IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-KA-00011-COA JAMES DEVON BROWN A/K/A JAMES D. BROWN A/K/A JAMES BROWN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/01/2017 TRIAL JUDGE: HON. KATHY KING JACKSON COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: ANGEL DANIELLE PATANO-MYERS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/11/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ. McCARTY, J., FOR THE COURT: ¶1. O n August 30, 2017, J am es Devon Brown w as convicted of aggrava t e d d o me s t i c violence with habitual of

f ender status. He was sentenced to l if e in prison without eligibility f or parole. Brown now a ppeals the trial court’s judgme n t , a s s e r ting the f ollowing assignm ents of error: ( 1) th e t r i al court erred by ref using his lesser-included of f ense jury instruction; (2) t he i ndictm ent was insuf f icient; ( 3) he was denied his right to a speedy trial; and (4) the sentence im

posed by the trial court was im

proper. ¶2. For the f

ollowing reasons, the judgm ent is af f irm ed.FACTS

¶3. J am es D evon B rown l ived with his girlf riend, Lam onica Bod i e , a t h e r h o me i n Gautier, Mississippi. He was unem ploy ed. O n the m orning of February 3, 2 016, Lam onica lef t the hom e to give a f

riend a ride to the bus station. Lam onica did not tell Brown what she

was going to do. That sam e m orning Brown lef t the hom e in search of a job. W h ile driving,
Brown sa w L a monica i n her car w ith another m an. Brown began to m ake repeated phone calls t o L am onica. T hrough a serious of short phone calls—initiated by Brown and ending with Lam onica hanging up—they arranged to m eet back at Lam o nica’s house. ¶4. Once there Lam onica and B rown discussed their relationship. W hile f olding laundry in the bedroom , Lam onica told B rown sh e wanted to e nd the relationship. She then asked him to m ove out. Brown a sked Lam onica if he could sleep o n the couch until h e g ot his tax
return m oney . Lam onica said no. ¶5. B r own suddenly took o f f his shirt and sai d , “ I d o n ’ t h a v e a n y t h i n g t o l o s e . ”
Lam onica, f

eeling uncom f

ortable, tried to reach f

or her key s and cellphone. Brown grabbed her f rom behind and slid his f

orearm around her neck. As Lam onica tried to pull away , his grip tightened. Brown’s a rm constricted, and he “was choking [ Lam on i c a ] m ore.” Lam onica sai d a t f i r s t s h e could breathe “a little bit.” However, “all of a sudden it got t ighter and tighter and [ she] couldn’t breathe.” Lam onica testif ied t hat as Brown’s grip got tighter she “just knew [ she] was going to die.” The pair then collapsed in a heap on the f loor. ¶6. During the s truggle Lam onica’s phone r ang, but she could not answer i t. Lam onica convinced Brown to let h er text the caller to see what t he person wanted. Instead, Lam onica

2texted her m other and told her t o call 911. Unf ortunately , Lam onica’s m other never received the m essage. Lam onica was unsure whether or not s he lost consciousness during the attack. Eventually , Lam onica w as able to com f ort Brown by rubbing his head, ending the struggle.
Brown then told her to “tell t hem som ebody else did this” to her. He t hen lef t he house, and
Lam onica went inside the b athroom and called 911. The d ispatcher testif ied t hat during the call Lam onica’s voice was “really strained.” ¶7. Of f icer Daniel M athis responded to the call. W hen he arrived L am onica was cry ing and u pset. She com

plained t hat her head hurt and h er throat was sore. Of f i cer Mathis called f or an am bulance. Lam onica told the of f icer that Brown had choked her in the bedroom during a phy sical a ltercation. Of f icer Mathis n oticed and photographed extensive bruising

on both sides of L am onica’s neck and burst blood vessels in both e y es. T he bru i s i n g and burst vessels worsened over the f ollowing day s. ¶8. Lam onica provided Of f icer Mathis with a des c r i p t i o n o f B r o w n ’ s c a r . S everal

m inutes later, of

f icers pulled Brown over a nd arrested him

. Lam onica was transported via

am bulance t o Si n g i n g R iver Hospital, where s he w as exam ined by Dr. Steven Boskovick.
Dr. Boskovick t estif

ied that Lam onica’s injuries w ere consistent with som eone who had been strangled. ¶9. Lam onica later signed an af f idavit stating that the incident w as a m isunderstanding, and that she no longer wished to g o along with or be a part of any prosecution. She said that this af f idavit was “bef

ore [ she] understood what the consequences [ w ere] going to be.” ¶10. During trial, B rown testif i e d in his own def

ense. He swore he never put a hand on

3Lam onica. He stated that h e did not s trangle her and that they had never been in a phy sical

altercation. His theory was that perhaps a m an nam ed Marcus did it. Brown requested that the jury b e given a lesser-included of f ense i nstruction on sim

ple dom estic violence. The trial court denied Brown’s request.
DISCUSSION
I. The lesser-included offense instruction w as not w a rranted. ¶11. D u r i n g t r i a l , B r o wn requested a lesser-included of f ense instruc t i o n o n s i mp l e dom estic violence. W hether a def endant is e ntitled to a lesser-included of f ense i nstruction is a question of law. D owns v. S tate , 962 So. 2d 1255, 1 258 ( ¶10) ( Miss. 2 007). This Court reviews questions of law de novo. Id

