Eric Hodges a/k/a Pinky v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00527-COA

ERIC HODGES A/K/A PINKY APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/08/2018
TRIAL JUDGE: HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED: BENTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: BETHANY ANN TARPLEY
WILLIAM D. MASSEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 11/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND TINDELL, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Eric Hodges was indicted on two counts of manslaughter relating to the ownership of

a dangerous animal under Mississippi Code Annotated section 97-3-45 (Rev. 2014), for the

deaths of Derrick Sanders (Count 1) and David Glass (Count 2). Hodges owned six pit bulls.

On July 4, 2014, Sanders was found dead on Highway 7 near Sexton Road. The body was

found approximately sixty yards from Hodges’s home but not on Hodges’s property. Both

the ears and testicles were missing from the body, and the body was covered with cuts and

what appeared to law enforcement at the time to be an exit wound from a bullet. At that

time, Sanders’s death was believed to be a homicide.
¶2. Approximately six weeks later, on September 20, 2014, Glass was found in an area

just yards from where Sanders’s body had been found. Glass was still alive, but one ear had

been chewed off, and “large chunks of meat” were missing from his body. At that time, law

enforcement video-taped a short interview with Glass about the circumstances surrounding

his injuries. Glass said that dogs were “coming down Sexton Road,” lunged at him, ran at

him, and bit him. He said he did not know whose dogs they were, but he thought the dogs

were “Pinky’s” dogs. Hodges’s nickname is Pinky. Glass died the next morning.

¶3. Due to the proximity and similarities between the two deaths, law enforcement drew

a connection between them. After further investigation, Hodges was indicted on the two

counts described above. A Benton County Circuit Court jury found Hodges guilty on both

counts. The court sentenced Hodges to twenty years in the custody of the Mississippi

Department of Corrections (MDOC), with five years suspended and fifteen years to serve,

on each count. The court set the sentences to run concurrently, with credit for time served,

and placed Hodges on five years’ post-release supervision. Hodges filed a motion for a new

trial, which the trial court denied, and Hodges now appeals.

¶4. On appeal Hodges asserts that (1) his convictions should be reversed and his case be

remanded for a new trial because the jury was not instructed on an essential element of both

of the charged crimes; (2) his convictions should be reversed because there was insufficient

evidence presented on two essential elements of the charged crime or, alternatively, that the

verdict was against the overwhelming weight of the evidence; and (3) his convictions must

be reversed because he received ineffective assistance of counsel. We find that the jury was

2
not instructed on an essential element of the charged crimes—that Hodges had notice of his

dogs’ vicious propensity. Accordingly, we reverse Hodges’s convictions and sentences and

remand this case for a new trial.1

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶5. On July 4, 2014, Derrick Sanders was found dead. Initially, the Benton County

Sheriff’s Department and the Mississippi Bureau of Investigations (MBI) believed Sanders

had been killed by another person or group of people. Law enforcement continued to believe

this until September 20, 2014, when David Glass was discovered in almost the same location

and with similar injuries as Sanders. Glass was still alive when he was found. He told law

enforcement that he had been bitten by dogs that he believed belonged to Pinky. Pinky is

Hodges’s nickname. Glass died the next day from his injuries.

¶6. Hodges was subsequently indicted on August 29, 2016, on two counts of

manslaughter under section 97-3-45 for the deaths of Sanders and Glass. Both Counts were

identical with the exception of the dates and the names of the victims, and provided as

follows:

That ERIC HODGES . . . of the County and State aforesaid, on or about the
4th day of July, 2014 (Count I) [the 20th day of September, 2014 (Count II)]
in [Benton County, Mississippi], and within jurisdiction of this court, did
unlawfully and feloniously, own a mischievous animal to wit: vicious dogs,
knowing their propensity, wilfully suffer to go at large or kept without
ordinary care, and such animal, while so at large, or not confined, did kill

1
This opinion also addresses Hodges’s insufficiency-of-the-evidence argument in the
light of Newell v. State, 175 So. 3d 1260 (Miss. 2015), a case in which the Mississippi
Supreme Court explained that a challenge to the sufficiency of the evidence should be
addressed on appeal, even where the appellate court determines that reversal and remand is
warranted based upon an evidentiary error in the trial court. Id. at 1267-68 (¶5).

