IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-00815-COA CONWAY E. DENNIS A/K/A CONWAY EARL DENNIS A/K/A KC APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/01/2017 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 11/27/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Conway E

. Dennis appeals his conviction of aggravated assault and argues the circuit

court f ailed to properly instruct t h e jury regarding the elem ents of the crim e. W e f ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On the n i ght of Septem ber 22, 2015, Jerom e W olf e was injured when he was run over by a m inivan driven by Dennis. D ennis’s girlf riend, Shay la W i lliam s, o nce dated W olf e, and the two were the parents of a daughter. Earlier that evening, W i lliam s went to see W olf e topick up som e m oney f or t heir daughter. According to W o lf e, he and W illiam s were “intim ate.” W hile w ith W o lf e, W illiam s received a phone call f rom Dennis. W illiam s and Dennis began to argue, and W illiam s subsequently lef t W olf e’s apartm ent. ¶3. Shortly thereaf

t e r , D ennis and W illiam s returned to t he apartm e nt. Dennis was driving a b lue m i nivan, and W illiam s was in the p assenger seat. W hen D e n nis a n d W illiam s arrived at the apartm ent, W olf e and his f riend Dam ien Dawkins were outside. Dennis parked

t h e vehicle about ten f

e et f rom the apartm ent door, blocking the exit to the apartm ent

com plex. As Dennis exited the vehicle, he and W o lf e began to a r gue. A verbal altercation occurred with threats of

a “one-on-one” f

ight. ¶4. As W olf

e was walking toward the street in preparation f or a f ight, h e heard Dawkins
y ell. W o lf

e turned around and s aw Dennis in the m inivan. W olf e was standing behind the

m inivan and could see Dennis’s ey es in the vehicle’s side m irror. According t o W olf e, Dennis w as looking d i rectly at him

. Den n i s b a c k e d u p t he m inivan and ran over W olf e. Dennis then drove the m i nivan f orward and, o nce a gain, backed over W olf e. Dennis subsequently sped of

f

. As a result of the incident, W o lf e s uf f ered injuries including a broken hip, two sprained ankles, and an abrasion to his lef t ear. ¶5. Fol l o w i n g t

h e i n c i d e n t , D e n n i s w a s a

p p rehended and interviewed by Detective Jerem y Dunaway with the Hattiesburg Police Departm ent. Dennis provided a s tatem ent to Detective Dunaway

. Accordin g t o Dennis, when he a r rived at the a

partm ent, two m en, one being
W o lf e , approached the m i nivan. Dennis f elt threatened and thought he was being
“am bushed.” As a result, D ennis proceeded to back up t he vehicle in ord e r t o l e a v e t h e

2apartm ent com plex. Dennis stated he knew he had hit som ething but did not know that he had hit W olf

e. ¶6. At trial, W i lliam s testif i ed on behalf of Dennis. W illiam s denied that Dennis intended

to hit W olf

e. W hen W illiam s told Dennis that he had hit W olf e, Dennis responded, “[ O]h

m y God, baby , I didn’t m ean to.” ¶7. Dennis was convicted of aggravated assault and s entenced to f if t een y ears, with seven
y ears suspended, leaving eight y ears to serve in the custody of the Mississippi Departm ent of Corrections, f

ollowed by f

ive y ears of postrelease supervision. Dennis subsequently f iled

a m otion f

or a judgm e n t notwithstanding the verdict (JNOV) or, alternatively , a new trial, which the circuit c ourt d e nied. D ennis now appeals and argues the c i rcuit court im properly instructed the jury

regarding the elem ents of aggravated assault.
S TANDARD OF REVIEW ¶8. “Jury

instructions are generally within the discretion of t he [ circuit] court[ ,] and the settled standard of r eview i s abuse of d iscretion.” Bailey v. State , 7 8 So. 3d 308, 315 (¶20) (Miss. 2012). “The instructions are to be read together as a whole, w ith no o ne instruction to be read alone or taken out of context.” Id . “W hen read together, if the jury instructions f airly s tate the law of the case and create no injustice, then n o reversible error w ill be f ound.” Id

. ANALYSIS ¶9. Pursuant to Mississippi Code Annotated section 97-3-7(2)(a)( i i ) ( R e v . 2 0 1 4 ) , a person is guilty of ag g r a v a t e d assault i f he “attem pts to cause or purposely or knowingly causes

