IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01794-COA ROGER DALE CRAIG A/K/A ROGER CRAIG APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/11/2014 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: QUITMAN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN ELIZABETH PRIDGEN ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS JASON L. DAVIS DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MANSLAUGHTER W ITH A FIREARM ENHANCEMENT, AND SENTENCED TO TW ENTY YEARS, W ITH FIFTEEN YEARS TO SERVE AND FIVE YEARS SUSPENDED, AND TO FIVE ADDITIONAL YEARS FOR THE FIREARM ENHANCEMENT; COUNT II, ATTEMPTED AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS W ITH FIVE YEARS SUSPENDED; AND COUNT III, CARRYING A CONCEALED W EAPON, AND SENTENCED TO SIX MONTHS; W I TH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED, AND W I TH THE SENTENCES IN COUNTS II AND III TO RUN CONCURRENTLY W ITH THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONSDISPOSITION: AFFIRMED IN PART, REVERSED AND RENDERED IN PART - 09/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. This is an appeal f rom a crim inal conviction in Quit ma n C o u n t y C ircuit Court. On
June 27, 2013, Roger Dale Craig f ired o ne shot at David “Dusty ” W ay ne Sm ith III inside a

com bination service station and f a st-f ood restaurant in Marks, Mississippi. The gunshot was f atal to Sm ith. Multiple by standers were p resent o n both the service and restaurant sides of the business. The lone bullet landed in the vicinity of Andrew Corey Autm a n, who was on the f loor in the restaurant. Craig was charged with Sm ith’s m urder, a f irearm enhancem ent,
attem pted aggravated assault on Autm an, a n d carry ing a c o n c e a led weapon. Craig was convicted of m anslaughter with the f irearm enhancem ent, attem p ted aggravated assault, and

c arry ing a concealed weapon. At trial, the State used a theory of transf erred intent f

o r t h e
attem pted aggravated assault against Autm a n. Autm a n was untouched a n d phy sically unharm ed. On appeal, Craig a s s e rts the trial court erred by not granting his m otion f or a judgm ent notwithstanding the verdict (JNOV) on the att e m pted-aggravated-assault conviction and by granting the transf erred-intent jury instruction. W e reverse and r ender on the c onviction of a ttem

pted aggravated assault. In all other respects, w e af f irm the trial circuit court’s judgm ent. Facts and Proceedings Below ¶2. Craig and Sm ith had a history of conf lict. Several witnesses testif ied that Sm ith had

2m ade m

ultiple threats against C raig bef ore the shooting that killed Sm ith. On June 27, 2013, Craig drove onto the parking lot of a com bined gas station and r estaurant, crossing in f ront of Sm ith’s parked vehicle. Craig and Sm i th then h ad a verbal e xchange f rom their vehicles i n t h e parking l ot. S m i th exited his vehicle, stepping towards Craig’s vehicle. Craig then drove to the other side of the parking lot, parking in the f r ont o f the store. S m ith got into his pickup, then exited the parking lot. Craig reentered his pickup, leaving i n the sam e direction
as Sm ith. Craig then cam e back t o the service station. C raig exited his p ickup, entering the

store. He h ad a revolver in a scabbard in his pocket. Sm ith decided to turn his pickup around, even though his passengers protested, driving to the service station in search of Craig. ¶3. Sm ith parked by the station’s pum ps. Sm ith then walked into the s tore toward Craig, challenging Craig to an altercation. Craig m oved away f rom Sm ith, warning Sm ith that he had a gun, and that he would shoot Sm ith. Craig d rew a revolver while Sm i th intentionally
f ollowed Craig around a display i n the store. Sm ith told C r aig that h e was not f earf ul of the pistol. A s Sm i th closed in on Craig, Craig f ired a single shot, h itting Sm ith in the abdom en. The bullet exited Sm ith’s back, com ing to rest on the f loor of the r estaurant area. Hearing the shot, Autm an t o o k c o v e r on the f loor, near the location of the bullet’s resting place. The bleeding S m ith walked to his pickup, and drove away . Sm i th later died at the local hospital. ¶4. At trial, Autm a n testif ied that he “heard the bullet com e b y [ him ],” that the b ullet was two steps away f

rom him , and that he dove to the ground af ter hearing the shot. He f

urther

t e s tif ied that his diving caused him to be closer to the resting bullet than t o the pat h o f t h e bullet. Autm an w as asked if he was in the l ine of f ire. H e testif

ied, “In a way , sir. A bullet

3[ does]n’t have [ a] nam e, y ou know. Like I said, I heard it when i t c[ a]m e by m e. So the way

