      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01785-COA

TREVOR HOSKINS A/K/A TREVOR                              APPELLANT
KENVATTERI HOSKINS

v.

STATE OF MISSISSIPPI                                       APPELLEE


DATE OF JUDGMENT:                10/07/2013
TRIAL JUDGE:                     HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:       WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:         OFFICE OF STATE PUBLIC DEFENDER
                                 BY: GEORGE T. HOLMES
                                      ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:           OFFICE OF THE ATTORNEY GENERAL
                                 BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:               WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:              CRIMINAL - FELONY
TRIAL COURT DISPOSITION:         CONVICTED OF DOMESTIC
                                 AGGRAVATED ASSAULT AND
                                 SENTENCED TO TWENTY YEARS IN THE
                                 CUSTODY OF THE MISSISSIPPI
                                 DEPARTMENT OF CORRECTIONS, WITH
                                 THE SENTENCE TO RUN
                                 CONSECUTIVELY TO ALL TIME TO BE
                                 SERVED IN WASHINGTON COUNTY
                                 CAUSE NUMBER 2012-0315, AND TO PAY
                                 $10,656.62 IN RESTITUTION AND $500 TO
                                 THE CRIME VICTIMS’ COMPENSATION
                                 FUND
DISPOSITION:                     AFFIRMED - 08/18/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     JAMES, J., FOR THE COURT:
¶1.    Trevor Hoskins was indicted on one count of aggravated domestic assault. After a

jury trial, he was convicted and sentenced to twenty years, to be served in the custody of the

Mississippi Department of Corrections. Hoskins’s sentence was ordered to run consecutively

to the time imposed in another case.1 On appeal, Hoskins raises the following issues: (1)

whether the trial court erred in allowing the prosecution to substantially amend the

indictment by adding an essential element to charge Hoskins with domestic aggravated

assault, and (2) whether the trial court improperly allowed Linda Taylor’s testimony to be

used as character evidence against Hoskins. Finding no error, we affirm.

                                          FACTS

¶2.    On July 4, 2012, around 6 a.m., Armilla Lucius called the police to her home. When

the police arrived, she told them that someone had beaten her, and that the person was in the

bedroom asleep. Officers who had arrived at the scene testified that Lucius had dried blood

on her, her foot was turned at an unnatural angle, and she crawled to answer the door. When

officers reached the bedroom, they found a male asleep in the bed wearing what appeared to

be a green or olive green sleeveless shirt and boxers. The shirt ended up being a gray shirt

in brighter light. The police immediately detained him, and he was identified as Hoskins.

Hoskins was arrested, and Lucius was taken to the hospital. Lucius sustained several severe

injuries: a broken right arm, a broken left leg, a broken nose, and a laceration on her skull.

¶3.    Lucius testified that after Hoskins dropped her off at home after work, she watched

       1
        See State v. Hoskins, 2013-KA-00912-COA, 2015 WL 326708, *7 (¶36) (Miss. Ct.
App. Jan. 27, 2015) (affirming conviction of domestic aggravated assault in Washington
County Circuit Court case number 2012-0315). Hoskins also filed a motion for enlargement
of time on June 15, 2015.

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TV and fell asleep. She was awoken by Hoskins hitting her on the head with a beer bottle.

Lucius attempted to flee, but Hoskins struck her with a baseball bat and continued to assault

her. At some point, however, he went to sleep in the bedroom.

¶4.    Before trial, the State filed a motion to amend the indictment to add the words “[‘]who

had a romantic relationship with or was the girlfriend to Trevor Hoskins at the time of the

aggravated assault[’] after the words ‘a person,’ in the indictment.” The trial court granted

the motion finding that the amendment was to the form and not to the substance of the

indictment. Prior to trial, Hoskins also challenged the State’s motion to introduce the

testimony of Taylor, the victim of a prior crime by Hoskins. The trial court decided to make

an admissibility finding during the trial. Taylor was allowed to testify.

