                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                       NO. 1998-KA-01105-COA
RODRICK O'NEAL BROOKS                                                                        APPELLANT
v.
STATE OF MISSISSIPPI                                                                           APPELLEE

DATE OF TRIAL COURT                        05/29/1998
JUDGMENT:
TRIAL JUDGE:                HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:  JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     ROSS PARKER SIMONS
ATTORNEYS FOR APPELLEE:     OFFICE OF THE ATTORNEY GENERAL
                            BY DEIRDRE MCCRORY
DISTRICT ATTORNEY:          DALE HARKEY
NATURE OF THE CASE:         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:    GUILT OF ATTEMPTED KIDNAPPING AND ARMED
                            ROBBERY; SENTENCED ON EACH COUNT TO SERVE
                            A TERM OF 6 YEARS IN THE CUSTODY OF THE
                            MDOC TO RUN CONCURRENTLY, AND TO PAY ALL
                            COURT COST.
DISPOSITION:                AFFIRMED - 04/25/00
MOTION FOR REHEARING FILED: 05/06/2000; AFFIRMED-08/08/2000
CERTIORARI FILED:
MANDATE ISSUED:

                                          MODIFIED OPINION

                                    ON MOTION FOR REHEARING

     EN BANC.

     SOUTHWICK, P.J., FOR THE COURT:

¶1. The original opinion is withdrawn and this opinion substituted on rehearing. The motion for rehearing is
denied. Roderick O'Neal Brooks was convicted by a Jackson County Circuit Court jury of armed robbery
and attempted kidnapping. Brooks alleges on appeal that an instruction on aiding and abetting was fatally
defective, that his conviction violated double jeopardy principles, and that the evidence was insufficient to
support his conviction. We find no error and affirm.

                                                  FACTS
¶2. These are the facts consistent with the verdict. On October 15, 1997, Eric Spitler and John Trussell
stopped at a K&P store in Gautier to buy cigarettes. Spitler got out of the car and began walking towards
the store. While still outside he was approached by Rodrick Brooks. Brooks tried to persuade him to
purchase beer for him, but Spitler refused and went into the store.

¶3. While Spitler was inside the store, Brooks's half-brother, Iyon Safford, got inside the car with Splitler's
friend Trussell and asked to purchase marijuana from him. Trussell responded that he did not have any
marijuana. Safford then asked him if he needed some. When Trussell responded in the negative, Safford
pulled a gun, but Trussell said that he did not have anything valuable. At this point, Safford told Brooks,
who had been standing outside, to get in the back seat. Safford then threatened to shoot Trussell unless he
drove them wherever they wanted to go. Trussell refused. Brooks hit Trussel with his fist and got out of the
car. Safford also hit Trussell and exited.

¶4. Splitler was able to see some of this while still in the store. After the just-described events, Spitler
arrived back at the car and asked Safford if there was a problem. Safford said that there was and hit
Spitler. After being punched, Spitler was ready to fight and advanced on Safford. Safford pulled up his shirt
to show the butt of his gun, and Spitler backed off. At this point Safford and Brooks ran away.

¶5. Both suspects were arrested. Brooks testified that he interrupted an argument between Safford and
Trussell, that the only reason he hit Trussell was in response to a racial slur, and the rest of the events just
described never occurred. In October 1997, Brooks and Safford were indicted for the crimes of armed
robbery and attempted kidnapping. Brooks was convicted in a separate jury trial, with final judgment on the
verdict being entered on May 29, 1998.

                                                 DISCUSSION

      Issue 1: The State's jury instruction on aiding and abetting

¶6. Brooks objected at trial to the State's aiding and abetting instruction, but it was given anyway. The first
response by the State on appeal is that the appellate argument that Brooks makes regarding this instruction
is different than his trial objection. It is critical that we not be the first court asked to rule on the specific
argument. Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995). Absent error affecting fundamental
rights, the trial judge must have been given an opportunity to consider an issue before that issue is raised
here. Berry v. State, 728 So. 2d 568, 571 (Miss. 1999).

