IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-00645-COA ADREL RYAN TUTWILER A/K/A ADREL TUTWILER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/13/2014 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: GRADY MORGAN HOLDER ROBERT L. SIRIANNI JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH TW O YEARS SUSPENDED AND EIGHTEEN YEARS TO SERVE, FOLLOW ED BY TW O YEARS OF POST-RELEASE SUPERVISION, FINED $2,500, AND REQUIRED TO PAY $3,186.55 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND DISPOSITION: AFFIRMED: 12/08/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., MAX WELL AND JAMES, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Adrel Ry an T utwiler was c o n v icted of aggravated assault f or the shooting ofTranongras Hallm on. T utwiler appeals his conviction and asserts t he trial court erred in: (1)

deny ing h is request f

or a perem

ptory instruction and his m otion f or a judgm en t notwithstanding the verdict (JNOV) o r , i n t he alternative, a new trial; (2) giving a jury instruction on v oluntary intoxication; and (3) deny i ng his m otion f or a continuance. W e f

ind no error and af

f irm

. F ACTS AND PROCEDURAL HISTORY ¶2. Tut w i l er and Hallm on lived together in an apartm ent i n Hattiesburg, M ississippi, while the two m en a ttended the University of Southern Mississippi. During the sum m er of 2012, H allm on returned hom e f or work while T utwiler rem ained in the apartm ent. Tutwiler testif i ed the f riendship between t he two me n b e g an to d eteriorate in t he spring and was alm ost nonexistent through the sum m er. ¶3. On August 20, 2012, T u twiler hosted a sm all gathering, which i n c l uded Aaliy ah Johnson, R icky Johnson, and Edward Bodie. The m em bers of the p arty were sm oking and drinking when Hallm on and his c ousin, D arious Buckley , c a m e into the apartm ent. Hallm on asked t he party to stop sm oking inside, then began bringing his belonging s i n t o t h e apartm ent. ¶4. At som e point, Hallm on w ent into the kitchen and s tarted to place his groceries into the ref rigerator. Tutwiler went into the k itchen and s aw H allm on rem oving som e of his f ood f rom the ref

rigerator. Tutwiler and Hallm on began to argue o ver the f ood, although Tutwiler and Hallm on disagree on who initiated the conf r ontation.

2¶5. During this disagreem ent, Tutwiler p ulled a gun, a nd the two m en w restled f or control of the gun. At least three shots were f ired in the kitchen a rea bef ore Hallm o n ran f

rom the apartm ent. Tutwiler chased H allm on and f ired at least one shot outside. The ey ewitness

accounts v ary on t he num b er of s h ots f

ired, where the shots o ccurred, and whether Tutwiler purposely aim ed at Hallm on. Af ter the incident, H allm on went t o t he hospital with several gunshot wounds. ¶6. A Forrest County grand jury indicted Tutwiler f or aggravated assault. Af ter a trial, the jury returned a guilty verdict, a nd the trial court s entenced Tutwiler to twenty y ears in the custody of the Mississippi D epartm ent of Corrections, with two y e ars su s p e n d e d and eighteen y ears to serve, f

o l lowed by t wo y e ars of post-release supervision. Tutwiler f iled a

m otion f or a JNOV or, in the a lternative, a new trial. The trial court denied the mo t i on. Tutwiler now appeals. ANALYSIS
I. W hether the tria l c o urt erroneously r efused Tutwiler’s peremptory instruction and denied his motion for a JNOV or, in the alternative, a new trial. ¶7. In his f

irst issue, Tutwiler claim s error in the trial c ourt’s ref u sa l of his perem

ptory instruction that the State f a iled t o prove the n ecessary elem ents of the c rim e . T utwiler also claim s the trial court erred when it denied his m o tion f or a JNOV or, i n the alternative, a new trial. Finally , Tutwiler claim s the State did not prove that Tutwiler did not act in necessary self -def e nse.

