author: ISHEE, J.,

text:
    Trevioun Lamont Cornelius BRIGGS a/k/a T.L. Briggs a/k/a T.L. Cornelius Briggs a/k/a Trevious Lamont Corneli Briggs a/k/a Trevioun Lamount Cornelius Briggs a/k/a Trevious Briggs a/k/a Trevioun L.C. Briggs a/k/a Trevioun Briggs, Appellant v. STATE of Mississippi, Appellee.
    No. 2015-KA-00016-COA.
    Court of Appeals of Mississippi.
    May 24, 2016.

      Office of State Public Defender by Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2013, a woman was attacked in the parking lot of Northpark Mall in Ridgeland, Mississippi, and her shopping bags were stolen. The assailant was identified as a black male wearing a red-colored sweatshirt. Later the same evening, authorities apprehended Trevioun Briggs after he attempted to return some of the stolen items to the stores from which they were purchased in the mall. When authorities searched Briggs’s vehicle, they discovered the remainder of the stolen items. Briggs was arrested and tried in the Madison County Circuit Court for robbery and tampering with a witness. He elected to represent himself and allow a public defender to assist in his representation. The jury convicted Briggs of both counts. The circuit court then sentenced Briggs to fifteen years for robbery and two years for tampering with a witness, all in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively. Aggrieved, Briggs now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In December 2013, a woman was walking through the parking lot of the mall carrying her two-year-old son and several shopping bags. As the woman opened her car door and placed the packages inside, a man came up from behind and hit her in the head. The woman dropped her son and collapsed onto the pavement. The man stole the shopping bags and ran away.

¶3. Authorities arrived at the scene, and the woman identified her attacker as a black male wearing “a reddish colored sweater.” Shortly thereafter, police and mall security were alerted by one of the stores inside the. mall that a man .was attempting to return several of the stolen items in question. Briggs was arrested as he attempted to obtain a refund for one of the stolen items. After he was apprehended, the other stolen items were found in Briggs’s vehicle, along with an orange-colored sweater. In addition to being identified by mall store clerks, the mall security videos also showed Briggs inside the mall with the victim’s packages as he entered various’ stores in attempts to return the stolen goods for cash.

¶ 4. Briggs was charged with robbery, and placed in the Madison County .Jail. While incarcerated, Briggs made numerous phone calls. Several of the phone calls were recorded. The recordings showed Briggs asking for individuals to provide him with an alibi for the times during which he was not seen on the mall video. Accordingly, Briggs was also charged with witness tampering.

¶ 5. The case went to trial, and Briggs elected to use hybrid counsel wherein he represented himself with help from appointed counsel. At the close of the trial, the jury convicted Briggs on both counts. He was sentenced to fifteen years for robbery and two years for witness tampering, with the sentences to run consecutively, all in the custody of the MDOC. On appeal, Briggs asserts the following: (1) the circuit court erred by not properly instructing the jury regarding the case being circumstantial; (2) his counsel was constitutionally ineffective for failing to request a proper, circumstantial-evidence jury instruction; (3) the indictment for witness tampering was flawed; (4), the evidence was insufficient- to convict him of witness tampering; and (5). the two charges are subject to reversal for retroactive misjoinder.

DISCUSSION

I. Circumstantial Evidence

¶ 6, Briggs presents several arguments regarding his claim that his case was, based solely on ■ circumstantial. evidence. He asserts that both' the circuit court and his counsel- erred by failing to provide a proper circumstantial-evidence jury instruction. The-record, reflects that the circuit court judge, unprompted, stated to Briggs and his appointed counsel outside the presence of the jury while discussing proffered jury instructions that, in his opinion, Briggs’s case was “non-circumstantial.” He then asked Briggs and his counsel if they were requesting “anything on the record” disputing, .the circuit court judge’s opinion. Both Briggs and his attorney specifically stated they did not. Likewise, the issue was not raised in any posttrial motions. Nothing further was mentioned regarding the issue of circumstantial evidence until Briggs’s instant appeal.

¶ 7. The Mississippi Supreme Court has repeatedly held: “It is elemental that errors cannot be raised in this Court for the first time on appeal. A trial judge cannot be put in error on a matter which was not presented to him for decision.” Patterson v. State, 594 So.2d 606, 609 (Miss.1992) (citations omitted). Moreover, we have held, that “it remains incumbent upon the defendant to request [a circumstantial-evidence] instruction. A trial court is not required to sua sponte [give] such an instruction.” Turner v. State, 945 So.2d 992, 999 (¶ 23) (Miss.Ct.App.2007) (citations omitted). Accordingly, we cannot fault the circuit court judge for not presenting the jury with a circumstantial-evidence instruction.

¶ 8. With respect to Briggs’s claim of ineffective assistance of counsel regarding the circumstantial-evidence instruction, we have previously noted:

It is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial[-]court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim. The Mississippi Supreme Court has stated that, where the record cannot support an ineffective[-]assis-tanee[-]of[-]counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a [postconviction-relief motion.]

Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983); Edwards v. State, 797 So.2d 1049, 1060 (¶ 30) (Miss.Ct.App.2001)). Likewise, nothing was brought before the circuit court with respect to ineffective-assistance-of-counsel claims. As such, we decline to review such claims on this direct appeal.

II. Witness Tampering

¶ 9. Briggs next asserts that he was improperly indicted for witness tampering, that the jury instruction regarding witness tampering was improperly given, and that the State failed to provide sufficient evidence that he was guilty of witness tampering.

¶ 10. First, Briggs claims that the wording of his indictment improperly charged him with witness tampering. The statute for witness tampering reads:

A person commits the crime of tampering with a witness if he intentionally or knowingly attempts to induce a witness or a person he believes will be called as a witness in any official proceeding to: (a) Testify falsely or unlawfully withhold testimony; or (b) Absent himself irom any official proceeding to which he has been legally summoned.

Miss.Code Ann. § 97-9-115 (Rev.2014). Briggs’s indictment read, in pertinent part: “[Briggs] did willfully, feloniously, intentionally[,] and knowingly attempt to induce a witness or a person he believed may be called as a witness against him [to provide him with a false alibi.]” (Emphasis added). The indictment went on to make specific reference to section 97-9-115.