. ¶12. A def

endant has an “absolute right” to a jury i nstruction f or a lesser-included of

f ense if the evidence supports such a n instruction. Id

. at 1 260 (¶22). F a i l ure to give such an ins truction when warranted is reversible error. I d

. Evidence supports an instruction of a lesser-included of

f ense if , when v iewed i n the light m ost f avorable to the pa r t y requesting the instruction, a reas o n a ble j uror could not exclude the lesser-included o f f ense bey ond a reasonable doubt. Taylor v. State , 577 So. 2d 3 81, 383 (¶6) (Miss. 1991). A lternatively , if the evidence can o nly s upport the principal charge, then the lesser-included of f ense should be ref used. Id . at (¶11). ¶13. The q

uestion i s t h e n whether Brown was e ntitled to the l esser-included instruction. Under the plain language of the law, he is n o t

. A p e r s on is guilty of aggravated dom estic violence when t hey strangle, or attem pt to strangle, a p erson they are in a current or f orm er

4dating relationship with. Miss. Code Ann. § 97-3-7(4)(a)(iii) (Rev. 2014). “ Strangle” is

def ined in the Code as “restrict[ ing] the f low of o xy gen or blood by intentionally

apply ing
pressure on the neck, throat or chest of another person by any m eans or to intentionally block the nose or m o uth of another person by any m eans.” Miss. Code Ann. § 9 7-3-7(9)(a) (Rev. 2014). ¶14. Brown’s proposed jury instruction provided t hat if the jury f ound Brown “attem

pted to cause or purposely , knowingly or recklessly caused bodily injury to Lam onica Bodie, or

. . . attem pted p h y s i c a l menace to put Lam o nica Bodie in f e ar of im m inent serious bodily harm ” then it should f

ind him guilty of Sim ple Dom estic Violence. 1 ¶15. Our Suprem e C ourt has held that “where an altercation begins with a sim ple assault but, as a m atter of law, escalates in a continuous sequence o f events to an aggravated assault, the sim p le assault is subsum ed i n t o t h e a g g ravated assault.” Downs , 9 62 So. 2d at 1262 (¶29). Further, our Suprem e Court has a lso “upheld the r e f u s a l of a trial court to give a lesser-included of

f ense instruction on sim

ple assault when the evidence clearly supported the crim e of aggravated assault.” Id . at (¶30). ¶16. If a reasonable juror could, viewing all of t h e e v i d e n ce in a light m ost f avorable to Brown, f ind him g uilty of sim

ple dom e stic violence be y ond a reasonable doubt, the instruction s hould have b een included. In weighing whether t o grant t he lesser-included instruction, the trial court stated:

1 M ississip p i C o d e A n n o tated § 9 7 -3 -7 (3 )(ii), th e su b sectio n f o r S im p le D o m estic V i o l e n c e , a l so p ro v id e s th at if th e d e f en d an t “n eg lig en tly cau s es b o d i ly in j u ry to an o th er w i th a d ead ly w e ap o n o r o th er m ean s lik ely to p ro d u ce d eath o r serio u s b o d ily h arm .” T h is w a s n o t in clu d ed o n B r o w n ’ s p ro p o sed lesser-in clu d e d o f f en se in stru c tio n . 5I have t r ied to look a t the evidence in the l ight m ost f avorable to the def

endant, how a jury could possibly f ind him guilty of the lesser-included of f ense. The testim ony is c learly that, f rom th e v ictim , that he choked her, if not to unconsciousness, a l m ost to unconsciousness. The def endant’s testim ony is that he never touched her. ¶17. S t r angulation autom atically f a lls under aggravated dom estic violence. In this c a s e there was e vidence Lam onica was strangled, m eaning section 9 7-3-7-(4)(a)(iii) was appropriate. There was no evidence of sim ple dom estic violence

. B rown only of f ered evidence that he did not do any thing. ¶18. Brown initiated the a ltercation by grabbing Lam onica f rom behind a n d pu t

t i n g h is arm around h er n eck. Lam onica testif ied that this lim ited her b reathing. Brown continued to tighten his grip t o the point where Lam onica could n ot b reathe. Brown’s actions f a ll within the statute’s def

inition of “strangle.” ¶19. Because a reasonable jury could not have f ound Brown guilty of s i mp l e d o me s tic violence, the trial court’s rejection of a lesser-included instruction was proper.
II. The indictm ent w as properly am ended. ¶20. On th e d a y t r i a l w a s s e t , B r o w n rejected the State’s p lea of f er. The State then requested another continuance and m oved to am end the indictm ent against Brown to change his status to a habitual of f ender pursuant to Mississippi C o de Annotated section 99-19-83 ( R e v . 2015). Brown f

i led a pro se m otion o bjecting t o the habitual of f ender am endm en t

. The m otion to am end was granted.

