the officer was acting
within the scope of his duties. The indictment further charged that Hunter attempted to injure
the officers “by reaching for a deadly weapon, to-wit: a knife, said knife being means likely
to produce death or serious bodily harm[.]”
¶3. On August 27, 2013, Hunter got into an argument with Thelma Hunt, with whom he
was living at the time. Hunt testified that Hunter returned home after drinking, and the two
began to argue. Hunt asked Hunter to leave her home, and when Hunter refused, Hunt
threatened to call the police. Hunt further testified that Hunter replied that he would kill her
and the police if she made the call. Despite Hunter’s threats, Hunt called the authorities.
¶4. While on patrol for the Union Police Department, Officer David Boatner received a
dispatch call instructing him to respond to the disturbance at Hunt’s home. Officer Boatner
arrived at Hunt’s home at the same time as Officer Jacob Moore. The officers both testified
that they were wearing their police uniforms when they responded to the call.
¶5. Hunt met the two officers at the front door and invited them inside her home. Hunt
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explained that she wished for Hunter to leave because he was disturbing the peace. Upon
hearing loud noises and cursing coming from the back of Hunt’s home, the officers
investigated and encountered Hunter standing in the hallway.
¶6. Officer Boatner testified that Hunter grew irate when he saw the officers and began
cursing. Officer Boatner further testified that, when he explained that Hunt wished Hunter
to leave her home, Hunter responded, “I’m not going anywhere. I’ll kill all y’all son[s] of
[] b——.” In addition to this statement, Officer Moore testified that Hunter said, “[I]f you
come down here, there’s going to be a killing.”
¶7. According to Officer Boatner’s testimony, he told Hunter that he, Hunter, was under
arrest, and then Officer Boatner took a step toward Hunter. The officers testified that Hunter
then lunged into the bedroom, landed on his back on the bed, and slid his right hand
underneath a pillow. Thinking that Hunter was reaching for a weapon, Officer Boatner drew
his gun, and Officer Moore tased Hunter. The two officers then wrestled with Hunter, and
Officer Moore was forced to tase Hunter a second time. The officers eventually succeeded
in securing Hunter’s hands with handcuffs. When Officer Boatner looked under the right-
hand pillow where Hunter had slid his hand, he found nothing. However, when Officer
Boatner searched under the next pillow, on the left side of the bed, he found an open knife
with its blade exposed.
¶8. Hunt testified at trial that the knife belonged to her and that she kept it for protection.
Although Officer Boatner found the knife in an open position under the pillow on the bed,
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Hunt testified that she did not have the knife out at any point on the night of August 27,
2013. Hunt further stated that she never saw the knife in Hunter’s possession that evening
and that she never saw him try to stab either of the officers with the knife. According to
Hunt’s testimony, she usually kept the knife closed and in a bowl that sat on a shelf at the
head of her bed. As far as Hunt knew, the knife was still in the bowl when she called the
police.
¶9. Hunter also testified at trial. He stated that he was asleep when Hunt called the police
and that, when he woke up, the officers were already inside the house. Hunter further
testified that he could tell the officers were about to arrest him so he began to search for his
cigarettes. According to Hunter’s testimony, he never cursed at the officers or threatened to
kill them. Hunter testified that he was merely reaching for his cigarettes when Officer Moore
tased him, and he denied trying to reach for the knife Hunt kept near the bed.
¶10. After considering the evidence and testimony, the jury found Hunter guilty on both
counts of attempted aggravated assault on a law enforcement officer. For Count I, the circuit
court sentenced Hunter to twenty years, and for Count II, to a consecutive term of fifteen
years, with both sentences to be served in the custody of the Mississippi Department of
Corrections. Hunter subsequently filed an unsuccessful motion for a new trial. Following
the circuit court’s denial of his motion for a new trial, Hunter appealed his convictions to this
Court.
STANDARD OF REVIEW
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¶11. This Court reviews the circuit court’s denial of a motion for a new trial for abuse of
discretion. Griffith v. State, 123 So. 3d 472, 475 (¶15) (Miss. Ct. App. 2013). “When
reviewing a denial of a motion for a new trial based on an objection to the weight of the
evidence, [the appellate court] will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citation
omitted). This Court also weighs the evidence in the light most favorable to the verdict. Id.DISCUSSION
¶12. On appeal to this Court, Hunter argues that his two convictions for attempted
aggravated assault on a law enforcement officer are against the overwhelming weight of the
evidence. Hunter asserts that his actions of jumping backward onto the bed and sliding his
hand under a pillow, which had nothing underneath it, fail to amount to an attempt to commit
aggravated assault. He therefore asks this Court to reverse his convictions. The State,
however, contends that Hunter not only announced his intent to injure the officers but also
sought to fulfill his intent by the overt acts of lunging on the bed and attempting to reach
Hunt’s knife.
¶13. Section 97-3-7(2)(a) establishes 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[.]” The statute
provides for an enhanced penalty where the assault occurs upon a law enforcement officer.
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Miss. Code Ann. § 97-3-7(2)(b).
¶14. Mississippi caselaw establishes that “[a]n attempt is a direct movement toward the
commission of the crime after the preparations have been made[.]” Ishee v. State, 799 So.
2d 70, 73 (¶7) (Miss. 2001) (quoting Bucklew v. State, 206 So. 2d 200, 202-03 (Miss. 1968)).
The Mississippi Supreme Court has “defined ‘attempt’ to mean ‘an attempt to do a certain
thing, and some actual overt effort to put the intent into effect.’” Gibson v. State, 660 So. 2d
1268, 1270 (Miss. 1995) (citations omitted). “Furthermore, ‘the act must be such as will
apparently result, in the usual and natural course of events if not hindered by extraneous
causes, in the commission of the crime itself, and an act apparently adapted to produce the
intended result is sufficient to constitute the overt act essential to an attempt.’” Id. (citation
omitted).