¶ 11. “The primary purpose of an indictment is to give the defendant fair notice of the crime charged. It must contain the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Faulkner v. State, 109 So.3d 142, 146 (¶ 13) (Miss.Ct.App.2013) (internal quotations and citations omitted). An indictment must also contain the “essential elements of the offense charged.” Gilmer v. State, 955 So.2d 829, 836 (¶ 24) (Miss. 2007) (citation omitted).

¶ 12. Here, Briggs questions the indictment’s use of the word “may” instead of the word “will.” Likewise, Briggs assigns error to the jury instruction’s wording, which stated Briggs contacted a person “he believed would or could be called as a witness.” We find these arguments to be moot.

¶ 13. The record reflects that Briggs contacted a woman and asked her to fabricate an alibi for him during the times in which he was not seen on the mall video. The fact that he was requesting that someone provide him with an alibi would most certainly make that person a witness in the case. Briggs was essentially asking the person to be a witness. Hence, it makes no difference whether the indictment read “will” or “may” or the jury instruction read “will” or “would” since the factual basis surrounding the charge, and described in the indictment, dictated that Briggs thought, and in fact hoped, that the woman he contacted would be called as a witness to provide Briggs with the alibi he sought. This issue is without merit.

¶ 14. Next, Briggs asserts that the State failed to prove that he committed the crime of tampering with a witness. One transcript of the recordings, which was offered to the jury for consideration, read as follows, in pertinent part:

Briggs: [The detective on the case] steady trying to link the stuff to me now, but what I need is an alibi. I need somebody to say where I was. What time did Sienna pay her cell phone bill?
Female: 4 or 5. It was getting dark.
Briggs: Alright, but what I need y’all to say.... Alright, but see I told him that was the only reason I came to the mall was to pay the cell phone bill, know what I’m saying?
Female: You think they going to go back and look at the records and see?
Briggs: He did and he told me it was around 4.... See I can’t tell them nothing because he was telling me it was around 4, but all this s* * * went down.
Female: Tell them you was browsing the mall I guess.
Briggs: Yeah, I know. That’s when he seen me on video browsing the mall. See that armed robbery stuff he can’t even like, he can’t even, the cameras can’t even see me. He don’t even know it’s me. He just seen the image of a dude, but the thing is man, I need an alibi. I need you to, um, call down to, um, Jackson and ask to talk to, um, a detective on the narcotics department. I think his name is Detective Waylon. He real cool, know what I’m saying? I told you he wanted me to tell on somebody. That night he had called me about doing it, but I was like “No. I’ll hit you back after I finish cutting hair.” ... I never hit him back and that was around the same time I was at the mall. So, what I need you to do, just to make sure, call them and be like ... know what I’m saying? Just talk to him. like “He need help, man. He didn’t do it.” Know what I’m saying? ...
Female: His name detective what?
Briggs: Detective Waylon.... I need somebody to write a statement saying that I was with them knowing that will clear up everything. I was with them from ... around 8:30.

¶ 15. A transcript from a different call reads:

Briggs: Call to Flowood PD and talk to a detective on T.L. Briggs’s case and let them know. Tell them that I was with you, know what I’m saying? And you ain’t see me for the rest of the day out. I had just went to the mall. Just tell them he couldn’t did nothing like that or whatever. Hope it going to blow over because like I said, they ain’t got no proof.
Female: The only thing I’m worried about is what if they got an eye witness.
Briggs: They don’t. I’m telling you, the only reason they got me because I went in JC Penny for that last thing.... I went in there for that last thing and her credit card number was s* * * and, um, that’s how they got me.... What I’m trying to tell you is y’all be my alibi on the s* * *. Y’all just tell them I was with y’all, know what I’m saying? “There is no way he could’ve did this. He was at the school with me.' I go to Tougaloo and one of the boys up there name -Nick ask to ride with him to the store,” or whatever. And that’s the only thing, you know, and that was the last time you hear from me. I couldn’t have robbed them, know what I’m saying? Talk to them. Tell them this here in Madison County, Other than that, man, ... I’m gonna be a sitting man.

¶ 16. Yet another transcript from a separate phone call to a female.,shows Briggs stating the following:

Talk to the attorney and give him the alibi I was with y’all. “We went -up there to pay the phone bill ... and that was it. And that was around 4.... But, shoot he couldn’t have robbed nobody because he was with us.” Know what I’m saying? We need to do this.

¶ 17. On appeal, Briggs asserts that the recordings do not show that he was attempting to have someone lie for him— only to request a truthful alibi. This argument fails. The transcript shows Briggs asking for someone to provide him with varying alibis. At one point, he asks the female to state that he was with her at school. Immediately thereafter, he asks the female to implicate that someone else was at the mall with him. Later, he asks the female to state that she accompanied him to-the mall to pay a cell phone bill but that he left with her immediately thereafter. It is quite evident that Briggs was attempting to procure a false alibi. We find the evidence before the jury was more than sufficient to support the conviction for witness tampering. This issue is mer-itless.

III. Retroactive Misjoinder

¶ 18. Finally, Briggs asserts that because he was improperly charged with and convicted of witness tampering, the robbery charge should be reversed on the ground of:retroactive •misjoinder. However, having found that Briggs was, in fact, properly charged with and convicted of witness tampering,. Briggs’s argument of retroactive misjoinder fails. The charges of robbery and witness tampering were properly joined and adjudicated. This issue is without merit.

¶ 19. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ROBBERY, AND COUNT II, TAMPERING WITH A WITNESS, AND SENTENCE OF FIFTEEN YEARS ON COUNT I AND TWO YEARS ON COUNT II, WITH THE. SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY. . ■

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    William Scott ASHWELL a/k/a William Ashwell a/k/a William S. Ashwell, Appellant. v. STATE of Mississippi, Appellee.
    Nos. 2015-CA-00023-COA, 2015-CA-00626-COA.
    Court of Appeals of Mississippi.
    June 7, 2016.
    Rehearing Denied Nov. 8, 2016.