¶5.    At trial, Taylor testified that she was also romantically involved with Hoskins, and

that he physically abused her. Hoskins did not testify in his defense at trial. He was

convicted and sentenced to twenty years in the custody of the Mississippi Department of

Corrections.   Hoskins filed a motion for a new trial and a motion for a judgment

notwithstanding the verdict (JNOV). Both of the motions were denied by the trial court.

Hoskins appeals.

                                      DISCUSSION

       I.      The trial court erred in allowing the prosecution to substantially
               amend the indictment by adding an essential element to charge
               Hoskins with domestic aggravated assault when the indictment
               only tracked the language of aggravated assault.

¶6.    Hoskins argues that the trial court erred in amending the indictment because a

substantive change was made to the indictment. He contends the addition of the wording


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“who had a romantic relationship with or was the girlfriend to Trevor Hoskins at the time of

the aggravated assault” after the words “a person” in the indictment changed the charge from

aggravated assault to domestic aggravated assault, which is a completely different charge

governed by a separate statute.

¶7.    “The question of whether an indictment is legally sufficient is a question of law and

must be reviewed de novo.” Weeks v. State, 123 So. 3d 373, 377 (¶7) (Miss. 2013).

¶8.    We have previously stated that “[a]mendments to indictments should only be granted

by a court during trial if the amendment pertains to a matter of form and not substance.”

Graham v. State, 935 So. 2d 1119, 1121 (¶8) (Miss. Ct. App. 2006) (citing Mixon v. State,

921 So. 2d 275, 280 (¶15) (Miss. 2005)). “[A] change in the indictment is permissible if it

does not materially alter facts which are the essence of the offense on the face of the

indictment as it originally stood or materially alter a defense to the indictment as it originally

stood so as to prejudice the defendant’s case.” Stevenson v. State, 156 So. 3d 927, 930-31

(¶17) (Miss. Ct. App. 2015) (citing Ellis v. State, 469 So. 2d 1256, 1258 (Miss. 1985)). In

order to determine whether an amendment to the indictment will prejudice the defense, the

test is “whether the initial defense will remain available after the amendment.” Lawson v.

State, 154 So. 3d 926, 932 (¶13) (Miss. Ct. App. 2015).

¶9.    In the case at hand, the indictment is titled “domestic aggravated assault” and cites

Mississippi Code Annotated section 97-3-7(4) (Rev. 2014). This section provides:

       (4)(a) When the offense is committed against a current or former spouse of the
       defendant or a child of that person, a person living as a spouse or who formerly
       lived as a spouse with the defendant or a child of that person, a parent,
       grandparent, child, grandchild or someone similarly situated to the defendant,
       a person who has a current or former dating relationship with the defendant,

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       or a person with whom the defendant has had a biological or legally adopted
       child, a person is guilty of aggravated domestic violence who:

              (i) Attempts to cause serious bodily injury to another, or causes
              such an injury purposely, knowingly or recklessly under
              circumstances manifesting extreme indifference to the value of
              human life;

              (ii) 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; or

              (iii) Strangles, or attempts to strangle another.

       Upon conviction, the defendant shall be punished by imprisonment in the
       custody of the Department of Corrections for not less than two (2) nor more
       than twenty (20) years.

Miss. Code Ann. § 97-3-7(4)(a). It is clear from the indictment’s title and its citation of the

statute that the intended charge was domestic aggravated assault. The State sought to amend

the indictment to correct the scrivener’s error. An indictment can be amended by the trial

court as to form, but the court cannot change the substance of the offense charged. Hensley

v. State, 156 So. 3d 346, 349 (¶10) (Miss. Ct. App. 2014) (citing URCCC 7.09). We find this

was an amendment as to form. Further, the motion to amend the indictment was filed on

March 15, 2013, and the trial commenced on October 2, 2013, several months after the

motion was filed. Hoskins had plenty of notice of the changes suggested by the State. For

these reasons, this issue has no merit.

       II.    The trial court improperly allowed Taylor’s testimony to be used
              as character evidence against Hoskins.

¶10.   Hoskins argues that Taylor’s testimony that he assaulted Taylor months before is

evidence of a prior bad act and should not have been admitted into evidence at trial. Hoskins


                                              5
argues that there was no probative connection between Taylor’s assault and the present case

against Hoskins.

