Demetrius Omar Nabors a/k/a Demetrius Nabors v. State of Mississippi

Jackson, Mississippi criminal defense lawyer represented the Defendant with arguing that the State presented insufficient evidence of his intent to commit aggravated assault, that the verdict is against the weight of the evidence, that the trial court plainly erred by giving a flight instruction to the jury, and that he received ineffective

assistance of counsel.

In September 2020, around 10:30 p.m. near Sandersville, Jones County Sheriff's

Deputy Derrick Knight saw a four-door silver car "drive off the right side of the roadway.”

He thought the driver might be sleepy or possibly under the influence, so he turned on his

blue lights to initiate a traffic stop. The driver, Nabors, pulled over in a business's driveway.

¶4. Deputy Knight approached the car, which had heavily tinted windows he could not

see through. He stayed near the rear of the vehicle and ordered Nabors to open the window.

Nabors rolled the rear window down instead and told Deputy Knight the driver's window

was broken. So Deputy Knight asked him to open the door instead. Nabors complied.

¶5. Nabors gave Deputy Knight a valid license and insurance card. Deputy Knight told

Nabors why he had been stopped and asked if Nabors was okay. Nabors started to explain

where he was going, but Deputy Knight noticed the smell of marijuana emanating from the

open car. Deputy Knight then noticed that Nabors's eyes were bloodshot and "glossy” and

that he appeared to have "delayed motor function skills,” which Deputy Knight believed were

consistent with someone who had been using a controlled substance.

¶6. Deputy Knight asked Nabors how long it had been since he last smoked marijuana,

and Nabors admitted smoking the day before. Deputy Knight asked if there was "weed in the

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car,” because he could smell it. Nabors admitted that someone had smoked in the car earlier.

Deputy Knight then asked if there were weapons, which Nabors denied. Nabors asked

Deputy Knight to give him "some kind of test” to prove he was not under the influence.

Deputy Knight then ordered Nabors out of the car to begin a DUI investigation.

¶7. Nabors unbuckled his seatbelt as if he were going to comply, but then he paused and

asked Deputy Knight to "call a white shirt” because he did not "feel safe.” Deputy Knight

testified that he did not know what that meant at the time but had since learned that it meant

a supervisor. Deputy Knight asked Nabors what he meant, and Nabors again stated that he

felt unsafe. Deputy Knight then told Nabors he needed to exit the car. Nabors asked, "Am

I being detained?” and Deputy Knight said, "Yes, sir, you are. I need you to exit the vehicle

now.” Suddenly, Nabors grabbed for the open door and tried to slam it shut. Deputy Knight

leaned into the car to try to pull Nabors out instead.

¶8. Deputy Knight testified that as they struggled, Nabors reached toward the passenger

seat, where Deputy Knight claimed to see a firearm lodged between the seat and center

console. The fight intensified as Deputy Knight tried to stop Nabors from accessing the gun.

In the scuffle, Nabors put the car into reverse, hitting Deputy Knight and pushing him into

the front of his patrol car as the car careened backward.

¶9. Deputy Knight's body camera showed the moment that Nabors grabbed for the door,

but once Deputy Knight tried to prevent that, the body-camera video footage became too

chaotic to discern details. Roughly ten seconds passed from the time Nabors reached for the

door and the time he drove away after Deputy Knight was injured. Video from Deputy

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Knight's dash cam showed that when Nabors reached for the door, Deputy Knight

immediately stepped in front of the door to prevent it from closing. The moment Deputy

Knight leaned into the car, the reverse-indicating lights illuminated, and Deputy Knight tried

to pull Nabors from the car. Suddenly, Nabors's vehicle accelerated backward, with Deputy

Knight still partially outside the car, and his body slammed into the front passenger side of

his patrol car.

¶10. Deputy Knight testified at trial that he was hit by Nabors's vehicle and slammed into

his own patrol car. He felt pain in his back and shoulder and heard a loud noise that he

thought was a shot. Deputy Knight testified that he later discovered he had not been shot, but

he did separate his right shoulder, tear his rotator cuff, and fracture some vertebrae. Nabors

sped off, and Deputy Knight radioed for backup. On cross-examination, Deputy Knight

explained that he did not call for backup after Nabors requested "a white shirt” because it

was "not feasible” during night shift, and it was not standard procedure.

¶11. Deputy Jake Driskell responded to Deputy Knight's call for help, and he discovered

Nabors's abandoned car roughly 1,000 yards away. He smelled marijuana and saw some on

the ground. Deputy Driskell found the keys to the car hanging on a nearby fence, suggesting

that Nabors had jumped the fence and run away. Officers could not find Nabors that night.