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Derrick Sanders (Count I) [and David Glass (Count II)], a human being who
shall had taken reasonable precautions to avoid the vicious dogs, in violation
of [section 97-3-45]. . . .

¶7. Hodges was tried on February 12 and 13, 2018. The State’s first witness was Chief

Deputy Joe Batts of the Benton County Sheriff’s Department. He testified that he was

dispatched on July 4, 2014 to investigate a dead body found off of Highway 7 and Sexton

Road. Chief Deputy Batts testified that there was only one home in the immediate area. That

home belonged to Hodges. According to Chief Deputy Batts, the body was found about fifty

yards on the east side of that house, between the house and the road. Later at trial, Deputy

Pete Samples, who had taken measurements from the position where Sanders’s body was

found from the Hodges’ home, testified that Sanders’s body was found sixty yards from the

Hodges’ front door. According to Chief Deputy Batts, Sanders’s body was found about 4:50

a.m. MBI Investigator Chad Cummings testified that Sanders’s body had been there “a

couple of hours of when he was found.”

¶8. Chief Deputy Batts testified that the body had numerous injuries, including one injury

that looked like the exit wound from a gunshot. He further testified that “the ears had been

chewed off” and that the body had been castrated, with one testicle found about a yard away

from the body. Additionally, there were scratches and scrapes all over Sanders’s body.

Sanders’s body was also missing both shoes and was only partially clothed. One of his shoes

was found in Hodges’s driveway. Chief Deputy Batts testified that it did not appear to be an

accident and that they believed Sanders had been killed by someone or a group of people.

He testified that he and other deputies spoke with nearby residents to see whether they had

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heard or seen anything, and no one did. Chief Deputy Batts specifically testified that he

talked with Hodges to see if he had heard anything, and Hodges told him, “He [(Hodges)]

didn’t hear anything, didn’t see anything.”

¶9. Chief Deputy Batts testified that he decided to call the MBI because he believed the

Sheriff’s Department would need the bureau’s help in investigating this matter. He testified

that when MBI investigators arrived, they also reviewed the scene and began talking to

witnesses. Chief Deputy Batts testified that “they all saw the dogs there” that day, but at that

point law enforcement did not believe the dogs were responsible.

¶10. MBI Investigator Chad Cummings also testified for the State. He testified that MBI

personnel determined that Sanders had been at a house south of where his body was found,

and that he left the house alone. According to Investigator Cummings, MBI personnel spoke

to everyone who was with Sanders earlier that night, traced their cellphone records for six

hours before and after Sanders’s death to see that they were where they said they were, and

ruled them out as suspects. From this investigation, MBI personnel determined that no one

was with Sanders when he was killed that night. MBI officers also spoke with all nearby

residents and, like the Sheriff’s Department, were told that no one saw or heard anything.

Like the Sheriff’s Department, the MBI treated Sanders’s death as a homicide.

¶11. Chief Deputy Batts testified that on September 20, 2014, another person (David Glass)

was discovered just a few yards from where Sanders’s body had been found. Glass was still

alive. Deputy Samples, who also took measurements from the position where Glass’s body

was found to the Hodgeses’ home, testified that Glass’s body was found eighty yards from

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the Hodgeses’ front door. Chief Deputy Batts arrived at the scene and testified that he

observed that Glass’s ear was missing. He decided to videotape Glass while they waited for

the ambulance, and Glass explained what had happened.

¶12. The short videotape of that interview with Glass was played for the jury. In the

videotape, Glass said that “dogs” were “coming down Sexton Road” toward him. The dogs

lunged, ran at him, and bit him. He said it happened at about 1:00 in the morning, he was

coming back from visiting “Spot’s” grave.2 Glass said that he did not know whose dogs they

were, but he thought the dogs were Pinky’s dogs. Chief Deputy Batts testified that Hodges’s

nickname is Pinky. Glass died the next morning.

