        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-01040-COA




JOSHUA DANIEL GRAHAM A/K/A JOSHUA D.                                     APPELLANT
GRAHAM A/K/A JOSHUA GRAHAM

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        05/28/2013
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF AGGRAVATED ASSAULT
                                         UPON A POLICE OFFICER, AND
                                         SENTENCED TO EIGHTEEN YEARS IN
                                         THE CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS,
                                         FOLLOWED BY TWELVE YEARS OF
                                         POST-RELEASE SUPERVISION, AND TO
                                         PAY A $1,000 FINE AND $100 TO THE
                                         CRIME VICTIMS’ COMPENSATION FUND
DISPOSITION:                             AFFIRMED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   A DeSoto County jury found Joshua Graham guilty of aggravated assault upon a

police officer in violation of Mississippi Code Annotated section 97-3-7 (Rev. 2014).

Graham filed a motion for a judgment notwithstanding the verdict or, in the alternative, a
new trial, which the circuit court denied.1 Graham appeals, challenging the weight of the

evidence presented against him during trial.

¶2.    Finding no error, we affirm.

                                          FACTS

¶3.    During the early morning of February 27, 2012, Officer Mitzi Stewart, a police officer

with the Southaven Police Department, spotted a blue Ford Crown Victoria, with no tag,

driving slowly through the parking lot of a convenience store located near Church Road in

Southaven, Mississippi. The store was closed at the time. After the car came to a stop,

Officer Stewart parked her patrol car behind the car and radioed to dispatch. As Officer

Stewart did this, Graham exited the car and walked towards Officer Stewart’s patrol car. The

driver-side door of Graham’s car remained open. Officer Stewart exited her patrol car and

initiated dialogue with Graham, who informed her that he was searching for an air machine

in order to put air in his front driver-side tire. Upon inspection, Officer Stewart determined

that the tire was not low. Graham stated that he was a resident of Memphis, Tennessee, and

that he was in the area visiting his girlfriend, who was a student at a local college. Upon

inquiry by Officer Stewart, Graham was unable to provide his girlfriend’s name, the name

of the college she attended, or her major. Graham also told Officer Stewart that the car

Graham was driving belonged to Graham’s girlfriend. When asked to provide identification,

Graham stated that his girlfriend had his license in her bag.



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        Graham was also charged with kidnapping in violation of Mississippi Code
Annotated section 97-3-53 (Rev. 2014). The jury acquitted him of this charge.

                                               2
¶4.    Officer Stewart asked Graham if she could search him for weapons, and Graham

stated that she could. She conducted a pat-down of Graham’s person as he stood toward the

rear of his car. Officer Stewart felt a small baggy in Graham’s pants pocket. She asked

Graham to empty his pockets, and he complied, revealing what appeared to Officer Stewart

to be marijuana and giving Officer Stewart probable cause to arrest him. As she reached for

her handcuffs to arrest Graham, he dashed to his car and entered the car through the open

driver-side door.

¶5.    During trial, Officer Stewart testified that as Graham dashed to the front of his car,

she attempted to grab him with her left hand. As Graham entered his car, he pulled Officer

Stewart into the car with him, trapping her right arm behind his back. According to Officer

Stewart, the upper part of her body was inside Graham’s car, while the lower part was

outside the car. Officer Stewart stated that while she was in this position, Graham began to

accelerate slowly, forcing her to run beside the car to avoid being dragged on the pavement.

At some point, Graham turned the car onto Church Road. Officer Stewart testified that as

Graham increased his speed, she made the decision to jump inside the car, landing in

Graham’s lap. The driver-side door remained open, and the car continued to travel down

Church Road. Inside the moving car, a physical altercation ensued, and according to Officer

Stewart, Graham repeatedly punched her in her face with his fist and kicked her numerous

times, causing bruising, black eyes, and a broken nose. These injuries were reflected in

photographs that were presented by the State during trial and admitted into evidence. Officer

Stewart testified that she tried to gain control of the car as Graham continued to physically


                                             3
assault her and as she pleaded for her life. At some point, Officer Stewart was able to

retrieve her weapon, request backup, and subdue Graham, whom she held at gunpoint until

backup arrived. Officer Stewart was transported to a local hospital where she was treated for

her injuries.

¶6.    Officer Jeff Logan, who served as Officer Stewart’s backup, testified that he spoke

with Graham at the Southaven Police Department where, according to Officer Logan,

Graham admitted that he had attempted to flee from Officer Stewart and that he had struck

Officer Stewart in her face. Officer Logan stated that Graham denied striking Officer

Stewart more than once. Officer Logan identified physical evidence recovered from scene

of the incident, including a “green leafy substance consistent with marijuana.”

¶7.    After the State rested its case, Graham did not move for a directed verdict as to the

aggravated-assault charge, although the circuit court indicated that the State had made a

prima facie case as to the aggravated-assault charge. Following this ruling, Graham testified

in his own behalf.

