IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01327-COA MAURICE TOWNSEND APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/19/2014 TRIAL JUDGE: HON. ANDREW K. HOW ORTH COURT FROM W HICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: RALPH STEW A RT GUERNSEY CARNELIA PETTIS FONDREN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH ONE YEAR TO SERVE, FOUR YEARS SUSPENDED, AND FOUR YEARS OF POSTRELEASE SUPERVISION DISPOSITION: AFFIRMED - 04/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. A Laf

ay ette County j ury f

ound Maurice Townsend guilty of sim ple assault on a lawenf

orcem ent of

f icer. See Miss. C ode A nn. § 97-3-7(1) (Supp. 2011). 1 The circuit court then sentenced Townsend to f i ve y ears in the c u s t o d y of the Mississippi Departm ent of Corrections (MDOC), with one y ear to serve, f our y ears suspended, and f o u r y e a r s of postrelease supervision. On appeal f rom his conviction and sentence, Townsend raises the
f ollowing issues: (1) whether his indictm ent w as f atally def ective; (2) whether Mississippi should extend the holding of Batson v. Kentucky , 476 U.S. 79 (1986), to ensure the inclusion of m inorities on juries; and (3) whether the circuit court erred by dism i ssing f or cause certain potential jurors. Finding no error, we af f irm

. FACTS ¶2. On N ovem

ber 27, 2 0 1 1 , T o w n s e n d v i s i t e d T h e L o c k e r Room B ar in Oxf ord, Mississippi, with his wif

e and aunt. Around m idnight, The L ocker R oom stopped serving alcohol, and t he bouncers began colle c t i n g p a t rons’ drinks. Danny Thom as, one of the bouncers, testif

ied that he took away Townsend’s drink and that Townsend b e c a me u pset. As a result of Townsend’s reaction, Thom as and another bouncer escorted Townsend f rom the building. ¶3. Of f icer David Sabin testif

i ed that, on t he night in question, he was on duty working
f or the Oxf

ord Police Departm e nt’s D UI unit a nd alcohol task f orce. Of f i cer Sabin responded to com

plaints that The L ocker Room was selling a l cohol af ter legal serving hours.

1 S in ce T o w n sen d ’s arrest, th e assau lt statu te h as b e en am en d ed

. H o w ev er, th e su b stan ce o f sim

p le assau l t, ag g rav ated a ssau lt, an d th e en h an ced p en alty rem ain th e sam e. U n less o t h erw ise stated , all statu to ry ref eren ces in th is o p in io n u se th e su b sectio n s f ro m th e statu to ry v ersio n i n ef

f ect o n N o v em

b er 2 7 , 2 0 1 1 , th e n ig h t o f T o w n sen d ’s arrest. S ee M iss. C o d e A n n . § 9 7 -3 -7 (S u p p . 2 0 1 1 ). 2According to O f f icer Sabin’s testim ony , he arrived a t The Locker Room in his m arked patrol

car, which clearly stated “City of Oxf ord Police.” Furtherm o re, Of f icer Sabin testif

ied that he was dressed in his police unif orm . ¶4. U p o n a rriving at The Locker Room , Of f icer S abin observed a large u nru l y c r o w d standing outside the d oor of the bar. Of f icer Sabin t estif

ied that he saw two bouncers try ing to escort Townsend f

rom the building. Of

f icer Sabin testif

ied that Townsend was f

ighting with the bouncers and was kicking, scream ing, cursing, and try ing to spit on the bouncers. ¶5. By the tim e the bouncers f inally ejected T ownsend, Of f i c e r S abin h ad r eached the entry way of The Locker Room

. Of f icer Sabin testif

ied that Townsend appeared intoxicated and continued to y ell, scream , and curse . A s h e i n s tructed Townsend n ot to reenter the
prem ises, Of

f icer Sabin testif

ied th a t s o me o n e behind him grabbed his right arm . Of f icer Sabin saw a f

em ale, later identif

ied as Townsend’s aunt, w ith her hand on his arm . Of f icer Sabin testif

ied that he rem oved the wom a n ’ s h a n d f r o m his arm and t

urned b ack to f

ace Townsend. According to Of f icer Sabin’s testim o ny , Townsend then pushed Of f i cer Sabin backward, and Townsend began scream ing tha t Of f i cer Sabin could not touch his aunt or speak to her. ¶6. Of f icer Sabin t estif

ied that he attem

p ted to arrest Townsend. However, Of f icer Sabin stated that Townsend punche d h i m i n the chest, and then Townsend tried t o choke him

