           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2016-KA-00685-COA

TIMOTHY SCOTT BEASLEY A/K/A TIMOTHY                                        APPELLANT
S. BEASLEY A/K/A TIMOTHY BEASLEY

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                           05/05/2016
TRIAL JUDGE:                                HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT,
                                            FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                          JOEL SMITH
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 10/31/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       IRVING, P.J., FOR THE COURT:

¶1.    Following his convictions for burglary of a dwelling, aggravated stalking, and

aggravated assault, Timothy Beasley appeals the judgment of the Harrison County Circuit

Court denying his motion for a new trial, arguing that the jury’s verdict is against the

overwhelming weight of the evidence. In a separate pro se brief, Beasley alleges ineffective

assistance of trial counsel.1



       1
           Beasley filed his brief without permission from this Court.
¶2.    Finding no error, we affirm.

                                           FACTS

¶3.    This appeal stems from an incident that occurred on May 9, 2015, in Gulfport,

Mississippi. Lori Ehlers, Beasley’s girlfriend of ten to fifteen years, had an order of

protection against him that included her home, her person, and both of her parents. While

at dinner that night, Lori’s mom, Elaine Ehlers, received text messages and a voice mail from

Beasley stating that he was headed to Lori’s home to “put down” a cat that the two had

owned together. After receiving those messages, Lori, Elaine, and Vernon Ehlers, Lori’s

father, returned to Lori’s home. Upon arriving, they did not notice anything out of the

ordinary and proceeded inside. Lori had video surveillance at her home, and there is video

footage of the three arriving. According to all three, Beasley jumped out of either the closet

or the hallway with a knife in one hand and a pipe wrench in his other hand and stated

something to the effect of, “now I can get all three of you.”2

¶4.    Vernon testified that, fearing for his family’s safety, he hit Beasley over the head with

a cat’s scratching post as Beasley pushed Elaine to the ground. A struggle then ensued, and

Beasley lost control of the knife, but was able to strike Vernon several times with the pipe

wrench. Vernon stated that Elaine was able to get free and escaped through the front door

but Beasley followed her. The surveillance footage showed Elaine leaving the property

going in the direction of the neighbor’s house, and Beasley exited shortly after, armed with

a hammer. Vernon was then shown on the video going outside, but then he retreated back

       2
       Lori’s, Vernon’s, and Elaine’s exact wording differed as to their recollection of
what Beasley said and the exact location from which he appeared.

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inside as Beasley came back to the home. Beasley can then be seen breaking the glass of the

front door with the hammer. Afterward, Beasley left the scene, and the police arrived.

¶5.    According to Officer Bradley Sumrall of the Gulfport Police Department, Vernon’s

head was soaked with blood, and he had sustained several injuries that required medical

treatment. Beasley was arrested the following day.

¶6.    In Beasley’s taped interview with police, he stated that he was just trying to talk to the

Ehlers in order to get some money that was owed to him, and to retrieve some of his personal

property from Lori’s home. He stated that he simply wanted to talk, and Vernon hit him first,

which sparked the fight. He also stated that, because of the protection order against him and

Lori’s changing her cell phone number, the two communicated by exchanging messages via

a storage unit and Lori’s mailbox. During the interview, Beasley admitted that he entered

Lori’s home through an unlocked window3 and that he was armed with a pipe wrench. Lori

testified that Beasley did not have a key to her home and that she did not give him permission

to enter.

¶7.    Beasley was indicted for burglary of a dwelling, aggravated stalking, and aggravated

assault. Beasley opted for a trial. During the trial, Lori, Vernon, Elaine, Officer Sumrall, and

Investigator Alvin Kingston testified for the State. At the trial’s conclusion, Beasley was

convicted on all counts and sentenced as a habitual offender pursuant to Mississippi Code

Annotated section 99-19-81 (Rev. 2015) to twenty years for burglary, five years for

aggravated stalking, and fifteen years for aggravated assault, with each sentence to be served

       3
         Beasley also made a call from jail and told an unidentified person that he gained
entry into Lori’s home through a window in the back of her house.

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concurrently in the custody of the Mississippi Department of Corrections (MDOC), without

the possibility of probation or parole.

¶8.    Beasley filed a motion for a new trial or, in the alternative, a judgment

notwithstanding the verdict (JNOV), which was denied. This appeal followed.

