       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2016-KA-00370-COA

KEITH LEON JOHNSON A/K/A KEITH L.                                    APPELLANT
JOHNSON A/K/A KEITH JOHNSON

v.

STATE OF MISSISSIPPI                                                   APPELLEE

DATE OF JUDGMENT:                      12/16/2015
TRIAL JUDGE:                           HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED:             NEWTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:               OFFICE OF STATE PUBLIC DEFENDER
                                       BY: MOLLIE MARIE MCMILLIN
                                            GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                OFFICE OF THE ATTORNEY GENERAL
                                       BY: ABBIE EASON KOONCE
                                            JASON L. DAVIS
DISTRICT ATTORNEY:                     MARK SHELDON DUNCAN
NATURE OF THE CASE:                    CRIMINAL - FELONY
TRIAL COURT DISPOSITION:               CONVICTED OF FELONY FAILING TO
                                       STOP A MOTOR VEHICLE PURSUANT TO
                                       THE SIGNAL OF A LAW-ENFORCEMENT
                                       OFFICER AND SENTENCED AS A
                                       HABITUAL OFFENDER TO FIVE YEARS
                                       IN THE CUSTODY OF THE MISSISSIPPI
                                       DEPARTMENT OF CORRECTIONS,
                                       WITHOUT ELIGIBILITY FOR PAROLE OR
                                       PROBATION, AND TO PAY A FINE OF
                                       $3,000
DISPOSITION:                           AFFIRMED - 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      GREENLEE, J., FOR THE COURT:

¶1.   This is an appeal from Newton County Circuit Court where Keith Leon Johnson was
convicted of felony fleeing in a motor vehicle from a law-enforcement officer and sentenced

as a habitual offender to five years’ incarceration with the Mississippi Department of

Corrections (MDOC), without the possibility of early release. On appeal, Johnson asserts the

circuit court erred in finding there was probable cause for the stop and in denying his lesser-

included-offense jury instruction on reckless driving. Finding no error, we affirm.

                        FACTS AND PROCEEDINGS BELOW

¶2.    On Monday, June 2, 2014, at approximately 1:40 p.m., Officer Clay Garvin of the

Decatur Police Department initiated a traffic stop of a vehicle for failing to signal a turn.1

After the vehicle came to a complete stop, Officer Garvin approached, and the driver

identified himself as Johnson. While Johnson was retrieving his proof of insurance2 and

transcribing his social-security number,3 Officer Garvin observed what appeared to be a box

of alcohol and a white powdery substance in the back seat of Johnson’s vehicle. Officer

Garvin asked Johnson if the box contained alcohol, and Johnson confirmed that it did.

Officer Garvin asked what the white powdery substance was on his back seat and Johnson

stated that it was baby powder. Officer Johnson returned to his patrol car to verify Johnson’s


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         Officer Garvin first noticed Johnson’s vehicle moments prior when Johnson came
to a complete stop in the middle of an intersection with no stop sign or stoplight and again
when Johnson made an unsignaled turn at an intersection, all prior to the turn for which
Officer Garvin stopped Johnson. Both Johnson and Officer Garvin testified that there was
traffic present at the intersection and that Johnson was turning onto a state highway.
       2
        Johnson’s proof of insurance was expired; he did not have a current proof of
insurance readily available.
       3
         Johnson stated that his driver’s license was in his “church pants” and not readily
available. Johnson gave Officer Garvin his social-security number as an alternative form of
identification.

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information, check the vehicle’s registration, and request backup.

¶3.    After confirming Johnson’s information and backup had arrived, Officer Garvin

returned to Johnson’s vehicle. He informed Johnson that it was illegal to possess alcohol in

Newton County as it is a dry county and that he suspected Johnson of possessing illegal

narcotics based on the white powder across Johnson’s back seat and because he had

previously arrested Johnson for cocaine. Officer Garvin requested that Johnson step out of

the vehicle. As Officer Garvin was attempting to open Johnson’s driver door, Johnson fled

from the officers on scene, and Officer Garvin and other law-enforcement officers gave

chase to Johnson as he exceeded 120 miles per hour through traffic, crossing a double-yellow

line multiple times. Shortly after, Johnson abandoned his attempted flight, stopped his

vehicle, and was arrested.

¶4.    On September 29, 2014, Johnson was indicted as a habitual offender on one count of

fleeing in a motor vehicle from a law-enforcement officer in violation of Mississippi Code

Annotated section 97-9-72(2) (Rev. 2014). On December 16, 2015, a jury trial was held, and

Johnson was found guilty and sentenced as a habitual offender to five years’ incarceration

in the custody of the MDOC. Johnson moved for a judgment notwithstanding the verdict or,

in the alternative, a new trial, which was denied. Johnson appeals to this Court.

