314 So.3d 167
Miss. Ct. App.2021Background
- Late-night altercation outside Under-the-Hill Saloon: Kivinen and his son ambushed Charles Pickett; Pickett was struck in the head (bat and pistol alleged) and sustained lacerations/concussion.
- Kivinen was indicted for aggravated assault under Miss. Code § 97-3-7; the indictment alleged he and another willfully caused "serious bodily injury" but did not specify a statutory subsection.
- At trial the State submitted jury instruction S-2 which used the phrase "bodily injury" (omitting the word "serious") and otherwise referenced striking with a bat and pistol and the likelihood of serious harm.
- The jury convicted Kivinen of aggravated assault; he moved for JNOV/new trial, which the trial court denied; he appealed raising three assignments but focusing on the instruction omission.
- The Court of Appeals majority reversed and remanded, holding the omission of the word "serious" (and related missing statutory elements) was reversible error; a dissent would have affirmed, finding the instructions read together covered the elements and that any objection was waived.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kivinen) | Held |
|---|---|---|---|
| Whether jury instruction omitted an essential element by omitting "serious" from "serious bodily injury" | Instructions, read together, sufficiently informed jury of statutory elements; defendant waived objection by failing to object at trial | Omission removed an essential element, broadened grounds for conviction, and is plain reversible error | Majority: Reversed and remanded — omission of "serious" was reversible error; Dissent: would affirm (instructions read together; waiver) |
| Whether instructions constructively amended the indictment / whether issue was waived | Indictment could be read as charging both §97-3-7(i) and (ii); instructions matched an indictment theory and defendant waived by not objecting | Instructions materially changed the allegations from the indictment and denied defendant ability to tailor defense | Majority: declined to separately decide constructive-amendment claim but found instructions materially changed the allegations; Dissent: no constructive amendment, no plain error, issue waived |
Key Cases Cited
- Brown v. State, 225 So. 3d 1263 (Miss. Ct. App.) (omission of "serious" from instruction on aggravated assault is reversible error)
- Washington v. State, 298 So. 3d 430 (Miss. Ct. App.) (similar reversal where instruction omitted "serious")
- Bolton v. State, 113 So. 3d 542 (Miss.) (plain-error review for failure to instruct on essential elements)
- Harrell v. State, 134 So. 3d 266 (Miss.) (defendant entitled to jury determination of each element)
- Bell v. State, 725 So. 2d 836 (Miss.) (constructive amendment doctrine; variance between indictment and instructions)
- Hawkins v. State, 145 So. 3d 636 (Miss.) (subsections of aggravated-assault statute not mutually exclusive; State need not pick one subsection in indictment)
- Quick v. State, 569 So. 2d 1197 (Miss.) (elements of § 97-3-7 include mental-state language)
- Boyd v. State, 47 So. 3d 121 (Miss.) ("with a deadly weapon or other means likely to produce death or serious bodily harm" is an essential element)