       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2014-KA-01327-COA

MAURICE TOWNSEND                                                      APPELLANT

v.

STATE OF MISSISSIPPI                                                    APPELLEE


DATE OF JUDGMENT:                      08/19/2014
TRIAL JUDGE:                           HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:             LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:               RALPH STEWART GUERNSEY
                                       CARNELIA PETTIS FONDREN
ATTORNEY FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL
                                       BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                     BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                    CRIMINAL - FELONY
TRIAL COURT DISPOSITION:               CONVICTED OF SIMPLE ASSAULT ON A
                                       LAW ENFORCEMENT OFFICER AND
                                       SENTENCED TO FIVE YEARS IN THE
                                       CUSTODY OF THE MISSISSIPPI
                                       DEPARTMENT OF CORRECTIONS, WITH
                                       ONE YEAR TO SERVE, FOUR YEARS
                                       SUSPENDED, AND FOUR YEARS OF
                                       POSTRELEASE SUPERVISION
DISPOSITION:                           AFFIRMED - 04/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CARLTON, J., FOR THE COURT:

¶1.   A Lafayette County jury found Maurice Townsend guilty of simple assault on a law
enforcement officer. See Miss. Code Ann. § 97-3-7(1) (Supp. 2011).1 The circuit court then

sentenced Townsend to five years in the custody of the Mississippi Department of

Corrections (MDOC), with one year to serve, four years suspended, and four years of

postrelease supervision. On appeal from his conviction and sentence, Townsend raises the

following issues: (1) whether his indictment was fatally defective; (2) whether Mississippi

should extend the holding of Batson v. Kentucky, 476 U.S. 79 (1986), to ensure the inclusion

of minorities on juries; and (3) whether the circuit court erred by dismissing for cause certain

potential jurors. Finding no error, we affirm.

                                           FACTS

¶2.    On November 27, 2011, Townsend visited The Locker Room Bar in Oxford,

Mississippi, with his wife and aunt. Around midnight, The Locker Room stopped serving

alcohol, and the bouncers began collecting patrons’ drinks. Danny Thomas, one of the

bouncers, testified that he took away Townsend’s drink and that Townsend became upset.

As a result of Townsend’s reaction, Thomas and another bouncer escorted Townsend from

the building.

¶3.    Officer David Sabin testified that, on the night in question, he was on duty working

for the Oxford Police Department’s DUI unit and alcohol task force. Officer Sabin

responded to complaints that The Locker Room was selling alcohol after legal serving hours.



       1
         Since Townsend’s arrest, the assault statute has been amended. However, the
substance of simple assault, aggravated assault, and the enhanced penalty remain the same.
Unless otherwise stated, all statutory references in this opinion use the subsections from the
statutory version in effect on November 27, 2011, the night of Townsend’s arrest. See Miss.
Code Ann. § 97-3-7 (Supp. 2011).

                                               2
According to Officer Sabin’s testimony, he arrived at The Locker Room in his marked patrol

car, which clearly stated “City of Oxford Police.” Furthermore, Officer Sabin testified that

he was dressed in his police uniform.

¶4.    Upon arriving at The Locker Room, Officer Sabin observed a large unruly crowd

standing outside the door of the bar. Officer Sabin testified that he saw two bouncers trying

to escort Townsend from the building. Officer Sabin testified that Townsend was fighting

with the bouncers and was kicking, screaming, cursing, and trying to spit on the bouncers.

¶5.    By the time the bouncers finally ejected Townsend, Officer Sabin had reached the

entryway of The Locker Room. Officer Sabin testified that Townsend appeared intoxicated

and continued to yell, scream, and curse. As he instructed Townsend not to reenter the

premises, Officer Sabin testified that someone behind him grabbed his right arm. Officer

Sabin saw a female, later identified as Townsend’s aunt, with her hand on his arm. Officer

Sabin testified that he removed the woman’s hand from his arm and turned back to face

Townsend. According to Officer Sabin’s testimony, Townsend then pushed Officer Sabin

backward, and Townsend began screaming that Officer Sabin could not touch his aunt or

speak to her.