      Timothy Kevin Byrne, Clinton, attorney for appellant.
    Office of the' Attorney General by Barbara Wakeland Byrd,' attorney for appel-lee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. William Ashwell appeals the Lawrence County Circuit Court’s judgment denying his motion for post-conviction relief (PCR). He claims that he is automatically entitled to relief because bills of information were not filed when he pleaded guilty to burglary and escape during 2006. Referring to statements in other documents and the transcript of the guilty-plea hearing, the circuit court found that although the bills of information had not been filed, théy existed when Ashwell entered his guilty pleas. Consequently, the circuit court denied Ashwell’s PCR motion. We affirm the circuit court’s judgment.'

BACKGROUND

¶ 2. On' December' 14, 2006, Ashwell filed waivers, of indictment consenting to prosecution for “burglary of. an inhabited dwelling” and escape by bills of information. Ashwell also filed separate guilty-plea petitions. That same day, the circuit court conducted a guilty-plea hearing, and accepted both of Ashwfell’s guilty pleas. Later that month, the 'circuit court entered a sentencing order regarding Ashwell’s burglary conviction. The circuit court sentenced Ashwell to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). But the circuit court retained sentencing jurisdiction incident to Ashwell’s burglary conviction. The circuit court held that it would modify Ashwell’s burglary sentence if he successfully completed MDOC’s Regimented Inmate Discipline (RID) program and a three-month drug and alcohol treatment program. In that event, the circuit court would place Ashwell in MDOC’s Intensive Supervision Program (ISP) for two years, suspend the remaining portion of Ashwell’s sentence, and place him on post-release supervision for that remainder.

¶ 3. On January 2, 2007, the circuit court entered its order regarding Ash-well’s sentence for escape. The circuit court sentenced Ashwell to five years in MDOC custody, to run concurrently with Ashwell’s burglary sentence. Again, the circuit court held that if Ashwell completed two years in ISP, the remaining three years of his escape sentence were “to be served under the post-release provisions .... ” Additionally, Ashwell’s concurrent escape sentence in ISP would begin only when the ISP portion of his burglary sentence began. As mentioned above, the ISP portion of Ashwell’s burglary sentence had not begun at that time, because it was still contingent on his completion of the RID program and the drug and alcohol treatment program.

¶ 4. As of November 5, 2007, Ashwell had successfully completed the RID program, and he was expected to complete the drug and alcohol treatment program a short time later. So the circuit court entered an “amended order” regarding Ash-well’s burglary conviction. Consistent with the initial sentencing order for burglary, the circuit court placed Ashwell in ISP for two years. The circuit court further provided that if Ashwell successfully completed two years in ISP, the remaining thirteen years of his sentence would be suspended “pending successful completion” of five years of post-release supervision.

¶ 5. Presumably, Ashwell remained in ISP for two years, and he was placed on post-release supervision. In July 2010, Ashwell was accused of violating the post-release-supervision terms by testing positive for marijuana use during March 2009, and being arrested on some unspecified date for possession of precursors with intent to manufacture methamphetamine. In each case, Ashwell waived a revocation hearing. The circuit court subsequently revoked Ashwell’s post-release supervision for burglary and escape.

¶ 6. In August 2013, Ashwell filed a pro se PCR motion challenging both of his convictions. He claimed that the circuit court never had jurisdiction to accept his 2006 guilty pleas, because the underlying criminal dockets did not reflect the existence of bills of information. Stated differently, neither docket file contained a bill of information, nor any indication that one had ever been filed. Ashwell reasoned that the bills of information never existed.

¶ 7. The circuit court appointed an attorney to represent Ashwell, and ordered the State to respond to his PCR motion. Conceding that neither docket contained a filed bill of information, the State argued that Ashwell’s guilty pleas were still valid based on other documents that referenced the bills of information. The State attached an affidavit of the prosecutor who had been present during Ashwell’s guilty pleas. According to the prosecutor’s affidavit, Ashwell would not have been allowed to plead guilty “without a [b]ill of [ijnformation being sworn and executed.” Relying on the prosecutor’s affidavit, Ash-well’s waivers of indictment, the guilty-plea petitions, and statements during the guilty-plea hearing, the circuit court agreed with the State. Therefore, the circuit court denied Ashwell’s PCR motion. Ashwell appeals.

STANDARD OF REVIEW

¶ 8. “We will not disturb a circuit court’s denial of a PCR motion unless the decision is found to be clearly erroneous.” Edmondson v. State, 17 So.3d 591, 594 (¶ 5) (Miss.Ct.App.2009). We review questions of law de novo. Id. Ashwell bore the burden to show that he was entitled to relief by a preponderance of the evidence. See Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011).

DISCUSSION

I. Burglary

¶ 9. Ashwell argues that the absence of a filed bill of information in the criminal docket automatically entitles him to relief. He further argues that the circuit court improperly referenced other documents to conclude that there had been a bill of information when he pleaded guilty. Alternatively, he claims that the documents at issue were inadequate to demonstrate that a bill of information had existed.

¶ 10. “No person shall, for any indictable offense, be proceeded against criminally by information, except in cases ... where a defendant represented by counsel by sworn statement waives indictment....” Miss. Const. art. 3, § 27. Without question, the circuit court did not acquire subject-matter jurisdiction simply because Ashwell pleaded guilty. “[A] guilty plea does not waive subject[-]matter jurisdiction.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). But the Mississippi Supreme Court has held that a trial court may acquire jurisdiction by means other than a bill of information. “Jurisdiction vests in a particular court when an accused is arrested pursuant to a warrant issued by that court.” Rhodes v. State, 335 So.2d 907, 908 (Miss.1976). Furthermore, “[a] properly executed waiver of indictment vests the trial court with full authority to dispose of the felony offense for which indictment was waived.” Berry v. State, 19 So.3d 137, 138 (¶ 8) (Miss.Ct.App.2009).

¶ 11. Texas courts have held that a filed bill of information is necessary to confer subject-matter jurisdiction. See Williams v. State, 767 S.W.2d 868, 871 (Tex.Ct.App.1989) (“It is true that the information must be filed in a felony case to confer jurisdiction on the court.”). But article 5, section 17 of the Texas constitution states that “[prosecutions may be commenced ... by information filed by the county attorney....” (Emphasis- added). Florida courts also require a filed bill of information. See Sadler v. State, 949 So.2d 303, 305 (Fla.Dist.Ct.App.2007) (“A court’s jurisdiction to try an accused defendant is not invoked and does not exist unless the State files an information or indictment.”). But article I, section 15(a) of the Florida constitution says: “No person shall be tried for [a]. ... felony without ... an information filed by the prosecuting officer of the court.... ” (Emphasis added). . As quoted above, the Mississippi Constitution does not contain “filed by” language. Instead, Article 3, Section 27 provides that “for any indictable offense,” a defendant may only be proceeded against by information if he waives indictment through a sworn statement while represented by counsel.

