                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CT-00828-SCT

DAVID BROOKS

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        05/05/2006
TRIAL JUDGE:                             HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED:               OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 STEPHANIE L. MALLETTE
                                         PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                   OFFICE OF ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                       FORREST ALLGOOD
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED IN PART AND
                                         REVERSED IN PART. THE JUDGMENT OF
                                         THE CIRCUIT COURT OF OKTIBBEHA
                                         COUNTY IS REVERSED AND REMANDED
                                         FOR A NEW TRIAL - 10/08/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   This appeal arises from the conviction of David Brooks on two counts of aggravated

assault arising from attempts to flee law enforcement officers. Brooks was sentenced to

twenty years for each count, to be served consecutively. The initial appeal was decided by

the Court of Appeals, which reversed Brooks’s conviction and remanded the matter to the
trial court for a new trial. Brooks v. State, 2008 WL 4866812, at *1 (Miss. Ct. App. Nov.

12, 2008). We find that the Court of Appeals erred when it found the amended indictment

to be fatally defective, and we reverse as to this issue.

                        FACTS AND PROCEEDINGS BELOW

¶2.    On February 11, 2003, Brooks, a twenty-two-year-old male, made an improper right-

hand turn onto Highway 82 in Starkville, Mississippi, which was witnessed by two local law

enforcement officers. Starkville Police Officer Andy Fultz attempted to pull Brooks over to

give him a warning, but Brooks did not stop, and a multiple-vehicle chase ensued.

¶3.    Brooks cut off other cars and ran red lights, although Officer Fultz noted that Brooks

was not driving at an excessive rate of speed. At one point, Brooks was forced to turn around

at the end of a dead-end street. Deputy Sheriff Dennis Daniels tried to block him in with his

patrol car, but Brooks cut through a yard to evade the blockade, nearly hitting Deputy

Daniels, who had exited his vehicle. Deputy Daniels testified that he had to “almost dive

back into the patrol car and pull [the] door shut to avoid getting hit by him.” Officer Fultz,

however, testified that Brooks “did take the ditch to avoid hitting the car.” Several other law

enforcement officers soon joined in the chase, and Starkville Police Officer Shanks Phelps

captured the rest of the chase on videotape.

¶4.    Brooks drove through two more roadblocks and nearly struck Starkville Police Officer

Shane Knight at the second one, avoiding Officer Knight by passing him on the shoulder of

the road. Then, as Brooks was driving on the wrong side of the road, he almost hit the patrol

car of Highway Patrol Trooper Steve Gladney, but Trooper Gladney pulled off onto the

shoulder of the road to avoid Brooks. The chase ended when Brooks lost control of his car


                                               2
near the airport exit and crashed into an embankment. Brooks never struck any of the

pursuing officers or their cars with his vehicle.

¶5.    Brooks was indicted on five counts of aggravated assault on a law enforcement

officer.1 On the morning of trial, the State moved to amend the indictments in counts one

through five to delete “the excess wording.” The trial court granted the State’s motion to

amend the indictments.2 Deleted from counts two and four was the language “by attempting

to hit and/or run over the said [law enforcement officer] with his vehicle.”

¶6.    At trial, Brooks testified that he never intended to hit any of the law enforcement

officers. The jury convicted Brooks of two counts of aggravated assault – the counts

involving Deputy Daniels and Trooper Gladney. The trial court sentenced Brooks to serve

two consecutive, twenty-year prison terms in the custody of the Mississippi Department of

Corrections. Brooks, 2008 WL 4866816, at *1-2.



       1
         Initially, Count 2 of Brooks’s indictment charged that Brooks “did unlawfully . . .
attempt to cause bodily injury to Trooper Steve Gladney, a law enforcement officer . . . , by
a means likely to produce death or serious bodily harm by attempting to hit and/or run over
the said Trooper Steve Gladney with his vehicle . . . .” Similarly, Count 4 of the indictment
charged Brooks with “attempt[ing] to cause bodily injury to Deputy Dennis Daniels . . . , by
a means likely to produce death or serious bodily harm by attempting to hit and/or run over
said Deputy Dennis Daniels with his vehicle . . . .” Similar deletions were made to the other
counts, but since Brooks was acquitted of those counts, they are not relevant to this appeal.
Brooks, 2008 WL 4866812, at *2 n.1.
       2
         In granting the State’s motion to amend the indictment, the trial court stated that
there was no objection to the amendments to the indictments, but upon review of the record,
the Court of Appeals found that to be a misstatement. The Court of Appeals found that
defense counsel for Brooks did object to the amendments, stating to the trial judge: “I think
intent is an element that should be proven, and I don’t – do not think that those clauses
should be taken out.” Brooks, 2008 WL 4866812, at *2. Since we hold that the amended
indictment was not fatally defective, the issue as to whether any objection was made to the
amendments is of no consequence and will not be further discussed.