A. Sufficiency of Indictm ent ¶21. Brown argues t hat the State’s am end e d i n dictm ent charging him as a habitual of f ender

6w a s “f

a tally def ective” u nder Rule 14.1 of t he Mississippi Rules o f Crim inal Procedur e . W h ether an indictm ent is so f lawed as to requi r e r e v e r s a l i s a question of law. Brown v. State , 93 4 S o. 2d 1 039, 1043 (¶16) (Miss. Ct. A pp. 2006). Rule 14.1 states that prior convictions used f

or enhanced punishm ent m u st be identif

ied in the indictm ent including: the nam e of the crim e, the nam e o f t h e c o u rt i n which e ach such conviction occurred, and the cause num ber(s), the date(s) of conviction, and, if relevant, the length of time the accused was incarcerated for each such conviction.
MRCrP 14.1(b) (em

phasis added). Brown argues that the State’s f ailure t o specif

y the length of tim e he was actually

incarcerated f

o r his previous of

f enses invalidates the indictm ent. ¶22. Yet, the new crim i nal rules were not i n e f f e c t a t t h e t i m e o f Brown’s am ended indictm ent. The indictm ent was am ended in February 2 017, f our m o nths b ef

ore the Rules

went into ef

f ect. Instead, the applicable rule i s Rule 11.03 o f t he Unif orm Rules of Circuit and County

Court Practice which states:
In cases involving enhanced punishm ent f o r subsequent of

f enses under state statute:
T h e indictm ent m

ust include both t he p rincipal charge and a charge o f previous convictions. The indictm ent m ust allege with particularity t he n ature or description of the of

f ense constituting the previous convictions, t he state or f ederal jurisdiction of

any previous conviction, and the date of judgm ent. ¶23. At the tim e of the a m endm ent, t he State was not r equi r e d t o i n c l u d e t h e length of incarceration. Because the am ended indictm ent was s uf f icient and satisf

i ed a ll of the required elem ents at the tim e, Brown’s argum e nt is without m e rit.

B. Am endm ent of Indictm ent ¶24. B r o w n c o n t i n u e s h i s c h a l l e n g e t o t h e i n d ictm ent by arguing that the St a t e

7inappropriately am e nded i t t o i n c l ude a habitual-of f ender enhancem ent, a nd on the day scheduled f

or trial. The standard of review t o a n am endm ent to a n indictm e nt is de novo. Spears v. State , 942 So. 2d 772, 776 (¶5) (Miss. 2006). Brown alleges that n ot only was he prejudiced by the am endme n t , b ut also that t he State requested a c ontinuance f o r the sole purpose of

circum venting Rule 14.1’s thirty -day requirem ent. 2 ¶25. The State inf

orm e d the trial court that they i ntended to am end t he indictm ent on the

sam e d ay the State requested a continuance. However, B r o w n again cites the Mississippi Rules of Crim inal P rocedure, which were not y et in ef f e c t. The rule i n p lace at the t im e stated: All indictm ents m ay be am ended as to f orm but not as t o the substance of the of f ense c harged. Indictm ents m ay also be am ended to c harge the d ef endant as an habitual of

f ender or to elevate the level of t he of f ense where the of

f ense is one which is subject to enhanced punishm ent f or subsequent of

f enses and the am endm ent is to a ssert prior of f enses j u s t i f

y i n g s uch enhancem ent

. . . . Am endm ent shall be allowed only if the def endant is af

f o rd e d a f

air opportunity

to present a def

ense and is not unf

a irly surprised.
URCCC 7.09. “The rule does not s peak to the tim ing o f the am e n dm e n t , o n l y t h at the def endant m ust be ‘af f orded a f air opportunity to present a d ef e n s e ’ a n d ‘ not [ be] unf

airly surprised.’” Gowdy v. State , 56 S o. 3d 5 40, 545 (¶16) (Miss. 2011); URCCC 7.09. Because Rule 14.1 was not in ef

f ect at the tim e, we f

ind this claim

without m erit. ¶26. There was also n o p rejudice to Brown. “The test f or wh e t h e r a n a m endm ent to the indictm ent will prejudice the def e nse is whether the def

ense as it originally stood would be

2 M ississip p i R u le o f C rim in al P ro ced u re 1 4 .1 (b )(2 ) states th at th e S tate sh all “af ter in d ictm en t, an d at least th irty (3 0 ) d ay s b ef o re trial o r en try o f a p lea o f g u ilty , f ile w ith th e co u rt f o rm al n o tice o f su ch p rio r co n v ictio n (s).” 8equally a vailable a f ter t he am endm ent is m ade.” Shumaker v
. State , 956 So. 2d 1078, 1087 (¶25) (Miss. Ct. App. 2007). ¶27. The prior f

e lony convictions were u sed to i ncrease the sentence Brown f a c ed, and did

not a f f e ct the core of the charge of aggravated dom e stic violence. Th i s d i d not im pact Brown’s ability

