REPLY BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Jul :19: KA COA Pages: 7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LORI GRIFFIN APPELLANT v. No KA-1335-COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF THE APPELLANT Appeal from the Circuit Court of Lowndes County, Miss. No CR1K Justin T. Cook, MB # OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS jcook@ospd.ms.gov T: (601) F: (601) Attorney for the Appellant

2 TABLE OF CONTENTS Table of Contents... i Index of Authorities... i Reply Argument... 1 Reply Issue: There is no serious bodily injury in this case Conclusion... 4 Certificate of Service... 5 INDEX OF AUTHORITIES CASES Ames v. State, 17 So. 3d 130 (Miss. Ct. App. 2009)... 2 Bright v. State, 986 So. 2d 1042 (Miss. Ct. App. 2008)... 3 Brown v. State, 934 So. 2d 1039 (Miss. Ct. App. 2006)... 3 Fleming v. State, 604 So.2d 280 (Miss. 1992)... 2 Truelove v. State, 78 So.3d 363 (Miss. Ct. App. 2011)... 2 Williams v. State, 126 So. 3d 992 (Miss. Ct. App. 2013)... 2 OTHER AUTHORITIES Model Penal Code (1980)... 2 i

3 REPLY ARGUMENT Reply Issue: There is no serious bodily injury in this case. In its analysis in Issues III and IV, the State argues that the prosecution presented sufficient evidence to support Griffin s conviction and that her conviction is not against the overwhelming weight of the evidence. (Brief of the Appellee pp ). The State s argument is misplaced and not supported by the law of this State or the facts in this case. In this case, Griffin s indictment alleged, in pertinent part, that she did unlawfully, willfully, and feloniously, purposely and knowingly cause serious bodily injury to Dean Loftis, by choking her and hitting her with her fist, breaking a rib, without authority of law and not in necessary self defense[.] (C.P. 8). The State s elements instruction likewise required the jury find, beyond a reasonable doubt, that: (C.P. 86). 1. the Defendant, Lori Griffin; 2. did on or about December 14, 2009, in Lowndes County, Mississippi; 3. unlawfully, willfully, feloniously, knowingly and intentionally; 4. cause serious bodily injury to Dean Loftis by hitting her and breaking her rib; 5. without authority of law and not in necessary self-defense; In its brief, however, the State argues that in an attempt to show the severity of Loftis s injuries, the State introduced photographs that showed Loftis s bruising and visible wounds. All of this evidence was sufficient to show that Loftis s injuries, including her broken rib, were serious bodily injuries. (Brief of the Appellee p.19). The State s argument is misplaced and not focused on the true crux of this case. The 1

4 indictment and the jury s instruction focus solely on Loftis s rib. All of this evidence as the State puts it, was not for the jury to consider, nor is it for the Court to assess in its analysis on the sufficiency or weight of the evidence. On this issue, the sole question before this Court is whether a cracked rib, which required no surgery, no prescription, no follow-up appointment, no referral to a specialist essentially, no treatment at all -- qualifies as a serious bodily injury for the purposes of this State s aggravated assault statute. As noted in its principal brief, serious bodily injury has been defined as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Fleming v. State, 604 So. 2d 280, 292 (Miss. 1992) (quoting Model Penal Code (1980)). No such evidence exists in this case. In a string cite, the State lists several cases for which it asserts that a broken bone is significant bodily injury. (Brief of the Appellee pp.19-20). The State omits pertinent facts that clearly distinguish those cases from Griffin s. In Williams v. State, 126 So. 3d 992, 994 (Miss. Ct. App. 2013), the victim had a broken shoulder, eye socket, and jaw and was left with permanent nerve damage in her face. No comparable injury exists in this case. In fact, no treatment was required. In Truelove v. State, 78 So.3d 363 (Miss. Ct. App. 2011), the victim suffered from closed-head trauma and a broken nose. There is no evidence of any closed-head trauma in this case. The State presented no evidence about the extent of the cracked rib. In Ames v. State, 17 So. 3d 130 (Miss. Ct. App. 2009), the defendant required surgery after receiving several broken bones in his face. Loftis did not need surgery. She 2

5 did not even get a prescription for any medication. In Bright v. State, 986 So. 2d 1042 (Miss. Ct. App. 2008), the victim required surgery to repair broken bones in his face with wires and plates to reconstruct the bones. Id. at Again, no surgery was required in this case. Why? Simply put, it is because this cracked rib is not a serious bodily injury. In Brown v. State, 934 So. 2d 1039, (Miss. Ct. App. 2006), the victim required surgery on a broken jaw, had that jaw wired shut, and was hospitalized for four days. Loftis was never hospitalized. The State was required to prove, beyond a reasonable doubt, that Loftis s cracked rib was a serious bodily injury. It failed to present any information as to the injury s severity, be it through medical testimony or through the testimony of Loftis herself. The simple fact that Loftis had a cracked rib is not sufficient evidence to support this conviction. 3

6 CONCLUSION Griffin submits that based on the propositions cited and briefed herinabove, together with the argument presented in his initial brief, the judgment of the trial court and his conviction and sentence should be reversed and vacated, respectively, and this matter remanded to the lower court for further proceedings. Respectfully submitted, Lori Griffin, Appellant /s Justin T. Cook Miss. Bar Office of State Public Defender Indigent Appeals division Post Office Box 3510 Jackson, MS

7 CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for the appellant, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Brief of the Appellant, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to the following ECF participants in this cause is made: In addition, the following non-ecf participants are served by United States Mail, first class firs- class postage prepaid: Honorable James T. Kitchens, Jr. Circuit Judge P.O. Box 1387 Columbus, MS Scott Colom, Esq. District Attorney P.O. Box 1044 Columbus, MS THIS the 1st day of July, 2016 s/ Justin T. Cook Justin T. Cook, Miss Bar #