IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01547-COA JAMES KWAME TOPPS A/K/A JAMES TOPPS A/K/A JAMES K. TOPPS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/13/2016 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 09/26/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. FAIR, J., FOR THE COURT: ¶1. Jam es Topps was convi c t e d o f f e l o n y f l e e i n g a l a w e n f

o r c em ent of

f icer and aggravated assault on a law e nf orcem e nt of

f icer. He was sentenced to serve concurrent lif e
sentences on each c ount as a h a b i t u a l o f f ender. Topps appeals, claim ing that t here was insuf f icient evidence to sustain eac h v e r d i c t and that each verdict was against the overwhelm ing weight of

the evidence. Finding no error, we af f irm

. FACTS ¶2. On August 16, 2015, Of f i cer Devarius Sm ith f

rom the W i nona Polic e D e p a r tm entresponded to a dom estic-disturbance c all f rom Topps. W hen O f

f icer S m ith arrived, he f

irst talked to To p p s ’ s wif

e, Gloria. Topps talked over Gloria as she was try ing to t ell Of f icer Sm ith her account of what happened. According to Of f icer Sm ith, he asked Topps to quiet down and Topps responded, “ F*** y ou and the W inona Police Departm ent. If y ’all put y our hands on m e, I’m

going to kill y ’all.” ¶3. Of f icer Sm ith determ ined there was a dom estic disturbance, so he c a lled Lieutenant Dan Herrod f

o r backup. Topps lef

t and walked down the street. W hen Lieutenant Herrod arrived, he and Of

f icer Sm ith proceeded to get in their vehicles to f i n d Topps. They saw Topps get into his tan Ford E xpedition, put the car in reverse, turn the car around, and speed
away . Both of

f i cers testif

i ed that Topps drove the car directly through an area where over twenty kids were p lay ing basketball. At trial, Topps d enied that t here were any kids around. ¶4. Topps sped past the of f i cers and ran a stop sign. At that point, Of f icer Sm ith got into his p a t r o l car, activated his blue lights a nd sirens, and pursued Topps. During the pursuit, Of f icer Sm ith saw Topps r

un several m ore stop signs. He f ollowed closely behind Topps, reaching speeds of alm ost eighty m iles per hour. As they reached construction on a bridge, Topps drove through a f

ence and into a pasture. Topps’s car eventually cam e to a stop, and Of f ic e r S mi t h e xited the patrol car with his weapon drawn. S m ith testif ied that, as he approached Topps, Topps put his vehicle in reverse and backed up w ithin a bout f ive f eet of him

. He also testif

ied that he had to jum

p to the lef

t to a void getting hit. Of

f icer Sm ith f

ired three r o u n d s a t T o p ps’s back tire in an attem pt t o disable t he vehicle. His attem pt was

2unsuccessf

ul, and Topps d

r ove away . W hen they crossed the county l ine, Lieutenant Herrod ordered Sm ith to term inate the pursuit, since he was alone and unf am i liar with the area.
DISCUSSION 1. Sufficiency of the Evidence ¶5. W h en reviewing the s uf f icie n c y o f the evidence, “the r elevant question is whether, af ter viewing t he evidence in the light m o st f avorable to the prosec u t i on, any rational trier of f act could have f

ound the essential e lem ents of the crim e bey ond a reasonable doubt.” Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005). W here the f a c ts and i nf

erences “point in f avor of the def

e ndant on any elem e nt of the of f ense with suf

f icient f orce that r easonable [ jurors] could not have f

ound bey ond a reasonable doubt that the d ef endant w as guilty ,” the
proper rem edy is to reverse and render. Id

. However, if “reasonable f air-m inded [

jurors] in the exercise of im

partial judgm ent m ight reach d if f erent conclusions on every elem ent of the of f ense,” the evidence will be deem ed to have been suf f icient. Id

. ¶6. Topps f

irst challenges t he suf

f i ciency of evidence f

or C ount I – f

elony f leeing a law enf orcem ent of

f icer. Mississippi Code Annotated section 97-9-72 (Rev. 2014) provides: (1) The driver of a m o tor vehicle w ho is given a visible or audible signal by a law enf o r cem e nt of

f icer b y hand, voice, em ergency light or siren d irecting the driver to bring his m otor vehicle to a stop when such s ignal is given b y a law enf orcem ent o f

f icer acting in the l awf

ul perf o rm a nce of duty who has a reasonable suspicion to be l i e v e that t he driver in q uestion h as com m itted a crim e, a nd w h o w illf

ully f ails to o bey such direction shall be guilty o f a m isdem e anor, and upon conviction shall be punished by a f ine not to exceed One T housand D ollars ($1,000.00) or im prisoned in the c o unty jail f or a term not to exceed six (6) m onths, or both.

