                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2009-KA-01785-SCT

DONOVAN FOREMAN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        10/02/2009
TRIAL JUDGE:                             HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:               CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  MICHAEL ERIC BROWN
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: W. GLENN WATTS
                                             SCOTT STUART
DISTRICT ATTORNEY:                       ALEXANDER C. MARTIN
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED IN PART; VACATED IN PART;
                                         REVERSED IN PART AND REMANDED-
                                         01/20/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   Donovan Foreman was convicted of six felony counts arising from his attempt to fire

a handgun and his subsequent discharge of that handgun. He argues that the resulting

sentences for four counts of aggravated assault, one count of murder, and one count of

shooting into a vehicle violate the double-jeopardy clause and the common-law doctrine of

merger. He also asserts that the trial court erroneously imposed a sentence exceeding the
statutory maximum for shooting into a vehicle. We find the trial court erred in refusing to

dismiss three counts of aggravated assault, and that the trial court imposed an illegal sentence

for shooting into a vehicle. We find no violation of the double-jeopardy clause.

                                           FACTS

¶2.    At approximately 1 a.m. on May 10, 2009, Ashley Jones picked up her cousins

Jewelisa Kelly, Shanique Kelly, Chatonia Minor, and Edward Minor. They had been

socializing with a group of men, one of whom was Donovan Foreman. As Jones and her

cousins began to drive away, she heard a gunshot and discovered that Edward Minor had

been shot in the head.

¶3.    Shanique Kelly testified that after she and her cousins got into the car, she saw

Foreman pull out a gun, point it at the car, and try to shoot it. She stated that Foreman then

cocked the gun again and shot it, and the bullet went through the back windshield. Jessica

Earls, a bystander, also testified that she saw Foreman shoot into Jones’s car. The bullet

struck Edward in the side of the head and killed him.

¶4.    Carl Ray Fleming, an investigator with the Claiborne County Sheriff’s Department,

testified that Foreman admitted that he had pointed a nine-millimeter gun at Jones’s car,

because he had felt his brothers and cousins were threatened. Foreman told Fleming that the

gun accidentally had fired.

                                       DISCUSSION

I.     Whether the trial court erred in failing to grant Foreman’s motion for dismissal.

¶5.    Prior to trial and again after the State’s case-in-chief, Foreman moved to dismiss all

counts, arguing that a conviction and sentence on all counts would violate the double-


                                               2
jeopardy clause of our state and federal constitutions. This Court has ruled that a trial court

faced with such a motion “should consider the evidence fairly and should dismiss the case

only if it would find for the defendant.” 1 The court should deny the motion “‘only if the judge

would be obliged to find for the [State] if the [State’s] evidence were all the evidence offered

in the case.’” 2 This Court applies the substantial-evidence/manifest-error standard of review

to a grant or denial of a motion to dismiss the indictment.3

¶6.    Foreman argues that he was impermissibly indicted and convicted on all six counts

based on the same act: firing one shot into the vehicle. However, Foreman ignores the

evidence before the jury that he had tried to shoot the gun once before firing the fatal shot

that struck Edward Minor. Foreman’s first effort to discharge the gun would support a jury

verdict for a charge of aggravated assault with a deadly weapon. A defendant is guilty of

aggravated assault if he or she “(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[.]” 4

¶7.    But we do find that the State erroneously charged (and Foreman was erroneously

convicted of) four counts of aggravated assault when the evidence supports only one attempt.

Under the facts of this case, to be guilty of four counts of aggravated assault, Foreman must




       1
           State v. Oliver, 856 So. 2d 328, 331 (Miss. 2003).
       2
           Id. (quoting Alexander v. Brown, 793 So. 2d 601, 603 (Miss. 2001)).
       3
           Id.
       4
           Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006) (emphasis added).

