author: ISHEE, J., IRVING, J.,

text:
    Carlton HUDSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00495-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied April 11, 2006.

      Carlton Hudson, Appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before LEE, P.J., GRIFFIS, and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Carlton Hudson’s motion for post-conviction relief was denied by the circuit court. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Hudson and two accomplices robbed a convenience store in Starkville, Mississippi on February 11.1997. During the course of the robbery, one of Hudson’s accomplices placed a revolver to the store clerk’s head and pulled the trigger. The weapon malfunctioned and the clerk was not shot. Hudson and his accomplices then fled the store and were apprehended a short time later. Hudson was subsequently indicted for armed robbery and attempted murder.

¶ 3. Prior to trial, Hudson entered into a plea agreement with the State. In exchange for Hudson pleading guilty to the charge of armed robbery, the State recommended a fifteen-year sentence to the trial court and agreed to retire the attempted murder charge to the file. Hudson subsequently entered a guilty plea to the armed robbery charge in August 1997, and he was sentenced to a fifteen year term of incarceration in accordance with the plea agreement.

¶ 4. Hudson then filed a motion for post-conviction relief in the trial court on November 4, 2002. Hudson argued that he had received erroneous advice from his court appointed attorney as to the issue of parole. Prior to entering his guilty plea, Hudson was told by his attorney that he would be eligible for parole after serving ten years of his fifteen year sentence. Hudson’s attorney, however, was unaware that the law had changed and now required convicted armed robbers to serve every day of their sentence. See Miss. Code Ann. § 47-7-3 (Rev.2004). After determining that Hudson’s attorney had misstated the law, the trial court granted Hudson’s motion for post-conviction relief.

¶ 5. As a result, Hudson was permitted to withdraw his guilty plea to the armed robbery charge, and both the armed robbery charge and the attempted murder charge were placed back on the docket. Hudson and the State attempted to negotiate a plea agreement, however, none was ever reached. Nevertheless, in November 2001, Hudson entered guilty pleas to both the armed robbery charge and the attempted murder charge. Hudson’s sentencing was delayed in order for the trial court to consider the sentence that Hudson’s accomplice, the actual trigger man, was to receive in another court. The trigger man eventually received a twenty-two year sentence on the armed robbery charge and a concurrent sentence of ten years on the attempted murder charge. Hudson was subsequently sentenced to an identical term of incarceration in May 2002.

¶ 6. Hudson then filed another motion for post-conviction relief in the trial court asserting that “he was denied due process of law as a result of vindictiveness in the imposition of his sentence.” The trial court denied Hudson’s motion. Aggrieved by his sentence, Hudson now seeks post-conviction relief from this Court arguing the following: (1) whether Hudson was denied due process of law as a result of vindictiveness in the imposition of his sentence, and (2) whether the trial judge abused his discretion in failing to recuse himself given the nature of the issue raised in Hudson’s motion for post-conviction relief.

DISCUSSION

¶ 7. We begin our discussion with the standard of review. Where questions of law are at issue, this Court conducts a de novo review of a trial court’s denial of a motion for post-conviction relief, and we will not reverse the factual findings of the trial court unless they are clearly erroneous. Boddie v. State, 875 So.2d 180, 188(¶ 6) (Miss.2004).

¶ 8. Hudson argues here pro se, as he did in his motion to the trial court, that he was denied due process of law as a result of vindictiveness on the part of the trial judge in the imposition of his sentence resulting from his later guilty pleas. Hudson also asserts that the trial judge abused his discretion by failing to recuse himself from Hudson’s second motion for post-conviction relief.

¶ 9. As to Hudson’s first issue, vindictiveness, the Mississippi Supreme Court has held that “[t]he imposition of a harsher sentence by a judge following a new trial and conviction for the same charge is not violative of the federal, or Mississippi’s, Constitution.” Ross v. State, 480 So.2d 1157, 1160-61 (Miss.1985). The Mississippi Supreme Court further held that in order to assure on appeal that the sentence was not based on vindictiveness, the following must occur: the trial court must affirmatively state in the record the reasons for the harsher sentence; the trial court’s rationale must be based on identifiable conduct which may have shed new light on the defendant’s life, health, habits, conduct, or mental or moral propensities; and the factual data upon which the harsher sentence was based must be a part of the record. Id.

¶ 10. Based on a thorough review of the record, we conclude that the trial court acted appropriately, both in sentencing Hudson and in denying his motion for post-conviction relief. Consistent with Ross, the trial court affirmatively stated for the record the identifiable conduct which was the basis for its rationale in imposing a harsher sentence. Specifically, the trial court stated that, after the time of the original sentencing, Hudson withdrew his original guilty plea to the armed robbery charge, and then pled guilty to both the armed robbery charge and the attempted murder charge. This Court specifically finds no evidence in the record to support the claim that the trial court’s conduct was vindictive. Hudson’s sentencing conformed to the Ross requirements, and as a result, the trial court properly denied Hudson’s motion for post-conviction relief.

¶ 11. As to Hudson’s second argument, recusal, we find that this issue is procedurally barred from our review due to Hudson’s failure to raise this issue on direct appeal. See Miss Code Ann. § 99-39-21(1) (Supp.2004); Collins v. State, 822 So.2d 364, 366(¶4) (Miss.Ct.App.2002). This issue could have been determined in the trial court had it been raised on direct appeal, and Hudson has failed to make a sufficient showing of cause or actual prejudice which would justify this Court granting a waiver to the statutory bar.

¶ 12. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND BRIDGES, J.

IRVING, J.,

DISSENTING.

