IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-01702-SCT CORTAIA WASHINGTON

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/23/2015 TRIAL JUDGE: HON. JEFF W EILL, SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN MICHELE PURVIS HARRIS GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/29/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., COLEMAN AND MAX W ELL, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. F o l l o w i n g a trial, a jury in the Hinds County Circuit C ourt, First Judi c i a l D i s t r i c t , f ound Cortaia W ashington guilty of intim idating a w i tness in violation of M ississippi Code Section 97-9-55. The c ircuit c ourt sentenced W ashington to serve two y ears in the custody of t he Mississippi Departm e nt of Corrections, w ith two m onths suspended and credit f or t im eserved. The circuit court denied W ashington’s post-trial mo t i o n s, and she appeals,

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

. FACTS AND PROCEDURAL HISTORY ¶2. On March 21, 2012, F reda Austin testif ied as a State’s witness in the trial of Cortez W a shington, w ho later was f ound guilty of arm e d robbery

. As she w a s t e s t i f y ing, Austin recognized a wom an in the audien c e a s a r e g u l ar custom er at the local store where she worked. The wom an, later identif ied as Ashley Bry ant, i s Cortez W a s hington’s aunt. Later
t h e s a me day , an “angry ” and “bothered” Bry ant went to the s tore and asked to speak t o Austin. Bry ant w as inf

orm ed that Austin w as not there be c ause she had been testif y ing in
court. ¶3. The f

ollowin g d a y , B r y a n t a n d C o r t a i a Wa s h i n g t o n, Cortez W ashington’s sister, returned t o the store and a sked the store m anager if they could speak to Austin. The m anager testif i ed that she knew why

the wom en were there and that they needed to leave; however, bef ore she could get them

to leave, Austin cam e f

rom the back area where she had gone to get som e p ain reliever. Upon seeing Austin, Bry ant started y elling a t Austin about the case

a n d her testim ony . The s tore m anager positioned herself between A ustin and the t w o

wom en, but Bry ant was able to reach around her a nd hit Austin i n the f ace. The store

m anager pushed Bry ant away , and it was then that W ashington took the opportunity to attack Austin. The testim ony at trial was that W ashington p unched Austin several tim es and pulled
out som e of her h air. The incident lasted onl y a c ouple o f m inutes bef ore Bry ant and W a shington lef

t the store. Austin testif

ied that she was not af

raid at the tim e of the incident

2because “it happened so f ast. . . . [ a]nd being af

raid, probably , happened af t er the situation ended. But at the tim e I was protecting m y self .” Austin also testif

ied that she b elieved the incident occurred only because she had testif ied at Cortez W ashington’s trial. ¶4. Bry ant a nd W a shington originally were tried together, b ut t he jury was unable to reach

a ver d i c t

. T h e y w ere then tried separately

. Prior to the second trial, the State and W a shington m oved the circuit court to enter an order of nolle prosequi i n the c ase; however, the circuit court denied the m otion based on the public interest in deterring th e t y p e of activities that occurred. For the sam e reason, t he circuit c ourt also did n ot accept a plea

recom m e n d a t i o n f

rom the S tate. Af

ter deliberations, the jury returned a guilty verdict, f i nding that W ashington’s actions toward Austin violated Section 97-9-55. W ashi n g t o n f iled a m otion f

or a judgm ent notwithstanding the v e r d i c t , or a l ternatively , f or a new trial, which the circuit court denied. ¶5. W a shington a

ppeals a nd raises the f

ollowing issue f

o r our r eview: whether t he circuit
court “erred in f

ailing to gran t t h e m o tion f or [ a] new trial as t he verdict was against the overwhelm ing weight of

the evidence.”

ANALYSIS ¶6. A m otion f

or a new tri a l i s a c h a l l e n ge to the weight of the evidence; t heref ore, we review the c i r c uit court’s denial of a m otion f or a new trial using the abuse of discretion standard. Dilworth v. State , 9 0 9 So. 2d 731, 737 (¶ 20) (Miss. 2005) (citing Howell v. State , 860 S o. 2d 704, 764 (¶ 212) (Miss. 2003)). The Court views the evidence in the light m ost f avorable to the verdict and reverses o nly i f the verdict i s “so contrary to the overwhelm ing

3weight of the evidence that to allow it to stand would sanction a n unconscionable injustice.”

