       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2013-KA-01336-COA




RONALD DERRICK WHITE A/K/A RONALD                                   APPELLANT
WHITE A/K/A RONALD D. WHITE

v.

STATE OF MISSISSIPPI                                                  APPELLEE

DATE OF JUDGMENT:           07/22/2013
TRIAL JUDGE:                HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     OFFICE OF STATE PUBLIC DEFENDER
                            BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:          MICHAEL GUEST
NATURE OF THE CASE:         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:    CONVICTED OF COUNT I, AGGRAVATED
                            ASSAULT, AND SENTENCED, AS A
                            HABITUAL OFFENDER, TO TWENTY
                            YEARS; COUNT II, SIMPLE ASSAULT
                            AGAINST A PERSON OVER SIXTY-FIVE
                            YEARS OF AGE, AND SENTENCED, AS A
                            HABITUAL OFFENDER, TO FIVE YEARS,
                            WITH THE SENTENCE IN COUNT II TO RUN
                            CONSECUTIVELY TO THE SENTENCE IN
                            COUNT I, BOTH TO BE SERVED IN THE
                            CUSTODY OF THE MISSISSIPPI
                            DEPARTMENT OF CORRECTIONS
                            WITHOUT ELIGIBILITY FOR PAROLE OR
                            EARLY RELEASE
DISPOSITION:                AFFIRMED – 10/07/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   A Rankin County jury convicted Ronald Derrick White of aggravated assault, and
simple assault against a person over sixty-five years of age. The circuit court sentenced

White, as a habitual offender, to twenty years for the aggravated-assault conviction, and to

five years for the simple-assault conviction, with the five-year sentence to run consecutively

to the twenty-year sentence, in the custody of the Mississippi Department of Corrections

without eligibility for parole or early release.      White filed a motion for a judgment

notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied.

Feeling aggrieved, White appeals and argues that the circuit court erred by giving jury

instruction S-1A, submitted by the State.

¶2.    Finding no error in the circuit court’s judgment, we affirm.

                                            FACTS

¶3.    In the early morning hours of January 1, 2013, White, his girlfriend, Regina James,

and Melinda Temple arrived at White’s parents’ home after a night out. White’s mother,

Mary, testified that upon hearing commotion when the group arrived, she and her husband

came out of the house and onto the porch. Mary then saw White on the porch, pulling James

by her hair and punching and kicking her until she fell unconscious. Mary also stated that

she saw White punch Temple in the face, and that neither James nor Temple provoked or hit

White before White attacked them. When Mary asked White why he was attacking James

and Temple, White picked Mary up off of the porch and threw her into the front yard,

causing Mary to sustain injuries.

¶4.    James testified that she and White were not arguing or fighting prior to arriving at the

house. However, she stated that once they arrived at the house, she exited the vehicle, went

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inside the house, and locked the door. White broke through the glass door and punched her,

knocking her unconscious. She stated that all she remembered after being punched is waking

up in the hospital. Officer Will Nelson, with the Rankin County Sheriff’s Department,

testified that the glass door to the house was shattered, and that the door frame was damaged.

When he entered the house, he noticed that everyone was bloodied and appeared to be

injured, except for White.

¶5.    At trial, after the parties rested their cases, the court considered the jury instructions

that the parties had submitted. The State had initially submitted jury instruction S1, which

only instructed the jury on the elements of aggravated assault. The State later submitted jury

instruction S-1A, a revised version of instruction S1, which provided:

       The Court instructs the Jury that if you unanimously find from the evidence in
       this case, beyond a reasonable doubt, that the defendant, Ronald Derrick
       White, on or about January 1, 2013, in Rankin County, Mississippi, did:

              1. unlawfully, feloniously, purposely and knowingly;

              2. cause bodily injury to Regina James, a human being;

              3. with a means likely to produce death or serious bodily injury;

              4. by striking the body of Regina James with hands and closed fists,
              causing multiple fractures

       then and in that event, the defendant, Ronald Derrick White, is guilty of
       aggravated assault and it is your sworn duty to so find.

       The Court instructs the Jury that if you unanimously find that the State has
       failed to prove all elements of the crime of aggravated assault, you may then
       proceed in your deliberations to consider the lesser charge of simple assault.
       However, it is your duty to accept the law given to you by the Court, and if the
       facts and the law warrant a conviction of the crime of aggravated assault, then

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       it is your duty to make such a finding, and not be influenced by your power to
       find a lesser offense. This provision is not designed to relieve you from
       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.

       Therefore, if you unanimously find from the evidence in this case, beyond a
       reasonable doubt, that the defendant, Ronald Derrick White, on or about
       January 1, 2013, in Rankin County, Mississippi, did:

              1. purposely, knowingly or recklessly;

              2. cause bodily injury to Regina James, a human being;

              3. by striking the body of Regina James with hands and closed fists,
              causing multiple fractures.

       then and in that event, the defendant, Ronald Derrick White, is guilty of the
       lesser crime of simple assault.

       The Court further instructs the Jury that if the State fails to prove any of the
       above elements of aggravated assault or simple assault, beyond a reasonable
       doubt, then in that event you must find the defendant, Ronald Derrick White,
       not guilty.