I see it, I was still in the crossf ire, too. I could have b een shot, too.” Craig testif ie d that he neither k new Autm an, nor was aware of h is presence in t h e s t ore the d ay of the incident. Further, Craig testif

ied that he had no intention to harm Autm an when he f

ired his gun. ¶5. Th e c o u r t i n s t r u c t e d t h e j u r y o n mu r d e r , a n d the lesser included of f ense of

m anslaughter. The court a lso instructed the jury on self -def ense. Further, the court instructed the jury on aggravated assault and gave a transf erred-intent instruction. ¶6. The jury f

ound Craig guilty of m anslaughter with a f irearm enhancem ent f

or killing
Sm ith, attem

pted aggravated assault o f A u t ma n , and carry ing a concealed weapon. Craig

m oved f or a new trial o r, in the alternative, a J NOV. The trial court denied Craig’s m otion.
Discussion ¶7. On appeal, Craig o n ly challenges his conviction f or attem pted aggravated assault on the by stander, Autm an. Craig asserts the trial court erred in deny ing his m o tion f o r a JNOV

on that conviction because the evidence was insuf f i cient to sustain a conviction of attem pted aggravated assault. Further, he a sserts that the trial court erred in giving a transf erred-intent jury instruction because it was an im proper statem ent o f the l aw. The crux of C raig’s appeal is whether, under Mississippi law, the doctrine o f transf erred intent is applicable where the intended victim

is injured but the unintended victim is unharm ed. ¶8. Q u e stions of l aw are reviewed de n ovo. Bester v. State , 188 So. 3d 5 2 6 , 5 2 8 ( ¶ 4 ) (Miss. 2016) (citing Twillie v. State , 892 So. 2d 187, 189 (¶6) (Miss. 2004)).
I. Attem pted Aggravated Assault

4¶9. Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2 014) states that a person

is guilty of aggravated assault if he “ attempt s t o c ause or purposely or knowingly causes bodily injury to another with a deadly weapon or other m eans likely to prod u c e d e ath or serious bodily harm

. . . .” (em phasis added). “An attem

pt t o com m it a crim e c onsists of three elem ents: (1) an intent to com m it a particular crim e[ ,] (2) a direct i nef f ectual act done toward its com m ission[ ,] and (3) the f ailure to consum m a te its com m ission.” Brooks v. State , 18 So. 3d 833, 841 (¶33) (Miss

. 2 0 0 9 ) ( c i t ing H ughes v
. State , 983 So. 2d 270, 278 (¶28) (Miss. 2008); Miss. C ode A nn. § 97-1-7 (Rev. 2006)). To establish the intent necessary to prove the

attem pted aggravated assault against Autm an, the trial court allowed the jury to c onsider the theory of transf erred intent. ¶10. In i ts order deny ing Craig’s m otion f or a J NOV o r, in the alternative, a n ew trial, the trial court cited Commonwealth v. Thompson , 739 A.2d 1 023 (Pa. 1999), and State v. Elmi , 207 P.3d 439 (W ash. 2009), as persuasive authority to support apply ing the transf erred-intent theory to Craig f

or t h e a t t em

pted-aggravated-assault charge. W e decline to f ollow these

cases. ¶11. In Thompson , the appellant was charged with , a mo n g o t h e r t h i n g s , a g g r a vated assault. 1 Sim ilar to Mississippi, Pennsy lvania’s aggravated-assault statute both def ines assault and includes at t e mp t a s one of the way s in which a person m ay be f ound guilty of