¶6.    Officer Sabin testified that he attempted to arrest Townsend. However, Officer Sabin

stated that Townsend punched him in the chest, and then Townsend tried to choke him.

Although the bouncer, Thomas, failed to witness the entire exchange between Townsend and

Officer Sabin, the record reflects that Thomas’s testimony corroborates Officer Sabin’s

testimony. Thomas testified that he witnessed Townsend with his hands around Officer



                                             3
Sabin’s throat.

¶7.    Officer Sabin further testified that he and Townsend fell to the ground as they

continued to struggle. Officer Sabin instructed Thomas and another bouncer, who were

trying to assist him, to back away, and Officer Sabin used his mace on Townsend. Officer

Sabin testified that the mace appeared to have no effect on Townsend, who continued to

scream and fight. At that point, Officer Sabin testified that he struck Townsend in the chest

to put distance between himself and Townsend. Townsend then tried to run away, and

Officer Sabin chased him.

¶8.    Officer Sabin further testified that, all during these events, he repeatedly told

Townsend he was under arrest. When Officer Sabin caught up to Townsend, he ordered

Townsend to get on the ground. However, Officer Sabin testified that Townsend refused and

that Townsend again attempted to punch him. Officer Sabin stated that he sprayed his mace

in Townsend’s face, and he was then finally able to subdue Townsend. Backup officers

arrived and helped Officer Sabin secure Townsend. Once emergency responders medically

cleared Townsend, the officers escorted Townsend to jail.

¶9.    A grand jury indicted Townsend for aggravated assault on a police officer. See Miss.

Code Ann. § 97-3-7(2) (Supp. 2011). Following the evidence and testimony presented

during the trial, a jury convicted Townsend of simple assault on a law enforcement officer.

The circuit court then sentenced Townsend to five years in MDOC’s custody, with one year

to serve, four years suspended, and four years of postrelease supervision. Following his

conviction and sentencing, Townsend filed an unsuccessful motion for a judgment



                                             4
notwithstanding the verdict. Aggrieved, Townsend appeals his conviction and sentence.

                                          DISCUSSION

         I.     Whether Townsend’s indictment was fatally defective.

¶10.     Townsend first asserts that his indictment was fatally defective because it omitted an

essential element of the crimes of aggravated assault on a law enforcement officer and simple

assault on a law enforcement officer. This Court reviews de novo the question of whether

an indictment is fatally defective. See Tucker v. State, 47 So. 3d 135, 137-38 (¶8) (Miss.

2010).

¶11.     Townsend’s indictment charged him with aggravated assault on a law enforcement

officer under section 97-3-7(2). In pertinent part, section 97-3-7(2) states:

         A person is guilty of aggravated assault if he . . . attempts to cause serious
         bodily injury to another, or causes such injury purposely, knowingly[,] or
         recklessly under circumstances manifesting extreme indifference to the value
         of human life . . . . [A] person convicted of aggravated assault . . . upon a . . .
         law enforcement officer . . . acting within the scope of his duty, office[,] or
         employment . . . shall be punished by a fine of not more than Five Thousand
         Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or
         both.

¶12.     For the crime of aggravated assault on a law enforcement officer, the State needed to

prove that Townsend “(1) committed [aggravated] assault, (2) on a law enforcement officer,

(3) while the law enforcement officer was acting within the scope of his duty, office, or

employment.” Bates v. State, 172 So. 3d 805, 808 (¶13) (Miss. Ct. App. 2014) (citation and

internal quotation marks omitted).2 See also Wilson v. State, 936 So. 2d 357, 364 (¶19)



         2
         The record reflects that the jury instructions required the jury to find Townsend
guilty of all the statutory elements beyond a reasonable doubt.

                                                 5
(Miss. 2006) (recognizing that “aggravated assault and simple assault are carbon copies of

each other, with the exception that aggravated assault requires the use of a deadly weapon.”

(citing Hutchinson v. State, 594 So. 2d 17, 19 (Miss. 1992))).

