      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2014-KA-01794-COA

ROGER DALE CRAIG A/K/A ROGER CRAIG                    APPELLANT

v.

STATE OF MISSISSIPPI                                   APPELLEE

DATE OF JUDGMENT:              09/11/2014
TRIAL JUDGE:                   HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:     QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:       OFFICE OF STATE PUBLIC DEFENDER
                               BY: GEORGE T. HOLMES
                                     ERIN ELIZABETH PRIDGEN
ATTORNEYS FOR APPELLEE:        OFFICE OF THE ATTORNEY GENERAL
                               BY: JEFFREY A. KLINGFUSS
                                    JASON L. DAVIS
DISTRICT ATTORNEY:             BRENDA FAY MITCHELL
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I,
                               MANSLAUGHTER WITH A FIREARM
                               ENHANCEMENT, AND SENTENCED TO
                               TWENTY YEARS, WITH FIFTEEN YEARS
                               TO SERVE AND FIVE YEARS
                               SUSPENDED, AND TO FIVE ADDITIONAL
                               YEARS FOR THE FIREARM
                               ENHANCEMENT; COUNT II, ATTEMPTED
                               AGGRAVATED ASSAULT, AND
                               SENTENCED TO TWENTY YEARS WITH
                               FIVE YEARS SUSPENDED; AND COUNT
                               III, CARRYING A CONCEALED WEAPON,
                               AND SENTENCED TO SIX MONTHS;
                               WITH THE SENTENCE IN COUNT I TO
                               RUN CONSECUTIVELY TO ANY
                               SENTENCE PREVIOUSLY IMPOSED, AND
                               WITH THE SENTENCES IN COUNTS II
                               AND III TO RUN CONCURRENTLY WITH
                               THE SENTENCE IN COUNT I, ALL IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS
DISPOSITION:                                 AFFIRMED IN PART, REVERSED AND
                                             RENDERED IN PART - 09/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GREENLEE, J., FOR THE COURT:

¶1.    This is an appeal from a criminal conviction in Quitman County Circuit Court. On

June 27, 2013, Roger Dale Craig fired one shot at David “Dusty” Wayne Smith III inside a

combination service station and fast-food restaurant in Marks, Mississippi. The gunshot was

fatal to Smith. Multiple bystanders were present on both the service and restaurant sides of

the business. The lone bullet landed in the vicinity of Andrew Corey Autman, who was on

the floor in the restaurant. Craig was charged with Smith’s murder, a firearm enhancement,

attempted aggravated assault on Autman, and carrying a concealed weapon. Craig was

convicted of manslaughter with the firearm enhancement, attempted aggravated assault, and

carrying a concealed weapon. At trial, the State used a theory of transferred intent for the

attempted aggravated assault against Autman. Autman was untouched and physically

unharmed. On appeal, Craig asserts the trial court erred by not granting his motion for a

judgment notwithstanding the verdict (JNOV) on the attempted-aggravated-assault

conviction and by granting the transferred-intent jury instruction. We reverse and render on

the conviction of attempted aggravated assault. In all other respects, we affirm the trial circuit

court’s judgment.

                                Facts and Proceedings Below

¶2.    Craig and Smith had a history of conflict. Several witnesses testified that Smith had


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made multiple threats against Craig before the shooting that killed Smith. On June 27, 2013,

Craig drove onto the parking lot of a combined gas station and restaurant, crossing in front

of Smith’s parked vehicle. Craig and Smith then had a verbal exchange from their vehicles

in the parking lot. Smith exited his vehicle, stepping towards Craig’s vehicle. Craig then

drove to the other side of the parking lot, parking in the front of the store. Smith got into his

pickup, then exited the parking lot. Craig reentered his pickup, leaving in the same direction

as Smith. Craig then came back to the service station. Craig exited his pickup, entering the

store. He had a revolver in a scabbard in his pocket. Smith decided to turn his pickup around,

even though his passengers protested, driving to the service station in search of Craig.

¶3.    Smith parked by the station’s pumps. Smith then walked into the store toward Craig,

challenging Craig to an altercation. Craig moved away from Smith, warning Smith that he

had a gun, and that he would shoot Smith. Craig drew a revolver while Smith intentionally

followed Craig around a display in the store. Smith told Craig that he was not fearful of the

pistol. As Smith closed in on Craig, Craig fired a single shot, hitting Smith in the abdomen.