¶7. What Brooks alleged below is that this instruction erroneously permitted the jury to assume that the
crime "had already actually happened, and that's still a question for the jury." Under any fair reading, this
means that the jury was not required to find that the crime occurred that he was alleged to have aided and
abetted. That was exactly the error in Berry that was considered so fundamental that an objection was not
even needed. Id. Therefore, had Brooks's counsel at trial done no more than did Berry's counsel, we would
still have to consider the issue. To the contrary, Brooks's attorney went far beyond what counsel in Berry
did. The defense counsel need not name for the trial judge the precise supreme court precedent that is
controlling so long as an adequate description of the alleged error is made. The prosecutor understood the
precise issue. He had available and named the supreme court opinions that were discussed and
distinguished in the later supreme court opinion that both parties belabor in this appeal, namely,
Hornburger v. State, 650 So. 2d 510 (Miss. 1995).
¶8. The challenged instruction for the State, S-3, provided only this:

      The court instructs the jury that each person present at the time and consenting to and encouraging,
      aiding, or assisting in any material manner in the commission of a crime, or knowingly and willfully
      doing any act which is an ingredient in the crime, is as much a principal as if he had with his own hands
      committed the whole offense.

That is a correct statement of law. Whether it is a valid instruction will be considered momentarily. The next
instruction, S-4, explained the elements of the crime:

      The Court instructs the Jury that the Defendant, Rodrick O'Neal Brooks, has been charged with the
      crime of Armed Robbery.

      If you find from the evidence in this case beyond a reasonable doubt that:

      (1) The Defendant, Rodrick O'Neal Brooks, alone or in conjunction with another, did wilfully,
      unlawfully and feloniously attempt to take, steal, and carry from the person and against the will of John
      Trussell, an undetermined amount of money in United States Currency and jewelry, the personal
      property of John Trussell;

      (2) By putting John Trussell in fear of immediate injury to his person, by the exhibition of a deadly
      weapon, to-wit: a pistol; and

      (3) The event occurred on or about October 15, 1997, in Jackson County, Mississippi; then you shall
      find the Defendant, Rodrick O'Neal Brooks, guilty of Armed Robbery.

      If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then
      you shall find the defendant not guilty of Armed Robbery.

¶9. Brooks's specific trial level objections to S-3 were these: (1) it was confusing and misleading, (2) it did
not require that the defendant have knowledge of the crime being committed, and (3) the instruction
assumed the commission of a crime without requiring the jury to find that the crime had been completed.
Brooks does not challenge instruction S-4 but argues that S-3 is so similar to an instruction that was
condemned in a recent supreme court precedent that the conviction must be reversed. Berry v. State, 728
So. 2d 568, 570-71 (Miss. 1999). In its wording S-3 actually is quite different from the Berry instruction.
We will analyze whether its effect is different.

¶10. The foundational precedent on this issue is Hornburger. That case declared an aiding and abetting
instruction to be error because it did not specifically require that the State prove the occurrence of each
element of the offense that the defendant was accused of aiding. Instead, the instruction merely required that
the defendant be present, encourage the crime, and himself perform one act that is an element of the offense
or immediately connected with it. Hornburger, 650 So. 2d at 514-515 (instruction S-8). In Hornburger,
the error was harmless because another instruction supplied the missing direction to the jurors.

¶11. The Berry court went beyond Hornburger. The court acknowledged that other instructions informed
the jury that the State had to prove that the underlying crime had occurred, in addition to believing that
Berry had committed at least one element of the crime. Id. at 571. The Berry majority mentioned the
normal rule that all instructions are to be read together in analyzing whether the jury was correctly charged
by the trial court. Id. However, reversal was still required because the Berry abettor instruction "appears to
give the jury an additional option of finding the defendant guilty if she committed only one element of the
crime without even finding that the crime was ever completed." Id. at 571.

