IN THE COURT OF APPEALS 07/02/96

OF THE

STATE OF MISSISSIPPI

NO. 93-KA-00768 COA

DARRYL FITZGERALD JOHNSON A/K/A DARRYAL FITZGERALD JOHNSON

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT (1ST DIST.)

ATTORNEY FOR APPELLANT:

F. HOLT MONTGOMERY, JR.

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL: POSSESSION OF CONTROLLED SUBSTANCE WITH

INTENT TO DELIVER, SIMPLE ASSAULT IN A LAW ENFORCEMENT OFFICER, AND

AGGRAVATED ASSAULT

TRIAL COURT DISPOSITION: GUILTY VERDICT; SENTENCED TO A TOTAL OF 40 YRS

IN PRISON AND FINED $30,000.00
BEFORE BRIDGES, P.J., DIAZ, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:

Darryl Johnson was convicted of possession of cocaine with the intent to distribute, simple assault on

a law enforcement officer, and aggravated assault. He was sentenced to a total of forty years in

prison on all three counts and fined $30,000.00. He appeals his conviction, contending that the

prosecution violated an order in limine, that prior civil forfeiture proceedings prohibited his trial on

cocaine possession charges because of double jeopardy considerations, that lesser included offense

instructions were erroneously denied, and that conviction of the possession charges was contrary to

the overwhelming weight of the evidence. We affirm.

FACTS

Johnson was the subject of a "sting" operation in Harrison County in which the police used two

confidential informants who were charged with drug crimes to purchase drugs from Johnson. Several

telephone calls resulted in an agreement to sell powdered cocaine. On October 9, 1992, Johnson was

met by the informants in a grocery store parking lot for the transaction. The police followed in two

unmarked vans. One of the informants wore a concealed microphone to allow the police to hear his

conversations with Johnson, but no recording was made.

The drug transaction took place in Johnson’s car. After the purchase, the police converged on

Johnson’s car. In reaction to the approach of the officers, Johnson threw his car into reverse and

attempted to back out of the grocery store parking lot. In so doing, he ran over an officer’s foot. He

then struck a pedestrian, seriously injuring her. Johnson was stopped and arrested by police at the

scene. A search of his car produced two bags containing a total of 4.49 ounces of cocaine.

DISCUSSION

1. Violations of Order In Limine

An order in limine was entered in the trial of this case prohibiting mention of prior drug transactions

involving Johnson. Nevertheless, three witnesses made statements that Johnson argues violated the

order in limine. The first objection arose during the following testimony:

Q. Why did you do the take down on the deal in the Krogers parking lot?

A. Prior to formulating the plan, Howard Hill had -- during the conversation,

had asked Daryal did he want to do it at Krogers, I believe where they had

done it before.

A motion for mistrial was made, but denied since the judge did not find any substantial prejudice from

the remark. A requested limiting instruction was discussed by the court and defense counsel, but

apparently the defense counsel agreed it was better not to give one.

Another witness testified he was present in the Kroger parking lot as part of an "ongoing narcotics

transaction." The prosecutor asked what suspects were involved with that ongoing transaction, and
the witness named Johnson. Again, defense counsel objected. The trial court only said "Okay," which

may or may not have been a sustaining of the objection. The motion for mistrial that was then made

was overruled.

The State contends that these statements, either separately or cumulatively, were not unduly

prejudicial to the defense. The immediate source of the prohibition against testimony of other drug

crimes in this case is the trial court’s order in limine. In essence, this was an advance ruling that all

evidence of prior drug transactions failed to meet the requirements under Mississippi Rules of

Evidence 404(b) and 403 for probative and not unfairly prejudicial evidence. The trial court itself

found no grounds to grant a mistrial. That decision necessarily included consideration that the court’s

own order may have been ignored, and separately that the evidence violated general rules for

admissibility and prejudice. The order in limine does not enlarge our scope of appellate review, but

does constitute notice to the attorneys of the trial court’s evidentiary ruling, a violation of which risks

a mistrial. Even if a trial judge’s careful review under the rules of evidence would suggest the

evidence is admissible, it is within his appropriate discretion to impose discipline in some form just

for the violation of the order.