The bullet exited Smith’s back, coming to rest on the floor of the restaurant area. Hearing the

shot, Autman took cover on the floor, near the location of the bullet’s resting place. The

bleeding Smith walked to his pickup, and drove away. Smith later died at the local hospital.

¶4.    At trial, Autman testified that he “heard the bullet come by [him],” that the bullet was

two steps away from him, and that he dove to the ground after hearing the shot. He further

testified that his diving caused him to be closer to the resting bullet than to the path of the

bullet. Autman was asked if he was in the line of fire. He testified, “In a way, sir. A bullet



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[does]n’t have [a] name, you know. Like I said, I heard it when it c[a]me by me. So the way

I see it, I was still in the crossfire, too. I could have been shot, too.” Craig testified that he

neither knew Autman, nor was aware of his presence in the store the day of the incident.

Further, Craig testified that he had no intention to harm Autman when he fired his gun.

¶5.    The court instructed the jury on murder, and the lesser included offense of

manslaughter. The court also instructed the jury on self-defense. Further, the court instructed

the jury on aggravated assault and gave a transferred-intent instruction.

¶6.    The jury found Craig guilty of manslaughter with a firearm enhancement for killing

Smith, attempted aggravated assault of Autman, and carrying a concealed weapon. Craig

moved for a new trial or, in the alternative, a JNOV. The trial court denied Craig’s motion.

                                          Discussion

¶7.    On appeal, Craig only challenges his conviction for attempted aggravated assault on

the bystander, Autman. Craig asserts the trial court erred in denying his motion for a JNOV

on that conviction because the evidence was insufficient to sustain a conviction of attempted

aggravated assault. Further, he asserts that the trial court erred in giving a transferred-intent

jury instruction because it was an improper statement of the law. The crux of Craig’s appeal

is whether, under Mississippi law, the doctrine of transferred intent is applicable where the

intended victim is injured but the unintended victim is unharmed.

¶8.    Questions of law are reviewed de novo. Bester v. State, 188 So. 3d 526, 528 (¶4)

(Miss. 2016) (citing Twillie v. State, 892 So. 2d 187, 189 (¶6) (Miss. 2004)).

       I.      Attempted Aggravated Assault



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¶9.      Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014) states that a person

is guilty of aggravated assault if he “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 . . . .” (emphasis added). “An attempt to commit a crime consists of three

elements: (1) an intent to commit a particular crime[,] (2) a direct ineffectual act done toward

its commission[,] and (3) the failure to consummate its commission.” Brooks v. State, 18 So.

3d 833, 841 (¶33) (Miss. 2009) (citing Hughes v. State, 983 So. 2d 270, 278 (¶28) (Miss.

2008); Miss. Code Ann. § 97-1-7 (Rev. 2006)). To establish the intent necessary to prove the

attempted aggravated assault against Autman, the trial court allowed the jury to consider the

theory of transferred intent.

¶10.     In its order denying Craig’s motion for a JNOV or, in the alternative, a new trial, the

trial court cited Commonwealth v. Thompson, 739 A.2d 1023 (Pa. 1999), and State v. Elmi,

207 P.3d 439 (Wash. 2009), as persuasive authority to support applying the transferred-intent

theory to Craig for the attempted-aggravated-assault charge. We decline to follow these

cases.

¶11.     In Thompson, the appellant was charged with, among other things, aggravated

assault.1 Similar to Mississippi, Pennsylvania’s aggravated-assault statute both defines

assault and includes attempt as one of the ways in which a person may be found guilty of



         1
        In Pennsylvania, “a person is guilty of aggravated assault if he . . . attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the value of human life . . . [or]
attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly
weapon.” 18 Pa. Cons. Stat. § 2702(a)(1), (4) (Rev. 2014).

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aggravated assault. Pennsylvania has a separate statute defining attempt.2 Under

Pennsylvania law, the requisite intent of a person charged under the attempt provision of the

aggravated-assault statute is determined under a totality-of-the-circumstances test with a list

of nonexhaustive factors given, to be considered on a case-by-case basis.3 Com. v. Jackson,

955 A.2d 441, 446 (¶15) (Pa. Super. Ct. 2008) (citing Com. v. Alexander, 383 A.2d 887 (Pa.

1978)). We further note that Washington has a different statutory scheme for assault than

Mississippi.4

       II.      Transferred Intent

¶12.   Under the doctrine of transferred intent, “the malicious intent of the unlawful act

directed toward one person is transferred to the other person.” Dobbins v. State, 766 So. 2d

