        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-KA-01244-COA

DAVID LEE LEWIS A/K/A DAVID LEWIS                                           APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          08/19/2014
TRIAL JUDGE:                               HON. JEFF WEIL SR.
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: ERIN S. PRIDGEN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
DISTRICT ATTORNEY:                         ROBERT S. SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF AGGRAVATED ASSAULT
                                           AND POSSESSION OF A FIREARM AS A
                                           FELON AND SENTENCED TO TEN YEARS
                                           FOR AGGRAVATED ASSAULT AND FIVE
                                           YEARS FOR POSSESSION OF A FIREARM
                                           AS A FELON, WITH THE SENTENCES TO
                                           RUN CONSECUTIVELY, ALL IN THE
                                           CUSTODY OF THE MISSISSIPPI
                                           DEPARTMENT OF CORRECTIONS
DISPOSITION:                               AFFIRMED - 04/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., FAIR, AND ISHEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    On October 3, 2013, Lewis was charged with aggravated assault and possession of

a firearm by a felon. After a two-day trial, a Hinds County Circuit Court jury found Lewis

guilty of both charges. He was sentenced to serve ten years in the custody of the Mississippi
Department of Corrections (MDOC) for aggravated assault and five years for possession of

a firearm by a felon, with the sentences running consecutively. He appeals, arguing that the

exclusion of his testimony unfairly prejudiced him in his ability to adequately prove his claim

of self-defense. Finding no error, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Lewis lived with his domestic companion, Kimberly Gaines, sporadically for

approximately nine years. During this time, Gaines used drugs in his presence; when Lewis

would tell her to stop, Gaines would leave to continue her drug use. On May 11, 2013, when

Lewis refused to let her leave, Gaines called her cousin, Patrick McQuirter. According to

Lewis, when McQuirter arrived he was high on drugs, although he did not witness McQuirter

using drugs. McQuirter attacked Lewis and the two men fell to the ground, causing Lewis

to hit his chin on the concrete steps after McQuirter fell on him. McQuirter then got up and

walked home. Gaines left the house during the altercation.

¶3.    McQuirter explained that he was walking home when Lewis and Lewis’s son, Ricco,

drove around the corner onto McQuirter’s street. According to McQuirter, Lewis then

motioned for McQuirter to come to the driver-side window and asked McQuirter why he was

“always getting in [their] business.” McQuirter responded that Gaines was his cousin and

that he had no business putting his hands on a female. McQuirter stated that Lewis then sat

for a few seconds before pulling out a gun and shooting McQuirter in the leg. Lewis then

drove off and left McQuirter in the street.


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¶4.    On the other hand, Lewis asserts that, after being attacked by McQuirter, Lewis got

into his vehicle by himself and was only driving down McQuirter’s street to go to another

woman’s house. While he was driving, he realized that his head was bleeding, at which point

he pulled over and reached for a napkin out of the glove compartment. He noticed a gun in

the glove compartment and placed it on the seat beside him. He testified that he did not

know there was a gun in the vehicle until he opened the glove compartment. As he drove off,

he saw McQuirter standing in the middle of the street, refusing to move. According to

Lewis, he was afraid and believed that because McQuirter was high on cocaine, McQuirter

would “take his neck off” if he got near him. As McQuirter approached the driver-side

window, Lewis grabbed the gun and shot McQuirter in the leg. Lewis testified that if he had

not shot McQuirter, he believed McQuirter would have “gotten him.” Lewis then drove off

and left McQuirter in the street.

¶5.    Lewis was found guilty of aggravated assault and possession of a firearm by a felon.

He was sentenced to serve ten years for the aggravated assault charge and five years for the

charge of possession of a firearm by a felon, with the terms to be served consecutively in the

custody of the MDOC. Lewis filed a motion for a judgment notwithstanding the verdict, or,

in the alternative, a motion for a new trial, which the trial court denied. Aggrieved, Lewis

now appeals.

                                       DISCUSSION

¶6.    Lewis’s sole contention on appeal is that the trial court erred in excluding his


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testimony, specifically that McQuirter was high on drugs at the time of the assault. The trial

court found that the testimony was inadmissable because: (1) Lewis had no personal

knowledge of any cocaine use by McQuirter on the day of the incident; (2) Lewis’s testimony

was speculative and unsupported by any other testimony; and (3) any relevance of the

testimony was outweighed by its prejudicial effects. Lewis alleges that the exclusion of this

testimony prevented him from adequately portraying his state of mind at the time of the

assault, limiting his ability to create a meaningful argument of self-defense.

¶7.    This Court will only overturn a trial court’s ruling on the admissibility of evidence if

it is shown that the trial court abused its discretion. Peterson v. State, 37 So. 3d 669, 673

(¶15) (Miss. Ct. App. 2010) (citing Edwards v. State, 856 So. 2d 587, 592 (¶12) (Miss. Ct.

App. 2003)). Further, “[a] trial judge enjoys a great deal of discretion as to the relevancy and

admissibility of evidence,” and this Court will not reverse the trial court’s ruling “unless the

judge abuses this discretion so as to be prejudicial to the accused.” Shaw v. State, 915 So.

2d 442, 445 (¶8) (Miss. 2005).

¶8.    An assault is justifiable on the ground of self-defense when, at the time of the assault,

the defendant had “reasonable grounds to apprehend design on the part of the victim to kill,

or to do him great bodily harm,” and there was an “imminent danger of such design being

accomplished.” Anderson v. State, 571 So. 2d 961, 963 (Miss. 1990). Further, this right of

self-defense is forfeited when the defendant is the initial aggressor and “provokes a

difficulty, arming himself in advance, and intending, if necessary, to use his weapon and


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overcome his adversary.” Id. As Lewis correctly observes, he is entitled to a fair trial, and

implicit in that right is a meaningful opportunity to present a complete defense. Freeman

v. State, 121 So. 3d 888, 895 (¶15) (Miss. 2013) (citing California v. Trombetta, 467 U.S.