¶11.   The State argued that Taylor’s testimony fell within an exception to the general

prohibition against character evidence because it was relevant to “his . . . knowledge, intent,

lack of mistake, plan, [and] motive.” The trial court overruled Hoskins’s objection and

allowed Taylor to testify. Taylor testified that in February 2012, a few months prior to the

crime, she was the victim of an assault by Hoskins. Taylor also testified that she was a

previous girlfriend of Hoskins and sustained serious injuries. Taylor stated that, at the time

of trial, she still suffered the effects of Hoskins’s assault.

¶12.   “The trial court ‘enjoys a great deal of discretion as to the relevancy and admissibility

of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused,

this Court will not reverse the ruling.” Kirk v. State, 160 So. 3d 685, 698 (¶37) (Miss. 2015)

(quoting Ferguson v. State, 137 So. 3d 240, 245 (¶17) (Miss. 2014)). Further, according to

Mississippi Rule of Evidence 402, “[a]ll relevant evidence is admissible . . . . Evidence which

is not relevant is not admissible.”

¶13.   The general rule is that evidence of a previous crime or prior bad act is inadmissible.

Jones v. State, 904 So. 2d 149, 152 (¶6) (Miss. 2005). Rule 404(b) of the Mississippi Rules

of Evidence provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that he acted in conformity therewith.
       It may, however, be admissible for other purposes such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.



                                                6
¶14.    We have previously held that “[p]roof of another crime or act is admissible where

necessary to identify the defendant, to prove motive, or to prove state of mind.” Richardson

v. State, 911 So. 2d 1026, 1028 (¶9) (Miss. Ct. App. 2005) (citing Brown v. State, 890 So.

2d 901, 912 (¶32) (Miss. 2004)). In order to determine whether evidence of prior bad acts

is admissible, “we use a two-pronged analysis: ‘the evidence offered must (1) be relevant to

prove a material issue other than the defendant’s character; and (2) the probative value of the

evidence must outweigh the prejudicial effect as required by Mississippi Rule of Evidence

403.” Stone v. State, 94 So. 3d 1078, 1084 (¶18) (Miss. 2012).

¶15.    Here, both elements are satisfied. Taylor’s testimony was offered to prove the

knowledge, intent, lack of mistake, plan, and motive of Hoskins in committing the assault.

Secondly, the probative value of the testimony outweighed the prejudicial effect on Hoskins.

Taylor’s assault occurred mere months before the incident that lead to the charges in this

case. Therefore, we find that the trial court did not abuse its discretion in allowing Taylor

to testify.

¶16.    Even if this Court were to find that the admission of Taylor’s testimony was improper,

it would not constitute reversible error. The Mississippi Supreme Court has held that “[a]n

error is harmless when it is apparent on the face of the record that a fair-minded jury could

have arrived at no verdict other than that of guilty.” McKee v. State, 791 So. 2d 804, 810

(¶24) (Miss. 2001) (citing Floyd v. City of Crystal Springs, 749 So. 2d 110, 120 (Miss.

1999)). Further, “[w]here the prejudice from an erroneous admission of evidence dims in

comparison to other overwhelming evidence, this Court has refused to reverse.” Sims v.

State, 928 So. 2d 984, 990 (¶33) (Miss. Ct. App. 2006) (citing Carter v. State, 722 So. 2d

                                              7
1258, 1262 (¶14) (Miss. 1998)). Here, the evidence of Hoskins’s guilt is overwhelming, and

a fair-minded juror could have arrived at no other verdict than guilty. Therefore, this issue

is without merit.

¶17. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF
CONVICTION OF DOMESTIC AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ALL
TIME TO BE SERVED IN WASHINGTON COUNTY CAUSE NUMBER 2012-0315,
AND TO PAY $10,656.62 IN RESTITUTION AND $500 TO THE CRIME VICTIMS’
COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WASHINGTON COUNTY.

       LEE, C.J., GRIFFIS, P.J., ISHEE AND CARLTON, JJ., CONCUR. IRVING,
P.J., MAXWELL AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., NOT
PARTICIPATING.




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