¶12. The next day, Deputy Driskell learned that a handgun had been found roughly 1,500

feet from the place Nabors was initially stopped. Deputy Driskell testified that the gun

appeared to be damaged, and he suggested at trial that it was damaged after Nabors threw it

from the car.

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¶13. Nabors testified that he was from Chicago and moved to Jones County to help care

for his grandparents. He was still unfamiliar with the area and was trying to figure out where

he was when he saw blue lights behind him. Nabors testified that he pulled into the

business's driveway because it was well lit. Nabors said he had no issues with Deputy Knight

until he saw Deputy Knight reach toward his weapon, which was holstered on his hip. Nabors

testified that Chicago had "a lot of police violence and killings” and that he "did not feel

safe” alone with Deputy Knight. Nabors testified that he had no reason to run and that he

"never intend[ed] for [Knight] to get hurt or any of that.” He admitted that he "was in the

wrong for taking off” but said that he "was fearing for [his] life, and that's the reason why

[he] took off.” He apologized to Deputy Knight and to Nabors's children for getting himself

in this situation.

¶14. No other witnesses testified. The jury found Nabors guilty as charged. Nabors filed

post-trial motions for JNOV or a new trial, which were denied, and he timely appealed.

ANALYSIS

I. Sufficiency of the Evidence

¶15. Nabors argues that the State failed to prove beyond a reasonable doubt that Nabors

intended for his vehicle to hit Knight. He argues that Knight's injuries were the result of

accident or negligence only. The State counters that intent is a question for the jury and that

the State is not required to prove intent in an aggravated assault case.

¶16. When addressing the legal sufficiency of a conviction, we must determine whether

"any rational trier of fact could have found the essential elements of the crime beyond a

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reasonable doubt,” and in doing so, we assess "the evidence in the light most favorable to the

prosecution.” Potts v. State, 233 So. 3d 782, 790 (¶¶30-31) (Miss. 2017). The State receives

"the benefit of all favorable inferences reasonably drawn from the evidence.” Casey v. State,

179 So. 3d 74, 80 (¶37) (Miss. Ct. App. 2015).

¶17. Nabors was indicted for, and the jury was instructed on, Mississippi Code Annotated

section 97-3-7(2)(a)(ii) (Rev. 2020), which states in part that a person is guilty of aggravated

assault if he "purposely or knowingly causes bodily injury to another with a deadly weapon

or other means likely to produce death or serious bodily harm.”1

Nabors's conviction as

charged in the indictment "required the injury to have been caused 'purposely or knowingly.'

'Purposely or knowingly' has substantially the same meaning as 'wilfully,' which itself

'means intentionally and not by accident.'” Greenleaf v. State, 267 So. 3d 749, 752 (¶13)

(Miss. 2019) (citation omitted).

¶18. Nabors argues that because a deadly weapon was involved, the State must prove an

intent to injure. However, the case primarily cited by Nabors involved an attempt to cause

bodily injury with a deadly weapon;2

here, there is no doubt that the injury actually occurred.

The State counters that this Court and the Supreme Court have held that the intent to commit

1

This subsection also encompasses an attempt to cause bodily injury to another with

a deadly weapon or other means likely to produce death or serious bodily harm, but Nabors's

indictment did not include this language. See Miss. Code Ann. § 97-3-7(2)(a)(ii).

2

In Genry v. State, 767 So. 2d 302 (Miss. Ct. App. 2000), the defendant held a knife

at the throat of one victim and drove his car directly at another victim. Id. at 305 (¶4). He

was indicted for attempting to cause bodily injury. Id. at 311 (¶¶34-36). At no point did this

Court state that an aggravated assault with a deadly weapon "must [have] some purposeful

action with an 'intent' to injure,” as Nabors claims.

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aggravated assault is a question for the jury and can be inferred by the act itself and the

circumstances surrounding the act.

¶19. In Redd v. State, 368 So. 3d 306 (Miss. 2023), the defendant was convicted under

section 97-3-7(2)(a)(ii) (Rev. 2020) and argued on appeal that the State failed to establish

that he had the intent to cause bodily injury to the victim. Id. at 311 (¶¶28, 30). The defendant

claimed that "he had 'no intent or . . . ill-will to shoot'” the victim and that the gun went off

unintentionally. Id. at (¶¶24-25). The Supreme Court noted: "there is no dispute that [the

victim] was shot and injured by a deadly weapon. The only other element required in this

case was whether Redd 'purposely or knowingly caused' it.” Id. at (¶¶28, 30). The Supreme

Court held that there was evidence from which the jury could "reasonably infer” that the

defendant "purposely fired his weapon” at the victim. Id. at 312 (¶35).