¶ 12. To be precise, Ashwell’s waiver of indictment said:

I understand that I stand charged with the crime of burglary of an inhabited dwelling, an indictable offense, by information and affidavit dated the 14th day of December, 2006, and that said information and affidavit alleges said crime to have been committed on or about _, 200,_, in Lawrence County, Mississippi.

When Ashwell pleaded guilty, he clearly proceeded as though a bill of information existed at the time. - Through his guilty-plea petition, Ashwell stated his intent to plead guilty to burglary. The burglary statute was quoted within the guilty-plea petition, including its reference, to the three-year minimum and twenty-five-year maximum sentences upon conviction.

¶ 13. In State v. Hart, 80 So.3d 25, 28 (La.Ct.App.2011), the Louisiana Court of Appeal found that harmless error resulted where a bill of information was missing from the record, but the defendant “waived a formal reading of the bill of information,” there was “no indication that [the] defendant was unaware of the charges against him,” and he did not allege that he had. been prejudiced. Here, comments during the guilty-plea hearing further support a conclusion that there was a written bill of information when Ashwell pleaded guilty. The circuit court asked Ashwell whether he wanted “to have [his] charge[s] read to [him.]”- Ashwell declined. The circuit court then stated: “[Y]ou have two charges. One of them is burglary, breaking and entering into an inhabited dwelling.” When asked how Ashwell intended to plead. “[t]o that charge,” he responded, “[G]uilty.” A short time later, the circuit court asked whether “[t]he facts that are stated in the charges then are true and correct?” Ashwell responded, “Yes, sir.”

¶ 14. We find no merit to Ash-well’s claim that his burglary conviction must be vacated because a bill of information was not 'filed. All parties involved certainly proceeded as though a bill of information existed-. And Ashwell cites no authority to support a finding that the lack of a filed bill of information automatically results in reversible error. The' failure to file the bill of information in this case appears to be. the result of oversight. Although this opinion should not be construed in a manner that diminishes the critical importance; of filing a bill of: information, under the precise circumstances of this case, we find that circuit court acted within its discretion when it denied Ash-well’s PCR motion. That is, it was within the circuit. court’s discretion to find that there had been a bill of information based on Ashwell’s waiver of indictment, guilty-plea petition, and .comments during the guilty-plea hearing. We find no merit to this issue.

II. Voluntary Plea

¶ 15. According to Ashwell, his guilty plea to burglary was involuntary, and his waiver of indictment was defective bécause it did not specify the date of the offense. Ashwell waived this procedural defect when he pleaded guilty. See Black v. State, 806 So.2d 1162, 1164 (¶ 5) (Miss.Ct.App.2002). A prisoner waives a claim that a charging document is defective if he does not raise it within the three-year time limitation. Kelly v. State, 797 So.2d 1003, 1005 (¶ 4) (Miss.2001). Consequently, this issue is procedurally barred.

III. Escape

¶ 16. This consolidated appeal originated from a single PCR motion that the circuit court essentially divided into two proceedings, because a prisoner may only challenge one conviction in a PCR motion. See Miss.Code Ann. § 99—39—9(2) (Rev. 2015). “This means that a separate [PCR] motion ... must be filed- for each cause number or conviction.” Blount v. State, 126 So.3d 927, 930 (¶ 7) (Miss.Ct.App.2013) (citation omitted). It is unnecessary to discuss the procedural details that led to consolidation of the appeals. It is enough to note that Ashwell’s challenges regarding each conviction were basically the same— that they were fundamentally invalid for lack of a filed bill of information.. It is equally unnecessary to .repeat the analysis above. Suffice it to say, it was within the circuit court’s discretion to find that a bill of information for escape existed based on statements in the waiver of indictment, the guilty-pléa petition, and the transcript of the guilty-plea hearing. And Ashwell is procedurally barred from claiming that his guilty plea was involuntary because the waiver of indictment did not list the date of the offense.

¶ 17. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

. LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      , Judge Michael Eubanks had previously announced that he would retire at the end of 2006. He simultaneously conducted guilty-plea hearings related to twelve defendants. They were all represented by the same appointed attorney. And all but one of them pleaded guilty based on bills of information.

      . Judge Eubanks signed the order on December 27, 2006.

      . The circuit court did not suspend any portion of Ashwell’s burglary sentence at that time. Instead, the circuit court made the future suspension of the burglary sentence contingent upon his successful completion of two years in ISP. See Ivory v. State, 999 So.2d 420, 431 (¶ 33) (Miss.Ct.App.2008). The circuit court arguably went to significant lengths to give Ashwell opportunities to avoid a more lengthy term of incarceration, because the circuit court "lacked the authority to defer the question of suspension of part of [Ash-well]'s sentence to a later date ... conditioned on an event that may or may not occur in the future.” Johnson v. State, 77 So.3d 1152, 1155 (¶ 8) (Miss.Ct.App.2012). Furthermore, Ashwell’s conditionally suspended burglary sentence could not be "self-executing.” Id.

      . In its June 2014 order, the circuit court noted that Ashwell had been released from custody. That is consistent with a statement in Ashwell’s PCR motion indicating that he anticipated being released on parole.


text:
    Alvin BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-00331-COA.
    Court of Appeals of Mississippi.
    June 28, 2016.
    Rehearing Denied Nov. 8, 2016.