¶ 13. This is a companion case to Fowler v. State, 919 So.2d 1129 (Miss.Ct.App.2005). I authored a dissent in Folder because, in my judgment, the trial judge, in resentencing Fowler, failed to comply with the requirements of Ross v. State, 480 So.2d 1157 (Miss.1985). The same judge who resentenced Fowler resentenced Hudson. In neither case did the judge follow the guidelines in Ross which are designed to provide the appellate courts with an adequate basis for ascertaining whether the trial judge was motivated by vindictiveness in resentencing a defendant to a harsher sentence because of the defendant’s successful challenge of his first conviction and sentence. Id. at 1160.

¶ 14. In Ross, the Mississippi Supreme Court specifically held, inter alia, that to enable the appellate court to determine the absence of vindictiveness, the following must occur:

(a) The trial court must affirmatively state in the record his reasons for the harsher sentence.
(b) The reasons must be based upon objective information concerning identifiable conduct on the part of the defendant which occurred after the time of the original sentencing proceeding, or based upon objective information concerning events which occurred after the time of the original sentencing proceeding that may have thrown new light upon the defendant’s life, health, habits, conduct, or mental and moral propensities.
(c) The factual data upon which the increased sentence is based must be made a part of the record.
(d) This information and data upon which the judge bases his sentence may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentencing investigation, from the defendant’s prison record, or possibly from other sources.

Ross, 480 So.2d. at 1160-1161 (emphasis added).

¶ 15. Here, as in Fowler, the trial judge resentenced Hudson to twenty-two years on the robbery conviction even though the initial sentence was only fifteen years. There is absolute nothing in the record which remotely resembles any identifiable conduct on the part of Hudson which occurred after the time of the original sentencing proceeding or any information concerning events which occurred after the time of the original sentencing proceeding that could be used to justify the harsher sentence. The operative word is “after.” The only information in this record regarding Hudson’s conduct after his initial sentence is Hudson’s feeble attempt to explain to the trial judge that Hudson had enrolled in some sort of school at the penitentiary in an attempt to rehabilitate himself following his incarceration under the initial sentence.

¶ 16. Therefore, for the reasons expressed herein and in my dissent in Fowler, I respectfully dissent. I would modify Hudson’s sentence to reflect the original sentence of fifteen years.

KING, C.J., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . Carlton Hudson, Robert K. Fowler, along with another individual, were indicted for the robbery of Green Oaks Superette in Stark-ville. However, they were tried separately.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Grady Watson JONES, III, Appellant v. Kelly Jones McQUAGE, Appellee.
    No. 2004-CA-01696-COA.
    Court of Appeals of Mississippi.
    Jan. 3, 2006.
    Rehearing Denied April 11, 2006.

      Peggy A. Jones, Holly Springs, attorney for appellant.
    Malenda Harris Meacham, Hernando, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Kelly Jones McQuage filed suit in. the Chancery Court of DeSoto County seeking to enroll the “Permanent Parenting Plan” entered in Shelby County, Tennessee, on August 14, 2002, and for modification of that decree. Grady Watson Jones, III, responded stating that he did not contest the enrollment of the decree, but that another decree dated February 14, 2003, modified the August 14, 2002 decree. Additionally, Grady contested the modifications of these prior decrees. A hearing was héld on July 30, 2004, before the Honorable Percy L. Lynchard, Jr. The Chancery Court of DeSoto County enrolled and then modified the Tennessee decree. Grady appealed raising numerous errors by the trial court. This court has reduced these numerous issues into the following issue:

I. WAS THERE MANIFEST ERROR IN CHANGING THE AGREED CUSTODY AND VISITATION PLAN ENROLLED FROM TENNESSEE?

STATEMENT OF FACTS

¶ 2. Grady W. Jones, III and Kelly Jones McQuage were married in Tennessee on January 29, 1994. One child, Alexis, was born of this marriage on August 31, 1994. Grady filed for divorce on September 10, 1999, in Shelby County, Tennessee and a final decree was entered on May 15, 2000. Incorporated into this decree was a “Marital Dissolution Agreement” which provided for the shared joint custody of Alexis.

¶ 3. Between the time of the final divorce decree and the case at bar, child custody and visitation were modified three times. Six months following the entry of the final decree, Kelly petitioned the Tern nessee Court to modify the final custody and visitation schedule entered at the time of the final divorce decree. Twenty-one months of litigation followed this petition resulting in the “Permanent Parenting Plan” entered on August 14, 2002. This plan had been negotiated between the parties and was entered as an agreed plan. Due to a clerical error in the plan, a modification was entered on February 14, 2003. This modification corrected an error caused by the failure to “check the box” that indicated that during the summer the father would be allowed the same visitation schedule as during the school year. Additional changes included Kelly being responsible for providing a caregiver or daycare, delineation of winter vacation schedule, and modification to scheduled holidays. Both the plan and modification represent the agreement between Grady and Kelly as to custody and visitation of their daughter. This decree provided that the parents would have joint custody and share in all decisions regarding education, non-emergency health care, religious upbringing, and extracurricular activities. Additionally, the visitation schedule included that Grady would have visitation every other weekend and every Tuesday from the time Alexis was released from school until her return on Wednesday. Summer visitation would be the same as the school year except Grady would be given four weeks and Kelly would be given two weeks each summer that they designated to the other by May 15 of that year.