¶20. To support Nabors's conviction, the State had to establish that Nabors purposely and

knowingly struck Deputy Knight with a deadly weapon, causing bodily injury. The State's

evidence established this beyond a reasonable doubt: the video showed Deputy Knight being

slammed into the patrol car as a result of Nabors's car driving away, and there was no dispute

at trial that Nabors caused the car to drive away. He did not testify that he accidentally shifted

the car into reverse, nor did he testify that he was unable to stop the car once it started

moving. The jury saw the video of Deputy Knight's injury and heard Nabors's testimony that

he was scared for his life. The disputed question of Nabors's intent to injure was for the jury

to resolve.

¶21. The trial court did not err by denying Nabors's motion for JNOV, as the evidence

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taken in the light most favorable to the prosecution is sufficient to support the conviction.3

II. Weight of the Evidence

¶22. We review a challenge to the weight of the evidence by examining "the evidence in

the light most favorable to the verdict and will not reverse unless it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Bright v. State, 986 So. 2d 1042, 1046 (¶11) (Miss. Ct. App.

2008). However, we cannot "make independent resolutions of conflicting evidence,” nor will

we "reweigh the evidence or make witness-credibility determinations.” Id. "It is well

established that matters regarding the weight of the evidence are to be resolved by the jury.”

Id. (quoting Wilson v. State, 904 So. 2d 987, 995 (¶21) (Miss. 2004)).

¶23. Nabors makes no additional argument when challenging the weight of the evidence,

arguing again that the evidence showed that he acted without intent. As noted supra, the

disputed issue of intent was one for the jury to resolve based on the evidence and their

assessment of the witnesses' credibility. We find no error in the trial court's denying

Nabors's motion for a new trial based on the weight of the evidence.

III. Flight Instruction Error

¶24. Nabors argues that the trial court plainly erred by giving the flight instruction because

it was not supported by the evidence and because it allowed the jury to consider his flight as

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We decline to address Nabors's arguments related to aggravated assault under

romanette (i) (serious bodily injury under circumstances manifesting extreme indifference

to human life), as the State did not indict him under that subpart. See Miss. Code Ann. § 97-

3-7(2)(a)(i). Similarly, we decline to address Nabors's discussion regarding foreseeability

and culpable negligence manslaughter.

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evidence of his "guilty knowledge” of the gun or marijuana found near his car, which Nabors

was not charged with. He acknowledges that his trial counsel did not object to the instruction

and asks us to review for plain error.

¶25. Because Nabors did not object to the instruction on the ground that it was not

supported—and in fact acquiesced to the giving of the instruction—he cannot raise it as an

issue on appeal. Spiers v. State, 361 So. 3d 643, 654-55 (¶36) (Miss. Ct. App. 2013). "Plainerror review is properly utilized for correcting obvious instances of injustice or misapplied

law.” Id. at 657 (¶41). Plain error applies only where "there has been an error that resulted

in a manifest miscarriage of justice or seriously affect[ed] the fairness, integrity[,] or public

reputation of judicial proceedings.” Id. When applied, we must determine "if the trial court

deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that

error has prejudiced the outcome of trial.” Id.

¶26. Jury instructions are generally within the discretion of the trial court, and we review

the grant or denial of instructions for an abuse of discretion. Robinson v. State, 324 So. 3d

1137, 1143 (¶19) (Miss. 2021). Jury instructions must be read as a whole, and if the

instructions fairly, though not perfectly, provide the rules of law, we must affirm. Id. The

Supreme Court has instructed that "flight instruction[s] may be given if that flight is

unexplained and somehow probative of guilt or guilty knowledge.” Anderson v. State, 185

So. 3d 966, 970 (¶10) (Miss. 2015) (internal quotation marks omitted). Flight may be

"explained” if "the defendant fled for some reason independent of the crime.” Ford v. State,

206 So. 3d 486, 493 (¶22) (Miss. 2016). However, if the defendant's explanation is

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contradicted by other evidence, then the defendant's claimed explanation is "legally

insufficient to support reversal based upon the giving of a flight instruction.” Bowman v.

State, 360 So. 3d 977, 994 (¶65) (Miss. Ct. App. 2022).

¶27. Instruction S-4A read:

"Flight” is a circumstance from which guilty knowledge and fear may be

inferred. If you believe from the evidence in this case beyond a reasonable

doubt that the defendant . . . did flee, such flight is to be considered in

connection with all other evidence in this case. You will determine from all the

facts whether such flight was from a conscious sense of guilt or whether it was

caused by other things and give it such weight as you think it is entitled to in

determining your verdict in this case.