Bush v. State , 895 So. 2d 836, 844 (¶¶ 18-19) (Miss. 2005). ¶7. According to W ashington, the jury ’s v erdict was against the overwhelm ing weight of the evidence because the “evidence shows only that W a s hington went to the store with her aunt” to ask “what Austin had go t t e n o u t of testif y i ng against Cortez [ W ashington].” W a shington f

u rther states that “[ t]he testim ony a t trial shows that W a shington went with her
aunt to conf

ront A ustin about why she had testif ied, b ut nothing in the record suggests that they went to the s tore with the intent to retaliate against Austin or t o threaten her.” W a shington also strenuously argues t hat she was just a by stander, w ho did not say any thing
to A ustin and did not initiate the f ight. She s e em s to j ustif

y her actions b y claim ing that she did not get involved u ntil af t er the store m anager had p ushed Bry ant: “ There i s no evidence that W ashington’s a ctions i n j o i n i n g t he f ight was [ sic] in retaliation f or Austin testif

y ing against Cortez, rather than a reaction to her aunt being pushed at the beginning o f t he f ight.” ¶8. W a shington’s conviction is based on a violation of Mississippi Code Section 97-9-55 (Rev. 2014), which reads, in pertinent part, as f o llows: If any person . . . by threats, f orce or abuse, attempt to intimidate o r o therwise inf luence a . . . witness

. . . in the d ischarge of his duties, o r b y s u c h force, abuse o r reprisals o r threats thereof after the performance of such duties

. . . he shall, upon conviction, be punished b y im prisonm ent not less than one (1) m onth i n the county

jail nor m ore than two (2) y ears i n the state penitentiary or b y a f i ne not exceeding f

ive hundred dollars ($500.00), or both s uch f ine and im prisonm ent. (Em phasis added.) As exp l a ined above, W ashington earnestly a rgues that her silence bef orehand and her participation only a f t e r h e r aunt was pushed by the store m anager

4som ehow obviates the evidence presented that she accom panied her aunt to Austin’s place of e m ploy m ent with the specif

ic intention to talk to Austin a bout the case and then ended up phy sically assaulting Austin the da y a f ter she had testif

ied against Cortez W ashington. Further, W ashington’s cl a i m t h a t h e r involvem ent in the f ight was in response to her aunt being p u s h e d d o es not hold m uch water, since it was the store m anager, not A ustin, who pus h e d B r y a n t. It does not f ollow that W a shington would a ttack A ustin when Austin was not the person who pushed Bry a nt. ¶9. Though W ashington claim s that she d id not intend to int i mi d a t e o r a s s a ult Austin when s he went looking f

or her, “[ i]ntent t o do a n a c t or com m it a crim e is a lso a question of f act t o be gleaned by the j ury f rom the f acts s h own in each case. The intent to com m i t a crim e or to do an act by a f r ee agent can b e d e t e r mi n ed only b y the act i tself , surrounding circum stances, and expressions m ade b y the actor with ref erence to his i ntent.” Shanklin v. State , 290 So. 2d 625, 627 ( Miss. 1974). The jury viewed the evidence surr o u n d i ng the incident and d eterm i ned that W ashington h ad violated Section 97-9-55 by attem pting to i n t im idate Austin when she sought out A ustin, s pecif ically about h er testif

y ing, a n d t h e n assaulted Aus t i n w ithout any real justif ication, bey ond the f

act that Austin had testif ied against Cortez W ashington the previous day . Her only connection to Austin is that Austin had testif ied against Cortez W ashington. The jury ’s verdict is f ully supported by the evidence; theref

o re, the jury v e r d i ct was not against the overwhelm ing weight of the evidence CONCLUSION

5¶10. T o s u mma r i z e , t h e d ay af ter Austin testif

ied a g a i n s t Wa s h i n g t o n ’ s b r o t h e r , W a shington went with Bry ant to Austin’s place o f em ploy m ent with the intent to conf ront Austin about her testim ony or what she “got” f or testif y ing. W a shington did not s ay any thing
t o A u s t i n ; instead, she took an opportunity to phy sically assault Austin, a person she had

never m et until Cortez W ashington’s trial, when the store m anager m oved out of the way . The jury f ound that W ashington’s actions clearly f ell within th e a m

bit of S ection 97-9-55. W e agree and hold that the jury ’s verdict is not agains t t h e o v e r w h elm ing weight of the evidence such that allowing the v e rdict to stand would sanction an unconscionable injustice. W e af f i rm . ¶11. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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