3b o d i l y injury t o another with a deadly weapon or other m eans l ikely to produce death o r

s erious b odily harm

. ” The indictm ent alleged that Dennis “ did unlawf u lly , f elon i o u s l y , willf ully , and purposely c ause bodily i njury to

. . . W olf e, by m eans likely to produce death

or serious bodily i njury , t o-wit: by driving over . . . W olf e with a car . . . .” It is undisputed that the indictm ent did not allege that Dennis c aused bodily injury to W olf e w i t h a deadly
weapon. ¶10. Jury

Instruction S-3 was given by the circuit court and advised the jury as f ollows: [ I]t is a ques t i o n o f f

a c t f or y ou to determ ine whether the vehicle claim ed to have been used b y [ D ennis] was a deadly w eapon in t he m anner it was used in this case.
A deadly weapon m ay be def ined as a n y o bject, article, or m eans which, when used as a weapon is, u nder the existing circum stances, reasonably capable of or likely t o produce death or serious bodily h arm t o a hum a n being upon whom the object, article, or m eans is used as a weapon. ¶11. D e n n i s argues the circuit court erred in giving Jury Instruction S-3. Specif ical l y , Dennis argues the circuit court “im properly instructed the jury in giving a n instruction on an
autom obile as a deadly weapon where deadly w eapon was n o t p a r t o f the indictm ent and where s aid instruction instructed the jury to presum e an elem e nt o f t h e c rim e.” He claim s Jury Instruction S-3 constructively am ended the indictm ent, deprived him of a def ense, and created an im

p erm issible p resum

p tion that an autom obile i s a utom atically a d eadly weapon. As a result, D ennis claim s his conviction should be reversed and his case rem anded f or a new trial. W e disagree. ¶12. Dennis f

ailed to object to Jury Instruction S-3 a t trial. “Norm ally , f a ilure to object to a jury instruction serves as a procedural bar to appellate review.” Heidelberg v. State , 976

4S o . 2 d 948, 949 (¶8) (Miss. C t. A pp. 2007). However, “[ w]here a party has f orf eited a n objection by f

ailing to urge it a t trial, an appellate court m ay e xercise discretion to correct the error—but only where t he e rror i s clear or obvious and af f ects the p arty ’s substantial rights.” Faulkner v. State , 109 So. 3d 142, 146-47 ( ¶15) (Miss. Ct. App. 2013). “An appellate court should correct a plain f

o rf eited error af

f ecting substantial rights if the error seriously af f ects the f a irness, integrity or public reputation of judicial proceedings.” Id

. a t 147 (¶15) (internal quotation m arks om itted). ¶13. According to D ennis, the aggravated assault statute “ m akes it plain that it is an either

or situation

. . . ; [ i]njury m ay be c aused by a deadly weapon or by m e ans likely t o produce death or serious bodily injury .” He argues that “[ w]hen the State chose to indict only upon ‘other m eans likely t o produce death or serious bodily injury ’ without specif y i ng or including ‘deadly weapon,’ it then was p recluded f rom introducing ‘deadly w eapon’ as an elem ent in the jury instructions.” ¶14. However, the State did not “introduc[ e ] ‘ d e a d ly weapon’ as an elem e nt in the jury instructions.” Indeed, the elem ents instruction, Jury I nstruction S -1, d id not include “deadly weapon” as an essential e lem ent of aggravat e d a s s a u lt. Instead, Jury Instruction S-1 instructed the jury

as f o llows: If y ou f ind f rom the evidence bey ond a reasonable doubt that:
1. Conway Dennis, on or about Septem ber 22, 2015, in Forrest Cou n ty , Mississippi;
2. knowingly caused bodily injury to

. . . W olf e, by m eans l i k e l y t o produce death or serious b odily i njury , to wit: by run n i n g o ver . . . W olf e with a car; and

53. that such behavior w as not done in necessary self def ense, accident, or m i sf ortune; then y ou shall f

ind

. . . Dennis, guilty of aggravated assault. If the State has f

ailed t o prove any one or m o re of the above listed e l e me nts bey ond a reasonable doubt, then y ou s h all f i n d