¶13. Chief Deputy Batts testified that Sheriff Arnie McMullen also arrived at the scene

while he was videotaping Glass. After he finished videotaping, he and Sheriff McMullen

walked over to Hodges’s house to talk to him. Chief Deputy Batts testified that he saw six

dogs as they approached the Hodgeses’ home, and three were loose in the yard. He further

testified that these dogs “seemed fairly calm.” The other three dogs were chained up and

“were agitated, barking, straining against their chains.” He “was concerned about the dogs

[and] he pulled his side arm.” He and Sheriff McMullen knocked on the Hodgeses’ door,

Eric Hodges came out, and Sheriff McMullen told Hodges to chain up the loose dogs, which

Hodges did. Chief Deputy Batts testified that he transported three of the dogs (the ones that

had been loose) and that they did not give him any trouble. Later at trial, Sheriff McMullen

testified that he transported the other three dogs and that Hodges had to come with him

2
Chief Deputy Batts testified that “Spot” was Derrick Sanders’s nickname.

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because one of the dogs had already chewed through the plastic crate that the dog was in.

Chief Deputy Batts testified that all six dogs were euthanized by court order.

¶14. Sheriff McMullen testified that after he left Glass he visited the Hodgeses’ home.3

Like Chief Deputy Batts, Sheriff McMullen also testified that the large dogs that were tied

up were “aggressive barking” and that “[t]hey would run at you on the chain.” He testified

that on that visit, he and Hodges “just talked about the dogs and I asked or he told me that

he let the dogs loose some at night and that way he could tell if someone was messing around

his house or his property out there they would let him know.” Sheriff McMullen further

testified that he believed Hodges was referring to the three dogs that were chained up when

Hodges said he sometimes let them loose at night.

¶15. Chief Deputy Batts testified that the next day, on September 21, he formally

interviewed Hodges. He explained to Hodges about his Miranda4 rights, and Hodges’s

waiver was admitted into evidence. Chief Deputy Batts testified that they asked Hodges if

he saw or heard anything on the night of Glass’s attack. According to Chief Deputy Batts,

Hodges told them that “he hadn’t seen anything. Hadn’t heard anything, hadn’t heard any

noise from his dogs. And we asked him were the dogs loose and he said no. He did not turn

his dogs loose.”

¶16. MBI Investigator Cummings was also involved in the Glass investigation. He testified

that when the investigators saw the similarities between the Sanders and Glass incidents,

3
Sheriff McMullen testified that he did not remember who was with him (Sheriff
McMullen) on his first visit with Hodges.
4
Miranda v. Arizona, 384 U.S. 436 (1966).

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including the similar injuries and the proximity between the two incidents, they determined

that the two deaths were related. He then obtained a search warrant for Hodges’s home and

the surrounding property. Investigator Cummings testified that the dogs were not there; he

added that he had only observed the dogs after they were euthanized. He testified that there

was a strong smell of Clorox on the premises, which seemed “kind of strange to us.”

Investigator Cummings also testified that he had previously collected samples from the dogs

that had been euthanized and clothing samples from both Sanders and Glass from the

respective days that they were attacked. These samples were sent to a lab that MBI personnel

had located at the University of California-Davis at Sacramento, which has the capabilities

for testing for canine DNA.

¶17. Elizabeth Wictum was admitted as an expert in the field of animal DNA, and her

report on the clothing and dog samples received from the MBI was admitted into evidence.

She testified that she was able to attribute one of the dog hairs found on Sanders’s body to

one of Hodges’s dogs and that she found mitochondrial DNA consistent with two of

Hodges’s dogs. Dr. Wictum also testified that none of the samples submitted with respect

to Glass implicated Hodges’s dogs.

¶18. Sharon Reader, Glass’s sister and Hodges’s neighbor, also testified for the State.

Reader testified that about two and one-half weeks before Glass’s death, she spoke to

Hodges’s wife, Mary Ann, about concerns she had regarding the dogs. Reader testified that

she told Mary Ann to tell Hodges about her concerns. Reader testified that Hodges’s dogs

would come up the road to her driveway and that she had concerns about them with her

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grandchildren around. She asked Mary Ann to ask Hodges to keep the dogs tied up because

she was afraid they were going to attack her grandchildren. As Reader described it in cross-

examination, “I’m telling you when I was coming out of my house to go across the yard they

were charging from down by the mailbox coming up the hill and I ran back in the house and

that is when I called her [Hodges’s wife].” Reader testified that she had not “personally

observed these dogs being aggressive to any other neighbor, friend, or family member.”

¶19. The State rested. The defense moved for a directed verdict, which the trial court

denied.

¶20. Hodges did not testify on his own behalf, but the defense put on seven witnesses who

testified that the dogs were not aggressive. Mark Feathers testified that he lived about a half

a mile from the Hodgeses and had visited with them several times over the years, always with

the dogs present. Feathers testified that he would “just walk up on the porch, knock on the

door, and the dogs would just sit there.” He testified, “They were never aggressive to me in

any way.”