3A. Sufficiency of the Evidence

¶8. A m otion f

o r a “judgm e nt notwithstanding the verdict, and a request f o r a perem

ptory instruction [ both] challenge the legal suf f iciency of the evidence presented at trial, and the standard of r eview f

or the denial of each is the sam e.” Jerninghan v. State , 910 S o. 2d 748, 751 ( ¶6) (Miss. Ct. A pp. 2005) (citing Easter v
. State , 878 So. 2 d 10, 21 ( ¶36) ( Miss. 2004)). “W hen reviewing the suf

f iciency of the evidence, this C ourt m ust a s k whether, af

ter viewing the evidence in the light m ost f avorable to the p r o s e c u t i o n , any r ational trier of f act could have f ound t he essential e lem ents of the crim e bey ond a r easonable d oubt.” Miles v. State , 956 So. 2d 349, 350 (¶6) (Miss. Ct. App. 2007) (quoting Shumpert v. State , 935 S o. 2d 962, 966 (¶8) (Miss. 2006)). ¶9. The Mississippi Suprem e Court has stated: If the f acts and inf

erences so considered point in f avor of the d ef

endant with suf f icient f o r ce t hat reasonable m en could not have f o und b ey ond a r easonable doubt that the def

endant was guilty , granting t he perem p tory instruction or [ JNOV] is required. On the other hand, if there is s u bstantial evidence opposed to the request or m otion – that is, evidence of such quality and w eight that, having in m ind t he bey ond a reasonable doubt burden of proof standard, reasonable f

a ir m inded m en in the e x ercise o f i m p artial judgm ent m ight reach dif f erent conclusions – the request or m o tion should be denied. Gavin v
. State , 473 So. 2d 952, 956 (Miss. 1 985). T h e r e f o r e , t his Court m

ust determ ine whether t h e State proved, bey ond a reasonable d oubt, that the crim e of aggravated assault occurred. ¶10. Specif

i cally , Tutwiler argues that the State did n ot prove he purposely shot Hallm on

as required f

or aggravated assault. See Miss. C o d e A n n . § 97-3-7(2)(a) (Rev. 2014). To
4establish intent, we look to the t estim ony of each ey ewitness of the in c i d e n t

. H a l lm on,

Ricky , and Buckley all testif i ed t hat Hallm o n went into t he kitchen, started taking out old item s f rom the ref

rigerator, and placed his new groceri e s i n s i d e . They also stated that Tutwiler conf

ronted H allm on about rem oving his f o o d f rom the ref

rigerator. Further, the three m en testif

ied that Tutwiler repeatedly put his f i nger in Hallm on’s f

a ce , a nd Hallm on asked him to stop; then, af ter Hallm on pushed his hand away , Tutwiler pulled a gun f rom his pants and pointed it at Hallm on. A ll o f the witnesses, except Aaliy ah, testif ied that a f

ight ensued when Hallm on wrestled with Tutwiler over the gun. ¶11. Aaliy ah, who rem ained in the living room , only b rief ly saw the f

ight a nd did not see Tutwiler with a gun. A aliy a h g ave three separa t e statem e n ts to the police with dif f ering

accounts as to the num

ber of shots she heard in the kitchen a nd outside. Howev e r, she testif i ed that she heard a gunshot in the kitchen, ran outside, then h e a r d a n o ther gunshot outside. ¶12. Hallm on stated that the gun went of f in the kitchen, he heard two shots as he ran out of the apartm ent, a nd he heard f u rther shooting outside. Hallm on testif ied he sustained f

our gunshot wounds, but did not realize this until af ter he w e n t outside. R icky testif i ed that he heard one shot inside, but m ultiple gunshots o utside. Buckley t e s t i f i e d t hat Tutwiler f

ired at Hallm on as he ran outside, and then f ired again outside. ¶13. The t estim onies of Bodie and Tutwiler dif f ered f rom the other witnesses regarding the circum stances leading u

p to t he a ltercation. Both m en stated H allm on cam e in, began taking

5Tutwiler’s f ood out of the ref

rigerator, and, af

ter Tutwiler conf

ronted him , Hallm on shoved Tutwiler. They claim ed Tutwiler only pulled the gun out af ter Hallm on p ushed him because he f eared f or his saf e ty