. Although the bouncer, Thom as, f ailed to witness the entire exchange between Townsend and Of f icer Sabin, the record ref lects that Thom as’s testim ony corroborates Of f ic e r S a b i n ’s testim o ny . Thom as t estif ied that he witnessed T o w n s e n d w i th his h ands around Of f icer

3Sabin’s throat.

¶7. Of f icer S abin f

urther t estif

ied that h e and Townsend f ell t o t h e g r o u n d a s t hey continued to struggle. Of f i ce r S a b i n i n structed Thom as and another bouncer, who were try ing to assist him , to back away , and Of f i cer S abin u sed his m ace on Townsend. Of f icer Sabin t e s t i f

i ed that the m ace appeared to have no ef f ect on Townsend, w ho continued to

scream and f

ight. At that point, Of

f icer Sabin testif

ied that he struck Townsend in the chest

to put d istance b e t w e en him self and Townsend. Townsend then tried to run away , and Of f icer Sabin chased him

. ¶8. Of f icer Sabin f

urther testif

ie d t h a t , a l l d u r i n g t h e s e e v ents, h e repeatedly told Townsend he was under arrest. W hen Of f i c e r S a b i n caught up to T ownsend, he ordered Townsend to get on the ground. H owever, Of f icer S abin testif

ied that T ownsend ref

used and that Townsend again attem pted to punch him

. O f

f icer Sabin stated that he spray ed his m ace in Townsend’s f

ace, and he was then f

ina l l y able to subdue Townsend. Backup of f icers arrived and helped Of

f icer Sabin secure Townsend. Once em ergency r esponders m edically cleared Townsend, the of f icers escorted Townsend to jail. ¶9. A grand jury indicted Townsend f or aggravated assault on a police of f icer. See Miss. Code A n n . § 97-3-7(2) (Supp. 2011). Following the evidence and testim o ny presented during the trial, a jury c onvicted Townsend of sim ple assault on a law enf

orcem ent of

f icer. The circuit c ourt t hen sentenced T ownsend to f ive y ears in MDOC’s custody , with one y ear
to serve, f

our y ears suspe n d e d , a nd f our y ears o f postrelease supervision. Following his conviction and s entencin g , T o w n send f iled an unsuccessf

ul m otion f

or a j udgm ent

4notwithstanding the verdict. Aggrieved, Townsend appeals his conviction and sentence.
DISCUSSION
I. Whether Tow nsend’s indictm ent w as fatally defective. ¶10. Townsend f

i rst asserts that his indictm e nt was f atally def ective because it om itted an essential elem ent of the crim es of aggravated assault o n a law enf o rcem ent of

f icer and sim

ple assault on a law enf

orcem ent of

f icer. This Court reviews de novo the question of whether

an indictm ent i s f

atally def ective. See Tucker v. State , 47 So. 3d 135, 137-38 (¶8) (Miss. 2010). ¶11. Townsend’s indictm ent charged him with aggravated assault on a law enf orcem ent of f icer under section 97-3-7(2). In pertinent part, section 97-3-7(2) states:
A person i s guilty o f aggravated assault if h e . . . a t t e mp t s t o cause serious bodily injury to another, or causes s uch injury p urposely , knowingly [ , ] or recklessly under circum stances m anif esting extrem e indif

f erence t o the value of hum a n lif

e . . . . [ A] person convicted o f aggravated assault

. . . upon a . . . law enf orce me n t of

f icer

. . . acting within the scope of his duty , of f ice[ ,] or em ploy m ent

. . . shall be p unished by a f ine of not m ore than Five Thousand Dollars ( $ 5,000.00) or b y im prisonm ent f

or not m ore than thirty (30) y ears, or both. ¶12. For the crim e of aggravated assault on a law enf orcem ent of

f icer, the State n eeded to
prove that Townsend “(1) com m itted [ aggravated] assault, (2) on a law enf orcem ent of

f icer, (3) wh ile the law enf

orcem e nt of

f icer was acting within the scope of his duty , of f ice, or

em ploy m ent.” Bates v. State , 172 So. 3d 805, 808 ( ¶13) (Miss. Ct. App. 2014) (citation and internal quotation m arks om itted). 2 See also W ilson v
. S t a t e , 936 S o. 2d 357, 364 (¶19)

