        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2014-KA-00508-COA

CALVIN HUNTER                                                          APPELLANT

v.

STATE OF MISSISSIPPI                                                     APPELLEE


DATE OF JUDGMENT:                       04/11/2014
TRIAL JUDGE:                            HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:              NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 P. SHAWN HARRIS
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: SCOTT STUART
DISTRICT ATTORNEY:                      MARK SHELDON DUNCAN
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF COUNT I, ATTEMPTED
                                        AGGRAVATED ASSAULT ON A LAW
                                        ENFORCEMENT OFFICER, AND
                                        SENTENCED TO TWENTY YEARS, AND
                                        COUNT II, ATTEMPTED AGGRAVATED
                                        ASSAULT ON A LAW ENFORCEMENT
                                        OFFICER, AND SENTENCED TO FIFTEEN
                                        YEARS, WITH THE SENTENCE IN COUNT
                                        II TO RUN CONSECUTIVELY TO THE
                                        SENTENCE IN COUNT I, BOTH IN THE
                                        CUSTODY OF THE MISSISSIPPI
                                        DEPARTMENT OF CORRECTIONS
DISPOSITION:                            AFFIRMED - 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., ISHEE AND CARLTON, JJ.

      CARLTON, J., FOR THE COURT:

¶1.   A Newton County jury convicted Calvin Hunter of two counts of attempted

aggravated assault on a law enforcement officer. See Miss. Code Ann. § 97-3-7(2) (Supp.
2013). Hunter now appeals and argues that his convictions are against the overwhelming

weight of the evidence. Finding no error, we affirm.

                                           FACTS

¶2.    A grand jury indicted Hunter for two counts of attempted aggravated assault on a law

enforcement officer. See Miss. Code Ann. § 97-3-7(2). Each count of the indictment

charged that Hunter “did willfully, unlawfully, feloniously, purposely[,] and knowingly

attempt to cause bodily injury” to a law enforcement officer while the officer was acting

within the scope of his duties. The indictment further charged that Hunter attempted to injure

the officers “by reaching for a deadly weapon, to-wit: a knife, said knife being means likely

to produce death or serious bodily harm[.]”

¶3.    On August 27, 2013, Hunter got into an argument with Thelma Hunt, with whom he

was living at the time. Hunt testified that Hunter returned home after drinking, and the two

began to argue. Hunt asked Hunter to leave her home, and when Hunter refused, Hunt

threatened to call the police. Hunt further testified that Hunter replied that he would kill her

and the police if she made the call. Despite Hunter’s threats, Hunt called the authorities.

¶4.    While on patrol for the Union Police Department, Officer David Boatner received a

dispatch call instructing him to respond to the disturbance at Hunt’s home. Officer Boatner

arrived at Hunt’s home at the same time as Officer Jacob Moore. The officers both testified

that they were wearing their police uniforms when they responded to the call.

¶5.    Hunt met the two officers at the front door and invited them inside her home. Hunt


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explained that she wished for Hunter to leave because he was disturbing the peace. Upon

hearing loud noises and cursing coming from the back of Hunt’s home, the officers

investigated and encountered Hunter standing in the hallway.

¶6.    Officer Boatner testified that Hunter grew irate when he saw the officers and began

cursing. Officer Boatner further testified that, when he explained that Hunt wished Hunter

to leave her home, Hunter responded, “I’m not going anywhere. I’ll kill all y’all son[s] of

[] b——.” In addition to this statement, Officer Moore testified that Hunter said, “[I]f you

come down here, there’s going to be a killing.”

¶7.    According to Officer Boatner’s testimony, he told Hunter that he, Hunter, was under

arrest, and then Officer Boatner took a step toward Hunter. The officers testified that Hunter

then lunged into the bedroom, landed on his back on the bed, and slid his right hand

underneath a pillow. Thinking that Hunter was reaching for a weapon, Officer Boatner drew

his gun, and Officer Moore tased Hunter. The two officers then wrestled with Hunter, and

Officer Moore was forced to tase Hunter a second time. The officers eventually succeeded

in securing Hunter’s hands with handcuffs. When Officer Boatner looked under the right-

hand pillow where Hunter had slid his hand, he found nothing. However, when Officer

Boatner searched under the next pillow, on the left side of the bed, he found an open knife

with its blade exposed.

¶8.    Hunt testified at trial that the knife belonged to her and that she kept it for protection.