479, 485 (1984)). Lewis argues that because he was not allowed to testify to his belief of

McQuirter’s state of intoxication, he was not able to adequately express his state of mind and,

thus, he could not adequately argue self-defense.

       1.     Admissibility of Character Evidence Under Rule 404(a)(2)

¶9.    A right to argue self-defense is not without its limits when the evidence includes

character evidence. Subject to some exceptions, character evidence is not admissible to

prove action in conformity therewith. See M.R.E. 404; Newsom v. State, 629 So. 2d 611, 613

(Miss. 1993). One exception to this general rule is “[e]vidence of a pertinent trait of

character of the victim of the crime offered by an accused.” M.R.E. 404(a)(2). This

exception “specifically authorizes inquiry by a criminal defendant into a victim’s character”

after the defendant “prove[s] that the victim was the initial aggressor.” Newsom, 629 So. 2d

at 613. While older cases recognize that intoxication may be relevant in a self-defense claim,

more modern precedent “emphasizes not whether the victim is intoxicated, but the victim’s

propensity for violence at the time of the crime.” Rouster v. State, 981 So. 2d 314, 320 (¶17)

(Miss. Ct. App. 2007).

¶10.   In other words, while the victim’s propensity for violence is a pertinent trait for a self-

defense claim, intoxication, by itself, is not. The “purpose of introducing character evidence


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of the victim’s intoxication is to further the defendant’s self-defense claim by proving the

victim, who had a propensity for violence, became more violent after intoxication.” Id.

Therefore, in order for character evidence of a victim’s intoxication to be relevant and

admissible, the “defendant must offer evidence of an overt act of aggression perpetrated

against him by the victim” and show that the alleged intoxication increased the “victim’s

propensity for violence at the time of the crime.” Id. at 319 (¶14). And as always, even if

evidence is relevant, it may be excluded if its probative value is substantially outweighed by

its prejudicial effects. M.R.E. 403.

¶11.   We do not find the Rule 404(a)(2) exception applicable here. In order to avail himself

of the Rule 404(a)(2) exception, Lewis must first have shown, at a minimum, some evidence

of an overt act of aggression made by McQuirter. Upon review of the record, it is clear that

Lewis attempted to introduce evidence of McQuirter’s cocaine use well before any overt act

of aggression was established. Further, Lewis did not offer any specific testimony explaining

how cocaine affects McQuirter’s propensity for violence, nor did he offer any testimony

explaining cocaine’s effects on propensity for violence in general. At best, Lewis’s

testimony merely infers his contention that McQuirter was more intimidating while he was

high on drugs; this contention sheds minimal light, if any, on the effects of cocaine on

McQuirter’s propensity for violence. Any probative value would be minuscule, while the

evidence of illegal drug use could potentially prove highly prejudicial. We do not believe

that the trial court abused its discretion when it refused to allow the testimony.


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       2.     Admissibility of Character Evidence Under Rule 404(b)

¶12.   Lewis’s arguement that the evidence of McQuirter’s drug use was offered to inform

the jury of Lewis’s state of mind at the time of the assault is also without merit. Character

evidence may be admissible when evidence of past crimes, wrongs, or acts is offered for a

purpose other than proof that a defendant acted in conformity therewith. M.R.E. 404(b). The

Mississippi Supreme Court has held that “evidence of character[,] and specific acts of the

victim toward the defendant, offered to show the defendant’s state of mind[,] are admissible.”

Russell v. State, 607 So. 2d 1107, 1116 (Miss. 1992) (emphasis added).

¶13.   The Rule 404(b) exception is inapplicable, in large part, for the same reason that the

Rule 404(a)(2) exception is inapplicable. At trial, Lewis did little to explain the relevance

of this evidence to his state of mind at the time of the assault. Lewis simply stated that he

believed McQuirter was high on drugs, and that this belief increased his apprehension of

harm, offering no explanation for why McQuirter’s intoxication made Lewis more fearful.

As such, Lewis’s state of mind was never clearly established. And again, highly prejudicial

evidence of illegal drug use outweighed the little probative value Lewis’s testimony may

have provided.

¶14.   Finally, we note that Lewis did not have firsthand knowledge of McQuirter’s alleged

cocaine use on the night of the assault; as such, his testimony regarding McQuirter’s

intoxication was opinion evidence. Opinion evidence must be based on firsthand knowledge

and must be helpful in resolving the issue. M.R.E. 701 cmt. Lewis contends that, in the past,


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he and McQuirter used drugs together for about three years, and this gave him sufficient

firsthand knowledge of McQuirter’s demeanor while intoxicated. Yet Lewis did not

articulate any details just that he “knew when the man was high.” Further, as previously

mentioned, Lewis’s opinion had little relevance to the trial, as evidence of intoxication is

only relevant in a claim of self-defense insofar as it supports a previously established

propensity for violence.

¶15.   We find no error in the trial court’s determination that Lewis’s testimony was not

based on firsthand knowledge, was speculative, and was substantially more prejudicial than

probative.   We find that the trial court’s decision to exclude Lewis’s testimony of

McQuirter’s intoxication on the night of the assault was not erroneous. Therefore, we affirm

the conviction and sentence.

¶16. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND POSSESSION OF A FIREARM
AS A FELON AND SENTENCE OF TEN YEARS FOR AGGRAVATED ASSAULT
AND FIVE YEARS FOR POSSESSION OF A FIREARM AS A FELON, WITH THE
SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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




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