¶21. Glen Sexton also testified that he had never had a problem with Hodges’s dogs.

Sexton testified that he went to the Hodgeses’ home three or four times a year, occasionally

when Hodges was not home. Like Feathers, Sexton testified that the dogs were never

aggressive with him. In fact, the dogs would come out “wagging” when he would pull up.

According to Sexton, the dogs might bark when someone first pulled up, but that was it.

¶22. The defense also called Robert Childress, a dry-cleaning delivery man. Childress

testified that he had been coming to the Hodgeses’ home once every three months for twenty

9
years. Childress had been to the home both with and without the Hodgeses present. When

the Hodgeses were not there, Mary Ann would hang her dry cleaning on the storm door in

the front of the house. To pick it up, Childress would get out of his truck, walk to the front

of the home, knock on the door, get the dry cleaning, and leave. According to Childress, the

dogs “didn’t really pay [him] no attention. They just lay there.” The dogs never tried to hurt

Childress while they were loose and he was on the Hodgeses’ property. On cross-

examination, the State established that Childress did not have occasion to go into the

Hodgeses’ back yard on any of his deliveries.

¶23. Sherlay Crayton testified that she visited the Hodgeses’ home in February or March

2014, a few months before Sanders’s death, and that she got out of her car, climbed on the

porch, knocked on the door, and noticed a dog lying on the porch. The dog never bothered

her. Shirley Gilmore also testified about visiting the Hodgeses’ home in 2014. She said

there was nothing unusual about the dogs’ behavior, they were “[j]ust dogs. I mean normal

dogs.” Another witness, Orlando Williams, also testified that there was nothing strange

about the dogs’ behavior, the dogs did not bark at him, and they did not run up to him or try

to bite him.

¶24. Mark Tucker, who found Sanders’s body, was also Hodges’s neighbor and had been

to the Hodgeses’ home. Tucker testified that he too had never had a problem with the dogs.

According to Tucker, the dogs acted like normal dogs, running and playing. Tucker would

see the dogs in the front yard and testified that “[t]hey love[d] to play.”

¶25. The defense rested. Trial counsel did not renew the motion for a directed verdict at

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the end of trial or request a peremptory instruction at the close of all the evidence.

¶26. The trial court dismissed the jury for the day and then held the jury-instruction

conference. The next morning, the trial court read the jury instructions to the jury. To avoid

repetition, we will address the jury-instruction conference and the content of the jury

instructions below when addressing Hodges’s assignment of error on this issue.

¶27. The jury found Hodges guilty of the charges in both Count I and Count II. Hodges

filed a “Motion for a New Trial” on March 5, 2018, and in that motion Hodges also asserted

that “the [trial court] erred in overruling Defendant’s oral motion for a directed verdict in

favor of the defendant at the close of the State’s case-in-chief.” On March 8, 2018, the trial

court held Hodges’s sentencing hearing and entered its sentencing order on March 19, 2018.

Hodges was sentenced to twenty years in MDOC’s custody, with five years suspended and

fifteen years to serve, on each count, with the sentences to run concurrently. Hodges was

given credit for time served, and the trial court also ordered that Hodges be placed on five

years’ post-release supervision. Additionally, Hodges was ordered to pay court costs and

restitution. The trial court denied Hodges’s post-trial motion, and Hodges appealed.

DISCUSSION

¶28. Hodges asserts that his fundamental rights were violated when the trial court failed

to instruct the jury on an essential element of the manslaughter charges against him. In

particular, he asserts that the trial court did not instruct the jury that they must find that

Hodges knew that his dogs had a propensity for “mischievousness” or dangerousness, as

required under section 97-3-45. For the reasons addressed below, we reverse Hodges’s

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convictions and sentences based upon this assignment of error and remand this case for a

new trial.

¶29. Hodges was charged with two counts of dangerous-animal manslaughter under section

97-3-45, which provides as follows:

If the owner of a mischievous animal, knowing its propensity, wilfully suffer
it to go at large, or shall keep it without ordinary care, and such animal, while
so at large, or not confined, kill any human being who shall have taken
reasonable precautions to avoid the animal, such owner shall be guilty of
manslaughter.