      Office of State- Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ. ’•
   ISHEE, J.,

tor the Court:

¶ 1. A Hinds County Circuit Court jury convicted Alvin Brown of manslaughter and four counts of aggravated assault. The trial court sentenced Brown to twenty years for the manslaughter conviction and ten years for each aggravated-assault conviction, all in the custody of the Mississippi Department of Corrections (MDOC).- The aggravated-assault sentences were ordered to run concurrently with each other, and consecutively to the manslaughter' sentence. Brown appeals his convictions and sentences, raising the following issues: (1) the trial court erred in denying his motion to ■ dismiss for a violation of his right to have a speedy trial; (2) the trial court erred in giving an “imperfect” self-defense manslaughter" jury instruction; (3) the evidence was insufficient to support a manslaughter conviction or any of the four aggravated-assault convictions; (4) ' thé jury was not instructed properly on the aggravated-assault charges; (5) the trial court erred in admitting a weapon as evidence; and (6) Brown was subjected to double jeopardy.

¶ 2. For the following reasons, we affirm in part and reverse and remand-in part.

FACTS

¶ 3. On the night of September 20, 2009, a shooting occurred at the Birdland night club in Jackson, Mississippi. During a confrontation between Brown and Albert Coleman, Yatasha Johnson was shot and killed. Latonya Hopson ■ King, Malcolm Smoot, Derrick Walker, and Anastasia Murdock were all shot and wounded.

¶ 4. At trial, Brown testified in his own defense and stated that he was nineteen at the time of the incident. He explained that he and his cousin, Smoot, went out on the night in question to look for women and decided to go to Birdland. They arrived at the crowded club sometime between 11 p.m. and midnight. At the entrance, they went through two pat-downs performed by security guards and then through a metal detector. According to Brown, he was standing near the club’s bar when Eddwantya Epps approached him. Brown bought Epps a drink. Coleman soon approached Epps, but Brown did not recognize him. According to Brown, Coleman was talking to Epps as if he were angry with her and pointing his fingers at her.

¶ 5. At trial, Brown' explained that “he didn’t want any trouble,” but when he turned to walk away, Coleman grabbed Brown and hit him. They began fighting. Brown testified that he saw Coleman reach down into his pants and retrieve a gun. According to Brown, he struggled with Coleman and tried to keep the gun away from himself as shots were being fired. Brown explained he believed that in order to win the fight against Coleman he had to stay close to him, so Brown used his left hand to hold Coleman’s shirt and his right hand to defend himself. Brown ■ did not recall anything else about the incident. He testified that he woke up in the hospital seven or eight days later. Brown denied having a gun in Birdland and claimed he did not own a weapon.

¶ 6, Coleman, at the time of trial, was forty-five years old, and admitted to knowing Brown as a “kid” from the “neighborhood.” Coleman testified that when ,he arrived at the club,- he went to shake Brown’s hand, but Brown yelled at him. According to Coleman, Brown walked away but returned a few minutes later to confront Coleman. Coleman testified that he punched Brown,' and then, immediately after, Coleman heard a gunshot. He looked down and saw that Brown had a gun. Coleman testified that he grabbed Brown’s wrist to control the gun, but Brown kept shooting. Coleman stated that he was able to wrestle the gun away from Brown and eventually placed it on the bar.

¶ 7. Coleman testified that seeing Johnson lying on the floor of the club after she was shot was “too much,” so he left the club. Coleman left alone, got in his car, collected his things from his hotel room, and drove home to Little Rock, Arkansas. Coleman claimed that he did not feel safe coming back to Jackson, Mississippi, to give a statement, so he gave a statement to a police officer in Little Rock the next day. Eventually, Coleman talked to the Jackson Police Department. According to Coleman, he did not own a gun because, he is a convicted felon.

¶ 8. Several witnesses who were at Bird-land that night testified at trial. King testified that she and a friend were walking from the restroom back to the bar area when she noticed the fight, so she headed back to the restroom for safety. As she turned to go back, she was shot but did not realize it until she was back in the restroom. King stayed in the restroom and waited for an ambulance. She testified that she never saw who was fighting, nor did she see the shooter or the gun.

¶ 9. Murdock was exiting the restroom when the shooting began. She was shot in both legs. However, at trial, she testified that she did not see where the shots came from and never saw a fight or scuffle.

¶ 10. Walker, one of the security guards working the night of the incident, testified that he was in front of the disc-jockey booth when the shooting started. He stated that he could see “commotion” between Brown and Coleman. Walker testified that he saw Coleman hit Brown, and then he heard five gunshots. Walker was shot in the left thigh. However, Walker testified that he did not see the gun. He described seeing several others shot and one “girl laid out.” He also saw Brown “laid out” and patrons at the bar throwing stuff at Brown.

¶ 11. JPD Officer Lateef Skinner testified that he responded to the shooting at Birdland. Officer Skinner found Smoot bleeding with what appeared to be a gunshot wound to the abdomen. He escorted Smoot to the hospital.

¶ 12. Ebony Brown, a regular patron at the club also testified. Just before the shooting, she stated she could see “tussling,” but before the security guards could get to the fight to break it up the shooting started. She testified that she never saw the gun and never saw who fired the shots. Ebony also stated everyone hit the floor when the shooting began and then fled the club afterwards. Ebony testified that there was tight security at the club, including metal detectors, pat-downs, and handbag searches.

¶ 13. Marques White was tending the bar that night, and testified that he saw Brown and Coleman arguing. Marques saw the scuffle but did not see the gun. According to Marques, Coleman was a much taller and larger person than Brown, and when he saw them struggling, he saw Brown fighting in a low position. Marques admitted that he could not see whether Coleman had his hand on top of Brown’s or whether Brown’s hand was on top. He also admitted that he could not see the gun or who initially pulled out the gun. After the shooting stopped, Coleman tried to give Marques the gun, but Marques told him to put it on the counter, which Coleman did.

¶ 14. Shun White, whose father owned and operated Birdland, testified that he was working at the club on the night of the incident. Shun stated that he had known Coleman for over twenty years, but had never seen Brown before that night. Shun did not see any of the confrontation between the two men or the gun. After the shooting stopped, he saw Coleman put a gun on the bar top. Shun testified that Coleman told him that he had just taken the gun away from somebody.

¶ 15. John Greer, the disc jockey at the club on the night of the incident, also testified at trial. He stated that he had on headphones and did not hear the gunshots. Greer explained that when he looked up, he saw everybody on the floor except for Brown and Coleman, who were struggling for a gun. He did not see who initially pulled the weapon.