¶13.   On appeal, Townsend argues his indictment was defective because it failed to state

that Officer Sabin was “acting within the scope of his duty, office[,] or employment” when

the alleged assault occurred. See Miss. Code Ann. § 97-3-7(2). Our caselaw recognizes that

“[t]he primary purpose of an indictment is to notify an accused of the charges against him

. . . to allow him to prepare an adequate defense.” Brown v. State, 944 So. 2d 103, 106 (¶8)

(Miss. Ct. App. 2006) (citing Evans v. State, 916 So. 2d 550, 551 (¶5) (Miss. Ct. App.

2005)). “This simply means that an indictment must provide the accused with ‘a concise and

clear statement of the elements of the crime’ with which the accused is actually charged.”

Id. (quoting Evans, 916 So. 2d at 551-52 (¶5)). Precedent further establishes that “[a]n

indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts

to fairly inform the defendant of the charge against which he must defend, and (3) sufficient

facts to enable him to plead double jeopardy in the event of a future prosecution for the same

offense.” Gilmer v. State, 955 So. 2d 829, 836-37 (¶24) (Miss. 2007) (citations omitted).

¶14.   In Moss v. State, 752 So. 2d 427, 429-30 (¶¶7-8) (Miss. Ct. App. 1999), the defendant

alleged that his indictment failed to include the proper language to charge him with

aggravated assault on a law enforcement officer. In discussing Moss’s argument, this Court

recognized that, “if from a reading of the indictment as a whole the accused is in fact given

fair notice of that with which he has been charged, the indictment is legally sufficient.” Id.



                                              6
at (¶7) (quoting Harbin v. State, 478 So. 2d 796, 799 (Miss. 1985)). This Court found that

Moss’s indictment followed the statutory language for the crime of aggravated assault on a

law enforcement officer and sufficiently notified Moss of the offense charged. Id. at 430

(¶8). As a result, we found no merit to Moss’s assertions. Id. at (¶9).

¶15.   In the present case, the record reflects that the heading of Townsend’s indictment

plainly stated that Townsend was being charged with aggravated assault on a law

enforcement officer under section 97-3-7(2).         Furthermore, the body of Townsend’s

indictment stated:

       Maurice Townsend . . . on or about the 27th of November, 2011, . . . did
       purposely, knowingly[,] or recklessly, under circumstances manifesting
       extreme disregard for human life, attempt to cause serious bodily injury to
       Officer David Sabin, a law enforcement officer, in violation of the provisions
       of [s]ection 97-3-7(2) . . . , which offense is punishable by a fine of not more
       than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than
       thirty (30) years, or both, contrary to the form of the statute in such cases made
       and provided and against the peace and dignity of the State of Mississippi.

¶16.   Upon review, we find the indictment clearly notified Townsend of the crime and the

statutory section being charged. Both the heading and the body of the indictment provided

that Townsend was being charged with aggravated assault on a law enforcement officer

under section 97-3-7(2) and that the maximum prison term for the crime was thirty years.

In addition, the language of the indictment tracked the statutory language of section 97-3-

7(2). A reading of the indictment as a whole gave Townsend fair notice of the charge against

him so he could prepare an adequate defense and avoid unfair surprise or the threat of double

jeopardy. See Gilmer, 955 So. 2d at 836-37 (¶24); Brown, 944 So. 2d at 106 (¶8); Moss, 752

So. 2d at 429-30 (¶7). As a result, we find no merit to Townsend’s argument that his

                                               7
indictment was fatally defective.

       II.    Whether Mississippi should extend the holding of Batson to ensure
              the inclusion of minorities on juries.

       III.   Whether the circuit court erred by dismissing for cause certain
              potential jurors.

¶17.   In raising his next issues, Townsend concedes that the circuit court followed the

principles established in Batson during the jury-selection process. However, Townsend still

asserts on appeal that, “[u]nder its own laws, rules[,] and statutes, the [S]tate of Mississippi

should extend the reach of Batson to [e]nsure inclusion of minorities on juries.”

