Davis v. State
|347 So.3d 1205
|22 September 2022
|Bobby DAVIS, Appellant v. STATE of Mississippi, Appellee
|Mississippi Court of Appeals
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:, GEORGE T. HOLMES, Jackson
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:, BARBARA WAKELAND BYRD, Jackson
LAWRENCE, J., FOR THE COURT:
¶1. Bobby Davis appeals his conviction for felonious abuse of a vulnerable person under Mississippi Code Annotated section 43-47-19 (Rev. 2015). Davis physically attacked his mother in the parking lot of a hardware store in McComb, Mississippi. On appeal, Davis argues that neither the sufficiency nor the weight of the evidence was adequate to prove his mother was a "vulnerable person" under the statute and that the trial court improperly refused his proposed jury instruction for the offense of simple domestic violence. We find the sufficiency and weight of the evidence were adequate for Davis's conviction. Further, we find the trial court did not err in refusing Davis's proposed jury instruction. Accordingly, we affirm.
¶2. On June 10, 2019, Davis, who was forty-three years old, was living with his sixty-eight-year-old mother, Marie Williams. At the time, Marie was undergoing cancer
treatment for large B-cell lymphoma in her sinus passages. On that morning, Davis told his mother he had lost his car keys the night before, he needed gas for his vehicle, and he wanted her to purchase a radio for his vehicle. Marie told Davis she was going with her friend Buford to sell scrap metal, but after that she would help him. Marie testified that Buford was a strong man and did most of the work lifting the scrap metal while she picked up the little pieces.
¶3. Davis, Marie, and Buford arrived at the Home Hardware store in McComb, Mississippi, in Marie's truck to have the key made. While Marie went inside the store, Buford stepped outside the truck. Marie came back outside to retrieve her purse from the passenger side of the truck to pay for the car key. Davis, without warning or provocation, jumped out of the backseat and hit his mother in the head with his fist. Davis then knocked her down, jumped on her, and continued beating and stomping her, stating, Marie testified she could not move as her son kicked, hit, dragged, and "pound[ed]" her. Buford ran over and pulled Davis off Marie. The hardware-store clerk came and helped Marie get inside the store. Davis continued to yell, "cuss," and throw rocks. Davis then fled the scene in Marie's truck but was later apprehended by police. Once inside the store, Marie collapsed on a platform inside the door. She was bleeding from her head and crying. The clerk confirmed Marie's account of the attack. A security camera captured the assault as well, and the recording was entered into evidence and watched by the jury at trial.
¶4. Marie testified that at the time of the attack, she was undergoing her second round of treatment for cancer
, and "that made [her] head just explode." She had lived "in the woods by [her]self" for several years until Davis recently came to live with her. Although Marie could mow her lawn on a riding mower, she spent most of her days watching Netflix. Marie testified she could defend herself against her son when she was about thirty years old, but now she could not—she was "too old to do any kind of fighting" or "struggling." She also testified that she was afraid of Davis.1 Due to Davis's attack, Marie had severe head pain, a swollen face, abrasions on her forehead, and knots on her head. Marie declined an ambulance but was dizzy. Marie wrote a statement in the patrol car and then sought medical treatment from her physician, who sent her to a local hospital for her injuries.
¶5. The Pike County grand jury indicted Davis for the felonious abuse of Marie, a vulnerable adult, under Mississippi Code Annotated section 43-47-19. After a jury trial, Davis was convicted and sentenced pursuant to Mississippi Code Annotated section 97-3-7(2) (Rev. 2014), to twenty years in the custody of the Mississippi Department of Corrections, with four years suspended and sixteen years to serve, to be followed by four years of post-release supervision. The court also ordered Davis to pay a $5,000 fine and $250 in restitution. After the court denied Davis's motion for judgment notwithstanding the verdict (JNOV) or a new trial, he appealed. Davis raises two issues on appeal. First, he argues the evidence was insufficient to prove Marie was a vulnerable person and that as a result the verdict was contrary to the weight of the evidence. Second, Davis claims that the trial court erred when it refused his proposed lesser-included-offense jury instruction of simple domestic violence.