¶ 4. On June 5, 2003, less than four months after the entry of the modification, Kelly petitioned the Chancery Court of DeSoto County to enroll the August 14, 2002, Tennessee decree without mentioning the February 14, 2003 modification and then requested that the decree be modified. Grady answered the petition, asserting he had no objection to the enrollment of the Tennessee decree, but requested that the February modification also be enrolled. On February 4, 2004, a motion to amend the petition was entered by Kelly. The amended petition was entered seeking modification of Grady’s obligation to provide medical insurance and of the visitation schedule exercised by him. Again, there was no mention of the February 2003 modification.

¶ 5. A trial was held on July 30, 2004, in which each side was given one hour to call witnesses, cross-examine witnesses and present its case. At the beginning of the trial the parties entered into the record an agreed modification of the summer visitation schedule. This modification allowed for alternating weeks of custody during the summer. The modification provided that Kelly would have six weeks and Grady five weeks summer custody during even years and the reverse in odd years. The trial was then held to determine whether a material change had occurred to warrant a change of custody and whether the visitation schedule was not working to justify a modification. Only the parties were called as witnesses and several items were admitted for evidence or identification. These items included e-mails between the parties, copies of homework folders, and documents.

¶ 6. Following the trial in DeSoto County, modifications to both custody and visitation were entered. Kelly was given sole custody of Alexis. The visitation schedule was modified from the Tennessee decree to the “Farese” plan with the agreed summer visitation schedule. From this ruling Grady appealed.

STANDARD OF REVIEWS

¶ 7. In reviewing a chancellor’s findings in a domestic matter, this Court has limited discretion. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)(quoting Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994)). “We will not reverse a chancellor’s findings of fact where they are supported by substantial evidence in the record.” Weigand v. Houghton, 730 So.2d 581 (Miss.1999).

¶ 8. For a moving party to obtain a change in custody “the moving party must prove by a preponderance of the evidence that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, if such an adverse change has been shown, the moving party must show by the like evidence that the best interest of the child requires the change of custody.” Ash v. Ash, 622 So.2d 1264, 1265 (Miss.1993) (quoting Pace v. Owens, 511 So.2d 489, 490 (Miss.1987)).

¶ 9. To obtain a change to the visitation schedule, the moving party need only show that the current visitation schedule is not working and that it would be in the best interest of the child to change the visitation schedule. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986).

DISCUSSION

¶ 10. In its order, ruling that joint custody should be terminated and sole custody should be vested in Kelly, the court stated that there had been a material change in circumstances and that a change would be in the best interest of the child. Additionally, the court stated that the visitation schedule was not working and that it should be modified to the “Farese” plan. The trial court properly announced the legal standards to change custody and visitation, but we find that the facts of this case do not exhibit a material change, the visitation schedule was not given an opportunity to work, that the trial court was manifestly wrong and that the Tennessee decree should be reinstated.

¶ 11. The court pointed to several issues that the court believed to be material changes. The first of these changes was acrimony, disagreement, failure to confer, and failure to communicate between the parties. The court pointed to our decision in Cook v. Whiddon, 866 So.2d 494 (Miss.Ct.App.2004), as authority for this change in circumstances. The trial court concluded that the parties prior modifications of the “Permanent Parenting Plan” and the numerous e-mails entered as exhibits demonstrate that the parties are unable to agree on issues relating to the child.

¶ 12. This case and Cook are not similar. In Cook the parties had filed numerous motions for contempt against one another starting almost immediately after the entry of the final divorce decree. Additionally, the husband in Cook failed to pay child support and filed a motion to prevent the wife and children from moving to another state. The chancellor found that “over a period of three years the parties [had] nothing but acrimony, disagreements, failure to confer, and failures to communicate.” We held that the chancellor did not abuse his discretion in basing his ruling on the facts of that case. The case at bar does not rise to the level of continued litigation as Cook. The only litigation in this case between the final divorce decree and the current suit are the August 14, 2002 “Permanent Parenting Plan” and the February 14, 2003 modification that corrected a clerical error that had been agreed upon by the parties for the August decree. This is not a continuous series of litigation that rises to a material change to warrant a change of custody.

¶ 13. The next change that the court considered as material was the remarriage of Grady and the involvement of the stepmother, Molly, in the activities of Alexis. Mississippi law has long held that remarriage is not a material change in circumstance to justify the change of custody. Allen v. Allen, 243 Miss. 23, 33, 136 So.2d 627, 632 (1962). At the time of the hearing Grady and Molly had been married almost four years. This remarriage was not a change in circumstance since Grady was remarried prior to both the August 2002 plan and February 2003 modification. The trial court points to the interference of Molly in the activities in which Alexis is involved. From the record there is no presentation that Molly over-stepped her bounds as the stepmother. She did try to participate in school activities that Alexis was involved in and support Grady in his participation. The testimony of Kelly that she was uncomfortable around Molly is not sufficient to be a material change in circumstances that is adverse to the child. The involvement of a stepparent in the lives of their spouse’s children should not be hindered by courts, but encouraged.

¶ 14. In replacing the visitation schedule laid out in the Tennessee decree with the “Farese” plan, the trial court stated that the standard for modification was that the current plan is not working. That is true. Cox, 490 So.2d at 869. However, the visitation plan should be given an opportunity to work. Kelly filed suit for the modification of the agreed “Permanent Parenting Plan” less than four months following its entry. The court points to the plan’s Tuesday overnight stays with the father as having a detrimental effect to the best interest of the child. In its ruling, the court points to Alexis receiving Bs in spelling, which she studies with Grady on Tuesday nights, compared to As in all her other courses. Kelly testified that Alexis was an Honor Roll Student, but felt she could be on the Principal’s List. We do not find that the difference between an A and B in course work is substantial enough to justify modification of visitation.