Although Officer Boatner found the knife in an open position under the pillow on the bed,


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Hunt testified that she did not have the knife out at any point on the night of August 27,

2013. Hunt further stated that she never saw the knife in Hunter’s possession that evening

and that she never saw him try to stab either of the officers with the knife. According to

Hunt’s testimony, she usually kept the knife closed and in a bowl that sat on a shelf at the

head of her bed. As far as Hunt knew, the knife was still in the bowl when she called the

police.

¶9.       Hunter also testified at trial. He stated that he was asleep when Hunt called the police

and that, when he woke up, the officers were already inside the house. Hunter further

testified that he could tell the officers were about to arrest him so he began to search for his

cigarettes. According to Hunter’s testimony, he never cursed at the officers or threatened to

kill them. Hunter testified that he was merely reaching for his cigarettes when Officer Moore

tased him, and he denied trying to reach for the knife Hunt kept near the bed.

¶10.      After considering the evidence and testimony, the jury found Hunter guilty on both

counts of attempted aggravated assault on a law enforcement officer. For Count I, the circuit

court sentenced Hunter to twenty years, and for Count II, to a consecutive term of fifteen

years, with both sentences to be served in the custody of the Mississippi Department of

Corrections. Hunter subsequently filed an unsuccessful motion for a new trial. Following

the circuit court’s denial of his motion for a new trial, Hunter appealed his convictions to this

Court.

                                  STANDARD OF REVIEW


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¶11.   This Court reviews the circuit court’s denial of a motion for a new trial for abuse of

discretion. Griffith v. State, 123 So. 3d 472, 475 (¶15) (Miss. Ct. App. 2013). “When

reviewing a denial of a motion for a new trial based on an objection to the weight of the

evidence, [the appellate court] 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.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citation

omitted). This Court also weighs the evidence in the light most favorable to the verdict. Id.

                                       DISCUSSION

¶12.   On appeal to this Court, Hunter argues that his two convictions for attempted

aggravated assault on a law enforcement officer are against the overwhelming weight of the

evidence. Hunter asserts that his actions of jumping backward onto the bed and sliding his

hand under a pillow, which had nothing underneath it, fail to amount to an attempt to commit

aggravated assault. He therefore asks this Court to reverse his convictions. The State,

however, contends that Hunter not only announced his intent to injure the officers but also

sought to fulfill his intent by the overt acts of lunging on the bed and attempting to reach

Hunt’s knife.

¶13.   Section 97-3-7(2)(a) establishes that “[a] person is guilty of aggravated assault if he

. . . 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[.]” The statute

provides for an enhanced penalty where the assault occurs upon a law enforcement officer.


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Miss. Code Ann. § 97-3-7(2)(b).

¶14.   Mississippi caselaw establishes that “[a]n attempt is a direct movement toward the

commission of the crime after the preparations have been made[.]” Ishee v. State, 799 So.

2d 70, 73 (¶7) (Miss. 2001) (quoting Bucklew v. State, 206 So. 2d 200, 202-03 (Miss. 1968)).

The Mississippi Supreme Court has “defined ‘attempt’ to mean ‘an attempt to do a certain

thing, and some actual overt effort to put the intent into effect.’” Gibson v. State, 660 So. 2d

1268, 1270 (Miss. 1995) (citations omitted). “Furthermore, ‘the act must be such as will

apparently result, in the usual and natural course of events if not hindered by extraneous

causes, in the commission of the crime itself, and an act apparently adapted to produce the

intended result is sufficient to constitute the overt act essential to an attempt.’” Id. (citation

omitted).

¶15.   To support his argument that his actions failed to amount to an attempt to commit

aggravated assault, Hunter directs this Court’s attention to the supreme court’s opinions in

Gibson and Murray v. State, 403 So. 2d 149 (Miss. 1981).1 In previously discussing those

two decisions, this Court stated:

               In . . . Murray and Gibson, the supreme court determined, respectively,
       that the evidence was insufficient to support aggravated[-]assault charges. In


       1
        Although Hunter was charged with attempted aggravated assault and the defendants
in Gibson and Murray were charged with aggravated assault, we acknowledge that section
97-3-7(2) fails to distinguish between the two offenses and that, substantively, they are the
same crime. See Wilson v. State, 904 So. 2d 987, 996 (¶32) (Miss. 2004); Lewis v. State,
897 So. 2d 994, 996 (¶¶7-10) (Miss. Ct. App. 2004); Stringer v. State, 862 So. 2d 566, 567
(¶6) (Miss. Ct. App. 2004).

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       Murray, the defendant used a shank pointed toward[] a prison officer to
       compel the officer to give up his keys. Murray, 403 So. 2d at 149. Murray
       was convinced by fellow inmates to give up his endeavor, which he did. Id.
       at 151. In that case, the supreme court determined that it could not say that the
       defendant had unequivocal intent to stab the officer, even though he had the
       means and the opportunity to do so. Id. at 152-53.