1 In P en n sy lv an ia, “a p erso n is g u ilty o f ag g rav ated assau lt if h e . . . attem p ts to cau se serio u s b o d ily in

j u ry to an o th er, o r cau ses su ch in j u ry in ten tio n ally , k n o w in g ly o r reck lessly u n d e r c i r c u m stan ces m an if e stin g ex trem e in d if

f eren ce t o th e v alu e o f h u m an lif e . . . [ o r] attem pts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” 1 8 P a. C o n s. S tat. § 2 7 0 2 (a)(1 ), (4 ) (R e v . 2 0 1 4 ). 5aggravated assault. Pen n s y l v a nia has a separate statute def ining attem

pt. 2 Under Pennsy lvania law, the requisite i ntent of a person charged under the attem pt p rovision of the aggravated-assault statute i s determ ined under a t otality -of -the-circum s t ances test with a list of nonexhaustive f

actors given, to be c onsidered on a case-by -case basis. 3 Com. v. Jackson , 955 A.2d 441, 446 ( ¶15) ( Pa. Super. Ct. 2008) (citing Com. v. Alexander , 383 A.2d 887 (Pa. 1978)). W e f

urther note that W ashington has a dif f erent statut o r y s c h e m e f

or assault than Mississippi. 4
II. Transferred Intent ¶12. Under the doctrine of transf e r r e d i n t ent, “the m alicious intent o f the unlawf ul act directed t oward one person is transf erred to the other person.” Dobbins v. State , 766 So. 2d 29, 33 (¶11) (Miss. Ct. A pp. 2000) (quoting Ross v. State , 158 Miss. 827, 832, 131 So. 367,
368 ( 1930)). “The doctrine is applicable to the crim e of assault. Thus if A , intending to strike

2 T h e P en n sy lv an ia C o d e p ro v id es th at “[ a] p erso n co mm its an attem p t w h en , w ith in ten t to co m m it a sp ecif

ic crim e, h e d o es an y act w h ich co n stitu t es a su b stan tial s tep to w a rd th e co m m issio n o f th at crim e.” 1 8 P a. C o n s. S tat. § 9 0 1 (a) (R ev . 2 0 1 6 ).

3 “T h e list in clu d ed ev i d en ce o f a sig n if i can t d if f eren ce in size o r stren g th b etw een th e d ef en d an t an d th e v ictim , a n y restrain t o n th e d ef en d an t p rev en tin g h im f

ro m e scalatin g th e a ttack , th e d ef

e n d an t’s u se o f a w ea p o n o r o th er im p lem e n t to a id h is attack , an d statem en ts o r a ctio n s th at m ig h t in d i c ate h is in ten t to i n f lict in j u ry .” Ja ckso n , 9 5 5 A .2 d at 4 4 6 (¶1 5 ).

4 W ashington’s assault statutes do not def ine assault. “W ashington recognizes three com m on law def

i nitions of assault: 1) an unlawf ul touching ( actual battery) [ ,] 2 ) a n attem pt with unlawf

ul f orce to inf

l ict bodily injury u

pon another, tending but f ailing to accom

plish it ( attem pted b attery)[ ,] and 3) putting a nother in apprehension of harm .” S tate v
. Abaun , 257 P.3d 1, 10 (¶37) (W a sh. Ct. A p p . 2 0 1 1). F urther, “under the com m o n law specif ic intent either t o create apprehension of bodily harm or t o cause bodily harm i s an essential elem ent of assault in the second degree.” I d

. 6B, m isses him a nd strikes C, or if m istaking C f or B, he strikes h im , h e is in either case guilty of an assault and battery on C.” Hitt v. State , 988 So. 2d 939, 942 (¶12) (Miss. C t. App. 2008) (quoting Jones v. State , 6 So. 231, 232 (Miss. 1 8 8 9 ) ). The State asserts, and the trial court agreed, that transf

erred intent can also be a

p plied w here the i ntended victim (Sm ith) is killed and the unintended victim ( Autm an) is unharm ed. W h et h e r t h e t r a n s fe r r e d

- i n t e n t d octrine can be appl i ed t o establish the requisite intent f or an attem

pted assault against an unintended, unharm ed victim

is at issue bef

o re the Court. ¶13. In T

hompson , the appellant was aware of the unharm ed, unintended v ictim ’s presence and f ired num erous rounds a t a group o f t h r e e individuals that included the unharm ed, unintended victim , as well as the intended and actual victim