                                              3
¶7.    On appeal, Brooks asserted that his objection to the amended indictments had been

improperly overruled and that the amendment was insufficient under the law to properly

charge him with aggravated assault. Id. at *1. Specifically, Brooks asserted that the change

in the charging language had substantially prejudiced his defense by materially altering the

facts alleged in the original indictment. Id. Brooks also argued that the trial court had erred

when it refused to instruct the jury as to the lesser-included offense of simple assault and the

lesser, nonincluded offense of reckless driving. Id.

¶8.    The Court of Appeals agreed, finding that the failure to specify the overt act(s)

necessary to the completion of the crime of attempt caused the indictment, as amended, to

be fatally defective. In reaching this conclusion, the Court of Appeals relied upon Joshua

v. State, 445 So. 2d 221 (Miss. 1984). Brooks, 2008 WL 4866816, at *9. The Court of

Appeals also found that the trial court had erred in refusing Brooks’s proposed jury

instruction as to the lesser, nonincluded offense of reckless driving.3 Id. The Court of

Appeals, therefore, reversed the trial court’s decision and remanded the case for a new trial,

instructing the court to replace the stricken language in the indictments and to allow the jury

to consider the lesser, nonincluded offense of reckless driving.4 Id.



       3
         The Court of Appeals noted that the trial court had admitted that Officer Phelps’s
video of the chase provided “more than ‘ample evidence’ to determine that Brooks was
driving recklessly.” Brooks, 2008 WL 4866816, at *6.
       4
         As the Court of Appeals pointed out, both Brooks and the State, during the jury
instruction conference, agreed that a vehicle driven in a dangerous manner would be
considered a deadly weapon. Thus, the Court of Appeals correctly held that a jury
instruction on the lesser-included offense of simple assault was not warranted under
Mississippi Code Section 97-3-7(2)(b). Brooks, 2008 WL 4866816, at *4-5; citing Miss.
Code Ann. § 97-3-7 (Rev. 2006), Hutchinson v. State, 594 So. 2d 17, 19 (Miss. 1992).

                                               4
¶9.    The State of Mississippi petitioned for rehearing, arguing that Joshua was improperly

relied upon by the trial court, and that Joshua is not in line with Mississippi law because it

requires the inclusion of the separate elements of attempt in the indictment for aggravated

assault. The State additionally argued that the other precedent relied upon by the Court of

Appeals was inapplicable to Brooks’s case, because those cases involved defendants being

indicted under the general attempt statute, while Brooks was indicted under the aggravated

assault statute. See Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006)5 and Miss. Code Ann. § 97-

1-7 (Rev. 2005).

¶10.   The State also argued that the Court of Appeals’ finding that Brooks was entitled to

a jury instruction on the lesser, nonincluded offense of reckless driving was in error. The

State contended that no reasonable jury could have found Brooks not guilty of aggravated

assault and simultaneously have found him guilty of reckless driving.

¶11.   The petition for rehearing was denied, and the State filed a petition for writ of

certiorari with this Court, which was granted.

                                       DISCUSSION

¶12.   On writ of certiorari, we find that our previous decision in Joshua v. State was

wrongly decided and should be overruled. 445 So. 2d 221 (Miss. 1984). Therefore, the

Court of Appeals incorrectly decided that the aggravated-assault indictment in this case was




       5
         Mississippi Code Section 97-3-7 has been amended by the Legislature to protect
children from assault in domestic violence situations. See 2009-2 Miss. Laws Adv. Sh. p.
182 (LexisNexis) (eff. July 1, 2009). However, those amendments do not affect the
disposition of this case. See Miss. Code Ann. § 99-19-1 (Rev. 2005) (“[c]hange of law not
to affect prosecution or punishment of crime committed prior to change.”).

                                              5
substantially defective for failing to include the separate elements of attempt. Thus, we

reverse the Court of Appeals as to this issue.