¶8.    According to Graham, at no point during the incident was any part of Officer

Stewart’s body outside the car. Graham testified that, in hitting Officer Stewart, he was

simply attempting to “defend” himself, but he insisted that he had hit her only once. Graham

had no explanation for Officer Stewart’s other injuries. On cross-examination, Graham also

insisted that Officer Stewart voluntarily entered his car during his attempt to evade arrest.

¶9.    During trial, the circuit court instructed the jury:

       If you find that the State has failed to prove, beyond a reasonable doubt, any


                                               4
       one or more of the elements of the crime of Aggravated Assault on a Law
       Enforcement Officer, you will find the Defendant not guilty of this original
       charge and may proceed with your deliberations to decide whether the State
       has proven, beyond a reasonable doubt, all of the elements of the lesser offense
       of Simple Assault on a Law Enforcement Officer.

                                            ****

       If the State has failed to prove, beyond a reasonable doubt, any one or more of
       the elements of the crime of Simple Assault on a Law Enforcement Officer,
       then you shall find the Defendant, Joshua Daniel Graham, not guilty.

¶10.   Following trial, Graham filed a motion for a judgment notwithstanding the verdict or,

in the alternative, a new trial, challenging the weight and the sufficiency of the evidence.

The circuit court denied that motion. As stated, on appeal, Graham challenges the weight of

the evidence presented against him during trial.

                                       DISCUSSION

¶11.   The State argues that Graham’s appeal is procedurally barred because Graham never

moved for a directed verdict as to the aggravated-assault charge. Apparently, the State is

referring to Graham’s failure to move for a directed verdict at the close of the evidence, as

the record is clear that Graham filed a post-trial motion challenging both the weight and

sufficiency of the evidence offered against him. The filing of the post-trial motion for a new

trial preserved the issue for review on appeal. Collins v. State, 594 So. 2d 29, 36 (Miss.

1992) (citing Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982)). Therefore, we find that

Graham is not procedurally barred from raising on appeal the issue as to the weight of the

evidence. Nevertheless, we find this issue to be without merit.

¶12.   “When reviewing challenges to the weight of the evidence, we ‘will only disturb a


                                              5
verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to

stand would sanction an unconscionable injustice.’” Cannon v. State, 141 So. 3d 442, 444

(¶9) (Miss. Ct. App. 2013) (quoting Vaughn v. State, 926 So. 2d 269, 271 (¶4) (Miss. Ct.

App. 2006)). The evidence must be viewed in the light most favorable to the verdict. See

Long v. State, 52 So. 3d 1188, 1192 (¶11) (Miss. 2011).

¶13.   Section 97-3-7 states, “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[.]” Miss. Code Ann. § 97-3-7

(Rev. 2014). The penalty is enhanced if the assault is upon a law enforcement officer. Miss.

Code Ann. § 97-3-7(14)(a) (Rev. 2014).

¶14.   Graham argues that the evidence shows that he did not cause or attempt to cause

serious bodily injury to Officer Stewart with a deadly weapon or with other means likely to

produce death or serious bodily harm. According to Graham, his fists and feet, which he

used to cause injury to Officer Stewart, were not deadly weapons and were not means likely

to produce death or serious bodily harm. Additionally, Graham insists that the evidence only

supports a conviction for simple assault because Officer Stewart’s injuries were minor.

Graham asks this Court to reverse and remand this case for a new trial or, alternatively, to

remand this case with instructions to convict him on a charge of simple assault upon a law

enforcement officer.

¶15.   In response, the State argues that the evidence revealed that Officer Stewart was

severely injured by Graham during the altercation, and that she had to receive medical


                                              6
treatment for her injuries. Citing Jackson v. State, 594 So. 2d 20, 23 (Miss. 1992),2 the State

argues that the jury properly found that Graham’s “intentional actions were likely to produce

serious bodily harm.” We agree. As evidenced by Jury Instruction 11, the jury was given

the opportunity to consider the lesser offense of simple assault. In viewing the evidence in

the light most favorable to the verdict, we find that the verdict in this case was not so

contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice. Accordingly, we affirm.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT
OFFICER AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY TWELVE
YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $1,000 FINE AND
$100 TO THE CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE OPINION.




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         In Jackson, the defendant assaulted his ex-wife by “hit[ting] her in the head with his
fists ‘real hard,’ and call[ing] her a ‘stupid b-----.’” Jackson, 594 So. 2d at 22. The
defendant banged his ex-wife’s head against a wall repeatedly, creating a split in the wall.
Id. The ex-wife was later taken to the emergency room, complaining of a severe headache.
Examinations revealed that she could not hear out of her left ear. Id. She was treated for
“multiple bruises and contusions to her [body,] a subconjunctival hemorrhage of the left
eye[,] and a definite rupture of the left eardrum[.]” Id. Our supreme court held that “a
violent and aggravated assault committed with one’s fists may constitute [aggravated
assault].” Id. at 23.

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