                                          DISCUSSION

       I.     Sufficiency and Weight of the Evidence

¶9.    In challenging his convictions, Beasley erroneously combines arguments regarding

the overwhelming weight of the evidence, his sole issue on appeal, with arguments that

address the legal sufficiency of the evidence. As such, we address both arguments in this

opinion. The standards of review when addressing weight of the evidence and legal

sufficiency of the evidence are succinctly addressed by the Mississippi Supreme Court in

Bush v. State, 895 So. 2d 836 (Miss. 2005), abrogated in part on other grounds by Little v.

State, 2014-CT-01505-SCT, 2017 WL 4546740 (Miss. Oct. 12, 2017). In addressing the

overwhelming weight of the evidence, the court stated:

       When reviewing a denial of a motion for a new trial based on an objection to
       the weight of the evidence, we will only disturb a verdict when it is so contrary
       to the overwhelming weight of the evidence that to allow it to stand would
       sanction an unconscionable injustice . . . . [T]he evidence should be weighed
       in the light most favorable to the verdict.

Id. at 844 (¶18) (internal citations and quotation marks omitted) (emphasis added). In

addressing the sufficiency of the evidence, the court stated that:

       [I]n considering whether the evidence is sufficient to sustain a conviction in
       the face of a motion for directed verdict or for judgment notwithstanding the
       verdict, the critical inquiry is whether the evidence shows beyond a reasonable
       doubt that accused committed the act charged, and that he did so under such

                                              4
       circumstances that every element of the offense existed; and where the
       evidence fails to meet this test it is insufficient to support a conviction.
       However, this inquiry does not require a court to ask itself whether it believes
       that the evidence at the trial established guilt beyond a reasonable doubt.
       Instead, the relevant question is whether, after viewing the evidence in the
       light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.

Id. at 843 (¶16) (emphasis added).

¶10.   According to Beasley, the “State failed to establish beyond a reasonable doubt that

[he] committed the crimes of [b]urglary, [a]ggravated [s]talking[,] and [a]ggravated

[a]ssault.” He also argues that based on the evidence presented at trial, the court erred in

denying his motion for a new trial. The State counters that the trial court did not err in

denying Beasley’s motion for a new trial, as the jury’s verdict was simply not against the

overwhelming weight of the evidence, and the evidence was sufficient to support his

convictions.

               A.    Burglary and Aggravated Stalking

¶11.   Regarding his burglary and aggravated-stalking convictions, Beasley alleges that he

should not have been convicted of those crimes because he and Lori were in a serious

relationship; he still had personal property at her house, and he and Lori were in continuous

contact during the relevant time period. Consequently, he asserts that the evidence was

insufficient to establish beyond a reasonable doubt that he committed the crimes and that the

jury’s verdict was against the overwhelming weight of the evidence.

¶12.   Count I of the indictment, charging Beasley with burglary, provided in relevant part

that Beasley “did unlawfully, willfully, feloniously and burglariously break and enter the



                                              5
dwelling house of Lori Ehlers . . . with the intent to violate Order of Protection, Domestic

Abuse Protection Order . . . .”

¶13.   Mississippi Code Annotated section 97-17-23(1) (Rev. 2014) provides, in part:

       Every person who shall be convicted of breaking and entering the dwelling
       house or inner door of such dwelling house of another, whether armed with a
       deadly weapon or not, and whether there shall be at the time some human
       being in such dwelling house or not, with intent to commit some crime therein,
       shall be punished by commitment to the custody of the Department of
       Corrections for not less than three (3) years nor more than twenty-five (25)
       years.

¶14.   The State notes that “the elements of burglary of a dwelling [are]: (1) the unlawful

breaking and entering of a dwelling; and (2) the intent to commit some crime when entry is

attained.” Cavitt v. State, 159 So. 3d 1199, 1202 (¶10) (Miss. Ct. App. 2015). During

Beasley’s recorded interview with Investigator Kingston, he admitted that he entered Lori’s

house through an unlocked rear window, armed with a pipe wrench. He also admitted that

he knew the order of protection—forbidding him from going to Lori’s home—was still in

place. Lori testified that she never told Beasley that he could enter the home, that she had

all the locks changed, and that she had not given Beasley a key. The State argues that the

evidence at trial clearly supported the verdict and was not so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

We agree.