29, 33 (¶11) (Miss. Ct. App. 2000) (quoting Ross v. State, 158 Miss. 827, 832, 131 So. 367,

368 (1930)). “The doctrine is applicable to the crime of assault. Thus if A, intending to strike



       2
          The Pennsylvania Code provides that “[a] person commits an attempt when, with
intent to commit a specific crime, he does any act which constitutes a substantial step toward
the commission of that crime.” 18 Pa. Cons. Stat. § 901(a) (Rev. 2016).
       3
         “The list included evidence of a significant difference in size or strength between
the defendant and the victim, any restraint on the defendant preventing him from escalating
the attack, the defendant’s use of a weapon or other implement to aid his attack, and
statements or actions that might indicate his intent to inflict injury.” Jackson, 955 A.2d at
446 (¶15).
       4
         Washington’s assault statutes do not define assault. “Washington recognizes three
common law definitions of assault: 1) an unlawful touching (actual battery)[,] 2) an attempt
with unlawful force to inflict bodily injury upon another, tending but failing to accomplish
it (attempted battery)[,] and 3) putting another in apprehension of harm.” State v. Abaun, 257
P.3d 1, 10 (¶37) (Wash. Ct. App. 2011). Further, “under the common law specific intent
either to create apprehension of bodily harm or to cause bodily harm is an essential element
of assault in the second degree.” Id.

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B, misses him and strikes C, or if mistaking C for B, he strikes him, he is in either case guilty

of an assault and battery on C.” Hitt v. State, 988 So. 2d 939, 942 (¶12) (Miss. Ct. App. 2008)

(quoting Jones v. State, 6 So. 231, 232 (Miss. 1889)). The State asserts, and the trial court

agreed, that transferred intent can also be applied where the intended victim (Smith) is killed

and the unintended victim (Autman) is unharmed. Whether the transferred-intent doctrine can

be applied to establish the requisite intent for an attempted assault against an unintended,

unharmed victim is at issue before the Court.

¶13.   In Thompson, the appellant was aware of the unharmed, unintended victim’s presence

and fired numerous rounds at a group of three individuals that included the unharmed,

unintended victim, as well as the intended and actual victim. Thompson, 739 A.2d at 1027.

The unintended victim was forced to run in a zig-zag pattern to avoid being hit by the

appellant’s bullets. Id. The unintended victim was in such fear of harm that he initially

thought that he had been shot, and only upon realizing that he was, in fact, not shot, did he

seek cover. Id. The appellant, after hitting his intended victim, continued by standing over

the intended victim and firing multiple rounds into his head and torso. Id. In addition to

murder, the appellant was charged with attempted aggravated assault on the unintended

victim, and the commonwealth used the theory of transferred intent to establish the requisite

intent. We note that the Pennsylvania Supreme Court’s application of transferred intent in

Thompson has come under heavy criticism by an intermediate appellate court from that state.

Jackson, 955 A.2d at 450 n.6; Com. v. Pace, No. 116 EDA 2014, 2015 WL 7458814, at *8

n.1 (Pa. Super. Ct. Mar. 24, 2015).



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¶14.   In Elmi, the appellant fired multiple shots through the intended victim’s living room

window while standing roughly ten feet away. Elmi, 207 P.3d at 441 (¶2). The intended

victim and three small children, the unintended and uninjured victims, were all in the living

room. Id. Further, the children were in clear apprehension of fear of being harmed. Id. at (¶3)

(“The [911] operator could hear children screaming in the background and, at one point, a

child’s voice saying someone was going to kill mommy.”). The appellant was convicted

under Washington’s first-degree-assault statute for several counts relating to the children.5

¶15.   Two years later, the Washington Court of Appeals declined to extend Elmi in State

v. Abaun, 257 P.3d 1, 12 (¶¶48-49) (Wash. Ct. App. 2011). In Abaun, the appellant fired

several rounds into the attached garage of a residence with the unintended, unharmed victim

in the house. He was charged under Washington’s second-degree-assault statute.6 There was

no evidence that the appellant knew the unintended victim was in the house or that the

appellant intended to fire the gun at the unintended victim; all the shots were fired at the

garage, not the house; and there was no evidence that the unintended victim apprehended any

fear of harm. Id. at 12-13 (¶¶49-51). The Abaun court specifically noted that the Elmi

appellant’s actions put the unintended victims, the small children, in apprehension of bodily

harm, thus meeting the actus reus element of Washington’s common-law form of assault. Id.