¶ 16. Epps testified that she arrived at Birdland with a friend between 12:30 and 1:00 a.m. She explained that she was standing at a table when she saw Coleman and Brown begin to argue. She testified that before the men started to fight, she was standing close enough to Brown to see that he had a gun at his side and com-merited about it to her Mend. Epps saw the men struggle before the first shot was fired. She said she heard Coleman yell for the crowd to “get him,” meaning Brown. According to Epps, people in the club started beating and kicking Brown because he had the gun. Epps testified that the only time she saw Coleman with a gun whs when he placed it on the bar.

¶ 17. Officer Lakeith Williams with the Jackson Police Department, one of the first to respond to the scene, did not notice any gunshot wounds to Brown, who was unconscious and bleeding heavily when police arrived. Officer Derrick Archie testified that when he arrived, the heel of a woman’s stiletto was sticking out of the back of Brown’s head. Brown was taken to University of Mississippi Medical Center (UMMC). Garland Ward, a detective assigned to the case, went to UMMC to collect samples fi-om Brown for a gunshot-residue test. Jacob Burchfield, an expert gunshot-residue analyst, testified that the identification of gunshot residue on a sample from a person means that the person was in the environment of a discharged weapon, which would mean that the person fired the weapon; or the person handled something with gunshot residue on its surface, such as a weapon; or the person was in close proximity at the time the weapon was discharged. Burchfield testified to his analysis of swabs from the back and palm of Brown’s hands. Brown’s right palm and the back of his left hand tested positive for gunshot residue.

¶ 18. Brown was indicted for one count of depraved-heart murder and four counts of aggravated assault. The jury convicted Brown of manslaughter and four counts of aggravated assault. The trial court sentenced Brown to twenty years for the manslaughter conviction and ten years for each aggravated-assault conviction, with the aggravated-assault sentences to run concurrently with each other, and consecutively to the manslaughter sentence, all in the custody of MDOC. Aggrieved, Brown appeals.

DISCUSSION

I. Speedy Trial

¶ 19. On appeal, Brown’s first argument is that the trial court erred in denying his motion to dismiss for violation of his constitutional and statutory rights to a speedy trial. Brown was taken into custody upon being released from UMMC on September 30, 2009. He was indicted on December 9, 2009, and was arraigned two months later. His first trial started on August 19,2013, and ended in a mistrial three days later. His second trial, the subject of this appeal, began on January 21, 2014.

¶20. Mississippi Code Annotated section 99-17-1'(Rev.2015) grants a defendant the right to a speedy trial. This statutory right provides that an accused shall be tried within 270 days of his arraignment. Miss.Code Ann. § 99-17-1. Furthermore, in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court created a four-factor test, which Mississippi courts later adopted to determine whether a defendant’s constitutional right to a speedy trial had been violated. The factors are “[the][l]ength of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182.

¶ 21. Upon hearing and considering the motion, the trial court ruled that Brown’s right to a speedy trial had not been violated because a demand for speedy trial was not filed until “well after” 270 days. However, the trial court expressed its concern with protecting Brown’s constitutional right and specifically found that a Barker analysis was warranted, “as the first trial date was not even set within eight (8) months of [the] indictment, which occurred prior to arrest, meaning a,presumption of prejudice ha[d] arisen.”

¶22. The trial court agreed with the timeline provided by the defense, and found “that from the time of indictment to the time of the ... August 19, 2013 trial date, a total of one thousand one hundred and sixty three (1163) days must be counted against the State, ... although not heavily.” The trial court went on to state that perhaps the most important factor to review is the actual prejudice to the defendant. In that vein, it noted:

This trial court has considered the lengthy pre-trial incarceration and [Brown’s] anxiety.,associated with awaiting trial.. However, the Mississippi Supreme Court and this Court’s main concern is potential loss of evidenpe.... Having considered all factors and the totality of the circumstances, including the nature of the charges, the [c]ourt is not inclined at this point to grant the motion to dismiss..

At the time, neither the ■ State nor the defense was able to locate Coleman, but the State indicated that it was close to finding him. The trial court ordered the State to locate Coleman within a week and to notify Brown’s counsel when Coleman was located. The trial court also noted that “[b]y the end of the year this indictment will be four (4) years old.”

¶ 23. Despite beginning Brown’s initial trial on August 19, 2013, a mistrial was

ordered on the fourth day of trial. A new trial date was set, but the record reveals that there were two continuances. One continuance was agreed to by both parties due to the State’s attorneys having the flu and the lack of a witness. Another time, the trial court sua sponte. continued the second trial as a result of a backlog on the docket. The supreme court has held that “[d]elays caused by overcrowded dockets are not to be weighed heavily against the State.” State v. Magnusen, 646 So.2d 1275, 1282 (Miss.1994) (citation omitted). In Travis v. State, 13 So.3d 320 (Miss.Ct.App.2008), nearly three years passed from arrest to trial, and the delay was due, in part, to the crowded docket. Id. at 326-27 (¶¶ 18, 22). This Court held that Travis did not suffer prejudice and that his right to .a speedy trial was not violated. Id.

¶ 24. In Russell v. State, 79 So.3d 529, 535 (¶ 13) (Miss.Ct.App.2011), we explained:

Review of a speedy-trial claim involves a question of fact: whether the trial delay arose from good cause. We will uphold the trial court’s finding of good cause if that decision is supported by substantial, credible evidence. However, if no probative evidence supports the trial .court’s findings, we must reverse the decision and dismiss the charge. The State bears the burden of proving good cause for. the speedy .trial delay, and thus bears the risk of non-persuasion. Good cause is a factual finding which is not different from any other finding of fact, and thus, an appellate court should not disturb the finding when it is based upon substantial evidence identified from the record. We will affirm a trial court’s findings where they are supported by substantial, credible evidence.

(Internal citations omitted).

¶25. Brown clearly asserted his right to a speedy trial and filed motions both pro se and through his counsel. Although he failed to timely avail himself of the statutory right to a speedy trial, he clearly invoked an analysis of his constitutional right. The length of the delay, one of the Barker factors, clearly favors Brown, as there is no dispute that there was a lengthy delay of more than three years between Brown’s arrest and the date of his first trial. However, the trial court found good reason for the delay. The record reveals that there were a number of continuances that could be charged to both the State and Brown, including: an initial belief that Brown’s case could be settled; a reassignment of judges; the inability of locating a witness crucial to the defense; another witness crucial to the prosecution was on active duty and 'deployed overseas and did 'not return in time for one of the trial dates; the trial was twice continued due to an overcrowding of the docket; there was a lack of notice to prepare for a motion; and several joint motions to continue.