                                               3
have attempted to cause injury to all four individuals.5 Foreman’s attempt to discharge the

gun one time does not support the inference that he intended to injure four individuals. We

find the evidence insufficient to support four convictions of aggravated assault. Therefore,

we find the trial court erred in failing to dismiss three of the aggravated-assault charges, and

we vacate Foreman’s convictions and sentences for three counts of aggravated assault.

¶8.    Next, we address whether the sentences for one count of aggravated assault, one count

of shooting into a vehicle, and one count of murder violate the double-jeopardy clause of the

Fifth Amendment to the United States Constitution and Article 3, Section 22 of the

Mississippi Constitution of 1890. “Each of these provisions guarantees to each citizen that

he shall not twice be placed in jeopardy for the same offense [and] [w]e construe the double

jeopardy clause of our Constitution consistent with authoritative constructions of the

Constitution of the United States.”6 The double-jeopardy clause affords three protections:

“(1) protection from a second prosecution for the same offense after acquittal, (2) protection

from a second prosecution for the same offense after conviction, and (3) protection from

multiple punishments for the same offense.” 7 Foreman argues that this case falls within the

protection against multiple punishments for the same offense. We apply a de novo review

to claims of double jeopardy and to questions of law.8




       5
           Brooks v. State, 18 So. 3d 833, 841 (Miss. 2009).
       6
           Lee v. State, 469 So. 2d 1225, 1228 (Miss. 1985).
       7
           Graves v. State, 969 So. 2d 845, 847 (Miss. 2007) (emphasis added).
       8
           Deeds v. State, 27 So. 3d 1135, 1139 (Miss. 2009).

                                               4
¶9.    The aggravated-assault conviction arises from Foreman’s separate act of attempting

to discharge the gun, an act that was committed close in time to the actual discharge of the

gun. And this Court previously has ruled that “[t]emporal proximity does not generate a

judicial union of separate and distinct criminal acts, nor does the presence of a common

nucleus of operative facts.” 9 In other words, Foreman’s attempt to discharge the gun

occurred prior to and separate from the actual discharge of the firearm and was therefore a

separate and distinct criminal act. Therefore, there is no “same offense” for purposes of a

double-jeopardy analysis.10

¶10.       But the one act of discharging the gun resulted in a jury verdict for two crimes:

murder11 and shooting into a vehicle.12 To determine whether the double-jeopardy clause

applies, this Court applies the Blockburger13 test. In Blockburger, the United States



       9
           Lee, 469 So. 2d at 1229.
       10
            Graves, 969 So. 2d at 847.
       11
        Section 97-3-19 provides in relevant part that:
      (1) The killing of a human being without the authority of law by any means
      or in any manner shall be murder in the following cases: (a) When done with
      deliberate design to effect the death of the person killed, or of any human
      being; (b) When done in the commission of an act eminently dangerous to
      others and evincing a depraved heart, regardless of human life, although
      without any premeditated design to effect the death of any particular
      individual[.]
Miss. Code Ann. § 97-3-19 (Rev. 2006).
       12
        Section 97-25-47 provides that a person is guilty of shooting into a vehicle if he or
she “wilfully shoot[s] any firearms or hurl[s] any missile at, or into, any train, bus, truck,
motor vehicle, depot, station, or any other transportation facility[.]” Miss. Code Ann. § 97-
25-47 (Rev. 2006).
       13
            Blockburger v. U.S., 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

                                               5
Supreme Court ruled that: “[W]here the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other does

not.” 14 In Graves v. State, this Court considered the same issue in a shooting which resulted

in convictions for aggravated assault and shooting into a vehicle.15 In that case, we held:

       Given the elements required to prove each of these crimes, Blockburger
       instructs us to determine whether there are elements in each offense not
       contained in the other. We find that there are. To prove aggravated assault,
       no element requires proof of a firearm being shot into a vehicle. To prove
       shooting into a vehicle, there is no requirement of proof of bodily injury . . .
       . As it is inconsequential that these two crimes took place at the same time, so
       it is unimportant that the same evidence was used to convict Graves of both of
       these crimes. Clearly, aggravated assault and shooting into a vehicle each
       requires proof of facts the other does not.16