¶15.   Likewise, the State argues that the evidence presented supported Beasley’s

aggravated-stalking conviction. Count II of the indictment states, in relevant part, that

Beasley:



                                             6
       did willfully, unlawfully, feloniously and purposely engage in a course of
       conduct directed at Lori . . . knowing that the conduct would cause [her] . . .
       to fear for her own safety, or to fear damage or destruction of her property,
       when he . . . had previously been convicted of Stalking within seven (7) years
       of the offense charged herein; to-wit:

       (1) In the Municipal Court of Gulfport, Mississippi, he . . . was convicted of
       Stalking, on July 17, 2014, said offense having occurred on May 5, 2014,
       contrary to the form of the statute in such cases made and provided, and
       against the peace and dignity of the State of Mississippi.

¶16.   Mississippi Code Annotated section 97-3-107(1)(a) (Rev. 2014) provides, in part:

       Any person who purposefully engages in a course of conduct directed at a
       specific person, or who makes a credible threat, and who knows or should
       know that the conduct would cause a reasonable person to fear for his or her
       own safety, to fear for the safety of another person, or to fear damage or
       destruction of his or her property, is guilty of the crime of stalking.

¶17.   Section 97-3-107(2)(a) states:

       A person who commits acts that would constitute the crime of stalking as
       defined in this section is guilty of the crime of aggravated stalking if any of the
       following circumstances exist:

       (i) At least one (1) of the actions constituting the offense involved the use or
       display of a deadly weapon with the intent to place the victim of the stalking
       in reasonable fear of death or great bodily injury to self or a third person; [or]

       (ii) Within the past seven (7) years, the perpetrator has been previously
       convicted of stalking or aggravated stalking under this section or a
       substantially similar law of another state, political subdivision of another state,
       of the United States, or of a federally recognized Indian tribe, whether against
       the same or another victim[.]

¶18.   As stated, Elaine testified to receiving the text messages and a voice message from

Beasley on the night of the incident, indicating that he was going to “put down” Lori’s cat.

The State asserts that the text messages and voice message clearly demonstrate a course of

conduct that would cause a reasonable person to fear for his or her own safety, the safety of

                                               7
another person, or damage or destruction of his or her property. In addition, based on the

testimony at trial, the State asserts that Beasley broke into Lori’s house, jumped out of a

closet holding a pipe wrench and a knife, a deadly weapon, and shouted “now I can get all

three of you.” According to Lori, Beasley terrified her and made her fear that he would hurt

her and/or her parents. Finally, the State introduced an abstract at trial evidencing that

Beasley had previously been convicted of stalking on July 17, 2014. Based on the evidence

presented at trial, the jury’s verdict was not against the overwhelming weight of the evidence,

and the evidence supported his conviction.

                B.    Aggravated Assault

¶19.   Turning now to Beasley’s aggravated-assault conviction, he contends that he should

not have been convicted of aggravated assault because Vernon testified that he hit Beasley

first, as soon as he came out of the closet. In addition, he contends that Vernon was not

seriously injured, as he did not need stitches or staples and initially refused medical attention.

¶20.   The State responds that the evidence presented was more than adequate to convict

Beasley of aggravated assault, as substantiated by the indictment and the elements of the

crime itself.

¶21.   Count III of the indictment states, in relevant part, that Beasley:

       did unlawfully, feloniously, willfully, purposefully[,] and knowingly attempt
       to cause bodily injury to . . . Vernon . . . by a means likely to produce death or
       serious bodily harm, to-wit: by striking . . . Vernon . . . with a pipe wrench,
       contrary to the form of the statute in such cases made and provided, and
       against the peace and dignity of the State of Mississippi.

¶22.   Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014) provides, in relevant



                                                8
part:

        A person is guilty of aggravated assault if he (i) 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; (ii) 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[.]

¶23.    The State notes Vernon’s testimony that Beasley jumped out of the closet with a

butcher knife in one hand and a pipe wrench in the other hand. In addition, Vernon, Lori,

and Elaine all testified that Beasley stated some form of, “now I can get all three of you.”

According to Vernon, Beasley then lunged toward Elaine and pushed her down. At that

point, Vernon struck Beasley with a cat’s scratching post, causing him to drop the knife.

Beasley then proceeded to strike Vernon in the head with the wrench. Thus, the State is

correct in its assertion that the evidence at trial supported Beasley’s conviction. Although

Beasley argues that the State failed to establish that serious bodily injury occurred, there was

testimony demonstrating that serious bodily injury did in fact occur. For instance, Officer

Sumrall testified that Vernon had blood coming from his head, soaking his entire scalp.