¶6. Davis's first issue on appeal is that the evidence was insufficient to prove Marie was a vulnerable person under the law. Davis therefore claims that the verdict was contrary to the weight of the evidence. To determine the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and ask whether "any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt." Hunt v. State , 81 So. 3d 1141, 1146 (¶18) (Miss. Ct. App. 2011). In determining whether the weight of the evidence supports a verdict, the standard of review is that an appellate court will only disturb a verdict if the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Id. at (¶19).
¶7. A person is guilty of felonious abuse of a vulnerable person if he "willfully inflicts physical pain or injury upon a vulnerable person ...." Miss. Code Ann. § 43-47-19(3). A "vulnerable person" is defined as "a person, whether a minor or adult, whose ability to perform the normal activities of daily living or to provide for his or her own care or protection from abuse ... is impaired due to a mental, emotional, physical or developmental disability or dysfunction, or brain damage or the infirmities of aging." Miss. Code Ann. § 43-47-5(q) (Rev. 2005).
¶8. Davis contends the State offered insufficient proof that Marie could not "perform the normal activities of daily living" or provide for "her own care or protection from abuse"; the only evidence of impairment was her cancer
treatment for B-cell lymphoma and "infirmities of aging." Davis relies on his evidence that his mother and Buford regularly picked up scrap metal to sell. Marie also lived alone in the country and mowed her own yard and raked her own leaves. Marie has survived cancer twice. Further, Davis states the video recording of the crime shows her walking normally, and she was able to get in the truck easily. Also, after Davis hit her, Marie stood up without assistance.
¶9. Marie testified that she could not control Davis and was afraid of him. Marie also testified that she could not pull her trailer with her truck or lift heavy scrap metal by herself. Although Marie could mow her yard with a riding lawnmower, mostly she watched Netflix at home. Marie testified that because of her age and cancer
, she could not do the activities she once did, and she could not defend herself against her son as she once could. Further, the jury saw the video of the attack and heard Marie's testimony and other witness testimony. The evidence was sufficient for a rational jury to find beyond a reasonable doubt that Marie, a sixty-eight-year-old cancer patient, was a vulnerable person. We further find that to allow the verdict to stand would not sanction an unconscionable injustice.
¶10. Davis argues that the trial court erred in refusing what he claims was a lesser-included-offense jury instruction of simple domestic violence. Davis contends this jury instruction should have been given because evidence was presented from which the jury could have concluded Marie was not a "vulnerable person." Further, he argues that if the jury had found Marie was not a vulnerable person, then the crime committed would be simple assault, a lesser-included offense, with a domestic-violence aggravating component. A trial judge's refusal of a lesser-included-offense jury instruction is reviewed de novo, as this is a question of law. Gilmore v. State , 119 So. 3d 278, 286 (¶13) (Miss. 2013) (citing Downs v. State , 962 So. 2d 1255, 1258 (¶10) (Miss. 2007) ).
¶11. Davis offered instruction D-5 on simple domestic violence, which read as follows:
The State argued the instruction was improper because it covered a lesser non-included offense, which is prohibited under this Court's holding in Gilmore v. State , 162 So. 3d 876, 879-80 (¶11) (Miss. Ct. App. 2015). Further, the State contended simple domestic violence and felony abuse of a vulnerable adult have different elements, and therefore, simple domestic violence was a lesser-related offense but not a lesser-included offense. We agree.
¶12. In Mississippi, "a criminal defendant no longer has the unilateral right ... to insist upon an instruction for lesser-related offenses which are not necessarily included in the charged offense(s), i.e., so-called lesser-nonincluded-offense instructions." Hye v. State , 162 So. 3d 750, 751 (¶2) (Miss. 2015). A "lesser-non-included offense," also called a "lesser-related offense" or a "lesser offense," has elements not contained in the greater crime. Id. at (¶8). Abuse of a vulnerable person is defined as "willfully inflict[ing] pain or injury upon a vulnerable person." Miss. Code Ann. §...
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