¶ 26. As noted by the trial court, another Barker factor requires consideration of prejudice to the defendant. Brown claims to have suffered anxiety as a result of this long pretrial process. However, this factor was addressed mainly through Brown’s counsel and not by medical evidence or records from jail. As for his ability to provide a defense, Brown was able to secure .testimony from his witnesses despite the . long delay. After a review of the record, we agree with the trial court’s analysis-of the Barker factors, and.find that the trial court’s decision is supported by substantial and credible -evidence. Therefore, this argument is without merit.

II. Imperfect-Self-Defense Jury Instruction

¶ 27. Brown contends the trial court erred by instructing the jury on “imperfect” self-defense. Specifically, Brown argues that there was no evidentia-ry basis for giving the imperfect-self-defense manslaughter instruction in this case. The instruction at issue, S-10, read:

The [ejourt instructs the [jjury that if you unanimously find that the State has failed to prove all the elements of the crime of [mjurder, you may then proceed in your deliberations to consider the lesser charge of [mjanslaughter. However, it is your duty to accept the law given to -you by the [ejourt;. and if the facts and the law warrant a conviction of the crime-of [mjurder, then it is your duty to make such finding, and not be influenced by your power to find a lesser offense. • This provision is not designed to relieve you [j from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime. The [ejourt instructs the [jjury that if a person kills another under the actual bona fide [ ]. belief that such a killing is necessary in order to protect himself from great bodily harm or death, but that such belief is not reasonable under the circumstances, then there is no malice aforethought and the killing is not murder, but at most is the crime of manslaughter.

¶28. Brown was indicted for murder. An indictment for murder encompasses the lesser-included charge ’ of manslaughter. State v. Shaw, 880 So.2d 296, 304 (¶ 26) (Miss.2004). If the record shows any evidence that can support a lesser offense, then the circuit court should give the lesser-offense instruction. See Ormond v. State, 599 So.2d 951, 961 (Miss.1992); Mease v. State, 539 So.2d 1324, 1329-30 (Miss.1989).

¶29. Here, the record is clear that Coleman was the initial aggressor and threw the first punch. Witnesses all agreed that Coleman was the larger and older of the two. Brown admitted that he had to defend himself after Coleman had “grabbed” him. Brown maintained his theory of defense that he did not produce a gun at the club and did not shoot the gun. Brown now argues that no testimony was offered to show that Brown acted in self-defense. However, the evidence supports the theory that after Coleman attacked Brown, Brown may have shot the gun with the intent to protect himself. Furthermore, the jury chose to believe that Brown had the gun, and they further believed that Brown had to kill to protect himself, even if that belief was not reasonable under the circumstances. Given the evidence presented to the jury supporting a possible manslaughter offense, we find that the- trial court did not err in giving the imperfect-self-defense instruction to the jury.

III. Sufficiency of the Evidence

¶ 30. In reviewing the sufficiency of the evidence, the standard of review is quite limited. “[A]ll evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.” Reed v. State, 956 So.2d 1110, 1111 (¶ 6) (Miss.Ct.App.2007) (citing Bell v. State, 910 So.2d 640, 646 (¶ 16) (Miss.Ct.App.2005)). “Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence.” Id. (citing Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997)). “All of the evidence is to be considered in the light most consistent with the verdict.” Id. “The prosecution is given the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id.

¶ 31. The record reveals that several witnesses testified to seeing Brown with the gun. It was undisputed that Coleman attacked Brown. Epps testified that she could see Brown had a gun. Brown’s right palm and the back of his left hand tested positive for gunshot residue. Here, the jury found the testimony of the State’s witnesses to be more credible and resolved any minor inconsistencies in the evidence in favor of the State. The evidence is sufficient and clearly supports the guilty verdict. We find no merit to this issue.

IV. Aggravated-Assault Indictment and Jury Instructions

¶ 32. Brown argues that the jury was not properly instructed regarding the essential elements of aggravated assault, specifically that Brown caused “serious bodily injury.” The language in the indictment charging Brown with four counts of aggravated assault stated that Brown:

Did willfully, unlawfully and feloniously cause serious bodily injury to Anastasia Murdock to wit: by shooting her in her legs purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. In the First Judicial District of Hinds County, Mississippi, in violation of Section 97-3-7(2)(a)....
Did willfully, unlawfully and feloniously cause serious bodily injury to Malcolm Smoot to wit: by shooting him in the groin areas of his body purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. In the First Judicial District of Hinds County, Mississippi, in violation of Section 97-3-7(2)(a)....
Did willfully, unlawfully and feloniously cause serious bodily injury to Latonya King Hopson to wit: by shooting her in the buttocks purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. In the First Judicial District of Hinds County, Mississippi, in violation of Section 97-3-7(2)(a)....
Did willfully, unlawfully and feloniously cause serious bodily injury to Derrick Walker to wit: by shooting him in the leg purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. In the First Judicial District of Hinds County, Mississippi, in violation of Section 97-3-7(2)(a)....

(Emphasis added).

¶ 33. At the time Brown was indicted, Mississippi Code Annotated section 97-3-7(2) (Rev.2006) stated:

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 the 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....

(Emphasis added).

¶ 34. At trial, jury instruction S5 read:
If you find from the evidence in this case beyond a reasonable doubt that:
1. The defendant, Alvin Brown;
2. On or about September 20, 2009;
3. In the First Judicial District of Hinds County, Mississippi;
4. Did purposefully or knowingly cause or attempt to cause bodily injury to Anastasia Murdock;
5.with a firearm, a deadly weapon;
then you shall find the defendant guilty of aggravated assault.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the defendant not guilty of aggravated assault.
If Alvin Brown did purposely or knowingly cause bodily injury to Anastasia Murdock with a firearm, a deadly weapon, then you shall find the defendant guilty of aggravated assault.

(Emphasis added). Instructions S6 through S8 were substantively identical to S5, but provided the other three names of the victims who were shot that night.