Likewise, a photograph introduced into evidence depicts a large gash on Vernon’s head, and

Vernon testified that his face was covered with blood and that he went to the hospital and

underwent X-rays and an MRI.

¶24.    Additionally, the State argues that it does not matter whether Vernon suffered serious

bodily injury, as Beasley clearly attempted to assault him, and the means he used were likely

to produce serious injury. As this Court has held, “[t]he crime of aggravated assault includes

attempt as one of the elements of the crime.” Stringer v. State, 862 So. 2d 566, 567 (¶6)

                                               9
(Miss. Ct. App. 2004). And, as this Court has further held, the State is not required to prove

that the victim suffered serious bodily injury; rather, “the proper inquiry is whether the bodily

injury was caused with other means likely to produce serious harm.” Riggs v. State, 967 So.

2d 650, 653 (¶13) (Miss. Ct. App. 2007). Consequently, this issue is without merit, as the

evidence supported Beasley’s conviction for aggravated assault, and the jury’s verdict was

not against the overwhelming weight of the evidence.

¶25.   Here, the trial court did not err in denying Beasley’s motion for a new trial, as the

jury’s verdict was not against the overwhelming weight of the evidence, warranting an

invasion of the jury’s province. We also find that the evidence was legally sufficient to

support each of Beasley’s convictions. Therefore, we affirm the circuit court’s judgment.

       II.    Ineffective Assistance of Counsel

¶26.   Following oral argument, Beasley, proceeding pro se and without permission of the

Court, filed a motion—which we treat as a supplemental brief—alleging that his trial counsel

was ineffective. Since the briefing-schedule deadlines had passed when Beasley filed his

supplemental brief, it is not properly before the Court for consideration. Nevertheless, the

State, without direction from this Court, responded to Beasley’s supplemental brief. The

State argues that the issue presented in Beasley’s supplemental brief is both inappropriate

for review on direct appeal and without merit. We agree with the State that the issue is

inappropriate for review in this direct appeal, and we decline to consider the merits of it,

except to note the relevant law and to make a few observations as to what the record shows.

       A claim of ineffective assistance of counsel on direct appeal should be
       addressed only when (1) the record affirmatively shows ineffectiveness of

                                               10
       constitutional dimensions, or (2) the parties stipulate that the record is
       adequate to allow the appellate court to make the finding without consideration
       of the findings of fact of the trial judge. Therefore, ineffective assistance
       claims are more appropriately brought during post-conviction proceedings
       because, during direct appeals, the Court is limited to the trial court record in
       its review of the claim, and there may be instances in which insufficient
       evidence exists within the record to address the claim adequately.

Johnson v. State, 196 So. 3d 973, 975 (¶7) (Miss. Ct. App. 2015) (internal citation and

quotations omitted).

¶27.   In support of his ineffective-assistance-of-counsel claim, Beasley makes several

allegations which, based on our caselaw, appear to fall squarely within the ambit of trial

strategy. He also claims that his trial counsel (1) was not prepared for trial, (2) was

unreasonably inaccessible, (3) was only interested in talking to him about a plea and acted

more like a prosecutor than his defense counsel, (4) was not interested in the evidence that

Beasley had to present, and (5) failed to obtain discovery and discuss it with him. Further,

Beasley makes some claims that are clearly belied by the record.

¶28.   The parties have not stipulated that the record is adequate to address Beasley’s claim

that his trial counsel was ineffective. In the absence of such stipulation, we have reviewed

the record, and based on the application of the standard set forth in Strickland,4 we find that

the record does not affirmatively show ineffective assistance of counsel of constitutional

dimensions. “Where the record cannot support an ineffective-assistance-of-counsel claim

       4
          “The benchmark for judging any claim of ineffectiveness of counsel must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result. The test is two pronged:
The defendant must demonstrate that his counsel’s performance was deficient, and that the
deficiency prejudiced the defense of the case.” Wilcher v. State, 863 So. 2d 719, 733 (¶30)
(Miss. 2003) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).

                                              11
on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right

to argue the same issue through a petition for post-conviction relief.” Johnson, 196 So. 3d

at 975 (¶8). Therefore, we deny relief without prejudice to Beasley’s right to petition the

Mississippi Supreme Court for permission to proceed in the circuit court with a motion for

post-conviction relief, addressing the issue of ineffective assistance of counsel.

¶29.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.




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