¶12. Berry is premised on avoiding confusion of the jury. The jury could have believed that Berry was guilty
of aiding and abetting by committing one element of the offense, even though the jury also believed that the
crime itself never occurred. To determine whether that kind of inherent confusion is present in this case, we
review the specific Berry instruction that was found to create an incorrect option for the jury:

      The Court instructs the jury that each person present at the time, and consenting to and encouraging
      the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element
      of the crime, or immediately connected with it, or leading to its commission, is a principal.

      One who aids, assists and encourages a transfer of cocaine is a principal and not an accessory, and
      his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged
      participant in the crime. Therefore if you believe from the evidence, beyond a reasonable doubt, that
      Merlinda Berry did willfully, unlawfully and feloniously do any act which is an element of the crime of
      transfer of cocaine, as defined by the Court's instructions, or immediately connected with it, or leading
      to its commission, then and in that event, you should find Merlinda Berry guilty of transfer of cocaine
      as charged in the indictment.

Id. at 570.

¶13. The most obvious difference between the two cases is that the total instruction that explained to the
jury Brooks's complicity as an aider and abettor was only the first paragraph of a much longer instruction in
Berry. There is no error in the first paragraph of the Berry instruction nor in S-3 given in this case. It was
the second paragraph of the Berry instruction, a set of explanations that are totally absent in the present
case, that created the confusion.

¶14. What confuses can indeed be in the eye of the reader. Still, we reach the no-confusion conclusion here
for the following reasons:

1) Instructions identical to what was given here and similar to the first paragraph of Berry have been found
not to be erroneous. Hoops v. State, 681 So.2d 521, 533 (Miss. 1996) (instruction was identical to S-3
and did not contain second paragraph similar to Berry).

2) The defect in aiding and abetting instructions has been in explaining how to apply facts of a specific case
to the correct statement of the law. In one precedent, the majority found no defect at all in an instruction in
which the first part was similar to S-3, but which then specifically applied the facts to that legal structure.
Carr v. State, 655 So.2d 824, 833 (Miss. 1995). The dissent disagreed that the instruction was correct:

      The problem that I see is that the second part of the instruction, which attempts to apply the principle
      of law stated in the first clause to factual findings by the jury, leaves out a finding essential to the
      application of the principle enunciated. The principle of law is that "each person present at the time,
      and consenting to and encouraging the commission of crime" who "knowingly, wilfully, and
      feloniously" does an act which is an element of or connected with the crime or leads to its commission
      is guilty as a princip[al] actor. In the second part of the instruction here in question, applying the
      principle of law to facts to be found, left out are the requirements that Carr be "present" and
      "consenting to" and "encouraging" the crime. It even leaves out the requirement that he "knowingly"
      perform an act. Because of these omissions I find the instruction fatally flawed.

Id. at 863 (Banks, J., dissenting).

¶15. In our case, there is no "second part" to the instruction. When a correct abstract principle of law is
combined with an explanation on applying the abstract principle to the facts of the particular case, that
explanation needs to be complete. That is especially true in an instruction such as in Berry, in which the
detail of the application of the facts to the just-stated law can make the instruction appear to be free-
standing, i.e., independent of the force of the other instructions.

¶16. Instructions S-3 and S-4 that the jury relied upon to convict Brooks do not raise the same concerns
involved in Berry. The only meaningful description of the crime is in S-4. The brief aiding instruction S-3 is
nothing like the Berry instruction. It has no potential to be viewed as an "alternative means of committing the
crime" that might cause the jury not to read all instructions together in reaching its verdict.

¶17. If there is a problem with S-3, it arises from being only an abstract statement of the law. However, an
aiding and abetting instruction was approved in a recent case despite an argument that it was abstract.
Hooker v. State, 716 So.2d 1104, 1110 (Miss. 1998). Unless the abstractness of the instruction could
mislead the jury, its use is not reversible error. Id. In fact, by being abstract and less substantial this
instruction in my view avoided being ensnared in the recently identified problems of Berry.

