IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 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 W HICH APPEALED: NEW TON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: P. SHAW N 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 TW ENTY YEARS, AND COUNT II, ATTEMPTED AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCED TO FIFTEEN YEARS, W ITH 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 Cal v i n H u n t e r o f t w o c o u n t s o f a t t e mp t e d aggravated a ssault on a law enf orcem ent of

f icer. See Miss. Code Ann. § 97-3-7(2) (Supp.2 0 13). Hunter n ow appeals and argues that his convictions are a gainst the overwhelm i n g

weight of the evidence. Finding no error, we af f irm

. FACTS ¶2. A grand jury indicted Hunter f or two counts of attem

pted aggravated assault on a law enf orcem ent of

f icer. See Miss. Code A nn. § 97-3-7(2). E a c h c ount of the indictm ent charged that Hunter “did willf ully , u nlawf

ully , f e loniousl y , purposely [ ,] and knowingly

attem pt to cause b odily injury ” to a law enf o rcem ent of

f icer while the of

f icer w as acting within the scope of his duties. The indictm ent f urther charged that Hunter a ttem pted to injure the of f icers “by reaching f

or a deadly weapon, to-wit: a knif e , said knif

e being m e ans likely to produce death or serious bodily harm [ .]” ¶3. On August 27, 2013, Hunter got into an argum ent w ith Thelm a Hunt, with whom he

was living at the tim e. Hunt testif ied that Hunter returned hom e af ter drinking, and the two began to argue. Hunt asked Hunter to leave her h om e, and w h e n H unter ref used, Hunt threatened to c all the police. Hunt f urther testif

ied that Hunter replied that h e would kill her and the police if

she m ade the call. Despite Hunter’s threats, Hunt called the authorities. ¶4. W h ile on patrol f

or the Union P olice Departm ent, Of f icer David Boatner received a dispatch call instructing him to r espond to the disturbance a t Hunt’s hom e. Of f icer Boatner arrived at Hunt’s h om e at the sam e tim e a s O f f icer Jacob Moore. The of f icers both testif

ied that they were wearing their police unif orm s when they responded to the call. ¶5. Hunt m et the two of f icers at the f

ront door and invited them inside her hom e. Hunt

2explained that she wished f or Hunter to leave because he was disturbing t h e p e a c e . Upon hearing loud noises a n d c u rsing com ing f rom the b ack of Hunt’s hom e, the of f icers investigated and encountered Hunter standing in the hallway

. ¶6. Of f icer Boatner testif

ied that Hunter grew irate when he saw the of f icers and began cursing. O f

f icer B oatner f

urther t estif

ied that, when he explained that Hunt wished Hunter

to leave her hom e, H unter responded, “I’m not going any where. I’ll kill all y ’all son[ s] of [ ] b——.” In addition to this statem ent, Of f icer Moore t estif

ied t hat H unter said, “[ I]f y ou

com e down here, there’s going to be a killing.” ¶7. According to Of

f icer Boatner’s testim o ny , he told H unter that he, Hunter, was under arrest, and then Of

f icer Boatner took a step t oward Hunter. The of f i cers testif

i ed that Hunter

t h e n lunged into the bedroom , l anded on his b ack on the bed, and slid his right han d underneath a pillow. Thinking that Hunter was reaching f or a weapon, Of

f i cer Boatner drew his gun, a nd Of

f icer M oore t ased Hunter. T he two of f icers then w restled with H unter, and Of f icer M oore was f

orced to tase Hunter a second tim e . The of f icers eventually s ucceeded
in securing Hunter’s hands with handcuf f s. W hen Of

f icer Boatner looked under the righthand p illow where H u nter had slid his hand, he f o und nothing. However, when Of f icer Boatner searched under the next pillow, on the lef t side of the bed, he f

ound an open knif

e with its blade exposed. ¶8. Hunt testif

ied at trial that the k

nif e belonged t o her and that she kept it f or protection. Although Of

f icer Boatner f

o und the knif

e in an open position under the pillow on the bed,

3Hunt testif

ied that s he did not have the kn i f e o u t at any p oint on the night of August 27,
2013. Hunt f

