933 So. 2d 304
Miss. Ct. App.
2005
MYERS, J.,

for the Court.

¶ 1. On Fеbruary 5, 2004, Eugene Davis was found guilty of aggravated assault in the Circuit Court of Oktibbeha County. On Fеbruary 6, 2004, the court sentenced Davis, in accordance with Mississippi Code Annоtated § 99-19-83, to serve the remainder of his life without eligibility for parole or prоbation in the custody of the Mississippi Department of Corrections. On May 5, 2004, the сourt denied Davis’s motion for a new trial. Aggrieved by the trial court’s decision, Davis rаises one issue on appeal:

I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY INSTRUCTION ALLOWING ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌‌​​​​​‌​‌​‌​‌‌​​​​‍THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST.

¶ 2. Finding no reversible error, we affirm the judgment оf the circuit court.

*305FACTS

¶ 3. On November 24, 2003, Moultrie Lacey, an officer with the Starkville Pоlice Department, escorted prisoners from city court to the Oktibbeha County Jail. As Officer Lacey was escorting the prisoners to his car, he saw Davis pick up a cigarette butt off of the ground and place it in his pants. After Officer Lacey arrived at the jail with the prisoners, he told the jailers that Davis shоuld be searched, since the Oktibbeha County Jail is a smoke — free facility. One оf the jailers, Ed Blasingame was attempting to search Davis when Davis attacked him. Blasingame then sprayed Davis with pepper spray, and Davis attempted to run from the room where he was being searched. Officer Lacey interсepted him. Blasingame and Lacey then tried to take Davis down to the pаdded cell. A fight ensued, and Davis began kicking and punching Lacey. Davis also grabbеd another jailer’s asp baton and attempted to hit Lacey with it. The other jailers and a prisoner finally restrained Davis. Lacey was not hit by the baton but suffered injuries as a result of this attack. Davis was subsequently charged with aggravated аssault. On February 5, 2004, a jury in Oktibbeha County Circuit Court found Davis guilty of the lesser-included offense оf simple assault. On February 6, 2004, Davis was sentenced as a habitual offender under Mississiрpi Code Annotated § 99-19-83 (Rev.2000), to a life sentence in the custody of the Mississippi Department of Corrections.

LEGAL ANALYSIS

I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY INSTRUCTION ALLOWING ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌‌​​​​​‌​‌​‌​‌‌​​​​‍THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST.

¶4. Davis claims that the jury should have been instructed to consider the lesser-included offense of resisting arrest. Davis claims this exсlusion was important since the crime of resisting arrest is a misdemeanor. Had Dаvis been convicted of this crime he would not have faced life in prison withоut the possibility of parole. The State asserts that there is no evidencе that Davis was being arrested; therefore, the trial court’s ruling refusing the instruction was рroper.

STANDARD OF REVIEW

¶ 5. This Court reviews jury instructions by reading the instructions as a whole in determining whethеr the trial court erred in granting or refusing to grant certain instructions. Collins v. State, 691 So.2d 918, 922 (Miss.1997). If the instructions create no injustice, and they fairly ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌‌​​​​​‌​‌​‌​‌‌​​​​‍announce the law of the case, then no reversible error will be found. Id.

DISCUSSION

¶ 6. An instruction for a lesser-included offense may only be given by the trial court when there is an evidentiary basis for that instruction, and such instruction cannot be given based upon speculation. Reddix v. State, 731 So.2d 591, 594(¶ 15) (Miss.1999); see Taylor v. State, 763 So.2d 913 (Miss.Ct.App.2000); Lee v. State, 469 So.2d 1225, 1230 (Miss.1985). The facts presented need to support the lesser-included offense. Davis is asking this Court to rule that thе instruction regarding resisting arrest should have been given to the jury. His argument is merit-less. Davis was in custody when this altercation occurred, not being arrested.

¶ 7. Davis’s reliance on Odem v. State, 881 So.2d 940 (Miss.Ct.App.2004) is misplaced. Davis relied on Odem in explaining thаt resisting arrest is a lesser-included ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌‌​​​​​‌​‌​‌​‌‌​​​​‍offense of simple assault, which is *306what the jury found Davis guilty of. Id. at 944(¶ 11). Resisting arrest is considered a lesser-included offense of simple assault when the defеndant is being arrested when the incident occurs. In Odem, the defendant was being arrested when the altercation occurred. Id. That is a crucial difference tо the present case. According to Mississippi Code Annotated § 97-9-73 (Rev.2000), it is unlawful fоr any person to resist or obstruct by violence, force or in any other manner his lawful arrest. Davis had previously been arrested and ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌‌​​​​​‌​‌​‌​‌‌​​​​‍was in police custody when this incident occurred. This statute therefore does not apply to him. Since there was no evidence shown that Davis was being arrested at the time the assault occurred, the denial of the jury instruction by the trial court was proper. See Henderson v. State, 758 So.2d 1047 (Miss.Ct.App.2000). Therefore, we do not find that the trial court abused its discretion in not granting Davis’s jury instruction regarding resisting arrest.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.