¶18. There is no inherent confusion in this instruction and no basis on which to reverse.

      Issue 2: Double jeopardy

¶19. Prior to this trial for armed robbery and attempted kidnapping, Brooks was convicted of simple assault
in Gautier Municipal Court. He alleges that being prosecuted in Jackson County Circuit Court on these
more serious offenses constituted double jeopardy. He argues that his act of hitting Trussell is the identical
act used to support both his conviction of simple assault and the conviction of armed robbery and
attempted kidnapping.

¶20. The State's first response is that the issue was not raised below until a post-trial motion. No authority is
cited by the State that a person can twice be put in jeopardy for the same offense so long as he does not
object until after trial. In fact, though, authority does exist that if a double jeopardy claim is not raised until
an appeal of the second conviction, the issue is waived. Peretz v. United States, 501 U.S. 923, 936
(1991), citing United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984), cert. denied sub nom.
Hobson v. United States, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985). On the other hand,
certain allegations of errors affecting fundamental constitutional rights may be excepted from procedural
bars that otherwise prohibit their consideration. Bevill v. State, 669 So.2d 14, 17 (Miss. 1996)
(procedural bars erected by post conviction relief statute inapplicable to violations of due process). The
supreme court held that "the procedural bar should be excepted" when a defendant raised a double
jeopardy issue for the first time on appeal. Greenwood v. State, 744 So.2d 767, 770 (Miss. 1999). The
"should be excepted" language may not constitute a holding that the bar always is to be lowered. Even so,
we lower the bar here. Being twice in jeopardy for the same offense might easily also constitute plain error.

¶21. Since the point was raised before the trial court, albeit only in a post-trial motion, we consider the
issue. We first examine the meaning of "double jeopardy":
     Double jeopardy protects against a second prosecution for the same offense after acquittal, against a
     second prosecution for the same offense after conviction, and against multiple punishments for the
     same offense. White v. State, 702 So.2d 107, 109 (Miss.1997). "Where the two offenses for which
     the defendant is punished or tried cannot survive the same elements test, the double jeopardy bar
     applies ....[t]he same elements test, sometimes referred to as the 'Blockburger' test, inquires whether
     each offense contains an element not contained in the other; if not, they are the 'same offense' and
     double jeopardy bars additional punishment and successive prosecution." Id. (quoting United States
     v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556, (1993)). Even though there may
     be a substantial overlap in the proof supporting the convictions of the different crimes, the
     Blockburger test is met where each offense requires proof of an element not necessary to the other.

Greenwood, 744 So.2d at 770.

¶22. What must not be overlooked, however, is that this is not an exercise in abstraction. Double jeopardy
is not proven just because generically all the elements of one criminal code offense are also contained in
another. The same conduct of the accused must be used to prove those elements for each offense. This
point is at its starkest when an accused commits the same offense against two different people, such as
assaulting one person then assaulting another. Those certainly may be charged as two offenses even though
the elements of each are identical. It is necessary then to consider each of the charges here and determine
whether the same acts by Brooks are being used to prove each, and if so, whether each offense contains at
least one element that is not in the other charge. Double jeopardy does not arise merely because much of
the same proof is introduced to support the multiple convictions. Some or a substantial overlap of evidence
for different crimes that occur at the same time is almost inevitable. Id.; Bannister v. State, 731 So.2d
583, 586 (Miss. 1999).

¶23. For the simple assault conviction in municipal court, this had to be proven:

     [A] person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly
     causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly
     weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical
     menace to put another in fear of imminent serious bodily harm . . . .

Miss Code Ann. § 97-3-7(2)(b) (Supp.1999).

¶24. For armed robbery, this must be proven:

     Every person who shall feloniously take or attempt to take from the person or from the presence the
     personal property of another and against his will by violence to his person or by putting such person in
     fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery .
     ...