¶ 15. The second area the court points to as the visitation schedule not working are the tardies that had been received by Alexis for early checkout from school by Grady on the days that he had custody. There is evidence in the record that the tardies did not occur on days that Grady had visitation with Alexis, but rather days that Kelly had custody. Also, several of these tardies occurred prior to the entry of the February 2003 modification. There was testimony that Alexis had been tardy eighteen times and Kelly admitted to being the source of six to seven of those tardies. From the record Kelly was the source of the tardies and therefore they should not have been counted against Grady as a reason for modification of visitation.

CONCLUSION

¶ 16. The record does not support the findings of the trial court. There is not a preponderance of the evidence that supports a material change in circumstance from the prior decree that is adverse to the child to merit a change in joint custody. The almost immediate filing of a petition for modification of the Tennessee decree did not give the plan an opportunity to work. The parties had agreed to the plan after almost two years of negotiations. The Tennessee decree provides for a definite visitation and holiday schedule and allows both parents to be involved in the major decisions concerning Alexis. This court sees no problem with the Tennessee agreement between the parties nor any material change that would merit a modification of that agreement. The agreed modification of the summer visitation schedule entered into the record by the parties should be honored.

¶ 17. THE JUDGEMENT OF THE DESOTO COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE CHARGED TO THE AP-PELLEE.

KING, C.J, LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.


author: GRIFFIS, J., KING, C.J.,

text:
    Bruce CARTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-01639-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Rehearing Denied May 2, 2006.

      Melvin G. Cooper, Biloxi, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Bruce Carter appeals his conviction of attempted kidnapping. We find no error and affirm.

FACTS

¶ 2. On Sunday December 15, 2002, at around 2:00 p.m., Shanta Marie Joseph left her home and walked toward her grandmother’s house, which was approximately four or five blocks away. Carter, driving a black Mustang, pulled up beside Joseph and began talking to her. Carter attempted to entice Joseph into his car. Carter told Ms. Joseph that “you just need to loosen up a little bit, the only thing you need is a little attention,” and “what you need to do is just let somebody like me do this and that for you.” As will be discussed in more detail below, Carter made several lewd and sexually specific comments toward Ms. Joseph. She refused to get in Carter’s car, and she continued her walk toward her grandmother’s house.

¶ 3. Carter parked his car, got out and approached Ms. Joseph. She attempted to avoid Carter by crossing to the other side of the street. Carter followed her and grabbed her arm. She jerked her arm free of Carter’s grasp and fled to her grandmother’s house where she called the police.

¶ 4. Carter was charged and convicted of attempted kidnapping. The circuit court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections. After the court denied Carter’s motion for new trial or judgment notwithstanding the verdict, he perfected his appeal. Carter asserts four issues for our consideration:

1.Was the evidence of attempted kid-naping sufficient to permit the jury to pass upon Carter’s guilt? In other words, was the verdict contrary to the weight of the evidence?
2. Did the trial court err in excluding juror no. 12?
3. Did the trial court err in denying relief on Carter’s motion for psychological evaluation?
4. Did the trial court err in admitting evidence that Carter was identified in a photographic lineup?

ANALYSIS

1. Was the evidence of attempted kid-naping sufficient to permit the jury to pass upon Carter’s guilt? In other words, was the verdict contrary to the weight of the evidence?

¶ 5. The critical inquiry on the issue of legal sufficiency is whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Where the evidence fails to meet this test, it is insufficient to support a conviction. Id. The relevant question, after viewing the evidence in the light most favorable to the prosecution, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

¶ 6. Carter was indicted for attempted kidnapping. Mississippi Code Annotated Section 97-3-53 (Rev.2000) provides for the crime of kidnapping:

Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, ... shall, upon conviction be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the state penitentiary.

Section 97-1-7 (Rev.2000) provides for the punishment of attempt:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

Hence, courts interpret “attempt” to mean the intent to do something, and some actual effort to put the intent into effect. Murray v. State, 403 So.2d 149, 152 (Miss.1981). The “gravamen” of the offense of an attempt to commit a crime is found in the statutory requirement that an overt act toward the crime be committed and the defendant be prevented from its consummation. State v. Lindsey, 202 Miss. 896, 899, 32 So.2d 876, 877 (1947).

¶ 7. Carter argues that his conduct was not sufficient to prove the “overt act” element of attempt. Carter relies on three decisions. First, in Green v. State, 67 Miss. 356, 356, 7 So. 326, 326 (1890), the supreme court ruled that the overt act requirement was not met on a charge of attempted rape when a man “caught hold” of the presumed victim’s riding skirt, who was able to “strike her horse” and ride away. The court held that “[w]e may conjecture the purpose of the defendant to have been to commit a rape, but on the facts disclosed, it is conjecture only, and not an inference reasonably drawn from the evidence.” Id., 7 So. at 326.

¶ 8. Next, in State v. Lindsey, the supreme court held that the facts were insufficient to support a finding of attempted rape when a man chased a woman through a “lonesome and secluded place in the country,” and was prevented from committing any offense because the woman reached someone she knew. Lindsey, 202 Miss, at 901-02, 32 So.2d at 878.

¶ 9. Finally, in Tremaine v. State, 245 Miss. 512, 516, 148 So.2d 517, 518 (1963), a man obtained entry into a woman’s home, under false pretenses, raised her bathrobe, and grabbed her. He even told her that he would “silence [her] in one blow” if she screamed. Id., 148 So.2d at 519. The court held that although there was a strong possibility that the man was going to use force against the victim, based on these facts and court precedent, there was insufficient evidence to satisfy the overt act requirement of attempted rape. Id., 148 So.2d at 519.