2 T h e reco rd ref

lects th at t h e j u ry in stru cti o n s r e q u i red th e j u ry to f in d T o w n sen d g u ilty o f all th e statu to ry

elem en ts b ey o n d a reaso n ab le d o u b t.

5(Miss. 2006) (recognizing that “aggravated assault and sim ple a ssault are carbon copies of each other, with the exception that aggravated assault r equires the use of a deadly w eapon.” (citing Hutchinson v. State , 594 So. 2d 17, 19 (Miss. 1992))). ¶13. On appeal, Townsend a r g u e s h i s indictm ent was def ective because it f

a iled to state that Of f i cer Sabin was “ acting w ithin the scope of his duty , of f i ce[ , ] or em

p loy m ent” when the alleged a ssault occurred. See Miss. Code A nn. § 97-3-7(2). O ur caselaw recognizes that “[ t]he prim a ry purpose of an indictm ent is to not i f y a n a c c used of the charges against h im

. . . to allow him to prepare an adequate def ense.” B rown v. State , 944 S o. 2d 103, 106 (¶8) ( M i s s . Ct. A pp. 2006) (citing Evans v. State , 9 16 So. 2d 5 50, 551 (¶5) (Miss. Ct. A p p . 2005)). “This sim

ply m eans t hat an indictm ent m ust provide the accused with ‘a concise and clear statem ent of the elem ents of the c rim e’ with which the accused is actually c h a r ged.” Id. ( quoting Evans , 916 S o. 2d at 551-52 (¶5)). Precedent f u rther establishes that “[ a]n indictm ent m

ust contain (1) the essential elem ents of the of f ense charged, (2) suf

f icient f acts
to f airly inf orm t he def

e ndant of the charge against which he m ust def end, a nd ( 3) suf

f icient
f acts to enable him to plead double jeopardy in the event of a f uture p rosecution f

or the sam e of f ense.” Gilmer v. State , 955 So. 2d 829, 836-37 (¶24) (Miss. 2007) (citations om itted). ¶14. In Moss v. State , 752 So. 2 d 427, 429-30 (¶¶7-8) (Miss. Ct. A pp. 1999), the d ef endant alleged that his indictm ent f a i led to include the proper l anguage to charge him with aggravated assault on a law enf orcem ent of

f icer. In d iscussing Moss’s argum ent, this Court recognized that, “if f

rom a reading of the indictm ent as a whole the accused i s in f act given
f air n otice of that with which he has been charged, the indictm e nt is legally suf f i cient.” Id.

6at (¶7) (quoting Harbin v. State , 478 So. 2d 796, 799 ( Miss. 1985)). This Court f ound that
Moss’s indictm ent f

ollowed the s tatutory language f o r the c rim e of aggravated assault on a law enf orcem ent o f

f i c e r and s uf

f iciently notif

ied Moss of t he of

f ense charged. Id. at 430 (¶8). As a result, we f

ound no m erit to Moss’s assertions. Id. at (¶9). ¶15. In the present case, the record r e f l e c t s that the heading of Townsend’s indictm ent plainly stated that Townsend was being charged with agg r a v a t e d assault on a law enf o r c e me n t o f

f icer under section 97-3-7(2). Furtherm o re, the body o f Townsend’s indictm ent stated: Maurice Townsend

. . . on or a bout the 27th of N o v e m ber, 2011,

. . . did purposely , knowingly [ ,] or recklessly , under c ircum stances m anif esting extrem e d i s r e g a rd f

o r h u m an l if

e, attem p t to cause serious bodily injury to Of f icer David Sabin, a law enf o rcem ent o f

f icer, in v iolation of the provisions of [ s]ection 97-3-7(2)