¶35. At the outset, we note that Brown failed to make an objection regarding the discrepancy at trial. Nonetheless, the issue is not procedurally barred. Serious bodily injury is an essential element of the crime of aggravated assault. See Snowden v. State, 131 So.3d 1251, 1256 (¶ 16) (Miss.Ct.App.2014). Failure to instruct the jury as to an essential element of the crime is reversible error. Bolton v. State, 113 So.3d 542, 544 (¶ 4) (Miss.2013). “Due[-]process rights include the right to a properly instructed jury.” Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss.Ct.App.2011) (citing Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss.1998)).

¶ 36. Furthermore, the circuit court is responsible for assuring that the jury is “fully and properly instructed on all issues of law relevant to the case.” Harrell v. State, 134 So.3d 266, 270 (¶ 14) (Miss.2014) (quotation omitted). The trial court is ultimately responsible for rendering proper guidance to the jury via appropriately given jury instructions, even sua sponte. See Hunter v. State, 684 So.2d 625, 636 (Miss.1996) (stating that “[i]t is rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is charged!,] ... [and] even though the defendant did not present an acceptable instruction, the State was obligated to do so”).

¶37. In Bolton, the supreme court found a jury instruction that' lacked an essential element of burglary of á dwélling to be fatally defective. Bolton, 113 So.3d at 544 (¶ 5). Specifically, the jury in that case was improperly instructed to find the defendant guilty if it found that h.e broke and entered a dwelling with the intent to commit any crime, as opposed to a specific crime as required by statute. Id. In Harrell, the supreme court found'that, for a capital-murder charge, the circuit court’s failure to instruct the jury as to the elements of the underlying felony of robbery was reversible error. Harrell, 134 So.3d at 270 (¶ 14).

¶ 38. In Snowden, a case more on point, Snowden was specifically accused of aggravated assault under section 97—3—7(2)(a), but he was only accused of causing “bodily injury.” As we explained, section 97-3-7(2)(a) required proof of “serious bodily injury.” This Court, held that the circuit court erred by allowing the prosecution to proceed on an indictment that specifically charged Snowden with aggravated assault under section 97—3—7(2)(a) when the indictment did not include all of the essential elements required for a conviction under that provision. Snowden, 131 So.3d at 1259 (¶ 22).

¶ 39, We see no reason why the same safeguards are not applicable in the case at bar. Here, it is ■ clear that the jury instructions given at trial regarding the four aggravated-assault crimes track the language of Mississippi Code Annotated section 97-3-7(2)(b) (Rev,2006), which required “purposely or knowingly causing, bodily injury to another with a deadly weapon or other means likely.to produce death or serious bodily harm[.]”' (Emphasis added). Therefore, the- instructions were inadequate and did not require the jury to find that a “serious” bodily-injury occurred as stated in the indictment. This omission substantially altered the proof necessary for a conviction in this case and broadened the grounds upon which Brown was convicted, '

¶40, The supreme court has held that “a constructive amendment of the indictment occurs when the proof and instructions broaden the grounds upon which the defendant may be found guilty of the offense charged so that the defendant may be convicted without proof of the eléments alleged by the grand jury in its indictment.” Bell v. State, 725 So.2d 836, 855 (¶ 58) (Miss.1998). In short, a constructive amendment “effectively modifies an essential element of tire offense charged.” Id. at 856 (¶ 61). Pursuant to Bell, we find that the language “bodily injury” without the word “serious” was a constructive amendment in the case at hand. “Not all variances between, the indictment and instructions constitute a constructive amendment, nor do they rise to plain error.” Id, at 855 (¶ 61). “The central question is whether the variance is such as to substantially alter the elements of proof necessary for a conviction.” Id.

¶41. In Fleming v. State, 604 So.2d 280, 293 (Miss.1992), the supreme court recited the definition of “serious bodily injury” contained in the Model Penal Code § 210 (1980), which states: “ ‘[Sjerious bodily injury’” [means] “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Here, the jury was not asked to decide on the specific issue of whether the injuries inflicted upon Murdock, Smoot, King, and Walker were “serious” bodily injuries, which substantially altered the elements of proof for a conviction. Furthermore, a deadly weapon is not an element of the crime as suggested by the jury instructions. This too was a variance between the indictment and the jury instructions. As such, the jury instructions did not “fairly ... instruct [ ] the jury on the applicable law.” Conner v. State, 138 So.3d 143, 150 (¶ 16) (Miss.2014), We reverse and remand for a new trial with respect to the aggravated-assault charges.

V. Pro Se Claims

¶42. Brown claims he'was entitled to a flight instruction, which would have directed' the jury that they could consider Coleman’s flight from the bar as a conscious sense of guilt. Brown has not supported this argument with any caselaw, nor can we find any legal support for this contention. Furthermore, the jury was allowed to make its own conclusion after hearing Coleman’s testimony as to why he left after the incident.

¶ 43. Finally, Brown argues that he was subjected to double jeopardy when he went to his second trial in light of the first one ending in a mistrial. “If a mistrial is granted upon the court’s motion or upon the State’s motion, a second trial is barred because of double jeopardy, unless taking into consideration all the circumstances there was a ‘manifest necessity’ for the mistrial.” Jenkins v. State, 759 So.2d 1229, 1234 (¶ 18) (Miss.2000) (citing Watts v. State, 492 So.2d 1281, 1284 (Miss.1986)). The trial court declared a mistrial, which the State and Brown’s counsel agreed to, because a detective testifying as a witness improperly commented on Brown’s Fifth Amendment right. The trial court further found that “a mistrial was warranted -to protect [Brown]’s constitutional rights.” We agree with the trial court in that there was a manifest necessity for the mistrial, and therefore double jeopardy did not attach.

¶ 44. In light of our findings, we affirm in part, reverse in part, and remand.

¶ 45. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE JUDGMENT OF CONVICTION OF FOUR COUNTS OF AGGRAVATED ASSAULT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH - THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., BARNES, CARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING AND GRIFFIS, P.JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The Legislature amended section 97-3-7(2)(a) to include what had once been section 97-3-7(2)(b), "A-person is guilty of aggravated assault if he ... purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily'harm[.]” Miss.Code Ann. § 97-3-7(2)(a) (Supp.2013).