Miss.Code Ann. § 97-3-79 (Rev. 1994).

¶25. As our earlier recitation of the facts indicated, Brooks and his co-indictee Safford had two different
encounters with Trussell. One was when Safford displayed a gun and insisted upon the relinquishment of all
of Trussell's valuables. That was the armed robbery, for which Brooks was indicted as an aider and
abettor. An exhibit that Brooks introduced for the post-trial motion on this issue revealed that the simple
assault conviction in municipal court was for hitting Trussell in the head with his fist. A few minutes after the
robbery, Brooks hit Trussell because this victim refused to drive the two criminals away. The State could
prosecute Brooks for these two different offenses, separated by several minutes even if both occurred in the
same vehicle during the same continuing criminal scheme. Aiding and abetting an armed robbery and then
hitting the same victim when he would not assist in the getaway are simply different incidents arising out of
the same altercation.

¶26. Moreover, there is case law that the same act can support both an aggravated assault and an
attempted armed robbery charge. Greenwood, 744 So. 2d at 770. The court found no double jeopardy
violation. Id. at 771. However, we need not discuss the relationship between simple assault and armed
robbery since here separate acts occurred to prove each crime.

¶27. The final charge was for attempted kidnapping, which required this proof:

      Any person who shall without lawful authority forcibly seize and confine any other person, or shall
      inveigle or kidnap any other person with intent to cause such person to be secretly confined or
      imprisoned against his or her will . . . .

Miss. Code Ann. § 97-3-53 (Rev. 1994). Proving an attempt requires an overt act towards commission
but a failure to complete the offense. Miss. Code Ann. § 97-1-7 (Rev. 1994).

¶28. The simple assault on Trussell was a reaction to the failure of the kidnapping, not a part of it. After the
attempt at the point of a gun failed, each frustrated kidnapper then slugged Trussell and immediately got out
of the car as opposed to insisting again that Trussell drive them. Those two offenses were therefore distinct.
See also Greenwood, 744 So.2d at 771 ("Moreover, an overt act toward the commission of one crime
can constitute a separate independent crime").

      Issue 3: Weight and sufficiency of the evidence

¶29. Brooks asserts that the jury's verdict was against the overwhelming weight of the evidence, or worse,
that the State failed to produce sufficient evidence to support the two convictions.

¶30. A new trial should not be ordered because of evidentiary imbalance unless the verdict is so contrary to
the overwhelming weight of the evidence that upholding it would be an unconscionable injustice.
Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). The jury is obligated to resolve the conflicts in
the testimony and decide the weight of the resulting evidence that they credit. Gandy v. State, 373 So. 2d
1042, 1045 (Miss. 1979). We perceive from our review no difficulty arising to injustice of any sort in how
that assessment was made here.

¶31. In evaluating the sufficiency of the evidence, the court must consider all the evidence and the
reasonable inferences that arise in the light most favorable to the State. Harrell v. State, 583 So. 2d 963,
964 (Miss. 1991). Only if reasonable and fair-minded jurors could not find the accused guilty of one or
more elements of the offense charged may we reverse and order the accused discharged. Fisher v. State,
481 So. 2d 203, 212 (Miss. 1985).

¶32. The eyewitness testimony asserted that Brooks was near the victim during the attempted robbery,
climbed into his car with the effect of intimidating him, was prepared to leave with the victim, and delivered
the first blow when the kidnapping attempt was frustrated. This fully supported the jury's verdict of guilty on
both counts.

¶33. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTIONS
OF ARMED ROBBERY AND ATTEMPTED KIDNAPPING AND SENTENCES OF SIX
YEARS EACH TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO JACKSON COUNTY.




     McMILLIN, C.J., LEE, MOORE, PAYNE, AND THOMAS, JJ., CONCUR. BRIDGES,
     J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, P.J., AND
     IRVING, J. MYERS, J., NOT PARTICIPATING.