. Tutwiler a nd Bodie testif i ed that Hallm on weighed m uch m ore than Tutwile r , and H allm o n was aggressive. Both agreed that the gun went of f w hile Hallm on and Tutwiler w restled, but they said Tu twiler did not s hoot a t Hallm o n when he ran away . Bo d i e t e s t i f

ied Tutwiler shot twice outside, but h e did not a i m at Hallm on. On the other hand, Tutwiler testif

ied he shot just once outside towards the ground. ¶14. In addition to t he e y ewitness accounts, Detective Steve Hartley and Jef f B y r d, a crim e

scene technician, testif

ied at trial. Detective Hartley testif ied t hat he t ook witness statem ents f rom Aaliy ah, Ricky , Buckley , Hallm on, and Tutwiler. Bodie declined to give a statem ent. Detective Hartley also t estif ied that the ey ewitness a ccounts and the p hy sical evidence at the crim e scene were consistent. ¶15. By rd testif ied he recovered three bullet casings f rom the k i t c h e n a n d one outside. By rd stated two of t he shell casings in the k itchen were near each o ther but the third casing appeared in another part o f the kitchen as if leading outside. Further, By rd t estif ied he f ound six live r ounds still i n Tutwiler’s gun, b ut adm itted he d id not k now t he num

ber of bullets the gun could hold. ¶16. Though the testim ony dif f e red in som e respects, i t was substantially consistent. All of the witnesses testif

ied that Tutwiler possessed the gun, a nd H a l l mo n d i d not have a weapon o f a n y k i n d

. Further, all of the witnesses heard at least one gunshot inside the

6kitchen a nd at least one gunshot outside, although the exact num ber of s h ots i n each location varied. ¶17. Despite these discrepancies, this Court f inds the State presented s uf f icient evidence f or the jury to f

ind Tutw i l e r g u i l t y . “[ I]t i s well-settled law that the jury determ ines the credibility of

witnesses and resolves conf licts in the evidence.” McClure v. State , 941 So. 2d 896, 898 (¶4) (Miss. Ct. App. 2006) (citing Evans v. State , 725 S o. 2d 613, 680-81 (¶293) (Miss. 1997)). No witnesses testif ied t hat they s aw T utwiler shoot Hallm on, but t hey all conf irm ed that Tutwiler had the gun, and Tutwiler adm itted he shot Hallm on. Theref ore, the jury could have f

ound Tutwiler intentionally shot Hallm on. ¶18. Next, T u t w i ler also argues that the State f ailed t o prove Hallm on suf f e red f our gunshot wounds. However, Hallm on testif ied he received f

our gunshot wounds, and several witnesses stated Hallm on was wounded at the scene. E v e n B odie, Tutwiler’s witness, testif i ed he saw Hallm on with at least three wounds at t he h ospital the eve n i n g of the incident. In addition, By rd testif ied that he r ecovered f

our bullet casings f

r om the scene. Theref ore, the State provided s uf f icient evidence f

or the jury to f

i nd Tutwiler shot Hallm on f our tim es during the incident. ¶19. This Court f

i nds the evidence suf

f i cient to af

f irm t he denial of Tutwiler’s m otion f or

a JNOV. W e a l s o determ ine the t rial c ourt properly denied Tutwiler’s request f or a perem ptory instruction. This issue is without m erit.
B. W eight of the Evidence