. Thompson , 7 39 A.2d at 1027.
T h e u n i n t ended v ictim was f orced to run i n a zig-zag pattern to avoid being hit b y t h e appellant’s bullets. I

d

. T h e u n i n t e nded victim w as in such f ear of h arm that he initially thought that he had been shot, and only upon realizing that he was, in f act, not shot, did he seek cover. Id

. T he appellant, af ter hitting h is intended victim , continued by standing over the intended victim a nd f ir i n g m ultiple rounds i nto his head and torso. Id

. I n addition to

m urder, the appellant was charged with atte m pted aggravated assault o n the unintended victim , and the com m onwealth used the theory of transf erred intent to establish the requisite intent. W e note that the Pennsy lvania Suprem e Court’s application of transf erred intent in Thompson has com e under heavy criticism by an interm e diate appellate c ourt f r om that state. Jackson , 955 A.2d at 450 n .6; Com. v. Pace , No. 116 EDA 2014, 2015 W L 7458814, at *8 n.1 (Pa. Super. Ct. Mar. 24, 2015).

7¶14. In E lmi , the appellant f ired m ultiple shots through the intended victim ’s living room window while standing roughly t e n f eet away . Elmi , 207 P.3d at 441 (¶2). The intended victim a nd three sm all children, the unintended and uninjured v ictim s , were a ll in the living

room . Id

. Further, the children were in clear apprehension of f e ar of being harm ed. Id

. at (¶3) (“The [ 911] operator could hear children s cream ing in the background and, at o ne point, a child’s voice say i ng som eone was going to kill m ommy .”). The a p p e l l ant was c onvicted under W ashington’s f

irst-degree-assault statute f or several counts relating to the children. 5 ¶15. Two y e ars later, t h e Wa s h i ngton Court of Appeals declined t o extend Elmi in State

v. A baun , 257 P.3d 1, 12 (¶¶48-49) (W ash. Ct. A p p . 2011). In Abaun , the appellant f ired several rounds into the attached g a rage of a residence w ith the unintended, unharm ed victim in the house. He was charged under W ashington’s second-degree-assault statute. 6 There was

no evidence that the appellant knew the unintended victim was in the house or t h a t the appellant intended to f

ire the gun at the unintende d v i c t i m; all the shots w ere f ired at the
garage, n ot the house; and there w as no evidence that the unintended victim apprehended any f ear of harm

. Id

. at 12-13 (¶¶49-51). The Abaun court specif ically note d that the Elmi appellant’s actions put the unintended victim s, the sm all children, in apprehension of bodily harm , thus m eeting the actus reus e lem ent of W ashington’s c omm on-law f o rm of a ssault. Id

.

5 “ A p e r so n is g u ilty o f assau lt in th e f irst d eg ree if h e o r sh e, w ith in ten t to i n f l i c t g reat b o d ily h arm [ ,]

. . . [ a] ssau l ts an o th er w ith a f irearm o r d ead ly w e a

p o n o r b y an y f

o rce o r m e a n s lik e ly to p ro d u ce g reat b o d i l y h a r m o r d eath [ .] ” W ash

. R ev . C o d e A n n . § 9 A .3 6 .0 1 1 (1 )(a) (West 2 0 1 6 ).

6 “A p erso n i s g u ilty o f assau lt in th e seco n d d eg ree if h e o r sh e, u n d er circu m stan ces n o t am o u n tin g to assau lt in th e f irst d eg ree[ ,]

. . . [ a] ssau lts an o th er w ith a d ead ly w eap o n [ .] ” Wash . R ev . C o d e A n n . § 9 A .3 6 .0 2 1 (1 )(c) (West 2 0 1 6 ). 8at 12 (¶45). The court reasoned that to extend the transf erred-intent analy sis f

rom E lmi to the situation in Abaun would m ean “arguably any one in the neighborhood who heard the gunshots could be a victim of an assault by