. . . , which of f ense i s p unishable by a f

ine of not m ore than Five Thousand Dollars ($5,000.00) or b y im prisonm ent f

or not m ore t han thirty (30) y e ars, or b oth, contrary to t he f orm of the statute in such cases m ade and provided and against the peace and dignity of the State of

Mississippi. ¶16. Upon review, we f ind the indictm e nt clearly notif ied Townsend of the crim e and the statutory section being charged. Both the heading a nd the body of the i ndictm ent provided that Townsend was being charged with aggravated a ssault on a l aw enf orcem e nt of

f icer under section 97-3-7(2) and that the m a xim um prison term f

or the crim e was t hir t y y e a rs. In addition, the l anguage o f the i ndictm ent t racked the s t atutory language of section 97-3- 7(2). A reading o f the indictm e nt as a whole g ave Townsend f air n otice of the charge against him so he could prepare an adequate def ense and avoid unf

a ir surprise or t he t hreat of double jeopardy

. See G ilmer , 9 55 So. 2d at 836-37 (¶24); Brown , 944 S o. 2d at 106 (¶8); Moss , 752
So. 2d a t 4 2 9-30 (¶7). As a result, we f ind no m erit to Townsend’s argum ent that his

7indictm ent was f atally def ective.
II. Whether Mississippi should ex tend the holding of B atson to ensure the inclusion of m inorities on juries.
III. Whether t he circuit court erred by d ism i ssing for cause certain potential jurors. ¶17. In raising his next issues, Townsend concedes that t he c i r c u i t c o u r t f o l l owed the principles established in Batson during the jury -selection process. However, T ownsend still

asserts on appeal that, “[ u]nder its own laws, rules[ ,] and statutes, the [ S]tate of Mississippi should extend the reach o f Batson to [ e]nsure i nclusion of m inorities on juries.” Furtherm o re, T ownsend argues that the circuit c ourt abused its discretion b y striking f or

c a use two potential jurors, one of whom was A f rican A m erican, b ecause they st a t e d t h e y would not listen to the evidence presented. According to Townsend, by s t ri c t l y a pply ing
Batson and striking these two potential jurors, the circuit court a l lowed “an all[ -]white jury [ to be] seated to try

an Af r ican Am erican def

endant.” ¶18. Our precedent establishes t hat the appellate court “gives d ef erence to the t rial court’s decision to exclude a juror f o r cause, and we w ill not disturb the t rial court’s decision unless there was an abuse of discretion.” Batiste v. State , 121 So. 3d 808, 850 (¶91) (Miss. 2013) (citation om itted). This Court has previously acknowledged:
A juror who m ay be rem oved on a challenge f or cause is one a gainst whom a cause f o r c h allenge exists that would likely af f ect his c om

petency or im p artiality at trial. The [ suprem e court] has sta t e d that[ ,] if t he evidence is conf licting on t he question of whether or not the def endant could receive a f

air and im p artial trial, def

erence will be given to t he c onsidered opinion o f the trial judge.
Ross v
. State , 16 So. 3d 47, 5 4 (¶10) (Miss. Ct. App. 2 009) (internal citations and quotation

8m arks om itted).

¶19. During voir d ire, the State a sked the potential jurors, “Is there any body here [ who] just doesn’t want to be here bad enough that y ou w on’t listen, that y ou m ay not pay attention in the jury r oom with y o ur f e llow jurors? ” In response, Juror 21, Carl Ly o ns, and Juror 45, Christine Blakely , answered af f i rm atively

. The S tate then f ollowed up with each of the two jurors. The State asked Ly ons, “Is that f eeling so strong in y ou t hat y ou won’t pay attention when w itnesses testif

y ? ” Ly ons again answered af f irm atively

. The State then asked Blakely , “Because of y o ur work o r whatever it is that is distracting y o u , a r e y o u telling us that y ou can’t pay attention enough to be able to m ake a decision based on things that y ou hear in a

courtroom ? ” In response, Blakely stated, “Yes, sir.” ¶20. W h ile s electing the jur y , t h e S t a t e c h a l l e nged both Ly ons and Blakely f or cause. Townsend’s attorney o b

j e c ted and said, “Your Honor, norm ally , I would not have any objection, but this panel is f ew and f ar between Af

r ican Am ericans,

. . . and we would object that Mr. Ly ons should be struck f or cause f

or t hat reason.” W hen a sked a b out striking Blakely , T ownsend’s attorney said her objection was the s am e as it had been to the challenge against Ly ons. In both instances, however, the circuit court granted the State’s challenges
f or cause because the two juror s h a d stated they would not pay attention to the evidence presented. ¶21. Upon review of t he record and r elevant caselaw, we f ind no m e r i t t o T o w nsend’s
argum ents. Townsend concedes that the circuit court f ollowed t he procedure established in
Batson

. Furtherm ore, we d e c l i n e to do as Townsend urges a nd “extend the reach of

9Batson [ .]”