Likewise, murder and shooting into a vehicle each requires proof of a fact which the other

does not.17 “[M]urder, unlike shooting into a vehicle, requires the deliberate killing of an

individual. On the other hand, shooting into a vehicle requires only that an individual

willfully shoot into or at a vehicle[.]” 18 And consequently, there can be no violation of the

common-law doctrine of merger, which provides that two independent crimes merge into one

only when the greater crime necessarily includes all the elements of the lesser crime, as with




       14
            Id.
       15
            Graves, 969 So. 2d at 847-48.
       16
            Id. at 848 (emphasis added).
       17
            Peacock v. State, 970 So. 2d 197, 199 (Miss. Ct. App. 2007).
       18
            Id. at 199-200.

                                               6
a lesser-included offense.19 Our common-law analysis of merger has been subsumed by the

Blockburger test.20      Therefore, we conclude that Foreman’s separate convictions and

punishments for one count of aggravated assault, one count of shooting into a vehicle, and

one count of murder do not violate the double-jeopardy clause or the merger doctrine.

II.    Whether the trial court imposed an illegal sentence.

¶11.   Foreman asserts that the trial court erroneously imposed a ten-year sentence for

shooting into a vehicle, when the statutory maximum is five years. The State concedes that

the maximum sentence for shooting into a vehicle in this case is five years, and that this

Court should remand for resentencing. And in fact, the punishment for shooting into a

vehicle is a “fine of not less than one hundred dollars ($100.00) nor more than two hundred

fifty dollars ($250.00), or [incarceration in] the custody of the department of corrections not

less than one (1) year nor more than five (5) years, or by both such fine and imprisonment.” 21

¶12.   Foreman’s ten-year sentence is illegal, as it is not within the bounds of Mississippi

Code Section 97-25-47.22 And we have recognized that a defendant has a fundamental right




       19
        Faraga v. State, 514 So. 2d 295, 310-11 (Miss. 1987) (Robertson, J., concurring)
(explaining the merger doctrine).
       20
            See Meeks v. State, 604 So. 2d 748, 751 (Miss. 1992).
       21
            Miss. Code Ann. § 97-25-47 (Rev. 2006).
       22
         The imposition of an illegal sentence results when the punishment does not “conform
to the applicable penalty statute.” Llerena v. U.S., 508 F.2d 78, 80 (5th Cir. 1975).

                                               7
to a legal sentence.23 Therefore, we vacate the ten-year sentence imposed for violating

Section 97-25-47, and remand for resentencing.24

                                        CONCLUSION

¶13.   We vacate Foreman’s conviction of three counts of aggravated assault, as the evidence

supported only one count. We find no violation of the double-jeopardy clause and affirm his

conviction and sentence of one count of aggravated assault and one count of murder. We

also affirm his conviction for one count of shooting into a vehicle, but remand this case for

resentencing in compliance with Mississippi Code Section 97-25-47 (Rev. 2006).

¶14.  COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED
ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, VACATED. COUNT IV: CONVICTION OF AGGRAVATED
ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED. COUNT V:
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, VACATED. COUNT VI: CONVICTION OF SHOOTING INTO
AN AUTOMOBILE AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED IN PART
AND REMANDED FOR RE-SENTENCING. SENTENCES IN COUNTS II AND VI
ARE TO BE SERVED CONCURRENTLY WITH COUNT I.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.



       23
            Ivy v. State, 731 So. 2d 601, 603 (Miss. 1999).
       24
        Jefferson v. State, 958 So. 2d 1276, 1281 (Miss. Ct. App. 2007) (holding that the
proper remedy for imposition of an illegal sentence is to remand for resentencing in
accordance with the applicable statute).

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