[ the appellant].” Id . at (¶48). ¶16. In the case at hand, only one shot was f i red, a n d A u t ma n was in the restaurant, a dif f erent a rea of the building than Sm i th and C raig. Further, when asked i f he was i n the line of f ire, Autm an could n ot answer i n the af f i rm ative. Autm an a lso noted that his diving to the
f loor caused him to be closer to where the bullet landed than where he was s tanding bef ore the shot was f

ired. Craig testif

i ed that he h ad neither any intent to h arm Autm an nor any knowledge that Autm an was even in the b uilding. F urther, no evidence was put f orth at trial that Autm an had any

f ear of being harm ed when the shot was f i red. ¶17. W e f

ind the f actual scenario in Abaun f a r m ore a nalogous to the one now bef ore us than Elmi and Thompson and, like the court i n Abaun , w e a r e unwilling to e xtend the transf erred-intent doctrine to the case at h and. W e decline to allow the doctrine of transf erred intent to apply in this p a rticular situation. H ere, the intended victim , Sm ith, was killed, while the unintended victim , Autm an, was not harm ed. The def endant, Craig, had no intention to harm Autm an a nd was not aware of the Autm an’s presence. Just one s h ot was f ired, Autm an

was in a dif

f erent p art of the building, and there was no e v i d e n c e that Autm a n was in any f ear o f harm . Further, to allow such an interpretation would be contrary to the requirem ent of injury to the unintended victim , as the Mississippi Suprem e Court has held that transf erred intent stands f

or the accidental striking of a person other than the o ne intended. Hitt , 988 So. 2d at 942 (¶12) (quoting Jones , 6 So. a t 232). Theref o r e , w e r e v e rse the trial c o urt on its

9application of the transf

erred-intent doctrine in this case. ¶18. Furtherm ore, the Mississippi Code i s explicit that there m ust be an injury n exus in an assault c ase. M ississippi Code Annotated section 97-3-7(2)(a) provides f our way s f

or the
S t a t e t o prove that Craig com m itted an a ggravated assault on Autm an: (1) that C r a i g attempted to cause serious b odily injur y to Autm an, (2) that Craig caused serious bodily injury t o Autm an purposely , knowingly , or recklessly under circ u ms t ances m anif esting

e xtrem e indif

f erence to the value of hum a n lif e, (3) that Craig attempted to cau s e b o d i l y injury to Autm an with a deadly weapon or o ther m ea n s l i k e l y to produce death or serious bodily h arm , o r (4) that Craig purposely or knowingly c aused bodily injury t o Autm an with

a deadly weapon or other m e ans likely to produce death or serious bodily harm

. H e r e , Autm a n suf

f ered no bodily injury , let a l o n e any serious bodily injury

. Thus, to prove aggravated assault, the State mu s t dem onstrate that Craig attempted t o cause either (1) serious b odily injury to A u tm an, or (2) bodily injury to Autm an with a deadly w eapon or other m eans likely to produce death or serious bodily harm

. F or an attem pt c r im e, an intent

to com m i t the particular crim e m ust be established. Brooks , 18 So. 3d at 841 (¶33) (citations

om itted). ¶19. T h u s , b e c a u s e n o b o d i l y i n j u r y o c curred, the State m ust h ave established a n “unequivocal intent to cause serious bodily injury to [ Autm an]” in order to uphold Craig’s

attem pted-aggravated-assault conviction. Hunter v. State , 2014-KA-00508-COA, 2015 W L 7438890, at *3 (¶15) (Miss. Ct. App. Nov. 24, 2015) (citations om itted). The r ecord f ails to show that Craig intended to cause s erious bodily harm to A u tm an. Theref ore, w e reverse and

1 0render Craig’s conviction f or attem pted aggravated assault.
Conclusion ¶20. W e reverse an d r e n d e r t h e Q u i t ma n C o u n t y C i r c u i t Court’s judgm ent on the conviction of Craig f

or the attem

pted aggravated assa u l t of A u tm an. On the rem aining counts, we af

f irm

. ¶21. T H E J U DGMENT OF THE QUITMAN C OUNT Y C I R C U I T C O U R T O F CONVICTION ON COUNT II IS R EVERSED AND RENDERED. FOR ALL REMAINING COUNTS, T HE JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.
LEE , C.J., IRVING AND GRIFFIS, P .JJ., BARNES, I SHEE, FAIR, JAMES AND WILSON, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

1 1