urther stated that she never saw the knif e in Hunter’s possession that evening

a n d t h a t s he n ever saw him try to stab either of the of f icers with the knif

e. Accordi n g t o Hunt’s testim ony , she usually kept the knif e cl o sed and in a bowl that sat on a shelf at the head of her bed. As f

ar as Hunt knew, the knif e was still in the bowl when s h e c a l l e d the police. ¶9. Hunter also t estif

ied at trial. He s tated t hat he was asleep w hen Hunt called the police

a n d t h a t , w hen he woke u p, the of f icers were already inside the house. Hunter f urthe r testif i ed that he could tell the o f f icers were about to arrest him so he began to search f or his cigarettes. According to Hunter’s testim ony , he n ever cursed at the of f icers or threatened to kill them

. Hunter t estif

ied that he was m e rely reaching f or his cigarettes w hen Of

f icer Moore tased him , and he denied try ing to reach f or the knif

e Hunt kept near the bed. ¶10. Af ter considering the evidenc e a n d testim ony , the jury f ound H unter guilty on both

counts of attem

pted aggravated assault on a law e n f orcem ent o f

f icer. For Count I, the circuit

court sentenced Hunter to twenty y ears, and f or C ount II, to a consecutive term of f if teen
y ears, with both sentences to be served in the custody of the Mississippi Departm ent of Corrections. Hunter subsequently f iled an unsuccessf

ul m otion f

or a new trial. Following the circuit court’s d e nial of his m otion f or a new trial, Hunter appealed his convictions to this
Court.
STANDARD OF REVIEW

4¶11. This Court r e views the circuit court’s denial of a m otion f or a n ew trial f

or abuse of discretion. Griffith v. State , 123 So. 3d 472, 475 (¶15) ( Miss. Ct. App. 2013). “ Wh e n reviewing a denial o f a m o tion f or a n e w t r i a l b a s ed o n an objection t o t he weight of the evidence, [ t he a

ppellate court] will only d isturb a verdict w hen i t is s o contrary to the overwhelm ing w eight of the evidence t h a t to allow it to stand would sanction an unconscionable injustice.” B ush v. State , 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citation

om itted). This Court also w eighs the evidence in the light m ost f avorable to the verdict. Id.
DISCUSSION ¶12. On appeal to this Court, Hunter argues t h a t h i s t w o c o n v i c t i o n s f or attem pted aggravated a ssault on a law enf o rcem ent of

f i cer are against the overwhelm i ng w eight of the evidence. Hunter asserts that his actions of jum ping backward onto the bed and sliding his hand u nder a pillow, which h ad nothing underneath it, f a il to am o unt t o a n attem

pt to com m it aggravated a s s a u l t

. He theref ore asks this Court t o reverse his convictions. The State, however, contends that Hunter not only announced his intent t o injure the of f i cers but also sought to f

ulf ill h is intent by the overt acts of lunging on the bed and attem pting to reach Hunt’s knif

e . ¶13. Section 97-3-7(2)(a) e stablishes that “[ a] person is guilty of aggravated assault if he

. . . attem pts to cause o r purposely or knowingly causes bodily i njury to another with a deadly
weapon or other m eans likely to produce deat h o r serious bodily harm [ .]” The statute provides f

or an e nhanced penalty where the assault occurs upon a law enf orcem ent of

f icer.

5Miss. Code Ann. § 97-3-7(2)(b).

