Kivinen v. State

314 So.3d 167

Sami KIVINEN a/k/a Sami Kaleva Kivinen, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01416-COA

Court of Appeals of Mississippi.

March 30, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, Jackson

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A defendant was indicted and convicted for aggravated assault after he and his son started a brawl outside a bar. Because the jury instruction on aggravated assault did not contain a material element of the crime and was flawed, we reverse and remand his case for a new trial.

FACTS

¶2. The events leading up to Sami Kivinen's arrest and conviction took place on Silver Street at the Under-the-Hill Saloon.¹ One night, he was at Under-the-Hill with his friend Dionna Denning. At some point during the night, Denning was huddled near the bar's service station with two other patrons, Charles Pickett and Matthew Willis. Kivinen, on the other hand, sat by himself at the end of the bar.

¶3. Although Kivinen and Pickett dispute what happened leading up to this point, a shouting match between them suddenly competed with the bar's music. The exchange was short but apparently so intense that Kivinen tried to "rush" Pickett, and Pickett stopped him by punching him and "putt[ing] him on his back." Once Willis helped Kivinen to his feet, the bartender promptly ordered Kivinen to leave the bar and called him a cab. An initially resistant Kivinen finally surrendered and took a taxi home. Pickett, Willis, and Denning shook off the excitement and finished their evening at the bar.

¶4. About two to three hours had passed before the bar finally closed for the night. After agreeing to give his friend a ride, Willis walked up a hill to find his truck while Pickett waited for him outside the bar. But as Willis walked further up the hill, he saw two people—one he recognized to be Kivinen—suddenly jump out of nearby bushes.² Kivinen was hiding something wrapped in a shirt behind his back while the unknown person armed himself with an aluminum bat. Willis testified that before he could rush to warn Pickett, Kivinen unwrapped a pistol from the shirt and struck Pickett on his head with it.³ The blow caused him to slide down the brick wall and fall to the ground. While he was on the ground, the person with Kivinen, later identified as his seventeen-year-old son Oliver, started beating Pickett on his head with the bat.

¶5. Willis rushed to the scuffle to help Pickett. He grabbed Kivinen, threw him down to the ground, and punched him. Meanwhile, Oliver attempted to stop Willis by hitting him on the head with his bat. But Willis stripped the bat from Oliver and struck him back. Kivinen then "[came] up behind [Willis]" and restrained him in a tight choke-hold. Just as Willis' "air [was] going away" and his "vision [was] getting narrow," Dennings, who had walked outside to see if Willis had gotten his truck, witnessed the commotion, screamed "stop fighting" twice, and hit Kivinen across his head with her beer bottle after he refused to let Willis go.

¶6. The fight then ended. Kivinen and his son retreated up the hill to Kivinen's truck. As Kivinen climbed inside, Willis heard him say, "[N]ext time it will be a f------ bullet."

¶7. After one hospital visit and a work-related trip, Pickett filed charges against Kivinen and his son. As a result, Kivinen was indicted for aggravated assault under Mississippi Code Annotated section 97-3-7 (Rev. 2014). The relevant part of his indictment, which did not cite a specific subsection of the aggravated assault statute, charged the following:

SAMI KALEY A KIVINEN

late of the County aforesaid, in said County, on or about October 23, 2017, acting in concert with another, in and upon Charles Pickett, then and there did willfully, unlawfully, feloniously and purposely make an assault by beating him with a baseball bat, with the felonious intent of him and another, the said Sami Kaleva Kivinen, to willfully, unlawfully, feloniously and purposely cause serious bodily injury to the said Charles Pickett and did in fact cause serious bodily harm to the said Charles Pickett.

¶8. Kivinen proceeded to trial on this charge. During direct examination, Pickett testified his head injuries required "probably" fifteen staples and resulted in him having a CAT scan. When the State further probed him about the severity of his injuries, he claimed he sustained up to three lacerations, had a concussion "for sure," and was "sure" he was unconscious after Kivinen and his son attacked him.

¶9. On cross-examination, Kivinen confronted Pickett about the extent of his injuries by asking him why his injuries merely required staples, rather than stitches, and whether his skull was cracked.⁴ Pickett replied, "[I]f you're asking me if they broke my skull and fractured my skull, I have to say no[.]" He added, "[B]ut I'm sure he intended to."