       5
        “A person is guilty of assault in the first degree if he or she, with intent to inflict
great bodily harm[,] . . . [a]ssaults another with a firearm or deadly weapon or by any force
or means likely to produce great bodily harm or death[.]” Wash. Rev. Code Ann. §
9A.36.011(1)(a) (West 2016).
       6
       “A person is guilty of assault in the second degree if he or she, under circumstances
not amounting to assault in the first degree[,] . . . [a]ssaults another with a deadly weapon[.]”
Wash. Rev. Code Ann. § 9A.36.021(1)(c) (West 2016).

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at 12 (¶45). The court reasoned that to extend the transferred-intent analysis from Elmi to the

situation in Abaun would mean “arguably anyone in the neighborhood who heard the

gunshots could be a victim of an assault by [the appellant].” Id. at (¶48).

¶16.   In the case at hand, only one shot was fired, and Autman was in the restaurant, a

different area of the building than Smith and Craig. Further, when asked if he was in the line

of fire, Autman could not answer in the affirmative. Autman also noted that his diving to the

floor caused him to be closer to where the bullet landed than where he was standing before

the shot was fired. Craig testified that he had neither any intent to harm Autman nor any

knowledge that Autman was even in the building. Further, no evidence was put forth at trial

that Autman had any fear of being harmed when the shot was fired.

¶17.   We find the factual scenario in Abaun far more analogous to the one now before us

than Elmi and Thompson and, like the court in Abaun, we are unwilling to extend the

transferred-intent doctrine to the case at hand. We decline to allow the doctrine of transferred

intent to apply in this particular situation. Here, the intended victim, Smith, was killed, while

the unintended victim, Autman, was not harmed. The defendant, Craig, had no intention to

harm Autman and was not aware of the Autman’s presence. Just one shot was fired, Autman

was in a different part of the building, and there was no evidence that Autman was in any

fear of harm. Further, to allow such an interpretation would be contrary to the requirement

of injury to the unintended victim, as the Mississippi Supreme Court has held that transferred

intent stands for the accidental striking of a person other than the one intended. Hitt, 988 So.

2d at 942 (¶12) (quoting Jones, 6 So. at 232). Therefore, we reverse the trial court on its



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application of the transferred-intent doctrine in this case.

¶18.   Furthermore, the Mississippi Code is explicit that there must be an injury nexus in an

assault case. Mississippi Code Annotated section 97-3-7(2)(a) provides four ways for the

State to prove that Craig committed an aggravated assault on Autman: (1) that Craig

attempted to cause serious bodily injury to Autman, (2) that Craig caused serious bodily

injury to Autman purposely, knowingly, or recklessly under circumstances manifesting

extreme indifference to the value of human life, (3) that Craig attempted to cause bodily

injury to Autman with a deadly weapon or other means likely to produce death or serious

bodily harm, or (4) that Craig purposely or knowingly caused bodily injury to Autman with

a deadly weapon or other means likely to produce death or serious bodily harm. Here,

Autman suffered no bodily injury, let alone any serious bodily injury. Thus, to prove

aggravated assault, the State must demonstrate that Craig attempted to cause either (1)

serious bodily injury to Autman, or (2) bodily injury to Autman with a deadly weapon or

other means likely to produce death or serious bodily harm. For an attempt crime, an intent

to commit the particular crime must be established. Brooks, 18 So. 3d at 841 (¶33) (citations

omitted).

¶19.   Thus, because no bodily injury occurred, the State must have established an

“unequivocal intent to cause serious bodily injury to [Autman]” in order to uphold Craig’s

attempted-aggravated-assault conviction. Hunter v. State, 2014-KA-00508-COA, 2015 WL

7438890, at *3 (¶15) (Miss. Ct. App. Nov. 24, 2015) (citations omitted). The record fails to

show that Craig intended to cause serious bodily harm to Autman. Therefore, we reverse and



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render Craig’s conviction for attempted aggravated assault.

                                       Conclusion

¶20.   We reverse and render the Quitman County Circuit Court’s judgment on the

conviction of Craig for the attempted aggravated assault of Autman. On the remaining

counts, we affirm.

¶21. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF
CONVICTION ON COUNT II IS REVERSED AND RENDERED. FOR ALL
REMAINING COUNTS, THE JUDGMENT IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO QUITMAN COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES
AND WILSON, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.




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