3(2) Any p erson who is guilty of v iolating subsection ( 1) of this s ection by

operating a m otor vehicle i n such a m anner as to indicate a reckless or willf ul disregard f

or the saf ety o f persons or p roperty , or w ho so o p erates a m otor vehicle i n a m anner m anif esting extrem e i ndif

f erence to the val u e o f h u m an lif e, shall be guilty

of a f e lony [ .] ¶7. “To secure a conviction f or f leeing a law of

f icer in a mo t o r v e h i c le, the State m ust
prove that the of

f icer’s attem

pted traf f ic stop was legal; that is, that the attem pted traf f ic stop

was the product of the of

f icer’s r easonable suspicion.” Bacon v
. State , 950 So. 2d 250, 254 (¶16) (Miss. Ct. A p p . 2 0 0 7). “The State need not prove the def endant’s guilt of an underly ing crim e.” Id

. ¶8. Topps argues that Of f icer S m ith did not have reasonable suspicion that he com m itted

a crim e, rendering the evidence insuf f icient f or Count I. R easonable suspicion can arise

s e v e r al w ay s, including f rom an of f icer’s personal observations. Cooper v. State , 1 4 5 S o . 3d 1164, 1168 (¶11) (Miss. 201 4 ) ( c i t i n g F lorida v. J.L. , 529 U.S. 266, 270-71 (2000)). Here, Of f icer Sm ith testif

ied that, based on h is observations, he had reasonable suspicion of a crim e of dom e stic violence. F urther, Of f icer Sm ith and Lieutenant Herrod testif ied that, bef ore the pursuit began, they saw Topps run a stop sign, which is also a crim e. See Miss. Code Ann. § 63-3-309 (Rev. 2013). Af ter review, we f

ind there was suf

f i cient evidence to support Topps’s conviction of f elony f leeing a law enf

orcem ent of

f icer. ¶9. Topps next challenges the suf f iciency o f evidence f

or Count II – aggravated assault

on a law enf

o rcem ent of

f i cer. Mississippi Code Annotated s e ction 97-3-7(2)(a) (Rev. 2014) provides:

4A person is g u i l t y of aggravated assault if he ( i) attem pts to cause serious bodily injury to a nother, o r causes such injury purposely , knowingly or recklessly under circum stances m anif esting extrem e indif

f erence t o the value of hum an lif

e; [ or] (ii) attem

pts to c a u s e or purposely or knowingly causes bodily injury t o another with a deadly weapon or other m eans l ikely to produce death or serious bodily

harm

. . . . ¶10. “An attem

pt to com m it a crim e consists of three elem ents: (1) a n intent to com m it a particular crim e, (2) a direct inef f ectual a ct done toward i ts c om m ission, a nd (3) the f ailure

to consum m ate its com m ission.” Craig v. S tate , 201 S o. 3d 1108, 1111 (¶9) ( Miss. Ct. App. 2016) (quoting Brooks v. State , 18 So. 3d 8 3 3 , 8 4 1 ( ¶33) ( Miss. 2 009)). O f f icer Sm ith testif i ed that, during his investigation, Topps said, “ F*** y ou and the W inona P o l i ce D e p a rtm ent. If y ’all put y our hands on m e, I’m going t o k ill y ’all.” H e also testif ied that,

as he approached Topps’s vehicle af t er the pursuit, Topps tried to hit him with his vehicle. Specif ically , he said that T opps “put the v ehicle in re v e r s e a n d b acked [ it] up to approxim a tely f

ive f e et away f rom m e. I had to jum

p to the lef

t[ ,] and I f

i red three rounds

at his back lef

t tire to try and d i sable the vehicle.” Viewing the evidence in the l i g h t m ost f avorable to the State, we f ind that a rational trier of

f act could have f

ound Topps guilty of aggravated assault on a law enf orcem ent of

f icer.
2. Weight of the Evidence ¶11. Topps n e x t a r g ues that b oth verdicts were against the overwhelm i ng weight of the evidence. “W hen reviewing a denial of a m o tion f o r [ a ] new trial based on an objection to the weight of the evidence, we will only disturb a ve r d i c t w h e n it is s o contrary to the overwhelm ing w eight of the evidence that to allow it t o s tand would sanction an
5unconscionable injustice.” B ush , 895 So. 2d a t 844 (¶18). The evidence is weighed in the light m ost f

avorable to the verdict. Id

. ¶12. A n e w t r i a l b a s e d o n the weight o f the e v i d e n c e s h o u l d b e g r a n t e d “ o n l y i n exceptional cases in w hich the evidence preponderates heavily against the verdict.” Bush , 895 So. 2d at 844 (¶18) (citation om itted). A nd because the trial judge had a f irsthand view of the trial, “reversal is warranted only if t he trial court abused i ts d iscretion in d eny ing [ the]

m otion f or a new trial.” W

aits v. State , 119 So. 3d 1024, 1028 (¶13) (Miss. 2013). ¶13. Topps’s a rgum ent on Count I largely rehashes h is prior argum ents above. O n Count II, Topps’s argum e nt f

ocuses on Of

f icer Sm ith’s testim ony . As already s tated, Of f icer Sm ith testif i ed that Topps threatened to kill him and that Topps tried to hit him with his car. In his testim o ny , Topps denied both of those allegations. “Conf licting testim ony does n ot evince overwhelm ing evidence; where the verdict turns on the credibility o f conf licting testim ony and t h e c r e d i b i l i t y of the witnesses, it is the jury ’s duty t o r esolve the conf lict.” Brown v. State , 995 So. 2d 698, 702 (¶13) (Miss. 2008) (citation and quotation om itted). ¶14. A f t e r r e v i ew, we f

ind neither verdict is against t he overwhelm ing we i g h t o f t h e evidence. ¶15. AFFIRMED. LEE, C .J., I RVING AND GRIFF I S , P.JJ., B ARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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