to prepare a def

ense, especially

because trial was continued. ¶28. The core prejudice Brown alleges is that if he knew he would b e charged as a habitual of f ender, he could have altered h i s plea negotiations. However, Brown adm i ts that he continued to reject the State’s plea of f er even af ter the am endm ent. As a result, t here is no

error. III. Pro Se Issues

A. The sentence w a s not unfairly im posed. ¶29. Brown also f

iled a pro s e supplem ental brief i n addition to h is appellant’s brief

. He

a l leges t hat his sentence to lif e without parole pursuant to section 9 9-19-83 w a s unconstitutional. Specif

ically , he claim s the sentence was im posed upon him as punishm ent f or rejecting the State’s plea deal and seeking his Sixth Am endm ent right to a jury trial. ¶30. A trial c ourt cannot im pose a heavier sentence to punish a def e ndant f o r electing to
go to trial. Gillum v. State , 468 S o. 2d 856, 854 (Miss. 1985). As a habitual of f e nder, once the jury f ound him guilty , the trial court was required to levy the sen t e n c e . “[ H]owever, where t he record reveals without a doubt that the sentence im posed was based solely upon def endant’s prior conv i c t i o n s . . . [ the] trial c ourt’s sentencing discretion will not be disturbed.” Id

. Brown’s p revious convictions m ade h im applicable f or habitual-of

f ender

9status under the s tatute, and t he trial court p roperly se n t e nced him as such. W e f ind no evidence in t h e record that Brown was in any way “ punished f or rejecting a p lea deal.” Theref ore, we f i nd this argum ent is without m erit.
B. Brow n’s right to a speedy trial w as not violated. ¶31. Brown w as indicted f or aggravated d om estic violence o n July 7 , 2016. On August 7,
2016 a “W aiver Arraignm ent/Plea/Trial Setting/Schedule Order” was entered. On the sam e day Brown f

iled his “Motion f

or Discovery

/ Speedy Trial Dem and.” The f irst trial s etting was f or Novem ber 9, 2 016. On that d ay the def ense requested and w as granted a continuance so they could m e et with the victim

. By the next trial setting on February 7, 2017, the def ense had not y et m et with the victim

. The State requested a c ontinuance to provide them the opportunity to do so. At the next trial setting, Brown rejected the State’s plea of f er. On that

sam e day the State requested another continuance. ¶32. Brown’s counsel f iled a “Motion f

or M ental Evaluation” o n May 1, 2017. An order granting t he m otion was entered on May 5, 2017. An identical order g ranting the m otion was also entered on July 1 7, 2017. A m ental eval u ation was conducted on August 3, 2017. In between the “Order f

or Mental E valuation and Treatm ent” a nd t he e v aluation itself , the State

m ade two requests f

or continuances. One request was m ade o n May 9, 2017, and the other

on June 2, 2017. Both of these continuance s w e re requested to allow t im e f or Brown’s

m ental evaluation. Also while awaiting the m ental e valuation, Brown f iled a pro se “Motion to Dism iss f

or Failure to Provide a Fast and Speedy Trial” on June 27, 2017. ¶33. On the day bef

ore trial, which was scheduled f or August 29, 2017, Brown’s counsel

1 0w i thdrew his p ro se “ Motion to Dism iss f or Failure to Provide a Fast and Speedy Trial

. ” Trial com m enced on August 29, 2017. February 3, 2016 Arrest July 7, 2016 Indictm ent f or aggravated dom estic violence Septem ber 7, 2016 “ Wa i v e r A r r a i g n me n t / P l e a / T r i a l S e t t i n g / S c h e d u l e

Order ” entered; Brown f i led “ Motion f

or Discovery

/ Speedy Trial Dem and”
Novem ber 9, 2016 T r i al scheduled; Def ense r eques t e d a n d w a s g r a n t e d a continuance to m eet with the victim January 9, 2017 B r o w n ’ s p r o s e l e t t e r t o the circ u i t c l e r k r e q u e s t i n g a

speedy trial received February 7, 2017 Trial scheduled; State requested continuance so def ense could m eet with the victim February 15, 2017 Brown rejected t h e S t a t e ’s p lea of f er; State requested a continuance and f

iled “Motion to Am end as Habitual Of f ender Pursuant to MS Code Annotated § 99-19-83” March 30, 2017 Brown’s p ro se “ M o t i o n t o O b j e c t t o the Am e nding as Habitual Of

f ender Pursuant to Missi s s i ppi Code Annotated § 99-19-83” f

i led May 1, 2017 Brown’s “Motion f or Mental Evaluation” f

iled May 5, 2017 “Order f

or Mental Evaluation and Treatm ent” entered May 9, 2017 State requested c ontinuance p ending results of B r own’s

m e ntal evaluation
June 2, 2017 State requested another continuance f or Brown’s m ental evaluation June 27, 2017 Brown’s pro s e “Motion to Dism iss Charges f or Failure to Provide a Fast and Speedy Trial” entered

1 1July

17, 2017 “Order f or Mental Evaluation and Treatm ent” entered August 28, 2017 Brown’s counsel withdrew “Motion to D ism iss Charges

f or Failure to Provide a Fa s t a n d S peedy Trial”; “Order Am endi ng Indictm ent to Charge D ef endant as Habitual Of f ender Pursuant to M ississippi Code Annotated § 9 9- 19-83” entered August 29, 2017 Trial