¶15. To support his argument that his actions failed to amount to an attempt to commit
aggravated assault, Hunter directs this Court’s attention to the supreme court’s opinions in
Gibson and Murray v. State, 403 So. 2d 149 (Miss. 1981).1 In previously discussing those
two decisions, this Court stated:
In . . . Murray and Gibson, the supreme court determined, respectively,
that the evidence was insufficient to support aggravated[-]assault charges. In
1
Although Hunter was charged with attempted aggravated assault and the defendants
in Gibson and Murray were charged with aggravated assault, we acknowledge that section
97-3-7(2) fails to distinguish between the two offenses and that, substantively, they are the
same crime. See Wilson v. State, 904 So. 2d 987, 996 (¶32) (Miss. 2004); Lewis v. State,
897 So. 2d 994, 996 (¶¶7-10) (Miss. Ct. App. 2004); Stringer v. State, 862 So. 2d 566, 567
(¶6) (Miss. Ct. App. 2004).
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Murray, the defendant used a shank pointed toward[] a prison officer to
compel the officer to give up his keys. Murray, 403 So. 2d at 149. Murray
was convinced by fellow inmates to give up his endeavor, which he did. Id.
at 151. In that case, the supreme court determined that it could not say that the
defendant had unequivocal intent to stab the officer, even though he had the
means and the opportunity to do so. Id. at 152-53.
In Gibson, the defendant pointed a gun at the chest of a police officer.
Gibson, 660 So. 2d at 1268. After the officer demanded that he lower his
weapon, the defendant complied. There[,] the supreme court stated:
Gibson was ordered to drop the gun by the officer at [whom] the
gun was pointed. The record does not reflect that Gibson was
aware of any other officers in the vicinity, so Gibson, at least in
his own mind, had the advantage. We do not know, from the
record, why Gibson did not shoot the officer. After all[,] he had
the means and every opportunity to do so. The State’s
suggestion that the officer’s command to drop the weapon was
an extraneous event [that] prevented Gibson from shooting the
officer is far[-]fetched[.] Id. at 1270.
Genry v. State, 767 So. 2d 302, 311 (¶¶31-32) (Miss. Ct. App. 2000). This Court concluded
that the evidence in Murray and Gibson failed to show that the defendants possessed an
“unequivocal intent to cause serious bodily injury to the victim.” Id. at (¶33). But see
Robinson v. State, 571 So. 2d 275, 277-78 (Miss. 1990) (upholding an aggravated-assault
conviction where the victim suffered no injuries because, despite the defendant’s claim he
only intended to scare the victim, he threatened to kill the victim, repeatedly told coworkers
he planned to burn down the victim’s house, and chased the victim out of her house and
again threatened to kill her).
¶16. In the present case, the jury heard conflicting testimony regarding the events prior to
Hunter’s arrest on August 27, 2013. Hunter testified that he was simply searching for his
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cigarettes when Officer Moore tased him. Furthermore, Hunter denied ever threatening or
cursing at the officers.
¶17. By contrast, the officers testified that, while in close proximity to them, Hunter was
belligerent, cursed at them, and threatened to kill them. The record reflects that the facts to
which the officers testified showed that Hunter expressed a current intent to kill them.
Additional testimony revealed that, when Officer Boatner stepped toward Hunter, Hunter
lunged onto the bed and reached underneath a pillow with his hand. A scuffle then ensued
as the officers attempted to restrain Hunter with handcuffs.
¶18. The record further reflects that Hunter continued to struggle as the officers tried to
place him under arrest. Officer Moore had to tase Hunter a second time before Hunter
stopped reaching under the pillow and resisting arrest. After handcuffing Hunter to ensure
he was no longer a threat to their safety, the officers looked underneath the pillows on the
bed. Although they found nothing under the right-hand pillow where Hunter slid his hand,
they discovered a knife concealed under the left-hand pillow.
¶19. Our caselaw establishes that the jury possesses the responsibility to resolve any
conflicts in the evidence and testimony presented at trial. See Hampton v. State, 48 So. 3d
605, 612 (¶25) (Miss. Ct. App. 2010). In light of its verdicts finding Hunter guilty of both
counts of attempted aggravated assault on a law enforcement officer, the jury clearly resolved
the conflicts in the trial testimony in the State’s favor. As the record reflects, the officers
testified that Hunter not only expressed a current intent to kill them but also engaged in overt
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conduct to accomplish his threat. Giving the State the benefit of all reasonable inferences
to be drawn from the evidence, we cannot say that Hunter’s guilty verdicts are “so contrary
to the overwhelming weight of the evidence that to allow [them] to stand would sanction an
unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18).
¶20. Based on the evidence and testimony presented at trial, the jury could have reasonably
found that Hunter intended, and was attempting, to cause serious bodily injury or death to
Officer Boatner and Officer Moore by resisting arrest, threatening to kill them, lunging on
the bed, and reaching for Hunt’s knife. In addition, the jury could have found that Officer
Moore’s action of tasing Hunter constituted an extraneous event that intervened and
prevented Hunter from carrying out his intended aggravated assault upon the officers. As
a result, we find no abuse of discretion by the circuit court’s denial of Hunter’s motion for
a new trial. See Griffith, 123 So. 3d at 475 (¶15). Therefore, this issue lacks merit.
¶21. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, ATTEMPTED AGGRAVATED ASSAULT ON A LAW
ENFORCEMENT OFFICER, AND SENTENCE OF TWENTY YEARS, AND COUNT
II, ATTEMPTED AGGRAVATED ASSAULT ON A LAW ENFORCEMENT
OFFICER, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCE IN
COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, BOTH
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND
WILSON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
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