¶22. In addition, we f

ind no abuse of discretion f rom the circuit court’s dism i ssal f or cause of t he two potential jurors, Ly o ns a nd B lakely

. Although Townsend claim s the circuit court’s

rem oval of Ly ons resulted in an a l l

- w h i t e jury try ing the case o f an Af rican Am erican de f e n d a n t, this Court has specif i cally rejected t he notion that a def endant i s entitled to “a specif ic racial and gender com

position in the selected jury .” See Ross , 16 So. 3d at 58 (¶28) (citing Le v. State , 913 S o. 2d 913, 924 (¶21) ( M i s s . 2 0 0 5 ) (overruled on other grounds)); Gathings v. State , 822 S o. 2d 2 66, 272 (¶21) (Miss. 2002). Also, as the record r ef lects, both Ly ons a n d Blakely stated t hey either would not or c ould no t p a y attention to the evidence presented at trial. As our c aselaw clearly provides, a juror m ay be rem o ved f or cause when his com petency is likely to be af

f ected. See Ross , 1 6 So. 3d at 5 4 (¶10). For t hese reasons,

we f ind no abuse o f discretion resulting f rom t he circuit court’s d ism issal of the two potential jurors f or cause. Accordingly , we f ind these argum ents lack m erit. ¶23. THE JUDGMENT OF THE CI R C UIT COURT OF LAFAYETTE COUNTY OF CONVICTION O F SIMPLE A S S A U LT ON A LAW ENFORCEMENT O FFICER AND SENTENCE OF FIVE YEARS IN T H E CUSTODY OF THE MISSISSIPPI DEPARTMENT OF C ORRECTIONS, WITH ONE YEAR TO SERVE, FOUR YEARS SUSPENDED, AND FOUR YEARS OF POSTRELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF T HIS A PPEAL ARE ASSESSED TO LAFAYETTE COUNTY. IRVING A N D G R IFFIS, P.JJ., ISHEE AND G REENLEE, J J., CONCUR. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES, FAIR AND WILSON, JJ. JAMES, J., DISSENTING: ¶24. I respectf

ully dis s e n t

. T o w n s e n d ’s i ndictm ent om itted an essential elem ent of the

1 0crim e of aggravated assault of a law-enf orcem e nt of

f icer i n v i o l ation of Mississippi Code Annotated section 97-3-7(2) (Supp. 2011). Due to this e r ror, the i ndictm ent was insuf f icient

to charge Townsend f

or that crim e. Accordingly , I woul d reverse and rem and with instructions consistent with this opinion.
DISCUSSION ¶25. T h e q u e s t ion of whether an indictm ent is f atally def ective is a n issue o f l a w a n d deserves a relatively broad standard of review. Tucker v. State , 47 So. 3d 13 5 , 1 3 7 (¶8) (Miss. 2010) (citing Nguyen v. S tate , 761 So. 2d 873, 874 (¶3) (Miss. 2000)). Because the question is an issue of

law, the standard of

review is de novo. Id . at 137-38 (¶8). ¶26. Townsend a rgues that the indictm ent was f atally de f e c t i v e b e c a u se it o m itted an essential e lem ent of the charged c r i me o f aggravated assault of a law-enf o rcem ent of

f icer under section 97-3-7(2). Specif ically , Townsend a rgues that his indictm ent w as insuf f icient becau s e i t om itted the elem ent of “acting within the scope of his duty , of f ice[ ,] or

em ploy m ent.” S ee Miss. Code Ann. § 97-3-7(2). The State argues that Townsend waived this argum ent b ecause he has raised it f or the f irst tim e o n a