1. Brow n’s statutory right to a speedy trial w as not violated. ¶34. “W hile the right to a speedy trial is protected both constitutionally a nd statutorily , any inquiry into a violation of the right to a speedy trial m u st necessarily begin with a n analy sis of a state statutory r ight, as the State has the right to c raf t laws so long as they are not in violation of the m i nim

um standards set by the f

e deral constitution.” S

humaker , 956 So. 2d

a t 1082 (¶3). Mississippi saf e guards the right t o a speedy trial by providing that “ [ u ] n l e s s good c ause be shown, a n d a c o n t i nuance duly granted by the court, all of f e nses f or which indictm ents are presented to the court shall be tried no later than t wo hundred seventy (270) day s af ter the accused has been arraigned.” Miss. Code Ann. § 99-17-1 (Rev. 2014). ¶35. Brown waived his arraignm ent on Septem b er 7, 2016. W hen a def

endant has waived arraignm ent, “that date is considered day one on t he speedy trial calendar f or purposes of def endant’s statutory speedy trial claim .” W alker v. State , 196 So. 3d 9 78, 982 (¶17) (Miss.
C t

. A p p . 2 0 15). B rown f iled his “Motion f

or Discovery

/Speedy Trial Dem and” t hat sam e day

. At the f

irst t rial setting, o n Novem ber 9 , 2016, Brown requested a c ontinuance, which tolled t he s peedy -trial clock. At the next trial s etting on February 7, 2017, the State requested

a co n t i n u a n ce to provide Brown the opportunity to m eet with the victim

. Because this

1 2continuance was f or Brown’s benef

it and he d id not object, t he clock was again tolled. At the next trial setting on F ebruary 15, 2017, t h e State requested another continuance. No explanation was given f

or the r equest. Theref

ore, this continuance weighs against the State. ¶36. The def

ense f iled a m otion f

or a m ental evaluation on May 1, 2017. The trial court granted the m otion. The evaluation was conducted on August 3, 2017. The tim e between the m otion and the evaluation weigh against Brown. Poole v. State , 8 26 So. 2d 1222, 1228 (¶16) (Miss. 2002) ( “Motions m ade and granted on behalf of the def ense are charged against them .”). Brown then went to trial on August 29, 2017. ¶37. One hundred twenty -f our day s elapsed b etween Brown’s indictm ent and t he f irst trial setting. An additional seventy

- f ive d a y s t icked by between the State’s unexplained continuance request and B rown’s request f o r a m ental evaluation. Twenty -seven m ore day s

wen t by between Brown’s com petency evaluation a nd his t rial on August 29, 2017. All together the delay s a ttributable to the State total 226 day s. This tim e period is within the 270 day s the State is statutorily m andated to bring a def endant to trial. Theref

ore, Brown’s statutory right to a speedy

trial was not violated.
2. Brow n’s constitutional right to a speedy trial w as not violated. ¶38. Def

endants are also guaranteed the right to a s p e e d y t r i a l by the United States and Mississippi Constitutions. U.S. Const. Am end. VI; Miss. Const. art. 3, § 26. ¶39. A balancing t est is used to d eterm ine w hether a def endant’s right to a speedy trial has been violated. Barker v. W ingo , 407 U.S. 514, 530 (1972). This t est i nvolves assi g n i n g a weight to, and balancing, the f ollowing f

a ctors: ( a) length o f delay ; ( b) reason f o r delay ; (c)

1 3def

endant’s assertion of his or her right to a speedy trial; a nd (d) prejudice to the def endant. Id . These f

actors are viewed in totality and no single f

actor alone is dispositive. Simmons v. State , 678 So. 2d 683, 686 (¶13) (Miss. 1996).

a. Length of Delay ¶40. The l ength of delay serves a b i f u rcated p urpose as i t n ot only establishes prejudice, but it is also used as a “triggering m echanism ” to establish if a s peedy trial analy s is is proper. Brengettcy v. S

tate , 794 So. 2d 987, 992 (¶11) ( Miss. 2001) (explaining that “ where the delay is not presum

p tively prejudicial, there is no need to review the rem aining Barker f actors”). ¶41. An eight-m onth d elay is presu mp t i v e l y prejudicial. Smith v. State , 5 50 So. 2d 406,
408 (¶15) (Miss. 1 989). In calculating the length of delay f or a constitutional speedy trial

c l a i m, t he clock begins t o run once a person has been accused. Id

. at ( ¶12). Th i s c a n b e when there is a f

o rm al indictm ent or inf

orm ation, or when a person has been arrested. Id

. ¶42. Brown was arrested on February 3, 2016. His trial com m e n ced A u g u s t 29, 2017. This d elay of 573 day s is presum ptively p r ejudicial; a f

act conceded to b y t he State. The delay suf f iciently triggers an analy sis of

the rem a ining Barker

f a ctors. b. Reason for Delay ¶43. A def

endant has n o d u t y t o b ring h im self t o court, as t his is the duty of the State.
Simmons , 678 So. 2d at 687 (¶18). Instead, the burden to prove a justif iable reason f

or the delay also f a lls on the State. S

mith , 550 So. 2d at 408 (¶17). ¶44. Dif

f erent degrees of w eight are assigned to the dif f ering reasons f

or delay

. Perry v. State , 2 33 So. 3d 7 50, 756 (¶11) (Miss. 2 017). If t he State acted strategically , with bad f aith,