Furthermore, Townsend argues that the circuit court abused its discretion by striking for

cause two potential jurors, one of whom was African American, because they stated they

would not listen to the evidence presented. According to Townsend, by strictly applying

Batson and striking these two potential jurors, the circuit court allowed “an all[-]white jury

[to be] seated to try an African American defendant.”

¶18.   Our precedent establishes that the appellate court “gives deference to the trial court’s

decision to exclude a juror for cause, and we will not disturb the trial court’s decision unless

there was an abuse of discretion.” Batiste v. State, 121 So. 3d 808, 850 (¶91) (Miss. 2013)

(citation omitted). This Court has previously acknowledged:

       A juror who may be removed on a challenge for cause is one against whom a
       cause for challenge exists that would likely affect his competency or
       impartiality at trial. The [supreme court] has stated that[,] if the evidence is
       conflicting on the question of whether or not the defendant could receive a fair
       and impartial trial, deference will be given to the considered opinion of the
       trial judge.

Ross v. State, 16 So. 3d 47, 54 (¶10) (Miss. Ct. App. 2009) (internal citations and quotation


                                               8
marks omitted).

¶19.   During voir dire, the State asked the potential jurors, “Is there anybody here [who] just

doesn’t want to be here bad enough that you won’t listen, that you may not pay attention in

the jury room with your fellow jurors?” In response, Juror 21, Carl Lyons, and Juror 45,

Christine Blakely, answered affirmatively. The State then followed up with each of the two

jurors. The State asked Lyons, “Is that feeling so strong in you that you won’t pay attention

when witnesses testify?” Lyons again answered affirmatively. The State then asked Blakely,

“Because of your work or whatever it is that is distracting you, are you telling us that you

can’t pay attention enough to be able to make a decision based on things that you hear in a

courtroom?” In response, Blakely stated, “Yes, sir.”

¶20.   While selecting the jury, the State challenged both Lyons and Blakely for cause.

Townsend’s attorney objected and said, “Your Honor, normally, I would not have any

objection, but this panel is few and far between African Americans, . . . and we would object

that Mr. Lyons should be struck for cause for that reason.” When asked about striking

Blakely, Townsend’s attorney said her objection was the same as it had been to the challenge

against Lyons. In both instances, however, the circuit court granted the State’s challenges

for cause because the two jurors had stated they would not pay attention to the evidence

presented.

¶21.   Upon review of the record and relevant caselaw, we find no merit to Townsend’s

arguments. Townsend concedes that the circuit court followed the procedure established in

Batson. Furthermore, we decline to do as Townsend urges and “extend the reach of



                                              9
Batson[.]”

¶22.   In addition, we find no abuse of discretion from the circuit court’s dismissal for cause

of the two potential jurors, Lyons and Blakely. Although Townsend claims the circuit court’s

removal of Lyons resulted in an all-white jury trying the case of an African American

defendant, this Court has specifically rejected the notion that a defendant is entitled to “a

specific racial and gender composition in the selected jury.” See Ross, 16 So. 3d at 58 (¶28)

(citing Le v. State, 913 So. 2d 913, 924 (¶21) (Miss. 2005) (overruled on other grounds));

Gathings v. State, 822 So. 2d 266, 272 (¶21) (Miss. 2002). Also, as the record reflects, both

Lyons and Blakely stated they either would not or could not pay attention to the evidence

presented at trial. As our caselaw clearly provides, a juror may be removed for cause when

his competency is likely to be affected. See Ross, 16 So. 3d at 54 (¶10). For these reasons,

we find no abuse of discretion resulting from the circuit court’s dismissal of the two potential

jurors for cause. Accordingly, we find these arguments lack merit.

¶23. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER
AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH ONE YEAR TO SERVE, FOUR
YEARS SUSPENDED, AND FOUR YEARS OF POSTRELEASE SUPERVISION, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE
COUNTY.

       IRVING AND GRIFFIS, P.JJ., ISHEE AND GREENLEE, JJ., CONCUR.
JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE,
C.J., BARNES, FAIR AND WILSON, JJ.