ppeal. “ However, it is settled that objections to the s uf

f iciency of an indictm en t m a y b e raised f o r the f irst tim e o n appeal.”
W illiams v. State , 169 S o. 3d 932, 935 ( ¶8) ( Miss. Ct. App. 2014) (citing Tucker , 4 7 So. 3d at 137 (¶8)). ¶27. T o b e f

ound guilty o f sim

ple assault of a law-enf

o rcem ent of

f i cer, th e S t a t e w a s required t o prove Townsend (1) c om m itted sim ple assault, (2) on a law-enf orcem ent of

f icer, (3) while the l aw-enf

orcem e nt of

f icer was acting within the scope of his duty , of f ice, or

1 1em

ploy m ent. B ates v. S

tate , 172 So. 3d 695, 696 (¶4) (Miss. 2015) (citing Miss. Code Ann. § 97-3-7(1)(b), (14)(a) (Rev. 2015)). Likewise, “ w hile the law-enf o rcem ent of

f i c e r w a s acting w ithin the scope of his duty , of f ice[ ,] or em

ploy m ent” is an essential elem ent of the crim e of aggravated assault of

a law-enf

orcem ent of

f icer under section 97-3-7(2). ¶28. Townsend' s indi c t me n t c ontained the heading “ A GGRAVATED ASSAULT- Law Enf orcem ent Of

f i cer[ .]” U nder the h e a ding, the i ndictm ent identif i ed the specif

ic statute, Mississippi Code Annotated section 97-3-7(2), and noted the s tatutory m axim um sentence of thirty y ears. The indictm ent also provided in pertinent part: Maurice Townsend

. . . on or about the 27th of N ovem ber[ ] 2011

. . . did purposely , knowingly or recklessly under c ircum stances m a n if esting extrem e disrega r d f

o r h um an lif

e, attem pt t o c ause serious bodily injury to Of f i cer David Sabin, a law e n f

o r c e ment of

f icer, in violation of the provisions of Section 99-3-7(2) . . . which of f ense is punishable by a f

ine of not m ore than Five Thousand Dollars ( $ 5 ,000.00) or b y im prisonm ent f

or not m ore t han thirty (30) y ears, or both contrary to the f o rm of the statute in such cases m ade and provided and against the peace and dignity of the State of

Mississippi. ¶29. The e ssential elem ent of “acting within t he scope of his duty , of fi c e [, ] or em

ploy m ent” is obviously

om itted f rom the indictm ent. S

ee Miss. Code Ann. § 97-3-7(2). ¶30. “The state and f

ederal bill of rights guard the constitutional r ight to notice of crim inal charges.” Gales v. State , 131 So. 3d 1238, 1240 ( ¶10) (Miss. Ct. App. 2013) ( citing Thomas

v. State , 1 26 So. 3d 877, 880 (¶7) (Miss. 2013); U.S. Const. a m end. VI; Miss. Const. art. 3, § 2 6). W h ile it is true that the “prim ary purpose of an indictm ent is to give a def endant f air notice of the crim e c harged,” W illiams, 169 So. 3d at 935 (¶9), t he i nquiry does not end there. ¶31. “[ A]n i n dictm ent m ust contain (1) the essential e l em ents of the of f ense c h arged, (2)

s u f f i c i e n t f a cts to f airly inf orm the def

endant o f the charge against which he m ust def end ,
1 2and ( 3) suf f icient f acts t o enable him to plead double jeopardy in the e v e n t o f a f uture prosecution f

or the sam e of

f e nse.” Gilmer v. State , 955 So. 2d 8 2 9 , 8 3 6-37 (¶24) (Miss. 2007) (em

phasis added); see also Thomas , 126 So. 3 d at 8 80 ( ¶7) (“All t he authorities are to the ef f ect that an indictm ent, to be suf f icient u pon which a conviction m ay stand, m ust set f orth the c onstituent elem ents of a crim inal of f ense.” (em

phasis a dded)). Th e M i ssissippi Suprem e Court has repeatedly held that indictm ents based on statutory of f enses a re void if they do not charge all essential e lem ents of the statutory