Since a judge’s preliminary ruling in limine is always subject to recalculation during the trial, we

analyze on appeal whether the evidentiary rules were violated. First, we consider whether the

testimony objected to falls within an exception to Rule 404(b). Second, applying Rule 403, we must

decide whether the trial judge abused his discretion in determining that the prejudicial impact of the

evidence was outweighed by its probative value. Ballenger v. State, 667 So. 2d 1242, 1256-57

(Miss. 1995).

Rule 404 generally proscribes the admission of "[e]vidence of a person’s character or a trait of his

character" when such evidence is intended to prove that the person acted in conformity with that

character. M.R.E. 404(a). As its basic premise, the rule recognizes that presentation of character

evidence risks raising an inference that an accused is more likely to have committed the crime

charged based on evidence that may either be unreliable or unduly stigmatic. See Marks v. State, 532

So. 2d 976, 981 (Miss. 1988). As a practical matter, the rule prohibits the admission of evidence of

"other crimes." Smith v. State, 656 So. 2d 95, 99 (Miss. 1995). The rule does, however, contain

certain exceptions. Prior crimes evidence is admissible to show motive, plan, knowledge, and identity.

M.R.E. 404(b). Specifically, in this case, evidence of Johnson’s "prior involvement in the drug trade

[was] admissible to prove intent to distribute." Holland v. State, 656 So. 2d 1192, 1196 (Miss. 1995)

. Johnson argued he knew nothing about the drugs in his car, and had never agreed to sell any.

Accordingly, Rule 404 does not present a basis for reversal.

Nevertheless, our analysis is not finished simply because the evidence falls within a Rule 404

exception. We must also consider whether Rule 403 is satisfied, i.e., whether the probative value of

the "other crimes" evidence is substantially outweighed by unfair prejudice. We conclude that it is

not. In this case, the evidence at issue is highly probative to show Johnson’s plan to engage in the

drug transaction that forms the setting for the crimes with which he was charged. The evidence is

strongly probative of Johnson’s intent to distribute the cocaine he possessed. We conclude that the

trial judge did not abuse his discretion in concluding that there was not unfair prejudice.

Johnson also complains about the testimony of a witness who indicated he knew Johnson because he
had previously had a conversation with him in the Gulfport City Court. There was no objection until

the witness was asked "What was the extent of that conversation?" The objection was that such

testimony presented inadmissible hearsay. That objection was overruled, but it is not repeated here.

The argument here is that mentioning a municipal court was a violation of the order in limine, which

was not raised below. We find the reference to Johnson’s being in a municipal court to be entirely too

vague to constitute prejudice. Regardless, the issue has not been preserved. Conner v. State, 632 So.

2d 1239, 1255 (Miss. 1993), cert. denied, 115 S. Ct. 314 (1994).

2. Double Jeopardy

Prior to the trial that produced this appeal, three forfeiture proceedings were instituted against

property owned or possessed by Johnson, including the car Johnson was driving at the time of his

arrest. Two of the forfeiture proceedings resulted in the clerk’s entry of default in favor of the State.

The forfeiture proceeding relating to Johnson’s car did not result in an entry of default. In none of the

forfeiture proceedings does the record reveal a default judgment. In light of these prior civil

forfeitures, Johnson argues that his prosecution in this case violates his Fourteenth Amendment right

against double jeopardy.

While the State and Johnson dedicate their arguments on appeal to a lengthy discussion of the case

law concerning double jeopardy and the law emanating from a United States Supreme Court opinion

about whether civil forfeitures serve as punishment for crime, we find the issue to be different. The

record in this case includes the filings made in the three forfeiture actions. In none of those actions

did Johnson make any appearance prior to the entry of default, which is the final action in the

records. In the absence of Mississippi authority on this issue and because the issue relates to

application of the Federal Constitution, we look to federal case law as particularly persuasive.