The trial court noted that "there was no other explanation given” but made no mention of the

flight's probative value.4

¶28. While "flight evidence is controversial and must be handled with care,”5

we find no

plain error in the giving of this particular instruction in this case. Nabors did not give an

explanation for why he fled on foot after striking Deputy Knight and driving roughly 1,000

yards from the scene. His only explanation for driving away was that he was scared of

potential police violence. But that is an explanation for why the assault occurred, not why he

4

The State's original S-4 was amended to remove references to "hiding.”

5 Ford, 206 So. 3d at 493 (¶20) (quoting United States v. Benedetti, 433 F.3d 111,

116 (1st Cir. 2005)); see also Ervin v. State, 136 So. 3d 1053, 1059-60 (¶20) (Miss. 2014)

(reversing on other grounds but noting "the questionable wisdom” in granting a flight

instruction); Randolph v. State, 852 So. 2d 547, 567-68 (¶70) (Miss. 2002) (Carlson, J.,

specially concurring) ("While I agree . . . that the giving of the 'flight instruction' was

proper, based on the facts and circumstances of this particular case and the applicable case

law, the use of the flight instruction in this state can be described in one word—'dangerous.'

. . . A trial court, by giving a flight instruction, simply puts itself in a position of possibly

placing a reversible error in an otherwise clean record. If a trial court persists in giving a

flight instruction, . . . it should do so with great caution.”).

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fled the scene. Nabors's driving some distance away, abandoning his car, and jumping a

fence in the middle of the night is certainly probative of his guilty knowledge that he struck

Knight with his vehicle.

¶29. Nabors alternatively complains that the instruction was "additionally improper”

because it confused the jury whether the flight showed guilty knowledge of the marijuana or

the gun found near his car. Again, this argument was not raised at trial and must be reviewed

for plain error. There was no plain error on these grounds in giving the instruction because

the instruction did not prejudice the outcome of trial.

¶30. Footage from Deputy Knight's body camera and dash camera clearly showed the

assault on Deputy Knight. As discussed, the State presented ample evidence to support

Nabors's conviction. Indeed, the video alone is sufficient to convict. Because our application

of plain-error review is only for "correcting obvious instances of injustice” and because the

instruction did not clearly "prejudice[] the outcome of the trial,” no plain error occurred.

IV. Ineffective Assistance of Counsel

¶31. In his final issue, Nabors claims that he received ineffective assistance of counsel

because his trial counsel did not object to the flight instruction and did not request a jury

instruction on the lesser-included offense of simple assault.

¶32. Generally, claims of ineffective assistance are better addressed in post-conviction

proceedings "because we are limited to the trial court record in our review of the claim[,] and

there is usually insufficient evidence within the record to evaluate the claim.” Melendez v.

State, 354 So. 3d 944, 953 (¶37) (Miss. Ct. App. 2023). However, we will address the merits

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of an ineffective assistance of counsel claim on direct appeal if the parties stipulate that the

record is adequate or if the record affirmatively shows ineffectiveness or that the claims are

without merit. Id.

¶33. To prove ineffective assistance, the defendant must show both that (1) his counsel's

performance was constitutionally deficient and (2) that the deficiency prejudiced the defense.

Id. at (¶36) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "There is a strong

presumption that counsel's performance falls within the range of reasonable professional

assistance,” and "to overcome this presumption, the defendant must show that there is a

reasonable probability that, but for the counsel's unprofessional errors, the result of the

proceeding would have been different.” Renfrow v. State, 202 So. 3d 633, 636 (¶7) (Miss.

Ct. App. 2016).

¶34. Nabors argues that his counsel should have objected to the flight instruction. But as

addressed, the flight instruction was not erroneously given. Because the instruction was

warranted by the law and evidence, there was "no reason to object under Mississippi law.”

Cole v. State, 666 So. 2d 767, 778 (Miss. 1995). There is no deficiency in not objecting to

this instruction. Even if we were to assume counsel should have objected to the instruction,

Nabors has not shown how he was prejudiced by the instruction or how the outcome would

have changed without the instruction being given. Without this, there can be no ineffective

assistance.

¶35. Nabors's argument that counsel was ineffective for failing to request a simple assault

jury instruction is likewise without merit. "Counsel's decision not to request a specific jury

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instruction falls under the category of trial strategy and is given much deference by this

Court.” Fair v. State, 950 So. 2d 1108, 1111 (¶9) (Miss. Ct. App. 2007). It is permissible trial

strategy to pursue an all-or-nothing approach. See Miller v. State, 914 So. 2d 800, 805 (¶17)

(Miss. Ct. App. 2005) ("It is possible that [Nabors's] counsel believed that [Nabors] would

be acquitted of the greater charge but convicted of the lesser offense[] and made a calculated

decision not to pursue the lesser-included offense instruction.”). Because Nabors cannot

show that counsel's actions or inactions were deficient or that he was prejudiced, his

ineffective-assistance-of-counsel claims fail.