                                      DISCUSSION

¶5.    On appeal, Johnson asserts the circuit court erred because (1) Officer Garvin had no

probable cause for his stop of Johnson, and (2) it denied his lesser-included-offense

instruction when the evidence supported a conviction of the lesser-included offense of



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reckless driving.4

       I.     Probable Cause

¶6.    Johnson asserts that Officer Garvin lacked probable cause to stop him. “As a general

matter, the decision to stop an automobile is reasonable where the police have probable cause

to believe that a traffic violation has occurred.” Woods v. State, 175 So. 3d 579, 581 (¶13)

(Miss. Ct. App. 2015) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). “Section

63-3-707 requires [that] a driver turning right or left give a continuous signal for a reasonable

distance before turning in the event any other vehicle may be affected[.]” Woods, 175 So. 3d

at 582 (¶14) (citing Melton v. State, 118 So. 3d 605, 609 (¶13) (Miss. Ct. App. 2012)); see

also Miss. Code Ann. § 63-3-707 (Rev. 2013). “Section 63-7-707 clearly requires a signal

when other vehicles may be affected by a turn—even when no accident is likely to occur as

the result of the driver’s failure to give a proper signal.” Woods, 175 So. 3d at 582 (¶14)

(citing Melton, 118 So. 3d at 609 (¶13)). It is well settled that a police officer personally

observing a traffic violation is sufficient to meet the requisite cause for a stop. See Mosley

v. State, 89 So. 3d 41, 46 (¶¶16-17) (Miss. Ct. App. 2011).

¶7.    Here, Officer Garvin testified that he personally observed Johnson make a right turn

onto a state highway without signaling while traffic was present, a traffic violation. Johnson

admitted to the same at trial. Thus, we find this issue is without merit.

       II.    Denial of Johnson’s Jury Instruction

       4
         Though Johnson asserts only that the circuit court erred in denying his lesser-
included-offense instruction, we are unable to properly address that assertion without also
addressing his assertion that Officer Garvin lacked probable cause for the initial stop and
that the evidence supported a lesser-included-offense instruction of reckless driving.

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¶8.    Johnson asserts that the circuit court erred in denying his lesser-included-offense

instruction because the evidence purportedly supported a conviction on a lesser-included

offense of reckless driving.

¶9.    The Court applies an abuse-of-discretion standard to jury instructions. Reith v. State,

135 So. 3d 862, 864 (¶4) (Miss. 2014). Jury instructions are read as a whole, with no one

instruction being read alone or taken out of context. Id. at 865 (¶4). “When read together, if

the jury instructions fairly state the law of the case and create no injustice, then no reversible

error will be found.” Id. A lesser-included-offense instruction is warranted where a rational

or reasonable jury could find, from the evidence presented, that the defendant was not guilty

of the principal offense charged in the indictment, but guilty of the lesser-included offense.

Downs v. State, 962 So. 2d 1255, 1261 (¶¶27-28) (Miss. 2007) (citing Green v. State, 631 So.

2d 167, 173 (Miss. 1994)). For an offense to be a lesser-included one of the offense charged,

all elements of the lesser offense must be included in the greater offense. Hye v. State, 162

So. 3d 750, 754 (¶8) (Miss. 2015).

¶10.   The crime of failing to yield to a law-enforcement officer requires the following: (1)

a driver of a motor vehicle to be given a signal directing the driver to stop; (2) a law-

enforcement officer acting in the lawful performance of his duty and with reasonable

suspicion to believe that the driver has committed a crime; and (3) the driver to willfully fail

to obey the law-enforcement officer’s direction. Miss. Code Ann. § 97-9-72(1) (Rev. 2014).

A person commits reckless driving when he operates a motor vehicle in a manner indicating

“either a willful or wanton disregard for the safety of persons or property.” Miss. Code Ann.



                                                5
§ 63-3-1201 (Rev. 2013). It is clear that no element of the crime of reckless driving is

included in the crime of fleeing a law-enforcement officer; thus, it is not a lesser-included

offense. The Mississippi Supreme Court has explicitly rejected the authorization of lesser-

nonincluded-offense instructions. Hye, 162 So. 3d at 764 (¶39).

¶11.     Here, Johnson was charged with failing to yield to a law-enforcement officer as a

felony, and no other crime. Thus, because reckless driving is not a lesser-included offense

of fleeing a law-enforcement officer, Johnson was not charged with reckless driving, and

lesser-nonincluded-offense instructions are not authorized, we find this issue is without

merit.

                                       CONCLUSION

¶12.     We affirm the jury’s conviction of Johnson for felony failing to stop a motor vehicle

pursuant to the signal of a law-enforcement officer and his sentence as a habitual offender.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF
CONVICTION OF FELONY FAILING TO STOP A MOTOR VEHICLE PURSUANT
TO THE SIGNAL OF A LAW-ENFORCEMENT OFFICER AND SENTENCE AS A
HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION, AND TO PAY A FINE OF $3,000, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
WILSON AND WESTBROOKS, JJ., CONCUR.




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