       JAMES, J., DISSENTING:

¶24.   I respectfully dissent. Townsend’s indictment omitted an essential element of the



                                              10
crime of aggravated assault of a law-enforcement officer in violation of Mississippi Code

Annotated section 97-3-7(2) (Supp. 2011). Due to this error, the indictment was insufficient

to charge Townsend for that crime. Accordingly, I would reverse and remand with

instructions consistent with this opinion.

                                        DISCUSSION

¶25.   The question of whether an indictment is fatally defective is an issue of law and

deserves a relatively broad standard of review. Tucker v. State, 47 So. 3d 135, 137 (¶8)

(Miss. 2010) (citing Nguyen v. State, 761 So. 2d 873, 874 (¶3) (Miss. 2000)). Because the

question is an issue of law, the standard of review is de novo. Id. at 137-38 (¶8).

¶26.   Townsend argues that the indictment was fatally defective because it omitted an

essential element of the charged crime of aggravated assault of a law-enforcement officer

under section 97-3-7(2). Specifically, Townsend argues that his indictment was insufficient

because it omitted the element of “acting within the scope of his duty, office[,] or

employment.” See Miss. Code Ann. § 97-3-7(2). The State argues that Townsend waived

this argument because he has raised it for the first time on appeal. “However, it is settled that

objections to the sufficiency of an indictment may be raised for the first time on appeal.”

Williams v. State, 169 So. 3d 932, 935 (¶8) (Miss. Ct. App. 2014) (citing Tucker, 47 So. 3d

at 137 (¶8)).

¶27.   To be found guilty of simple assault of a law-enforcement officer, the State was

required to prove Townsend (1) committed simple assault, (2) on a law-enforcement officer,

(3) while the law-enforcement officer was acting within the scope of his duty, office, or



                                               11
employment. Bates v. State, 172 So. 3d 695, 696 (¶4) (Miss. 2015) (citing Miss. Code Ann.

§ 97-3-7(1)(b), (14)(a) (Rev. 2015)). Likewise, “while the law-enforcement officer was

acting within the scope of his duty, office[,] or employment” is an essential element of the

crime of aggravated assault of a law-enforcement officer under section 97-3-7(2).

¶28.   Townsend's indictment contained the heading “AGGRAVATED ASSAULT- Law

Enforcement Officer[.]” Under the heading, the indictment identified the specific statute,

Mississippi Code Annotated section 97-3-7(2), and noted the statutory maximum sentence

of thirty years. The indictment also provided in pertinent part:

       Maurice Townsend . . . on or about the 27th of November[] 2011 . . . did
       purposely, knowingly or recklessly under circumstances manifesting extreme
       disregard for human life, attempt to cause serious bodily injury to Officer
       David Sabin, a law enforcement officer, in violation of the provisions of
       Section 99-3-7(2) . . . which offense is punishable by a fine of not more than
       Five Thousand Dollars ($5,000.00) or by imprisonment for not more than
       thirty (30) years, or both contrary to the form of the statute in such cases made
       and provided and against the peace and dignity of the State of Mississippi.

¶29.   The essential element of “acting within the scope of his duty, office[,] or employment”

is obviously omitted from the indictment. See Miss. Code Ann. § 97-3-7(2).

¶30.   “The state and federal bill of rights guard the constitutional right to notice of criminal

charges.” Gales v. State, 131 So. 3d 1238, 1240 (¶10) (Miss. Ct. App. 2013) (citing Thomas

v. State, 126 So. 3d 877, 880 (¶7) (Miss. 2013); U.S. Const. amend. VI; Miss. Const. art. 3,

§ 26). While it is true that the “primary purpose of an indictment is to give a defendant fair

notice of the crime charged,” Williams, 169 So. 3d at 935 (¶9), the inquiry does not end there.

¶31.   “[A]n indictment must contain (1) the essential elements of the offense charged, (2)

sufficient facts to fairly inform the defendant of the charge against which he must defend,

                                              12
and (3) sufficient facts to enable him to plead double jeopardy in the event of a future

prosecution for the same offense.” Gilmer v. State, 955 So. 2d 829, 836-37 (¶24) (Miss.