7¶20. Additionally , Tutwiler challenges the trial court’s denial of his m otion f or a new trial. “This C ourt reviews a denial of a m otion f or a n ew trial f

o r abuse of discretion.” Conner v. State , 138 So. 3 d 1 5 8 , 168 (¶33) (Miss. Ct. A pp. 2013) (citing Rutland v. S tate , 60 So. 3d 137, 142 ( ¶18) (Miss. 2011)). W hen this Court reviews “a denial of a m otion f o r a new trial based on an objection to the weight of the e v idence, we will only disturb a verdict when it is s o c o n t r a ry to t he overwhelm ing weight of the evidence that to allow it to stand would sanction a n unconscionable injustice.” Bush v. State , 8 95 So. 2d 836, 844 (¶18) (Miss. 2005) (citation om itted). W ith this standard in m ind, this C ourt should weigh the evidence in the light m ost f

avorable to the verdict. Id. ¶21. The State presented evidence that Tutwiler possessed the gun, H allm on was unarm ed, gunshots occurred in t he kitchen and outside, T u t w i ler pursued Hallm on, and Hallm on received f

our g u nshot wounds. Further, Tutwiler adm itted shooting Hallm on, though he argued s e l f

- d e f e nse. But the State showed that Tutwiler possibly shot Hallm on af ter Hallm on ran f

rom the f i ght. One of the bullet casings l a n d e d i n a dif f e r ent part of the kitchen, which, as By

rd t estif ied, l ed out of the a

p artm ent. Also, T utwiler f ired a t least one shot outside af

ter pursuing Hallm on. ¶22. Based on t h e t e s tim ony and the phy sical evidence, the w eight of the evidence supported the jury ’s verdict. A s such, the trial c ourt did n ot a b use its discretion in deny ing Tutwiler’s m otion f

or a new trial. This issue is m eritless. C. Self-Defense Claim

8¶23. Tutwiler claim s the State f ailed to prove h e d i d n o t a ct in necessary self -def ense. “[ T]he def

endant is not required to prove that he acted in self -def ense, and, if a r easonable doubt of his guilt arises f rom the evidence, including evidence of self -def ense, he m

u st be acquitted.” Steele v. State , 852 So. 2d 78, 81 (¶17) (Miss. Ct. App. 2 003) (quoting Sloan v. State , 368 So. 2d 2 28, 229 (Miss. 1 979)). Tutwiler testif ied he shot Hallm on in self -def ense because he f

eared f o r his lif e. ¶24. “A successf

u l self -def ense argum e n t requires that t he jury b elieve t hat it was objectively reasonable f

o r the def endant to b elieve he was in d anger o f i mmi n e n t death or serious bodily harm .” W ilder v
. State , 118 S o. 3d 628, 6 31 (¶9) ( Miss. Ct. App. 20 1 2) (quoting Livingston v. State, 943 So. 2d 66, 71 (¶13) (Miss. Ct. App. 2006)). “The question of whether t he d ef

endant acted in self

-de f ense is a question f

or the jury to resolve.” Id. (citing Dubose v. State, 919 So. 2d 5, 7 (¶11) (Miss. 2005)). Yet T utwiler could not explain why he f eared f or his lif e, ran a f ter Hallm on, or f

ired a shot outside af

ter the f ight essentially ended. Though he had allegedly f ought wi t h H allm on in the p ast, Tutwiler provided no

reason f or his belief that H allm on would h arm him

. Further, Hallm on di d n o t p o s s e s s a weapon, which weighs a gainst Tutwiler’s assertion of self

- def ense. Based on Tutwiler’s testim o ny , the jury

reasonably

f ound he did not act in self -def ense. ¶25. The s uf

f iciency of the evidence supports the trial c ourt’s denial of Tutwiler’s m otion f or a JNOV and a perem

ptory instruction. Also, t he guilty ve r d i c t was not contrary to the weight of the e vidence, and t h e S t a t e d i s p roved Tutwiler’s self -def ense argum e nt. Theref

ore,

9this Court f inds these claim s m eritless.
II. W hether the t

rial c o urt erred in giving an instruction on voluntary intoxication when the issue was not raised at trial. ¶26. Tutwiler also argues t hat the trial court im properly gave an instruction t hat v oluntary intoxication did not serve as a def e nse t o the crim e when neither party raised t he issue. The State counters that t he i ssue of i ntoxication arose w hen Tutwiler adm itted to drinking prior to the incident. ¶27. “Jury

instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion.” W atkins v. S

tate , 101 So. 3d 628, 633 (¶16) (Miss. 2012) (citation om itted). “[ I]instructions are to be read together and t aken as a whole with no one instruction taken out of context.” Johnson v. State , 19 So. 3d 145, 147 (¶10) (Miss. Ct. App. 2 0 0 9 ) ( quoting Poole v. S tate , 826 So. 2d 1222, 1230 (¶27) (Miss. 2002)). “W hen r e a d together, i f the jury instructions state the l aw of t he case a n d c r e a t e n o injustice, then no reversible error will be f

o und.” W

atkins , 101 So. 3d at 633 (¶16) (citation om i tted). ¶28. Tutwiler objected to the State’s instruction on voluntary intoxication b ecause he did

not raise i t a s a def

ense. The Mississippi S uprem e Court “held i n Lee v. State , 403 So. 2d 132 ( Miss. 1981), that generally speaking[ ,] a jury should not be instructed on the question of voluntary intoxication because such instructions can be conf using and m isleading to the jury .” Baggett v. Stat e , 7 9 3 So. 2d 630, 636 (¶18) ( Miss. 2001). However, “ [ a ] v oluntary intoxication instruction i s prope r w h e n the def e ndant has m ade intoxication a n issue.” Id. at (¶19).
1 0¶29. The suprem e court in Lee h eld the McDaniel 1 rule’s p urpose “ i s to rem ove v oluntary

intoxication as a def

ense, n o t to provide an af f irm ative instruction f

o r the [ S ]tate[ ,] which

m ight m islead a jury into thinking that it is no t n e cessary to p rove intent, when intent is a requisite ingredient of t he of f ense.” Lee, 403 So. 2d a t 134. The trial c ourt here, however, f ound t h e i n s t r u ction ref

lected “a correct statem ent o f the l aw” and “there was enough testim o ny dealing with intoxication.” ¶30. “If the instructions f a irly annou nce the law of t he case and c reate no injustice, no reversible error will be f

ound.” Lawrence v. State, 3 So. 3d 7 54, 758 (¶19) (Miss. Ct. App. 2008) (citation om itted). Lawrence is instructive. This Court f ound that the jury i nstruction

on voluntary intoxication was proper even though t he def endant did not raise volu n t a r y intoxication as a def

ense. Id. at 759 ( ¶¶21, 2 3). T he trial court ruled t hat b eca u s e t he evidence was not c ircum stantial and “there was evidence presented of possible intoxication, [ then] the jury i nstruction was not interjecting an e x t r aneous m atter that could intolerably heighten jury conf

usion.” I d. a t (¶22). Here, the trial court f ound am ple evidence of possible intoxication as all of the witnesses at the scene testif ied to t h e p r e s e nce of alcohol, and Tutwiler adm i tted he consum ed alcohol bef o re the altercation. ¶31. Because we f

ind the evidence was suf f icient t o sustain a guilty verd i c t and am ple evidence of intoxicatio n e x i s t ed in the record, the trial court did not e rr in giving an

1 In M cD a n iel v. S ta te , 3 5 6 S o . 2 d 1 1 5 1 , 1 1 6 1 (M i ss. 1 9 7 8 ), t h e su p rem e co u rt h eld th at v o lu n tary in to x icatio n co u ld n o t b e a d ef en se to a s p ecif

ic-in ten t crim e, an d p ro h ib i ted th e u se o f j u ry in stru ctio n s statin g v o lu n tary in t o x icatio n w as a d ef en se. 1 1instruction on voluntary intoxication. This issue is without m erit.
III. W hether the trial court erred in d enying T u t w i ler’s oral motion f

or a continuance. ¶32. L a stly , Tutwiler claim s the trial court erroneously denied his oral m otion f or a continuance during the trial when he f elt his attorney had f

a i l e d t o p r e pare f

o r trial. “The decision t o grant or d eny a m otion f or a continuance is within the s ound discretion of the trial