In United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), the Third Circuit

considered a motion to set aside default judgments made in forfeiture cases. The individual making

the motion had been convicted of drug crimes prior to the default judgments on forfeiture. He argued

that the judgments should be set aside on double jeopardy grounds. The court rejected this argument,

recognizing that the individual did not participate in the forfeiture proceedings until default judgments

had already been entered against him. $184,505.01 in U.S. Currency, 72 F.3d at 1167. In this factual

context, the court held that "[a] forfeiture proceeding in which a party does not participate does not

place that party in jeopardy, and therefore that party cannot use that forfeiture as the basis of a

double jeopardy challenge to a subsequent proceeding." Id. This holding echoes a very basic premise:

"[y]ou can’t have double jeopardy without a former jeopardy." Id. (citing United States v. Torres, 28

F.3d 1463, 1465 (7th Cir. 1994) (citation omitted), cert. denied, 115 S. Ct. 669 (1994)). The court

explained that "[w]hile Halper ‘extended the no-double-punishments rule to civil penalties . . . [it] did

not remove from the double jeopardy claimant’s shoulders the burden of establishing a former

jeopardy." $184,505.01 in U.S. Currency, 72 F.3d at 1168 (quoting United States v. Baird, 63 F.3d

1213, 1219 (3d Cir. 1995), cert. denied, 116 S. Ct. 909 (1996)).

Consistent with the weight of federal authority, jeopardy does not attach unless a prospective

criminal defendant makes an appearance in the prior forfeiture proceedings. See id. n.14 (cases cited

therein); United States v. Wilson, 77 F.3d 105, 111 (5th Cir. 1996); United States v. Arreola-Ramos,

60 F.3d 188, 192-93 (5th Cir. 1995) ("[S]ummary forfeiture . . . can never serve as a jeopardy
component . . . . Absent a trial, a party, and a punishment, jeopardy can never attach."); United

States v. Doyer, 907 F. Supp. 1519, 1524 (M.D. Fla. 1995) (later criminal proceeding not barred

under double jeopardy by prior forfeiture in which default was entered by virtue of defendant’s

voluntary absence from forfeiture proceedings); United States v. Levine, 905 F. Supp. 1025, 1032

(M.D. Fla. 1995) (citation omitted) ("Jeopardy does not attach when the defendant does not make a

claim and thus, does not become a party to the forfeiture."). Even when, as here, the defendant was

named in the forfeiture actions or is otherwise acknowledged as an owner of the property, jeopardy

does not attach in the forfeiture proceedings in the defendant’s favor unless he makes an affirmative

claim to the property. See Williams v. United States, No. 95-2288, slip op. at 2 (7th Cir. Mar. 11,

1996); United States v. Idowu, 74 F.3d 387, 395 (2d Cir. 1996), cert. denied, ___ S. Ct. ___, No.

95-8843, 1996 WL 245424 (June 3, 1996).

In the case before this Court, Johnson has not established a former jeopardy. He failed to appear in

the forfeiture proceedings until after default had been entered by the court clerk. Consequently, there

is no double jeopardy issue in this case and no infringement of Johnson’s constitutional rights by

virtue of his trial and conviction, following initiation of forfeiture proceedings in which he did not

participate prior to his criminal trial.

In addition, we have no evidence of a final judgment of forfeiture. As an independent basis for

affirmance, we hold that an entry of default is not a final judgment implicating double jeopardy.

Under our forfeiture statutes, it is debatable whether an entry of default is even appropriate. The only

defendant is the property itself, not the alleged owner. Thus regardless of whether an answer is filed -

- and the legal fiction of the property being the defendant means no answer is required -- the state still

must put on evidence that the requirements for forfeiture were met. Thus an entry of default has no

significance. Under Mississippi’s civil forfeiture scheme, even if an answer is not filed, a default is not

justified until the state has proved the grounds for forfeiture. "If an answer is not filed, the court shall

hear evidence that the property is subject to forfeiture . . . ." Miss. Code Ann § 41-29-179(1) (1972)