2007) (emphasis added); see also Thomas, 126 So. 3d at 880 (¶7) (“All the authorities are to

the effect that an indictment, to be sufficient upon which a conviction may stand, must set

forth the constituent elements of a criminal offense.” (emphasis added)). The Mississippi

Supreme Court has repeatedly held that indictments based on statutory offenses are void if

they do not charge all essential elements of the statutory crime. Gales, 131 So. 3d at 1240

(¶10) (internal citations omitted).

¶32.   Townsend's indictment failed to include an essential element of the crime of

aggravated assault of a law-enforcement officer under section 97-3-7(2) by omitting the

element “within the scope of his duty, office[,] or employment.” Because the indictment

lacked a material essential element, it was legally insufficient to charge Townsend with

aggravated assault of a law-enforcement officer in violation of section 97-3-7(2).

¶33.   The plurality holds that the indictment gave fair notice of the charge against

Townsend. However, “[t]here is no acceptable substitute or cure in the law for an indictment

that omits the essential charging information.” White v. State, 851 So. 2d 400, 403 (¶5)

(Miss. Ct. App. 2003). Indeed, “the missing critical elements from an indictment may not

be supplied by proof presented at trial or by jury instructions that adequately set out the

essentials of the charged crime.” Id. at 404 (¶9).

¶34.   The plurality relies on Moss v. State, 752 So. 2d 427, 429-30 (¶¶7-8) (Miss. Ct. App.

1999), in support of its opinion. However, the indictment in Moss contained every essential



                                             13
element of aggravated assault of a law-enforcement officer, unlike Townsend’s indictment.

In Moss, this Court found:

       The indictment properly outlined and notified Moss that he was being indicted
       for aggravated assault upon a law enforcement officer. The indictment
       followed the language of the statute in stating Moss “purposely and knowingly
       caused bodily injury to Danny Henson, a law enforcement officer, a Town of
       Lambert, Mississippi, policeman, with a deadly weapon, a pistol, while such
       law enforcement officer was acting within the scope of his duty and office.”
       The language of the indictment was sufficient to notify Moss that he was being
       charged with the enhanced crime of aggravated assault upon a law
       enforcement officer.

Id. (emphasis added).

¶35.   In Gales, this Court reversed the defendant’s conviction and dismissed his indictment

because it did not contain all essential elements of the crime of burglary of a nondwelling.

Gales, 131 So. 2d at 1238-39 (¶¶1-2). This Court held: “[T]he failure to charge [the

defendant] with a crime cognizable under Mississippi law is a plain, constitutional error and

requires dismissal of the indictment and reversal of the conviction[.]” Id. at 1240 (¶11).

¶36.   Again, the Mississippi Supreme Court has emphasized that an indictment that fails to

allege all essential elements of a crime runs a foul of our constitutions and is void. Id. at

1239 (¶2) (citing Thomas, 126 So. 3d at 880 (¶7)). However, I would find that Townsend's

indictment was not entirely void because it properly charged him with every essential

element of the crime of aggravated assault under section 97-3-7(2). Because simple assault

is a lesser-included offense of aggravated assault, Townsend concedes that the jury properly

found him guilty of simple assault. I agree.

¶37.   Under the direct-remand rule, this Court may remand a case to the circuit court for



                                               14
sentencing on a lesser-included offense where the greater offense was not proven, but the

elements of the lesser-included offense were sufficiently met. Snowden v. State, 131 So. 3d

1251, 1259 (¶22) (Miss. Ct. App. 2014).

¶38.   Therefore, I would reverse Townsend’s judgment of conviction for simple assault of

a law-enforcement officer, vacate Townsend’s sentence for that charge, and remand this case

to the circuit court with instructions to sentence Townsend for basic simple assault, i.e., not

on a law-enforcement officer.

       LEE, C.J., BARNES, FAIR AND WILSON, JJ., JOIN THIS OPINION.




                                              15