. . . D ennis, not guilty of aggravated assault. ¶15. Jury Instruction S-1 was t he only instruction that advised the jury of th e essential elem ents of

the crim e . Jury Instruction S-1 tracked the language o f the indictm ent and the aggravated assault statute and accurately f ollowed the requisite elem ents of the crim e. ¶16. The “deadly weapon” language at issue in Jury I nstruction S-3 was not included in the elem ents instruction. In other words, the jury was n ot i nstructed that in order to f ind Dennis guilty of aggravated assault, it m u st f ind bey ond a reasonable doubt that the m inivan was a deadly weapon. Thus, J ury Instruction S-3 did not a l ter the e lem ents of proof necessary f or conviction and did not af f ect the verdict. M oreover, Jury Instruction S-3 d i d n o t af f ect Dennis’s def

ense. Indeed, Dennis’s def ense of accident was e qually available to him with or without Jury Instruction S-3. ¶17. “[ F]ailure to subm it to the jury the essential elem ents of the crim e i s f undam ental
error.” H e i d e l b e rg , 9 76 So. 2d at 949 (¶9) (internal quotation m arks om itted). H ere, Jury Instruction S-1 i nstructed the jury regarding the essential elem ents of the crim e of aggravated assault, as alleged in the i ndictm ent. Despite Dennis’s assertion, Jury Instruction S-3 did not constructively am end the indictm ent and d i d not adversely af f ect h is d ef

ense. Thus, no f undam ental error occurred. ¶18. Dennis f

u rther argues Jury Ins t

r u c t i on S-3 is “perem

ptory in nature” and “allowed [ the jury ] to sim

ply p r e s u me a van is autom atically a deadly weapon and theref ore did cause

6serious bodily injury .” In support thereof , Dennis r elies on Henry v. State , 816 So. 2d 443 (Miss. Ct. App. 2002), and Caldwell v. S tate , 381 S o. 2d 591 (Miss. 1980). Howe v e r , we f ind both cases distinguishable. ¶19. In Henry , t he circuit court ref used an instruction which advised the jury that the def endant had “declared his i nnocence” and “ testif ied that he did not c om m it the crim e which he [ wa]s accused.” Henry , 8 16 So. 2d at 447 (¶16). O n appeal, this Court f ound the circuit

court properly ref

u sed the i nstruction since it “appear[ ed] to com m e nt on the weight of the evidence” and “im

properly direct[ ed] the jury ’s attention to [ the def endant’s] declaration of innocence.” Id

. at 447-48 (¶18). ¶20. Additionally , in Caldwell , t he circuit court r e fu s e d m u l t i p l e i n s t

r u c t i o n s w h i c h a d

v i s ed the jury that an of

f icer’s a ttem

pted arrest of t he def

endant was unlawf

ul. Caldwell , 381 So. 2d a t 5 95. On appeal, the cou r t f o u n d the i nstructions were properly ref used since the instructions were perem

ptory i n f orm and excluded f

rom c onsideration the j ury ’s right to f ind that the of

f icer was doing a lawf

ul act. Id . at 596. ¶21. Here, Jury Instruction S-3 does not com m e nt on the weight of the evidence or allow the jury to m ake certain presum ptions. Additionally , J ury Instruction S-3 is not perem ptory in nature. It does not direct the jury to m ake a specif i c f inding in f

a vor of a party

. Instead, Jury Instruction S-3 unnecessarily advises the jury

of the def inition of “deadly weapon.” ¶22. In H

arrell v. State , 134 S o. 3d 266, 270 n .1 ( M i ss. 2014), the c ourt noted “that the capital-m u rder instruction i n correctly stated that the killing had to have been done with

m alice[ ,]” desp i t e n o s u ch requirem ent f or capital m

u rder. However, the court f o und that

7because the error f avored th e d e f

endant by increasing the State’s burden of proof , no reversible error occurred. Id

. ¶23. H e r e, as in Harrell , the unnecessary language in Jury Instruction S-3 does n o t prejudice Dennis. The i n s t r u c tion does not direct the j ury to a conclusion regarding any elem e n t of the crim e and does not deprive Dennis of his def ense o f accident. Dennis’s def ense of accident was equally a v a i l a b l e t o him whether the vehicle w as considered a “deadly weapon” or “other m eans likely to produce death or serious bodily h arm .” CONCLUSION ¶24. Upon review, we do not f ind J ury Instruction S-3 prejudiced Dennis’s d e f e n s e o r af f ected his substantial rights or the f airness, i ntegr i t y , o r public reputation of t he judicial proceeding. W hen r ead together as a whole, the instructions f airly s tate the law of the case and create no injustice. Accordingly , we af f irm the circuit court’s judgm e nt. ¶25. AFFIRMED. LEE, C .J., I R

V I N G , P .J., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN R ESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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