¶ 10. The State counters with the recent decision in Hersick v. State, 904 So.2d 116 (Miss.2004). Larry Hersick sat outside a Wal-Mart when an eleven-year-old girl ran by. Id. at 120(¶ 1). Hersick “grabbed the girl by her upper right arm and pulled her a distance of about five to ten feet into the parking lot. The girl jerked away from Hersick and ran” to safety. Id. Hersick was tried and convicted of attempted kidnaping. Id. at (¶ 2). On appeal, Hersick claimed that his conviction was against the overwhelming weight of the evidence. Id. at 120-21(¶ 2). The court rejected this argument and found that the evidence supported a verdict of attempted kidnaping. Id. at 127 (¶¶ 43-44).

¶ 11. In Jenkins v. State, 507 So.2d 89 (Miss.1987), the court affirmed the attempted kidnaping conviction of Douglas Jerome Jenkins. Jenkins and another man attempted to forcibly seize and con-fíne grocery store patron as he was entering his car. Id. at 90. Jenkins and his accomplice went to a grocery store with the intent to rob the store. Id. at 90-91. When their plan fell through, they left the store. Id. at 91. Jenkins and his accomplice then turned their intentions toward Ira Kynerd, a patron of the store who was in the parking lot. Id. However, this crime was thwarted when “Kynerd foiled the attempt by refusing to get into the car and simply walking away — in a public parking lot in broad open daylight....” Id. at 93. Nevertheless, the supreme court affirmed Jenkins’ conviction of attempted kidnaping and held that:

while we must state in candor that this is anything but the strongest case for the prosecution we have seen, the evidence was such that, when considered under our familiar standard of review, we have. no authority to disturb the jury’s finding that the prosecution had proved each and every element of the offense of attempted kidnapping.

Id.

¶ 12. In this case, the evidence is very similar to that presented in Hersick and Jenkins. According to the victim, Ms. Joseph, Carter pulled up beside her while she was walking home. He engaged her in a conversation that turned lewd and sexually suggestive. He began by repeatedly offering her a ride, and she declined each time. Carter then began to make lewd sexual advances. He asked her to engage in sexual relations with him, and she declined. Carter then parked his car, got out and chased the victim down the street. Carter eventually grabbed the victim’s arm. The victim testified that, “I was scared he was going to put me back in his car and take me somewhere. I’ve never been put in [such a] predicament before, never.”

¶ 13. Following Hersick and Jenkins, we find that the evidence was sufficient to establish an overt act toward the commission of a crime, i.e., attempted kidnapping. Therefore, we find no merit to this issue.

2. Did the trial court err in excluding juror no. 12?

¶ 14. Next, Carter contends that the trial court should have granted his Batson challenge, based on racial discrimination, as to juror no. 12. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) is a landmark case in jury selection. Batson established a three-part test for a defendant to make out a prima facie case of purposeful discrimination in jury selection. The defendant must show:

(a) that he is a member of a cognizable racial group;
(b) that the prosecutor exercised peremptory challenges to remove from the venire members because of the defendant’s race; and
(c) that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96, 106 S.Ct. 1712. Once the defendant does so, the prosecutor is then required to provide a non-racial reason for exercising the challenge. Id. at 97, 106 S.Ct. 1712. The court may accept the reasons given and allow the challenge.

¶ 15. The State’s race-neutral reason was that the juror knew the defense attorney as a community figure and had previously had contact with the defense attorney. Further, the State claimed that the juror had his eyes closed during half of the voir dire examination. In Thomas v. State, 818 So.2d 335, 345(¶ 32) (Miss.2002), the court held that the fact that a venireman knows or knows of the defense attorney can be considered as a race-neutral reason when coupled with other race-neutral reasons for the challenge. In Burnett v. Fulton, 854 So.2d 1010, 1014(¶ 10) (Miss.2003), the court held that “[ijnattentiveness, demeanor, sleeping during voir dire, lack of eye contact, educational level and hostility ... have all been held by this Court to be race neutral reasons in keeping with Batson.”

¶ 16. Carter’s counsel attempted to rebut the fact that the juror knew of him and had previously had contact with him. However, Carter’s counsel did not attempt to rebut the State’s claim of inattentiveness or sleeping during voir dire. Instead, Carter’s brief to this Court claims that juror no. 12 was the only African American who could have served on the jury. However, the record simply does not provide us with the racial makeup of the jury. The record is inadequate for us to review a Batson challenge to the entire jury. Regardless, Carter’s counsel did not make a similar challenge before the trial court. We find no error in the exclusion of juror no. 12.

3. Did the trial court err in denying relief on Carter’s motion for psychological evaluation?

¶ 17. Next, Carter argues that the court should have granted his motion for psychiatric evaluation. Carter reasons that Mississippi Code Annotated Section 99-13-11 (Rev.2000) is intended to avoid placing an accused on trial unless he is capable of conducting a rational defense by intelligently conferring with counsel. Frierson v. State, 250 Miss. 339, 165 So.2d 342 (1964).

¶ 18. Carter’s counsel told the trial court that he first learned Carter was seeing a psychiatrist the day before the trial. Counsel also argues that “it was difficult to penetrate” Carter. The court denied the motion as untimely.

¶ 19. Mississippi Code Annotated Section 99-13-11 (Rev.2000) provides:

In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist or psychologist selected by the court to determine his ability to make a defense; provided, however, any cost or expense in connection with such mental examination shall be paid by the county in which such criminal action is pending.

In Gammage v. State, 510 So.2d 802, 803 (Miss.1987), the supreme court held that a “defendant not competent to stand trial is one who does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or does not have a rational as well as a factual understanding of the proceedings against him.” (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Caylor v. State, 437 So.2d 444, 447 n. 1 (Miss.1983)).