White objected to instruction S-1A on the ground that it contained excessive and irrelevant

language, as it included elements for the lesser offense of simple assault. White argued that

the court should refuse instruction S-1A, and give the jury instruction that he had submitted,

instruction D-8, arguing that it would be less confusing than instruction S-1A. Instruction

D-8 provided:

       If you find that the State has failed to prove any one or more of the essential
       elements of the crime charged in Count I of the Indictment[, aggravated
       assault], you must find the defendant not guilty of the charge. You will then
       proceed with your deliberations to decide whether the State has proved beyond
       a reasonable doubt all of the elements of the lesser crime of Simple Assault.
       If you find from all of the evidence in this case beyond a reasonable doubt that:

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              1. Ronald White, on or about January 1, 2013[,] in Rankin County,
              Mississippi;

              2. Did purposely and/or knowingly and unlawfully caused bodily
              injury to Regina James;

              3. By striking her with hands and closed fists;

       then you shall find the Defendant guilty of Simple Assault.

       If the [S]tate has failed to prove any one or more of the above listed elements
       beyond a reasonable doubt, then you shall find Ronald White not guilty.

¶6.    The court gave instruction S-1A, and refused instruction D-8 on the grounds that the

lesser-included offense of simple assault should be in the same instruction as aggravated

assault, and that if the lesser-included offense of simple assault was given in a separate

instruction, it may confuse the jury.

                     ANALYSIS AND DISCUSSION OF THE ISSUE

¶7.    Appellate courts review the giving or refusal of certain jury instructions for an abuse

of discretion. Williams v. State, 111 So. 3d 620, 623 (¶9) (Miss. 2013). “The instructions

are to be read together as a whole, with no one instruction to be read alone or taken out of

context.” Id. (quoting Bailey v. State, 78 So. 3d 308, 315 (¶20) (Miss. 2012)). “When read

together, if the jury instructions fairly state the law of the case and create no injustice, then

no reversible error will be found.” Id.

¶8.    White argues that the circuit court erred by giving jury instruction S-1A because the

instruction inverted the State’s burden of proof and permitted the jury to find White guilty

of aggravated assault if he had committed only one element of the offense.                 More


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specifically, White alleges that the following language in the instruction is troubling: “[I]f

[the jury] unanimously find[s] that the State has failed to prove all the elements of the crime

of aggravated assault, [it] may then proceed in [its] deliberations to consider the lesser charge

of simple assault.” He claims that this portion of the instruction deprived him of his

constitutional right to have the jury find him guilty of each and every element of aggravated

assault.

¶9.    White did not object at trial to the court’s giving the instruction on this ground and is,

therefore, procedurally barred from making this argument on appeal. See Boyd v. State, 47

So. 3d 121, 123-24 (¶10) (Miss. 2010). However, White argues that the court committed

plain error by giving instruction S-1A. “Under the plain-error doctrine, [appellate courts] can

recognize obvious error which was not properly raised by the defendant and which affects

a defendant’s fundamental, substantive right.” Conners v. State, 92 So. 3d 676, 682 (¶15)

(Miss. 2012) (quoting Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008)) (internal

quotation marks omitted). “For the plain-error doctrine to apply, there must have been an

error that resulted in a manifest miscarriage of justice[.]” Id.

¶10.   There is no evidence that the instruction impeded White’s fundamental or substantive

rights, nor that the instruction resulted in a manifest miscarriage of justice. Instruction S-1A

clearly related all of the elements of aggravated assault and simple assault, and explained that

if the State had failed to prove all of the elements of aggravated assault, then the jury could

consider the lesser charge of simple assault. The Mississippi Supreme Court has considered

the same language that White complains of, and has determined that this same instruction,

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an “acquit-first” instruction, is not prohibited by the law. Fulgham v. State, 46 So. 3d 315,

330 (¶40) (Miss. 2010).

¶11.   In Jones v. State, 142 So. 3d 420, 424 (¶¶16-17) (Miss. Ct. App. 2013), the appellant

challenged the language in an acquit-first instruction, which stated, “The court instructs the

jury that if you unanimously find that the State has failed to prove all the elements of the

crime of capital murder, you may then proceed in your deliberations to consider the lesser

charge of murder.” This court held that the instruction did not shift the burden of proof to

the defendant, contrary to the defendant’s claim. Rather, the instruction reiterated that if the

“State failed to prove any element of capital murder, then the jury could consider the lesser

crime of simple murder.” Id. at (¶17).

¶12.   Here, the same language that was examined in Jones is used in instruction S-1A, and

there is no misstatement of the State’s burden in proving the defendant’s guilt. The

instruction did not convey that the State only had to prove one element of aggravated assault

in order for the jury to find White guilty of aggravated assault. It is clear from the language

that the State had the burden of proving every element of aggravated assault in order for the

jury to convict White of aggravated assault.        Therefore, the court’s decision to give

instruction S-1A does not constitute plain error, and White is procedurally barred from

making this argument on appeal.

¶13. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE, AS A
HABITUAL OFFENDER OF TWENTY YEARS; COUNT II, SIMPLE ASSAULT
AGAINST A PERSON OVER SIXTY-FIVE YEARS OF AGE, AND SENTENCE, AS
A HABITUAL OFFENDER, OF FIVE YEARS, WITH THE SENTENCE IN COUNT

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II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, BOTH TO BE
SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE,
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN
COUNTY.

   LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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