¶10. At the close of evidence, the parties rested their cases. The trial court allowed the State to submit jury instruction S-2, among others, which reflected the following:

The Defendant, SAMI KIVINEN, has been charged by an indictment with the crime of Aggravated Assault for having acted in concert with another in purposely, knowingly, and feloniously making an assault on one Charles Pickett in a way likely to result in serious bodily harm, and with the intent to cause bodily injury to the said Charles Pickett.

If you find from the evidence in this case beyond a reasonable doubt that on or about October 23, 2018, in Adams County, Mississippi, that the defendant, SAMI KIVINEN, acting in concert with others, willfully and purposely made an assault on Charles Pickett by striking him, or causing him to be struck, with a bat and a pistol causing bodily injury to Charles Pickett and not in necessary self-defense, then you shall find the defendant, SAMI KIVINEN, guilty of Aggravated Assault.

¶11. A little over two hours and a dinner break into its deliberations, the jury sent a note to the court asking if it could see Pickett's medical records. The court ordered the jury to continue its deliberations with the evidence available to them since Pickett's specific medical records were not in evidence.

¶12. After a few more hours of deliberating, the jury finally reached a unanimous verdict and found Kivinen guilty of aggravated assault. The court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections but agreed to suspend his sentence on the condition of his deportation from the United States and back to his home country in Finland. Kivinen filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied his motion.

¶13. Aggrieved, Kivinen appeals. He asserts three assignments of error, but because one is dispositive, we only address whether the State omitted an essential element from its jury instruction.⁵

STANDARD OF REVIEW

¶14. "Jury instructions are generally within the discretion of the trial court[,] and the settled standard of review is abuse of discretion." Moody v. State , 202 So. 3d 1235, 1236-37 (¶7) (Miss. 2016) (quoting Bailey v. State , 78 So. 3d 308, 315 (¶20) (Miss. 2012) ).

¶15. Furthermore, "[f]ailure to instruct the jury as to an essential element of the crime is reversible error." Brown v. State , 225 So. 3d 1263, 1273 (¶35) (Miss. Ct. App. 2016), rev'd on other grounds , 222 So. 3d 302 (Miss. 2017). For "[d]ue[-]process rights include the right to a properly instructed jury." Id . at (¶36).

¶16. To ensure this right is safeguarded, "the circuit court is responsible for assuring that the jury is ‘fully and properly instructed on all issues of law relevant to the case.’ " Id . at 1273-74 (¶36) (citation omitted). "The trial court is ultimately responsible for rendering proper guidance to the jury via appropriately given jury instructions, even sua sponte." Id .

ANALYSIS

¶17. Kivinen argues that the State failed to instruct the jury on the essential elements of his aggravated assault charge. He makes this claim based on the State's omission of the word "serious" from the phrase "serious bodily injury." Kivinen insists the missing word is a key term.

¶18. We first point out that Kivinen did not object to the State's jury instruction at trial. But he urges this Court to review the claim nonetheless because the "failure to instruct the jury on the essential elements of the crime is plain error." Bolton v. State , 113 So. 3d 542, 544 (¶4) (Miss. 2013) (quoting Rogers v. State , 95 So. 3d 623, 632 (¶30) (Miss. 2012) ). Therefore, through the lense of plain error, we examine whether the omission of the term "serious" from Kivinen's jury instruction warrants reversal and remand.

¶19. The State indicted Kivinen under section 97-3-7 without referencing a specific subsection, so we must first determine which one applies.⁶ His indictment charged the following:

SAMI KALEY A KIVINEN

late of the County aforesaid, in said County, on or about October 23, 2017, acting in concert with another, in and upon Charles Pickett, then and there did willfully, unlawfully, feloniously and purposely make an assault by beating him with a baseball bat, with the felonious intent of him and another, the said Sami Kaleva Kivinen, to willfully, unlawfully, feloniously and purposely cause serious bodily injury to the said Charles Pickett and did in fact cause serious bodily harm to the said Charles Pickett.

(Emphasis added).

¶20. Although his indictment does not reference a subsection, Kivinen's indictment charged him with "willfully" causing serious bodily injury to the victim. The use of this specific language demonstrates that his indictment more closely tracks subsection (i).

¶21. We reached the same conclusion very recently in another case where a defendant charged with aggravated assault was issued an indictment that did not specify a subsection of the...