¶ 20. Here, Carter failed to present sufficient evidence to support his claim that a mental examination was required. The simple fact that Carter was seeing a psychiatrist does not require that the trial court find that he was incapable of a rational defense or order a mental examination. We find no merit to this issue.

Jp. Did the trial court err in admitting evidence that Carter was identified in a photographic lineup?

¶21. Carter’s final issue is that the photographic lineup should have been excluded. Carter claims that the lineup was improperly suggestive because his photo was the only picture where the man was wearing a red sweatshirt. When she initially called the police, Ms. Joseph told the dispatcher that the suspect was wearing a red faded sweat suit and was driving a black Mustang.

¶ 22. In Gray v. State, 728 So.2d 36, 68 (¶¶ 159-61) (Miss.1998), the Mississippi Supreme Court held:

The standard of review for suppression hearing findings in a matter of pretrial identification cases is whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted. Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986). The appellate review should disturb the findings of the lower court “only where there is an absence of substantial credible evidence supporting it.” [Emphasis added]. Ray v. State, 503 So.2d at 224. (emphasis in original). Ellis v. State, 667 So.2d 599, 605 (Miss.1995).
The State submits there was substantial credible evidence to support the lower court findings. Even if the pretrial identification of Gray was impermissibly suggestive, the in-court identification does not necessarily have to be excluded. Reliability has been deemed the linchpin in determining the admissibility of the identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Nathan v. State, 552 So.2d 99, 104 (Miss.1989). The lower court must determine from the totality of the circumstances if the identification was reliable even though the confrontation procedure may have been suggestive. York v. State, 413 So.2d 1372, 1377-78 (Miss.1982).

In determining whether this standard has been met there are certain factors that must be considered.

1. Opportunity of the witness to view the accused at the time of the crime;
2. The degree of attention exhibited by the witness;
3. The accuracy of the witness’ prior description of the criminal;
4. The level of certainty exhibited by the witness at the confrontation;
5. The length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); York, 413 So.2d at 1383.

¶ 23. After reviewing the lineup, we conclude that the trial court was correct to find that it was not unduly suggestive. Each of the six photographs depict men who were: (1) black, (2) wearing a red shirt, (3) of approximately the same age, and (4) had no identifying marks, numbers, or other characteristics. We find that the identification process was not impermissi-bly suggestive. Therefore, it is not necessary that we consider the Biggers factors. We find no merit to this issue.

¶24. Accordingly, we affirm Carter’s conviction of attempted kidnapping.

¶ 25. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF ATTEMPTED KIDNAPPING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, AND ROBERTS, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, J. SOUTHWICK, J., NOT PARTICIPATING.

KING, C.J.,

Dissenting:

¶26. Because I believe the evidence from this case is insufficient to sustain a conviction for attempted kidnaping, I dissent from the majority opinion herein.

¶27. I believe that the majority correctly cites the law of this State. However, I believe that it incorrectly applies that law to the facts of this case. The majority finds this case to be factually similar to and controlled by the cases of Hersick v. State, 904 So.2d 116 (Miss.2004), and Jenkins v. State, 507 So.2d 89 (Miss.1987). In Hersick, the intended victim, who was eleven years of age, was grabbed and pulled to another location. In Jenkins, an effort was made to force the intended victim into a car. Those facts are not present in the case sub judice. In this case, no one was pulled to another location, and there was no effort to force anyone into a vehicle.

¶ 28. The majority states that, “Carter then parked his car, got out and chased the victim down the street.” This statement is a conclusion by the majority, but is not supported by the testimony contained in the record before this Court. Because this is a fact-driven case, I believe it appropriate to include herein the relevant portions of the testimony of the alleged victim:

[PROSECUTOR]: As you’re walking that afternoon tell the jury what happened to you?
[JOSEPH]: A black Mustang pulled up beside me. He was coming from off the street where the barber shop is at. The first thing that he said was, “How you doing?” I said, “Fine.” He was like, “It’s a nice day out here.” I was like, ‘Yeah, I know.” He asked did I need a ride. “No, thank you.” He was like, ‘Well I’m just being nice. It’s a nice day. I know you don’t want to walk.” I was like, “I don’t mind walking.”
Q: During this time that you are having conversation it sounds like you are stopped or are you facing each other; what’s going on?
A: He was in the car, I was still walking down the sidewalk. He was in the car like right there by me. I’m on the sidewalk and the car is like right there, like in the middle of the road, not on my side where I’m at but in the middle of the road.
Q: Go ahead Ms. Joseph, what happens then?
A: He was driving slow. He was like, “Are you sure?” I said, “I’m positive.” He was like, “You just need to loosen up a little bit.” I was like, “No, I’m fine.” As I further walked to go to my grandma house he pulled the car up by the pawn shop. He was like, ‘You just need to loosen up. The only thing you need is a little attention.” And I kept going. He was like, “The only thing, you know, is for somebody to do,” what he said, “and you will be fine. You just need to loosen up a little bit.” And I was like, “No.” He parked the car by the pawn shop, got out. While he got out, I was crossing the street. By the time he got out he walked to where I was at and grabbed my arm on the left side. I snatched back and ran. I can say — I’m not going to say he ran, he walked just a little bit, but it was speed walking. He turned back around and got in his car— and he went back and got in his car and he left. The.way he went is the same way that I was running. I did not stop running until I got to my grandma house. By the time I got to my grandma house I called the police. I was so scared. I walked to my grandma house everyday. I’ve never in my life had somebody come up to me and say some of the stuff he said or do anything like that. I didn’t know if this man was going to hurt me or what, never.