¶14. M i s s i s s i p p i c aselaw establishes that “[ a ]n attem pt is a direct m ovem ent toward the

com m ission of the crim e af t er the preparations have been m ade[

. ] ” Ishee v. State , 799 So. 2d 70, 73 (¶7) (Miss. 2 001) (quoting Bucklew v. S tate , 206 So. 2d 200, 2 02-03 (Miss. 1968)). The Mississippi Suprem e Court has “def ined ‘attem

pt’ to m ean ‘an attem

pt to do a certain thing, a nd som e actual overt ef f o rt to put the intent into ef f ect.’” Gibson v. State , 660 So. 2d
1 2 6 8 , 1270 (Miss. 1995) (citations om itted). “Furtherm ore, ‘the act m ust be suc h a s w i l l apparently result, in t he usual and n a t u r a l c o u rse of e vents if not hindered by extraneous causes, in the com m ission of the crim e itself

, and an act apparently

adapted to produce the intended result is suf

f icient to constitute t he overt act essential to an attem pt.’” Id. (citation

om itted). ¶15. To support his argum ent that his actions f ailed to am ount to an attemp t t o c o mmit aggravated assault, Hunter directs this Court’s attention t o the suprem e 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 suprem e court determ ined, respectively , that t he evidence was insuf f icient to support aggravated[ -]assault charges. In

1 A lth o u g h H u n ter w a s c h arg ed w ith attem p ted ag g rav ated assau lt a n d t h e d ef en d an ts in G i b so n an d M

u rra y w e re ch arg ed w i th a g g rav ated assau lt, w e a ck n o w led g e t h at sectio n 9 7 -3 -7 ( 2 ) f

ails to d istin g u ish b etw een th e tw o o f f en ses an d th at, s u b stan tiv ely , th ey are th e sam e crim e. S

ee Wilso n v. S ta te , 9 0 4 S o . 2 d 9 8 7 , 9 9 6 (¶3 2 ) (M iss. 2 0 0 4 ); L e w is v. S ta te , 8 9 7 S o . 2 d 9 9 4 , 9 9 6 (¶¶7 -1 0 ) (M iss. C t. A p p . 2 0 0 4 ); S trin g er v. S ta te , 8 6 2 S o . 2 d 5 6 6 , 5 6 7 (¶6 ) (M iss. C t . A p p . 2 0 0 4 ). 6Murray , the def endant u sed a shank pointe d t oward[ ] a p rison of f icer to com pel t h e o f f i c e r t o give up h is key s . M urray , 403 So. 2d at 149. Murray was c onvinced by f

ellow inm ates to g ive up his endeavor, wh i c h he did. Id. at 151. In t hat case, the suprem e court determ ined t hat it could n ot say that the def endant had unequivocal intent to s tab the of f icer, even thou g h h e had the m eans and the opportunity to do so. Id. at 152-53.
In Gibson , the def

endant pointed a gun at the chest o f a police of f icer. G i b s o n , 660 So. 2d at 1268. Af ter the o f f icer dem anded that he lower hi s weapon, the def

endant com

plied. There[ ,] the suprem e court stated: Gibson was ordered to drop the gun by the of f i cer at [ whom ] the gun was pointed. The r ecord does not ref lect that G ibson was aware o f any other of

f icers in t he vicinity , so Gibson, a t least in his own m ind, had t he advantage. W e do n o t k n o w , f r om the record, why G ibson did not shoot the of f icer. Af ter all[ ,] he had the m e ans a nd e very opportunity to do so. The S tate’s suggestion that t he of

f icer’s com m and to d

rop the weapon was an extraneous event [ that] prevented Gibson f rom shooting the of f icer is f a r[ -]f e tched[ .] Id. at 1270. Genry v
. State , 767 So. 2d 302, 311 (¶¶31-32) (Miss. Ct. A pp. 2000). This Court c oncluded that the evidence in Murray and Gibson f ailed to show that the def endants possessed an “un e q u i v o cal intent to c ause serious bodily injury to the victim .” Id. at (¶33). But see Robinson v. State , 571 So. 2d 275, 277-78 (Miss. 1990) (uphol d i ng a n aggravated-assault conviction w here the victim suf f e red no injuries because, despite the def endant’s claim he only intended to scare t he v ictim , he threatened to kill the victim , repeatedly told coworkers he planned to burn down t h e v i c t im ’s house, and chased the victim out of h er house and again threatened to kill her). ¶16. In t he present case, the jury heard conf licting testim ony r egarding the events prior to
H u n t e r ’s a rrest on A ugust 27, 2013. Hunter testif ied that he w as sim

p ly searching f

o r h i s
7cigarettes when Of f icer Moore tased him

. Furtherm o re, Hunter denied ever threatening or cursing at the of

f icers. ¶17. By contrast, the of f icers testif

i ed that, while in close p roxim ity to t hem , Hunter was belligerent, cursed a t them , and threatened to k ill them