       I.     Whether Brooks’s amended indictment was fatally defective.

¶13.   As in this case, the defendant in Joshua was indicted for aggravated assault upon a

police officer. Joshua, 445 So. 2d at 222. The indictment in that case tracked the language

of the aggravated-assault statute. See Miss. Code Ann. § 97-3-7 (Rev. 2006). With respect

to the elements of the crime of aggravated assault, the statute remains unchanged from the

time Joshua was decided.6 It provides, in pertinent part:

       (2) A person is guilty of aggravated assault if he (a) 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; or (b) 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(2) (Rev. 2006).

¶14.   As in the present case, Joshua challenged the indictment against him for failing to

allege any overt acts committed in furtherance of the alleged attempted aggravated assault.

The Joshua Court decided that the indictment was defective for failing to set out an overt act,

as required for the crime of attempt. Joshua, 445 So. 2d at 222-23. In reaching this

conclusion, the Court relied primarily upon the case of Bucklew v. State, 206 So. 2d 200

(Miss. 1968), holding that “[o]ur statutory law requires proof of an overt act in order to




       6
        The statute has been substantially amended over the last two decades, primarily by
adding a section dealing with domestic violence. No amendments have been made to the
portion of the statute identifying the crime of aggravated assault. See Miss. Code Ann. § 97-
3-7 (Rev. 2006).

                                                 6
sustain a conviction of an attempt to commit a crime.” Joshua, 445 So. 2d at 222 (citing

Bucklew, 206 So. 2d at 202).

¶15.   Initially, the Joshua Court correctly recited the holding of Bucklew. Joshua, 445 So.

2d at 222. At this point, however, the Joshua Court apparently conflated the Bucklew

decision with the general requirement that “an accused person has a constitutional right to

be informed of the nature and material elements of the accusation filed against him.” Id.

(holding that “the indictment [for aggravated assault] was substantially defective in that it

did not set out any alleged overt act whatsoever regarding appellant’s attempt to cause bodily

harm to the patrolman.”). In so doing, the Joshua decision read far more into the Bucklew

holding than was contained therein.

¶16.   In Bucklew, the defendant was indicted for violation of then-Section 2122 of the

Mississippi Code of 1942, embezzlement of public accounts by a state, county or municipal

officer. Bucklew, 206 So. 2d at 201. That statute made either actual embezzlement or

attempted embezzlement a criminal act. Miss. Code Ann. § 2122, Code of 1942, Recompiled

(1956). The Court found that, to prove attempted embezzlement, the State would have to put

on proof of an overt act. However, nowhere in the Bucklew opinion does there appear a

requirement that an overt act be set forth in the criminal indictment. The Bucklew Court was

commenting on the proof required for the crime set out in the indictment, and nothing more.

Bucklew, 206 So. 2d at 202-204.

¶17.   Therefore, when the Joshua Court held, in essence, that the separate elements of

attempt must be set out in a criminal indictment for aggravated assault, it erred in its reading

of Bucklew. See Joshua, 445 So. 2d at 222-23; Bucklew, 206 So. 2d at 202.

                                               7
¶18.   An indictment is required to set out the elements of the crime charged. Where the

statute under which the defendant is charged fully and clearly defines the offense and the

indictment contains the statutory language, that burden is met. Jackson v. State, 420 So. 2d

1045, 1046 (Miss. 1982). To determine this, we examine the statute to ascertain if the

language is specific enough to give notice of the act made unlawful, and exclusive enough

to prevent its application to any other acts other than those made unlawful. Id. at 1047.

¶19.   In Jackson, we examined Mississippi Code Section 97-17-9, which makes any of four

different acts in the alternative punishable as fourth-degree arson. Jackson, 420 So. 2d at

1046. Two of those alternatives include attempts. Id. at 1047. The Jackson defendant also

argued the indictment against him was defective for failing to charge an overt act where the

charge included attempt. We pointed out that Jackson was not charged with attempt under

the general attempt statute, but was charged with fourth-degree arson. Id. at 1048. Thus, any

requirements for indictments under that separate statute had no application to indictments

under the general attempt statute. Id.

¶20.   We further noted that the fourth-degree arson statute clearly made an attempt a

violation of the law if done willfully and maliciously; the statute “plainly and fully informed

appellant of the nature and the causes of the charges against him.” Id. (citing Miss. Code

Ann. § 97-17-5 (Rev. 2006)).

¶21.   Similarly, in McCullum v. State, 487 So. 2d 1335 (Miss. 1986), the defendant was

tried and convicted of welfare fraud for attempting to fraudulently receive an unauthorized

payment of food stamps,” under Mississippi Code Section 97-19-71. See id. at 1337; Miss.