In her continued description of this event on direct examination, Ms. Joseph later testified:

[PROSECUTOR]: At the point that you see him pull ahead and stop, I believe you said in the pawn shop parking lot which is at the corner of Judge Sekul and Forrest and he gets out of the car, what are you thinking?
A: What is this man doing. I just told him no.
Q: Were you concerned?
A: A little bit I was, but I’m like it’s broad daylight. I know he don’t have — • I know he’s not going to do nothing that stupid.
Q: Then as he approached you and you moved over to the other side of the street and you’re very close to each other at the point what happened? ;
A: I was so scared. When he came and grabbed my arm I snatched away and I ran.
I didn’t give him time enough to. say anything else, I ran.
Q: When you say that he didn’t say anything, was he still making those same comments to you?
A: By the time he parked the car — it’s just basically in the car is when he was talking.
Q: And when he grabbed your arm was he going to — what was he going to do? A: I was scared he was going to put me back in his car and take me somewhere. I’ve never been put in [that] predicament before, never.

¶ 29. Finally, in an effort to establish an attempted kidnaping, the prosecution elicited the following testimony in its direct examination.

[PROSECUTOR]: How is it that you were able to escape? Tell us about the struggle there?
A: When he got out of the car he walked towards me, I started walking a little faster. By the time he got to where I was at and grabbed my arm I snatched away, kicked and started running.
THE COURT: I’m sorry. You snatched away and what?
A: I snatched away and like, you know, just started running, just like kicked and I ran. I did not stop running until I got to my grandma house.

¶ 30. Under cross-examination, Ms. Joseph testified:

[DEFENSE ATTORNEY]: Okay. And this individual that you stated earlier exited from his car, got out of his car and approached you, am I correct.
A: Yes, sir.
Q: And I believe you testified earlier that this individual grabbed your arm, am I correct?
A: Yes, sir.
Q: What arm; left or right?
A: Left.
Q: Left arm. And I believe you testified that you immediately snatched away?
A: Yes, sir.
Q: Is that correct?
A: Yes, sir.
Q: So there was no fighting and kicking, am I correct?
A: No. No fighting.
Q: Thank you. And after that individual — after you immediately snatched away from this individual what happened?
A: He walked up a couple of feet but he turned back around and got in his car and drove off.
Q: And you went in your direction?
A: In my direction.

¶ 31. Later during cross-examination, Ms. Joseph testified:

[DEFENSE ATTORNEY]: Ms. Joseph, when the person made contact with you, grabbed you [sic] left arm, did that person ever pull you?
A: He grabbed my arm like this, I snatched away and I ran.
Q: Okay. That was the extent of the contact?
A: Yes, sir.

¶ 32. Finally on recross-examination, Ms. Joseph testified:

[DEFENSE ATTORNEY]: So actually when he grabbed your left right (sic) arm and you snatched away he never got a chance to seize you because you snatched away, am I correct?
A: He seen me.
Q: I beg your pardon.
[PROSECUTOR]: Objection—
THE COURT: Hold up just a second. What’s your objection?
[PROSECUTOR]: That calls for a legal conclusion.
THE COURT: That’s a factual question. I will overrule it.
[DEFENSE ATTORNEY]: When the person — you stated that Mr. Carter snatched your left arm, my question is that when he snatched your left arm, according to your testimony, and you snatched back he never got an opportunity to seize you, am I correct?
A: Yes, sir.
Q: And also he never confined you no where, am I correct because you snatched back?
A: Yes, sir.

¶ 33. Carter’s conduct was highly questionable, boorish, and indeed reprehensible. But it was not conduct which exhibited an overt act as is legally required to establish attempted kidnaping. Carter’s indictment stated that an overt act was committed when he “did feloniously, willfully, and without lawful authority forcibly seize and confine Shanta Marie Joseph with the intent to cause the said Shanta Marie Joseph to be secretly confined or imprisoned against her will ...” According to Joseph’s own testimony, Carter did nothing other than grab her arm. Because Joseph immediately snatched her arm away, the grabbing, at most, would have lasted only a fraction of a second.

¶ 34. When the facts and reasonable inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element with such force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is to reverse and render. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). The facts of this case do not establish the overt act requirement for attempted kidnaping, nor do they support a reasonable inference that Carter attempted the kidnaping of Joseph. Therefore, Carter’s conviction should have been reversed and rendered.

IRVING, J., JOINS THIS SEPARATE OPINION.


author: ISHEE, J.,

text:
    Michael WALTERS a/k/a “Big Mike”, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01788-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Rehearing Denied June 27, 2006.
    David Lydell Tisdell, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Michael Walters (‘Walters”) was convicted of one count of armed carjacking and one count of aggravated assault in the Circuit Court of Coahoma County. Walters was sentenced to twenty years in the custody of the Mississippi Department of Corrections (“MDOC”) for each count, with the sentences to run concurrently. Aggrieved by his conviction and sentence, Walters appeals. Finding no error, we affirm.

FACTS

¶2. On the evening of May 15, 2003, Walters and a man named Claude Wilborn (“Wilborn”) traveled to Clarksdale, Mississippi. They subsequently picked up Walters’s girlfriend, Kuayla Turner (“Turner”).