crim e. G ales , 131 So. 3d at 1240 (¶10) (internal citations om itted). ¶32. Townsen d ' s i n d i c t me n t f a i l e d t o i n clude an essential elem ent of the crim e of aggravated assault o f a l aw-enf orcem ent o f

f i c e r under section 97-3-7(2) by o m itting the elem ent “ within the scope of his duty , of f ice[ ,] or em

ploy m ent.” Because the i ndictm ent lacked a m aterial essential e lem ent, it was legally i nsuf f icient to cha r g e T ownsend with aggravated assault of

a law-enf

o rcem ent of

f icer in violation of

section 97-3-7(2). ¶33. The plurality holds that the i n d i c t m e n t g a v e f a i r n o t i c e o f t h e charge against Townsend. However, “[ t ]here is no acceptable substitute or c ure in the law f or an indictm ent that om its the essential charging inf orm ation.” W

hite v. State , 851 S o. 2d 400, 403 (¶5) (Miss. Ct. App. 2003). I ndeed, “the m issing critical elem e n ts f rom an i ndictm ent m ay not be supplied b y p r o o f p r e s e nted at trial or by jury i nstructions t hat adequately set out the essentials of

the charged crim e.” Id . at 404 (¶9). ¶34. The plurality relies on Moss v. State , 7 52 So. 2d 427, 429-30 (¶¶7-8) (Miss. Ct. App. 1999), in s upport o f its o p inion. However, the indictm ent in Moss contained every essential

1 3elem ent of aggravated assault o f a law-enf orcem ent o f

f icer, unlike Townsend’s indictm ent.
In Moss , this Court f

ound: The indictm ent properly outlined and notif ied M oss t hat he was being indicted f or aggravated assault upon a law e n f o rcem ent of

f icer. The indictm ent f ollowed the language of the statute in stating Moss “purposely and knowingly caused bodily injury to Danny Henson, a law e nf orcem ent of

f icer, a Town of Lam bert, Mississippi, policem an, with a deadly weapon, a pistol, while such law enforcement off

i c e r w a s acting within the s cope of his duty and office .” The language o f the indictm ent was suf f icient to notif

y Moss that he was being cha r ged with t he enhanced crim e of aggravated assault upon a law enf orcem ent of

f icer. Id. (em phasis added). ¶35. In Gales , this Court reversed the d ef endant’s c o nviction a nd d ism issed his indictm ent because it did not contain all essential elem ents of the crim e of burglary of a nondwelling. Gales , 131 So. 2d at 1238-39 (¶¶1-2). T h is Court held: “[ T]he f ailure to charge [ the def endant] w ith a crim e c ognizable under Mississippi law is a plain, constitutional error and requires dism i ssal of the indictm e nt and reversal of the conviction[ .]” Id. at 1240 (¶11). ¶36. Again, the Mississippi Suprem e Court has em phasized that an indictm ent that f ails to

a l l e g e a l l e s s e n t ial elem e nts o f a crim e runs a f oul of our constitutions and is void. Id. a t 1239 (¶2) (citing Thomas, 126 So. 3d at 880 (¶7)). However, I would f i nd that Townsend' s indictm ent was not entirely void because it p r o p e r l y c harged him with every essential elem ent of the crim e o f a ggravated assault u nder section 97-3-7(2). Because sim p le assault is a lesser-included of

f ense of a ggravated assault, Townsend concedes that the jury properly
f ound him guilty of sim ple assault. I agree. ¶37. Under the direct-rem and rule, t h i s C o u r t m a y rem and a c ase to the circuit court f or

1 4sentencing on a lesser-included of f ense where t he g reater o f f e n s e w a s not proven, but the elem ents of the lesser-included of f ense were suf

f iciently m et. Snowden v. S tate , 131 So. 3d 1251, 1259 (¶22) (Miss. Ct. App. 2014). ¶38. Theref

ore, I would r everse Townsend’s judgm ent of conviction f or sim ple assault of

a law-enf orcem ent o f

f icer, vacate Townsend’s sentence f or that charge, a nd r em and this case
to the c ircuit court with instructions to sentence Townsend f o r basic sim

ple assault, i.e., not on a law-enf

orcem ent of

f icer. LEE, C.J., BARNES, FAIR AND WILSON, JJ., JOIN THIS OPINION.

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