1 4or has declined to show good cause f or the delay , t his f

actor is weighe d in f

avor of the def endant. Id

. a t 758 (¶15). O n t h e other hand, delay s attributable to the d ef endant are

c o unted against him and the speedy -trial clock is tolled. Id

. Lastly , while negligen c e o r overcrowded courts are not acceptable, they are also not weighed as heavily against the State as an intentional delay

. Perry , 233 So. 3d at 756 (¶11) (citing Barker , 407 U.S. at 531). ¶45. Brown’s trial was initi a l l y s e t f o r N o v e mb er 9, 2016. O n the day o f t rial Brown requested a continuance so he could m eet with the victim

. T he c o ntinuance was granted and the trial w as reset f

or the next term

. At the second trial d a t e t h e S tate requested another continuance because Brown had not y et m et with the victim

. A week late r t h e S t a t e requested and was granted a m ental evalu a t i o n . W hile awaiting com pletion of the m ental evaluation, the case was continued twice m ore. ¶46. Because B rown requested the f irst conti n u a n c e , t h e tim e between t hat continuance request and t he next trial date (ninety day s) tolled the speedy -trial c a lculation. T he rem ainder of the c ontinuances were requested by the State. N orm ally , these continuances would weigh against the S ta t e . H o wever, t hese continuances were requested so that Brown could m eet with the victim and have a com petency evaluation per his request—they w ere f or his own benef it. Further, our Suprem e Court has held that “a delay attributable t o obtaining a m ental evaluation requested by t he def ense is not counted against t he S tate.” Id

. a t 7 5 7 (¶15). In

our speedy -trial c alculation we w eigh the f ollowing in Brown’s f

avor: the tim e f

r om Brown’s

arrest to the f

irst trial setting, the unexplai n e d c ontinuance by the State, and the dates between B rown’s m ental evaluation and his f inal trial. Theref

ore, 383 of the 5 73 day s weigh

1 5against the State and in Brown’s f avor.

c. Assertion of Right ¶47. A def

endant’s assertion o f his right to a speedy trial weighs in his f avo r . Id. at 758 (¶17). Conversely , a d ef

endant’s f ailure to assert his right will weigh against him

. Simmons , 675 So. 2d at 687 (¶19) (The f a ilure to f ile a m otion to dism i ss only slightly f avors the State because the “prim ary

burden is on the State.”). ¶48. Brown f

iled a “Motion f

or Discovery

/Speedy Trial Dem and” on S eptem ber 7, 2016.
He t hen f iled a pro se “Motion to D ism iss f or Failure to Provide a Fast and Speedy Trial” on June 27, 2017. In between these m otions Brown f iled a “Motion f

or Mental Evaluat i on.” “W hen a def

endant m oves f

or a speedy trial b ut sim

ultaneously requests a continuance, the def endant’s speedy -trial request cannot be viewed as a request f or be tried prom

ptly .” Perry , 233 So. 3d at 758 (¶17). Th e r e f o re, even though Brown had dem anded a speedy trial, his request f or a m ental evaluation did not “m anif est a desire to be t ried prom p tly .” Id

. Further, counsel f or Brown w ithdrew h is “ Motion to Dism iss” on August 27, 2017. Theref ore, this f actor weighs in f

avor o f the State. W

hitaker v. State , 757 So. 2d 1060, 1063 (¶9) (Miss. Ct. App. 2000) (explaining that t he d ef endant’s w ithdrawal of d em ands f o r s p e e d y trial and
agreem ent of

continuances af

ter asserting said m o tions benef itted the State).
d. Prejudice ¶49. The def

endant bears the burden of persuasion under the prejudice prong of the Barker analy sis f or determ ining whether the d ef endant was denied t h e right t o a speedy trial.
J o h n s o n v
. State , 68 S o. 3d 1239, 1245 (¶16) (Miss. 2011). The accused does not ha v e t o

1 6m ake an af

f irm ative dem onstration of prejudice to prove that his right to a speedy trial has been violated. Id

. at 1 244 ( ¶15). “ However, without a showing of any prejudice, this prong of the balancing test c annot w e i g h in f avor of the def

endant.” Id

. Prejudice m ay be dem onstrated by : (1) pretrial incarceration; (2) a n xiety and concern o f t h e a c c u sed; or (3) im p airm ent of

the def ense. Perry , 233 So. 3d at 759 (¶19). ¶50. Brown alleges that his def ense was im

paired “due to the f

act that the a ctual perpetrator of this crim e , Marcus, had d isappeared.” There i s no evidence i n the record that Brown tried

to s ubpoena Mar c u s or m ade any attem pt a t all to locate h im

. W e f ind this claim without

m erit. ¶51. Brown also a lleges t hat his def e nse was im

p aired because Lam onica originally signed

an af f idavit attesting that the c harges were a m isunderstanding, which she later recanted. For speedy trial p urposes, changes in a witness’s testim ony are not necessarily due to the passage of tim e and do not, by t hem selves, constitute proof of prejudice due to delay