. The record ref lects that the f

acts to which the of

f icers testif

ied showed tha t Hunter expressed a current intent to kill them

. Add i t i onal testim ony revealed that, when Of f icer B oatner stepped toward Hunter, Hunter lunged o nto the bed and reached underneath a pillow w ith his hand. A scuf f le then ensued as the of f icers attem

pted to restrain Hunter with handcuf f s . ¶18. T h e r e c o rd f

urther ref lects that Hunter continued to struggle as the o f f icers tried t o place him under arrest. Of f icer Moor e h a d t o t ase Hunter a second tim e bef ore Hunter stopped reaching under the pillow and resisting arrest. Af ter handcuf

f ing Hunter to ensure he was n o longer a threat to their saf ety , the of

f icers looked undernea t h t h e p i l lows on the bed. Although t hey f

o u nd nothing under the right-hand p illow where H unter slid his hand, they discovered a knif

e concealed under the lef

t-hand pillow. ¶19. Our caselaw e stablishes t ha t t h e j u r y p o s s e s s e s the responsibility to resolve any conf licts in the evidence and testim ony presented a t trial. See Hampton v. State , 48 So. 3d 605, 612 (¶25) (Miss. Ct. App. 2010). In light o f its verdicts f

inding Hunter guilty

of both

counts o f attem

p t ed aggravated assault o n a law e nf orcem ent of

f icer, the jury c learly resolved the conf licts in t he trial testim ony in t he State’s f av o r . A s t h e r e cord ref

lects, the of

f icers testif i ed that Hunter not only expressed a current intent t o kill them b ut also engaged in overt

8conduct to acco mp l i s h his threat. Giving the State the benef it of all reasonable i nf

erences
to be drawn f

rom t he evidence, w e cannot say that Hunter’s guilty v erdicts are “so contrary
to the overwhelm ing weight of the evidence that to a llow [ t hem ] to stand would sanction an unconscionable injustice.” B ush , 895 So. 2d at 844 (¶18). ¶20. Based on the evidence and testim o ny presented at trial, t he j ury could have reasonably
f ound that Hunter i ntended, and was attem pting, t o c ause seriou s bodily injury or death to Of f icer Boatner and Of

f icer Moore by resisting arrest, threatening to kill them , lunging on the bed, and reaching f

or Hunt’s knif

e. In addition, the jury could have f ound that Of

f icer
Moore’s action o f tasing Hunter c o n s t i tuted an extraneous e vent that intervened and prevented Hunter f

r om carry ing out his intended a g g r a v a t e d assault upon the of f i cers. As a result, we f

i nd no abuse of discretion by the circuit court’s denial of Hunter’s m otion f

or a new trial. See Griffith , 123 So. 3d at 475 (¶15). Theref o re, this issue lacks m erit. ¶21. T H E JUDGMENT OF THE NEWTON C O U N T Y C I R C U I T C O U R T O F CONVICT I O N O F C O U N T I , A T T E M P T E D A G G R A VATED A SSAULT ON A LAW E N F O R C E M E N T O F F I C E R , A N D S E N T E N C E O F T W E N T Y Y E A R S , A N D C O U N T II, ATTEMPTED AGGRAVATED ASSAULT ON A LAW EN FORCEMENT OFFICER, AND S ENTENCE OF FIFTEEN YEARS, W I T H THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE S ENTENCE IN COUNT I, BOTH IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSE S S ED TO THE APPELLANT. LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, MAX W ELL, FAIR AND WILSON, J J., C ONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE W RITTEN OPINION. JAMES, J., CON C U R S I N PART WITHOUT SEPARATE WRITTEN OPINION.

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