(emphasis added). As a part of this evidence, the law enforcement agency seeking the forfeiture must

submit a written declaration of forfeiture and the petition for forfeiture may be introduced as prima

facie evidence that the property is subject to forfeiture. Id. §§ 41-29-176(6), 179(2). A claimant can

rebut that evidence even without having filed an answer, since the claimant is not a defendant. Ervin

v. State ex rel. Mississippi Bureau of Narcotics, 434 So. 2d 1324, 1325 (Miss. 1983). Even without

an answer from a claimant to the forfeiture proceeding, the agency must still prove its entitlement to

the property by a preponderance of the evidence. Miss. Code Ann. § 41-29-179(2) (1972). In sum,

these provisions define the impact of the failure to file an answer as one involving a shifted burden of

proof, not a default in favor of the State. See Threlkeld v. State ex. rel. Mississippi Department of

Wildlife, Fisheries & Parks, 586 So. 2d 756, 757 (Miss. 1991). Thus, under this analysis, the defaults

in the forfeiture proceedings in this case d o not result in the taking of the subject property. Double

jeopardy requires a prior punishment for the same crime. The defaults in this case do not operate as

prior punishments because they did not effect a final taking of the property.

Consequently, there has been no forfeiture of the property based on an entry of default, and no

punishment until a final judgment is entered.

3. Lesser Included Offense Instructions
Johnson argues that he was entitled to lesser included offense instructions on all three counts against

him. He contends that, because he did not perceive that he was being chased by police officers, that

he lacked scienter for assault on a police officer and could have been found guilty of simple assault.

He also argues that a jury could have found him not guilty of aggravated assault of the bystander he

hit when he threw his car into reverse, but guilty of simple assault. Lastly, he urges that the jury could

have found him not guilty of possession with intent to deliver, yet guilty of simple possession because

the quantity of cocaine in his possession could have been for his personal use and he claims that there

is no direct proof that the cocaine was going to be sold.

We must determine whether, taking the evidence in the light most favorable to the accused, and

considering all reasonable and favorable inferences which may be drawn in favor of the accused from

the evidence, a hypothetical reasonable jury could convict Johnson of any lesser included offense.

Berry v. State, 575 So. 2d 1, 12 (Miss. 1990), cert. denied, 500 U.S. 928 (1991).

We first look at the law enforcement officer question. The Mississippi Code provides for enhanced

sentencing of persons found guilty of simple assault on law enforcement officers. Miss. Code Ann. §

97-3-7 (1972). The effect of granting a lesser included offense instruction here would not have been

on the finding of guilt by the jury, but on the trial court’s options on sentencing. Johnson received a

four-year sentence on this count. Simple assault on a law enforcement office carries a maximum fiveyear sentence, while otherwise the maximum is only six months. Johnson received a four-year

sentence on this charge. The statute does not explicitly require that an accused know that he is

assaulting a law enforcement officer The purpose of the statute could be seen as deterring criminals

from assaulting law enforcement officers, among other protected classes, by enhancing the

punishment of those who assault them. A similar but slightly different purpose is not deterrence, but

mere punishment -- if one prone to assaults happens to victimize one of the covered individuals, his

penalty is higher.

We find no interpretation of the statute on this point by the supreme court. Consequently, we look at

the plain language of the statute and find no requirement that the defendant know the status of his

victim. What is explicit is that the assault occur while the officer is performing official duties, which

was the case here. We find no due process problem either. The federal courts have addressed this

issue in the context of a similar statute dealing with assaults on federal officers. The statute has been

held to contain an express requirement that the defendant know the victim is in law enforcement.

United States v. Irick, 497 F. 2d 1369, 1373 (5th Cir. 1974), cert. denied sub nom. Myers v. United

States, 420 U.S. 945 (1975). The courts have also found no due process violation arising from only

requiring an intent to assault, and not intent to assault a law enforcement officer. McEwen v. United

States, 390 F. 2d 47, 50 (9th Cir. 1968) (citing United States v. Balint, 258 U.S. 250 (1922)), cert.

denied, 392 U.S. 940.