. Miller v. State , 956 So. 2d 221, 225 n.10 (Miss. 2007). ¶52. Brown f

ailed to dem onstrate he s uf f ered prejudice. W ithout a s howing of prejudice,
Brown cannot m ake out a claim of a d ue proc ess violation. Simmons , 678 So. 2d at 687 (¶20). ¶53. The o nly Barker f actor t hat weighs in Brown’s f a v or is t h e l e n g th of delay which triggered the Barker analy sis. All of the other f actors weigh against Brown and in f avor of the State. Based upon a balance of the f our Barker f

actors, w e h old t hat Brown was not deprived of his constitutional right to a speedy trial.

1 7CONCLUSION

¶54. For the above reasons, we af f irm the conviction. BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBRO O K S, T INDELL AND C. WILSON, JJ., C O N C U R . McDONALD, J., CONCURS IN PART AND DISSENTS IN PART W I T HOUT S EPA R ATE W RITTEN OPINION. CARLTON, P.J., DISSENTS WITH S EPARATE WRITTEN OPINION, JOINED I N PART BY McDONALD, J. LAWRENCE, J., NOT PARTICIPATING. CARLTON, P.J., DISSENTING: ¶55. I respectf

ully dissent f

rom the m ajority ’s o pinion af f irm ing the trial court’s judgm ent. Upon review, I f

ind that there was no evidence of any deadly weapon used and that, based

on t he e vidence p resented, the jury could have f ound Brown guilty o f s im p le dom estic violence. I theref

ore f ind that the trial court erred in f ailing to give Brown’s requested lesserincluded-of

f ense j ury instruction f

or sim p l e d o m e s t i c v i o lence. Accordingly , I w o uld reverse Brown’s conviction and rem and this case f or a new trial. ¶56. This Court em

ploy s a de n ovo review o f a def endant’s claim that he was entitled to

a lesser-included-of

f ense instru c t i o n . Sharkey v. State , 265 So. 3d 151, 157 (¶24) (Miss. 2019). The su prem e court has explained that in order “[ t]o b e e ntitled to a lesser-included-of

f ense instruction, a def

endant m ust point to som e evidence in the record f rom which a jury reasonably could f i nd him n ot g uilty of t he crim e with which he was charged and at the sam e tim e f ind him guilty o f a lesser-included of f ense.” Gilmore v. State , 119 So. 3d 278, 286 (¶13) (Miss. 2013) (internal quotation m ark om itted). ¶57. At trial, Lam onica t estif ied about the severity and nature of the injuries she suf f ered.
Lam onica stated that Brown grabbed her f rom behind and they f

ought a l ittle bit, then they

1 8f

ell to the f

l o o r . A c c ording to Lam onica, once she and Brown were on the f loor, Brown tightened his grip around her neck and choked h er. Lam onica testif ied that B rown’s grip was “m uch tighter” once they f

ell to th e f

loor “ because I was f

ighting with him .” W hen asked by the State if she p assed o ut, Lam onica repli e d : “ I d o n ’ t k n o w . . . . I can’t rem em ber.” However, Detective Christopher Brown testif ied that when he interviewed L am onica, she told him that Brown’s grip loosen e d w h e n she and Brown f ell to the f

loor, rather than tightened. Dr. S teven Boskovich, the em ergency - room phy sician w ho t r eated L am onica, testif i ed t hat Lam onica reported to him that Brown “grabbed her f rom behind and choked her brief ly , only f or a f ew s econds. He did have h is f orearm around her neck but she does not

rem em b er any pressure to the back o f her n e c k

. S h e d i d n ot lose consciousness.” Brown testif i ed at trial that he never laid a hand on Lam onica. ¶58. The transcript r ef lects that at the j ur y - i n s t r u c t i o n c o n f e r e n c e , Brown requested instruction D -11 on the lesser-included of f e nse o f sim

ple dom e stic violence. Instruction D11 stated that if t he j ury f

ailed t o f ind Brown guilty of a ggravated dom estic violence, it could determ ine whether Brown was guilty of sim p le dom estic violence by considering whether the evidence proved bey ond a reasonable doubt that
1. On or about February 3, 2016, in Jackson County , Mississippi;
2. Jam es Devon Brown attem pted to c a

use or purposel y , k

nowingly or recklessly caused bodily

injury to Lam onica Bodie, or
3. Jam es D evon Brown attem pt e d b y phy sical m enace to put Lam onica Bodie in f

ear of im m inent serious bodily harm ; 4. W hen at t he t im e , he, the said Jam es Brown was i n a dating relationship with Lam onica Bodie[ .]