             In Gibson, the defendant pointed a gun at the chest of a police officer.
       Gibson, 660 So. 2d at 1268. After the officer demanded that he lower his
       weapon, the defendant complied. There[,] the supreme court stated:

              Gibson was ordered to drop the gun by the officer at [whom] the
              gun was pointed. The record does not reflect that Gibson was
              aware of any other officers in the vicinity, so Gibson, at least in
              his own mind, had the advantage. We do not know, from the
              record, why Gibson did not shoot the officer. After all[,] he had
              the means and every opportunity to do so. The State’s
              suggestion that the officer’s command to drop the weapon was
              an extraneous event [that] prevented Gibson from shooting the
              officer is far[-]fetched[.] Id. at 1270.

Genry v. State, 767 So. 2d 302, 311 (¶¶31-32) (Miss. Ct. App. 2000). This Court concluded

that the evidence in Murray and Gibson failed to show that the defendants possessed an

“unequivocal intent to cause serious bodily injury to the victim.” Id. at (¶33). But see

Robinson v. State, 571 So. 2d 275, 277-78 (Miss. 1990) (upholding an aggravated-assault

conviction where the victim suffered no injuries because, despite the defendant’s claim he

only intended to scare the victim, he threatened to kill the victim, repeatedly told coworkers

he planned to burn down the victim’s house, and chased the victim out of her house and

again threatened to kill her).

¶16.   In the present case, the jury heard conflicting testimony regarding the events prior to

Hunter’s arrest on August 27, 2013. Hunter testified that he was simply searching for his

                                              7
cigarettes when Officer Moore tased him. Furthermore, Hunter denied ever threatening or

cursing at the officers.

¶17.   By contrast, the officers testified that, while in close proximity to them, Hunter was

belligerent, cursed at them, and threatened to kill them. The record reflects that the facts to

which the officers testified showed that Hunter expressed a current intent to kill them.

Additional testimony revealed that, when Officer Boatner stepped toward Hunter, Hunter

lunged onto the bed and reached underneath a pillow with his hand. A scuffle then ensued

as the officers attempted to restrain Hunter with handcuffs.

¶18.   The record further reflects that Hunter continued to struggle as the officers tried to

place him under arrest. Officer Moore had to tase Hunter a second time before Hunter

stopped reaching under the pillow and resisting arrest. After handcuffing Hunter to ensure

he was no longer a threat to their safety, the officers looked underneath the pillows on the

bed. Although they found nothing under the right-hand pillow where Hunter slid his hand,

they discovered a knife concealed under the left-hand pillow.

¶19.   Our caselaw establishes that the jury possesses the responsibility to resolve any

conflicts in the evidence and testimony presented at trial. See Hampton v. State, 48 So. 3d

605, 612 (¶25) (Miss. Ct. App. 2010). In light of its verdicts finding Hunter guilty of both

counts of attempted aggravated assault on a law enforcement officer, the jury clearly resolved

the conflicts in the trial testimony in the State’s favor. As the record reflects, the officers

testified that Hunter not only expressed a current intent to kill them but also engaged in overt


                                               8
conduct to accomplish his threat. Giving the State the benefit of all reasonable inferences

to be drawn from the evidence, we cannot say that Hunter’s guilty verdicts are “so contrary

to the overwhelming weight of the evidence that to allow [them] to stand would sanction an

unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18).

¶20.   Based on the evidence and testimony presented at trial, the jury could have reasonably

found that Hunter intended, and was attempting, to cause serious bodily injury or death to

Officer Boatner and Officer Moore by resisting arrest, threatening to kill them, lunging on

the bed, and reaching for Hunt’s knife. In addition, the jury could have found that Officer

Moore’s action of tasing Hunter constituted an extraneous event that intervened and

prevented Hunter from carrying out his intended aggravated assault upon the officers. As

a result, we find no abuse of discretion by the circuit court’s denial of Hunter’s motion for

a new trial. See Griffith, 123 So. 3d at 475 (¶15). Therefore, this issue lacks merit.

¶21. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, ATTEMPTED AGGRAVATED ASSAULT ON A LAW
ENFORCEMENT OFFICER, AND SENTENCE OF TWENTY YEARS, AND COUNT
II, ATTEMPTED AGGRAVATED ASSAULT ON A LAW ENFORCEMENT
OFFICER, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCE IN
COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, BOTH
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

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




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