Code Ann. § 97-19-71 (Rev. 2008). Specifically, that statute provides that, in addition to

                                              8
actually acquiring a food stamp by fraud, a person is guilty of welfare fraud for attempting

through fraud to acquire a food stamp. Id. (emphasis added).

¶22.   On appeal, McCullum argued that, while she had been indicted for attempted welfare

fraud, she had been convicted of the completed offense. Id. at 1338. In affirming her

conviction, this Court pointed out that “[w]here the principal offense by statute is defined to

include an attempt, an indictment for the principal offense is in no way defective which

employs the word ‘attempt.’” Id.

¶23.   Here, Brooks was indicted for aggravated assault under Mississippi Code Section 97-

3-7, which sets out the actions constituting that crime. One action constituting aggravated

assault is an attempt to cause 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. 2006)

(emphasis added). Since Brooks was not indicted under the general attempt statute, it was

unnecessary to set out the elements of that separate crime.

¶24.   The statute which is at issue here, the aggravated-assault statute, clearly and fully

informs the reader that causing or attempting to cause bodily injury to another, either with

a deadly weapon or by some other means likely to produce death or serious injury, will

constitute the crime of aggravated assault. Miss. Code Ann. § 97-3-7 (Rev. 2006) (emphasis

added). Thus, even though a person is guilty of aggravated assault if he or she attempts to

commit the crime, there is no requirement that the elements of attempt under the general

attempt statute, Mississippi Code Section 97-1-7, must be included in an indictment for

aggravated assault.




                                              9
¶25.   Therefore, Joshua v. State should be overruled, and we expressly do so now. The

decision of the Court of Appeals that Brooks’s amended indictment was fatally defective is

reversed, and the finding of the trial court with respect to this issue is reinstated and affirmed.

       II.     Whether Brooks was entitled to a jury instruction on the lesser,
               nonincluded offense of reckless driving.

¶26.   The State also argues that the Court of Appeals erred when it determined that Brooks

was entitled to have his proffered jury instruction on the lesser, nonincluded offense of

reckless driving given to the jury. Specifically, the State argues that such an instruction is

not warranted by the evidence and that no reasonable jury could have found Brooks not

guilty of aggravated assault but guilty of reckless driving. We disagree.

¶27.   Proposed jury instructions generally should be granted if they are correct statements

of law, are supported by the evidence, and are not repetitious. Green v. State, 884 So. 2d

733, 737 (¶ 13) (Miss. 2004). As the Court of Appeals correctly held, reckless driving is a

separate and distinct offense from aggravated assault.7 However, if a lesser, nonincluded

offense, as opposed to a lesser-included offense, arises from the same operative facts and has

an evidentiary basis, this Court has held that “the defendant is entitled to an instruction for

the lesser [nonincluded] charge the same as if it were a lesser-included charge.” Brooks,

2008 WL 4866816, at *6 (citing Moore v. State, 799 So. 2d 89, 91 (¶ 7) (Miss. 2001)).




       7
        The reckless-driving statute makes it an offense to drive any vehicle in a manner
which indicates a willful or wanton disregard for the safety of persons or property, but it does
not provide a penalty for actual injury inflicted upon a person. See Gray v. State, 427 So. 2d
1363, 1356 (Miss. 1983); Miss. Code Ann. § 63-3-1201 (Rev. 2004).

                                                10
¶28.   Here, as the Court of Appeals noted, the trial court admitted that Officer Phelps’s

video of the chase provided “more than ‘ample evidence’ to determine that Brooks was

driving recklessly,” and Brooks testified that he did not intend to hit any of the law

enforcement officers. Brooks, 2008 WL 4866816, at *2, 6. Further, Officer Fultz testified

that Brooks “[took] the ditch to avoid hitting [Deputy Daniels’s] car” when evading the

blockade at the dead-end street. Officer Fultz also testified that, although Brooks cut off

other cars and ran red lights, he was not driving at an excessive rate of speed. Finally,

Brooks avoided Officer Knight at the second roadblock by passing his car on the shoulder

of the road.

¶29.   The Court of Appeals found that this evidence, which was presented at trial, was

sufficient such that a reasonable jury could have found Brooks not guilty of aggravated

assault but, at the same time, guilty of the lesser, nonincluded offense of reckless driving.

Specifically, the Court of Appeals found that:

       [T]he jury could well have found that, rather than attempting to hit Deputy
       Daniels with his car, Brooks was merely attempting to avoid running into
       Deputy Daniels’s vehicle, which was blocking the road. Further, the jury
       might have concluded, from reviewing the video evidence, that Brooks went
       into Trooper Gladney’s lane to allow more room for a car which had pulled
       over to the right side of the road, and that he did not attempt to hit Trooper
       Gladney or run him off the road.