Johnson’s argument that scienter was not properly proved to support an enhanced simple assault

charge is unavailing. The proof adduced at trial demonstrated that Johnson recklessly injured a police

officer in his attempt to flee the scene of his arrest. Since there was no dispute that this victim was in

fact a police officer, no reasonable jury could have concluded that Johnson did not injure a law

enforcement officer. Consequently, a lesser included offense instruction on this charge was not

necessary or even appropriate.
As to his other victim, the bystander, Johnson argues that the circumstances of his attempt to flee

could be viewed by a reasonable juror as insufficient to support a charge of aggravated assault, yet

sufficient to support a conviction of simple assault. The Mississippi Code provides:

A person is guilty of aggravated assault if he . . . causes [serious bodily] injury [to

another] . . . recklessly under circumstances manifesting extreme indifference to the value

of human life . . . .

Miss. Code Ann. § 97-3-7(2)(a) (1972). In this case, the undisputed evidence shows that Johnson

threw his car in reverse and attempted to flee the parking lot. He struck the bystander and caused

injuries to her that were extremely serious. He then was apprehended at a high rate of speed. The

supreme court has held that the test of whether the simple assault instruction should be given under

an indictment for aggravated assault "is whether there was evidence in the record so that a reasonable

juror could have concluded that the accused was guilty of simple assault." Harbin v. State, 478 So.

2d 796, 798 (Miss. 1985). The court said the "clincher" can be "uncontradicted evidence regarding

the nature and extent of [the victim’s] injuries." Harbin, 478 So. 2d at 800. In light of the seriousness

of the bodily injury caused and the recklessness with which Johnson attempted to flee, we find "the

uncontradicted physical facts overwhelmingly support the greater charge to the extent that no

reasonable juror could have found him guilty only of simple assault." Id.

As to a lesser offense instruction on possession, Johnson testified at trial he did not know he had the

narcotics, and did not intend to sell and did not knowingly possess. Thus the jury was faced with

choosing the State’s evidence of a drug transaction, or Johnson’s version that he was innocent of any

criminal activity. There was no evidence to support a lesser included instruction.

4. Weight of the Evidence on Possession With Intent to Distribute Charge

Johnson contends that the jury’s guilty verdict on the charge of possession of cocaine with the intent

to distribute is contrary to the overwhelming weight of the evidence. Johnson argues that the jury

was without evidence to conclude that he intended to sell the cocaine. We disagree. There is ample

evidence from the testimony of the confidential informants that Johnson wanted to sell the cocaine. In

addition, the jury heard tape recordings of conversations with Johnson which, while they did not

present Johnson’s side of the conversation, were strong evidence of Johnson’s intent to distribute.

Lastly, testimony of Johnson’s prior activity as a drug dealer supported the conclusion that he

intended to sell drugs in this case. In light of this evidence, taken in the light most favorable to the

prosecution, we conclude that the jury’s verdict on this count was not contrary to the overwhelming

weight of the evidence. Hopson v. State, 625 So. 2d 395, 405 (Miss. 1993).

THE JUDGMENT OF CONVICTION OF THE HARRISON COUNTY CIRCUIT COURT

AND SENTENCE OF TWENTY (20) YEARS FOR COUNT I: POSSESSION OF A

CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE; FOUR (4) YEARS FOR

COUNT II: SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER; AND TWENTY

(20) YEARS FOR COUNT III: AGGRAVATED ASSAULT, WITH THE SENTENCES FOR

COUNT I AND III TO BE SERVED CONSECUTIVELY, AND THE SENTENCES FOR

COUNT I AND II TO BE SERVED CONCURRENTLY, AND TO PAY A FINE OF $30,
000.00 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HARRISON

COUNTY.

FRAISER, C.J., BRIDGES, P.J., BARBER, COLEMAN, DIAZ, KING, McMILLIN, AND

PAYNE, JJ., CONCUR.

THOMAS, P.J., NOT PARTICIPATING.