¶ 3. On the same evening, Dante Owens (“Owens”) was allegedly carjacked after leaving the home of his brother. Owens additionally received a gunshot wound to the thigh in the course of the alleged carjacking. Owens stated that, while en route to his brother’s house that evening, he noticed a two-tone blue car following him. Owens stated that the vehicle turned down the street that his brother lived on, and then turned around and left. Owens entered his brother’s home for a few minutes, and began to approach his vehicle, a burgundy 1990 Chevrolet Caprice. As he lifted the door handle on his car, Owens was approached by an African American male weighing approximately 250-265 pounds, wearing a mask partially covering his face and carrying a gun. The masked male ordered Owens to get in the trunk of the vehicle, but Owens refused. After a brief verbal exchange in which the masked male pointed the gun at Owens and repeatedly threatened to kill him, the masked male shot Owens in the thigh, at which point Owens was able to flee to a neighbor’s house. Owens then witnessed his vehicle fleeing the scene, and immediately called the police. Police arrived at the scene shortly thereafter, and found a .380 caliber shell casing, though no gun or bullet was ever recovered. An ambulance drove Owens to a nearby hospital.

¶ 4. After being discharged from the hospital, Owens and his brother drove to Quitman County to attempt to investigate the carjacking. While in Quitman County, Owens and his brother spotted a two-tone blue car which appeared to be the one Owens saw turn down his street before the carjacking. Subsequently, Owens’s stolen car was found in Quitman County, where someone had burned it on the side of a road.

¶ 5. During the course of the following investigation, officers arrested Walters as a suspect, as he fit the description given by Owens and eyewitnesses had reported suspicious activity by Walters on the morning following the alleged carjacking. Witnesses stated that they saw Walters in Lambert, Mississippi, which is located in Quitman County, as early as five or six a.m. on the morning following the carjacking. Additionally, one eyewitness reported seeing Walters ducking behind a house when the police drove by that morning. There were also eyewitness reports of a reddish car parked behind Walters’s grandparents’ house on the morning following the carjacking, and one eyewitness report of Walters driving a maroon Chevrolet sedan that morning. Walters additionally owns a two-tone blue Chevrolet sedan.

¶ 6. Walters contended, however, that on the evening of the alleged carjacking, Wil-born had taken the blue two-tone car back to Lambert, Mississippi, while he and Turner had continued on to Batesville, Mississippi, where they stayed until 3:30 a.m. Turner additionally stated that she and Walters were in Batesville on the evening of the alleged carjacking, where they stayed at the Skyline Hotel until approximately 3:30 a.m. Walters was indicted, tried, and found guilty of aggravated assault and armed carjacking by a jury in the Circuit Court of Coahoma County. Walters was sentenced to twenty years in the custody of the MDOC for each count, with the sentences to run concurrently. Aggrieved by his conviction and sentence, Walters appeals, asserting: (1) that the judgment and sentence was against the overwhelming weight of the evidence and insufficient as a matter of law to sustain the conviction of armed carjacking; and (2) that the judgment and the sentencing was against the overwhelming weight of the evidence and insufficient as a matter of law to sustain the conviction of aggravated assault.

STANDARD OF REVIEW

¶ 7. “In determining whether a jury verdict is against the overwhelming-weight of the evidence, we must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004). The State must be given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001) (citation omitted).

ISSUES AND ANALYSIS

I. Whether the judgment and sentence was against the overwhelming weight of the evidence and insufficient as a matter of law to sustain the conviction of armed carjacking.

¶ 8. Mississippi Code Annotated § 97-3-117(2)(b) (Rev.2000) defines armed carjacking, stating: “Whoever commits the offense of carjacking while armed with or having readily available a dangerous or deadly weapon ... shall be guilty of armed carjacking.” “Carjacking” is defined as “taking of a motor vehicle from another person’s immediate actual possession knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means.” Miss.Code Ann. § 97-3-115(a) (Rev.2000).

¶ 9. Owens described his assailant as an African American male weighing approximately 250-265 pounds. Walters fit this description. Walters’s two-tone blue car fit the description of the one seen following Owens on the night of the carjacking. Eyewitnesses testified to seeing a reddish car parked behind Walters’s grandparents’ home on the morning following the carjacking, and further testified to seeing Walters driving a maroon Chevrolet sedan that day, which matches the description of the vehicle stolen from Owens in the carjacking. Additionally, Walters was reportedly acting suspicious on the morning following the carjacking, as one eyewitness testified to seeing him duck behind a house when police drove by. Owens additionally testified to being held at gunpoint by his assailant, and subsequently being shot in the thigh, after which he was admitted to the hospital. Furthermore, a .380 caliber shell casing was found by police at the scene of the alleged carjacking, though no weapon or bullet was ever recovered. Viewing this evidence in the light most favorable to the State and allowing all favorable inferences which may be drawn from it, we find it fully sufficient to support a jury verdict convicting Walters of armed carjacking. We therefore affirm as to this assignment of error.

II. Whether judgment and sentence was against the overwhelming weight of the evidence and insufficient as a matter of law to sustain the conviction of aggravated assault.

¶ 10. Mississippi Code Annotated § 97-3-7(2) defines aggravated assault, stating:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 11. Owens was shot in the thigh during the course of the carjacking, in circumstances from which jurors could infer the purposeful or knowing intent to injure another with a deadly weapon. Owens stated that his assailant had a gun, with which he shot Owens after repeatedly threatening to kill him. Police further found a .380 caliber shell casing at the scene of the incident. That evidence, when taken as true and allowed all reasonable inferences, coupled with the reasoning outlined in the above discussion of armed carjacking, is clearly sufficient to support a jury verdict convicting Walters of aggravated assault. Accordingly, we find this assignment of error to be without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF ARMED CARJACKING: SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; CONVICTION OF AGGRAVATED ASSAULT: SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH BOTH SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.