Brooks, 2008 WL 4866816, at *7.

¶30.   The State argues that no reasonable jury could have found Brooks not guilty of

aggravated assault and at once guilty of reckless driving. Specifically, the State contends,

in its Amended Petition for Writ of Certiorari, that “[t]he only relevance of Brooks’s

contention that he did not intend to harm the officers is that it created a conflict in the

                                             11
evidence for the jury to resolve.” However, the jury in this case had no choice but to resolve

that conflict in favor of aggravated assault. As the Court of Appeals correctly pointed out,

“[b]oth sets of [Brooks’s proffered] instructions were refused by the trial court, which gave

the jury the option to find Brooks guilty only of aggravated assault of law enforcement

officer.” Brooks, 2008 WL 4866816, at *4.

¶31.   The State argues, in its Amended Petition for Writ of Certiorari, that “[t]he trial court

may not, however, permit the jury to choose between the crime charged and some lesser

offense where the evidence to support a verdict of guilt of [the lesser offense] necessarily

proves guilt of the greater crime as well.” Rowland v. State, 531 So. 2d 627, 631-32 (Miss.

1988). The State contends that “the evidence to prove the crime charged and evidence to

prove reckless driving is the same.” Id.

¶32.   The State misapprehends the evidence required to prove the two separate crimes.

Aggravated assault, as charged against Brooks in this case, requires the State to prove that

Brooks “attempt[ed] to cause bodily injury to [Deputy Daniels or Trooper Gladney] with a

deadly weapon” or “purposefully or knowingly caus[ed] bodily injury to [Deputy Daniels or

Trooper Gladney] with a deadly weapon.” See Miss. Code Ann. § 97-3-7 (Rev. 2006). Since

neither officer was actually injured, the State’s only recourse is to prove that Brooks

attempted to injure them.

¶33.   While the separate elements of attempt are not required to be included in the

indictment for aggravated assault (see Section 1, supra), the State still must prove those

elements at trial. An attempt to commit a crime consists of three elements: (1) an intent to

commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3)

                                              12
the failure to consummate its commission. Hughes v. State, 983 So. 2d 270 (Miss. 2008);

Miss. Code Ann. § 97-1-7 (Rev. 2006). Accordingly, to convict Brooks of aggravated

assault based on an attempt to injure the officers with his vehicle, a deadly weapon, the State

was required to prove that Brooks intended to injure them.

¶34.   There is no intent requirement in the reckless-driving statute, which simply

criminalizes driving a vehicle in a manner that indicates a wilful or wanton disregard for the

safety of persons or property. Miss. Code Ann. § 63-3-1201 (Rev. 2004). Therefore, the

evidence to support a verdict of guilt of reckless driving does not necessarily prove guilt of

aggravated assault, under Rowland, because a conviction for aggravated assault requires

proof of intent. Rowland, 531 So. 2d at 631-32.

¶35.   As discussed above, there was conflicting evidence as to whether Brooks intended to

injure the law enforcement officers in this case. That is a fact question to be resolved by the

jury. If the jury found that Brooks did intend to injure the officers, he would be guilty of

aggravated assault based on his attempt to do so. However, if the jury found that Brooks did

not intend to injure the officers, he would be not guilty of aggravated assault but guilty of

reckless driving. The two crimes require proof of different elements, and the jury should

have been given a choice between them.

¶36.   Thus, we agree with the Court of Appeals and hold that, based on the evidence

presented at trial, Brooks should have been allowed to instruct the jury as to the lesser,

nonincluded offense of reckless driving.

                                      CONCLUSION




                                              13
¶37.   We reverse the Court of Appeals’ holding that an indictment for aggravated assault

is required to set out an overt act constituting an attempt when Brooks was not indicted under

the general attempt statute. Joshua v. State, 445 So. 2d 221 (Miss. 1984), is overruled. We

reinstate and affirm the trial court’s decision to overrule Brooks’s objection to the amended

indictment. We affirm the Court of Appeals’ holding that Brooks was entitled to a jury

instruction on the lesser, nonincluded offense of reckless driving, and we reverse the

judgment of the Circuit Court of Oktibbeha County and remand for a new trial consistent

with this opinion.

¶38. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF
OKTIBBEHA COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL.

     CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND
PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION. CHANDLER, J., NOT
PARTICIPATING.




                                             14