1 9The State argued t hat instruction D-11 should be denied because no “evidence of any thing other than aggravated assault” had been presented to the jury

. The State asserted that “[ t]he def ense in t h i s c a s e is t hat t he d ef endant didn' t do it. So,

. . . there’s been no evidence of sim ple assault.” Brown’s attorney argued that Brown was entitled t o t he instruction “based

on M s. B odie’s testim o ny .” B rown’s attorney also argued that the S tate has n ot “proven strangulation. That there was an a rgum ent, that m ay be she f elt like he was threatening her in som e way , but I think the jury is entitled to see the lesser included instruction.” The record ref lects that the f

inding o f aggravated dom estic assaul t v e r s u s s i m ple dom estic assault largely rests upon the jury ’s determ ination of the credibility

of Lam o nica. ¶59. A f t e r an overnight recess, the trial c ourt ultim atel y r e f u s e d i n s t r

u c t i o n D

- 1 1 , explaining:
I have t r ied to look at the evidence in the light m ost f avorable to the def

endant, how a jury

could possibly

f ind him guilty

of the lesser included of

f ense. The tes t im o ny is c learly that, f rom the v ictim , that he choked her, if not to unconsciousness, alm ost to unconsciousness. The def endant’s testim ony i s he never t o uched her. So I don’t see w here there’s a n y e v idence at all in the record of a sim ple assault, so the instruction is ref used. ¶60. Mississippi Code Annotated section 97-3-7(3)(a)(i) and (iii) provide that a person is guilty of sim ple dom estic violence in the f ollowing circum stances: (a) W hen the offense is committed against a current o r f orm er spouse of the def e ndant or a c hild of that person, a person l iving as a spouse or w ho f orm erly lived as a s pouse with the def endant or a child of that person, a parent, grandparent, child, grandchild or som eone s im ilarly s i tuated to t he def

e ndant, a person who has a current or for m e r d a t i ng relationship with the defendant , or a person with whom the def endant has had a biological or leg a lly adopted child, a person i s guilty of sim ple dom estic violence who:

2 0(i) Attem pts to cause or purposely , knowingly or recklessly causes bodily

injury to another;

. . . . (iii) Attem

pts by phy sical m enace to put another in f ear of im m inent serious bodily

harm

. Miss. Code Ann. § 97-3-7(3) (Rev. 2014) (em phasis a dded). On appeal, Brown asserts that

a reasonable juror could h ave determ ined t hat, c ontrary t o Brown’s testim ony , a p h y s i c a l altercation did occur and Brown touched Lam o nica; that B rown caused or attem pted to cause bodily injury during the altercation by grabbing Lam onica or otherwise during their f ight; but that Brown did not intentionally strangle Lam onica as she claim ed. ¶61. Although Brown testif i ed a t trial that no altercation occurred, the suprem e court has held t hat “a crim inal def endant has a right to assert alternative theories of def e nse, even inconsistent alternative theories.” Brown v. State , 39 S o. 3d 890, 899 ( ¶34 ) (Miss. 2010) (quoting Reddix v. State , 731 So. 2d 591, 593 (¶9) (Miss. 1 999)). The suprem e court f urther stated that it is

an absolute r ight o f an accused to have every lawf ul def e nse he asserts, even though based u

pon m eager evidence a n d highly u nlikely , to be subm itted a s a f actual issue to b e determ ined by the jury under proper instruction of the court. This Court will never perm it an accused to be denied this f undam e ntal right. Chinn v. State , 958 So. 2d 1 223, 1225 (¶13) (Miss. 2007) (quoting O’Bryant v. S tate , 530 So.
2 d 1 2 9, 133 (Miss. 1988)). Additionally , “ where there is serious doubt as to w hether a requested instruction should b e g iven, doubt should ordinaril y be resolved in f avor of the accused.” Lenard v. State , 552 So. 2d 93, 96 (Miss. 1 989). W e f urther recognize that “[ t]he jury m ust weigh witness testim ony and determ ine its credibility .” Osborne v
. State , 54 So.

2 13d 841, 846 (¶21) (Miss. 2011).

¶62. Af ter r e viewing the t estim ony , I f ind that t her e w a s s u f

f i cient e vidence at trial to support Brown’s lesser-included-of f ense j ury instruction. S

ee Davis v. State , 909 So. 2d 749, 754 (¶19) (Miss. Ct. App. 2 005) (f inding evidentiary support in the record f or a sim ple

assau l t i n struction w here no deadly weapon was of f ered into e vidence and the def endant testif i ed that the victim “was cut by a broken baseball trophy while they f ought, rather than purposef u lly cut b y t he def

endant with a razor”); s e e g e n e r ally A nderson v. State , 102 So. 3d 304, 310 (¶21) (Miss. C t. App. 2 0 1 2 ) (f inding suf

f icient evidence presented at trial to convict the def

endant o f dom e stic violence where testim ony showed that the def

endant bit the victim ). I would theref ore reverse Brown’s conviction a nd rem and t his case f or a new trial. McDONALD, J., JOINS THIS OPINION IN PART.

2 2