court and will not be reversed u nless the d e c i s i o n results in m anif est injustice.” Jones v. State , 995 So. 2d 146, 152 (¶1 7 ) ( M i s s. Ct. A pp. 2008) (quoting Ross v. State , 954 So. 2d 968, 1007 (¶91) ( Mi s s . 2 0 0 7 ) ). “To satisf y t he burden of showing m anif e s t injustice, the def endant m ust ‘show concrete f

acts t h at dem onstrate t he particular prejudice to the def ense.’” Id. (quoting Salts v. State , 984 So. 2d 1050, 1060 (¶25) (Miss. Ct. App. 2008)). ¶33. Af ter the State’s f

irst three witnesses, Tutwiler sought a continuance because he f elt

uncom f ortable w ith his attorney and believed his attorney did not prepare. Tutwiler told the trial court that his attorney did not have the witness list, b ut counsel denied this accusation. Further, counsel responded that he had tim e to prepare f or the case. ¶34. The trial court appointed c ounsel in August 2 013. Counsel r equested a continuance

on Decem ber 20, 2013, seeking additional tim e f or preparation, which the trial court granted. By the tim e of the trial on March 11, 2014, c o u n s e l h a d s e v e n m onths to prepare and he assured the trial c ourt that he was ready t o p roceed with trial. The suprem e c ourt has previously

upheld denials o f

m o tions f

or continuances when attorney s had f ar shorter tim e p e r i o d s to prepare than in this case. S ee Stack v. S

tate , 8 60 So. 2 d 687, 6 92 (¶9) ( M i s s . 1 22003).

¶35. Additionally , Tutwiler was indicted on March 14, 2013, and his trial was n early one
y ear later. This tim e af

f orded Tutwiler the opportunity to obtain p rivate counsel. “Although the right to counsel is a b s o l u t e , t h e r i ght to counsel of choice is not a bsolute.” Harris v. State , 999 So. 2d 436, 438 (¶15) ( Miss. Ct. App. 2009) (citing Atterberry v. State , 667 So. 2d 6 2 2 , 6 3 0 ( M iss. 1 995)). “ The right to choose counsel m ay not b e u sed to thwart the
progress of a trial.” Id. (citation om itted). T utwiler denied that he sought a continuance f or

new counsel m erely because he did not like t he progression of the trial. H owever, Tutwiler f ailed to dem onstrate any

prejudice based on his attorney ’s perf orm a nce. ¶36. Tutwiler prim arily a rgues prejudice due to his a ttorney ’s f ailure to m eet with him prior

to t he m orning o f trial. Y et Tutwil e r d o e s not show how t his delay ed m eeting resulted in prejudice. All of the witnesses present during the i ncident t estif ied at trial, Bodie testif

ied

on Tutwiler’s behalf

, and c ounsel presented evidence f or Tutwiler’s d ef

ense . F u r ther, Tutwiler testif

ied i n order t o present his version of t he events. Tutwiler c annot dem onstrate how m eeting with his attorney prior to the m orning of the trial w ould have caused a dif f erent result so as to constitute a m anif est injustice. Under these f acts, we f i nd that the trial court did not err in its denial of Tutwiler’s m otion f

or a continuance. ¶37. The trial court did not err in deny ing Tutwiler’s m otions f or a new t rial, a JNOV, or

a continuance. Further, t he trial court properly ad mi t t e d t h e jury i nstruction f or v oluntary intoxication and denied Tutwiler’s perem ptory instruction. Theref

ore, this case is af

f irm ed.

1 3¶38. THE J U D G M E NT OF THE FORREST C OUNTY CIRCUIT COURT OF

CONVICTION OF AGGRAVATED ASSAULT, A N D S E NTENCE O F TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED AND EIGHTEEN YEARS TO SERVE, FOLLOWED BY T WO YEARS OF P OST-RELEASE S UPERVISION, A FINE OF $2,500, AND A P AYMENT OF $3,186.55 TO THE M ISSISSIPPI CRIME VICTI M S ’ C OMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING, P . J., BARNES, ISHEE, CARL T O N , MAX W ELL, FAIR A N D WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOU T SEPARATE WRITTEN OPINION.

1 4