As such, the elements of manslaughter relating to the ownership of a dangerous animal are

that the defendant (1) owns a “mischievous” animal; (2) and, knowing its propensity for

mischievousness (i.e., to be dangerous);5 (3) willfully allows it to go at large or keeps it

without ordinary care; and (4) while so at large or not confined, the animal kills any human

being; (5) who took reasonable precautions to avoid the animal. See id.

¶30. In this case, Hodges’s trial counsel did not object to the State’s proposed jury

instructions on the elements for manslaughter under section 97-3-45 (jury instructions S-1

5
Mississippi courts have not had the opportunity to interpret section 97-3-45.
However, the Mississippi Model Jury Instructions Commission equates the word
“mischievous” with the word “dangerous” in its 2012 proposal for the use of plain-language
instructions. Miss. Model Jury Instructions Comm’n, Proposed Mississippi Plain Language
Model Jury Instructions - Criminal, No. 2726, at 213-14 (2012). Although not binding, we
find the Commission’s synonymous use of these words persuasive. See Grassier v. State,
266 So. 3d 1038, 1041-42 (¶¶13-16), 1041 n.1 (Miss. Ct. App. 2018), cert. denied, 267 So.
3d 280 (Miss. 2019); 3B C.J.S. Animals § 365, at 475-76 (2013) (“‘Mischievous,’ within
the common-law rule of liability for injuries inflicted by a mischievous animal, does not
connote a mere playful canine trickster but connotes conduct producing or tending to
produce mischief or harm or that is injurious, deleterious, or hurtful.”). Further, Hodges was
indicted for “own[ing] . . . mischievous animal[s,] to wit: vicious dogs . . . .” (Emphasis
added).

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and S-2), which constituted the two counts against Hodges. Rather, he withdrew his

proposed instructions on the elements for manslaughter under section 97-3-45, stating, “I

think mine pretty much say[] the same thing as S-1 and S-2.” Accordingly, the trial court

found that the State’s proposed jury instructions S-1 and S-2 would be given by agreement.

Id.

¶31. Jury instruction S-1 provided as follows:

The Defendant, ERIC HODGES, has been charged in Count One of the
Indictment with the offense of Manslaughter.

If you find from the evidence in this case beyond a reasonable doubt that:

1. ERIC HODGES, on or about the 4th day of July, 2014,
in Benton County, Mississippi,

2. owned a mischievous animal(s), to wit: vicious dogs,

3. knowing their propensity to go at large, or were kept
without ordinary care,

4. and such animal(s), while so at large or not confined,

5. did kill Derrick Sanders, a human being,

6. who took reasonable caution to avoid the vicious dogs,

then you shall find the Defendant guilty as charged under Count 1 of the
Indictment.[6]

6
We observe that defense trial counsel misspoke when he said that the State’s
proposed jury instructions S-1 and S-2 were “pretty much the same” as the defense’s
proposed jury instructions. In contrast to the State’s instructions, the defense’s proposed
jury instruction D-1 stated in relevant part the following as to Count I:

If you should find from the evidence presented in the case that the State has
failed to prove any one or more of the following elements of the crime in this
case beyond a reasonable doubt, you shall find the defendant, Eric Hodges,

13
Jury instruction S-2, which the State presented for Count 2, was identical, except it

substituted David Glass’s name and date of attack for the relevant sections. Based on these

instructions, the jury found Hodges guilty on both counts.

¶32. Hodges asserts that an essential element was omitted from each instruction, namely

that he owned his dogs “knowing [their] propensity [for mischievousness/dangerousness],”

as provided in section 97-3-45. Instead, this element was substituted with the lessor

requirement that Hodges only “know[] [the dogs’] propensity to go at large.”

¶33. Proposed model jury instructions support Hodges’s assertion that the jury was not

properly instructed in this essential element of the charge. Proposed Mississippi Plain

not guilty of Count One of the Indictment:

1. That Eric Hodges owned or kept the dogs accused of killing the victim,
Derrick Sanders, on or about July 4, 2014;

2. That the accused dogs did in fact attack and cause the death of Derrick
Sanders on or about July 4, 2014;

3. That the accused dogs had in fact shown a propensity for violence
toward human beings before the alleged killing of Derrick Sanders on
or about July 4, 2014;

4. That the defendant, Eric Hodges, was in fact aware of the dogs’
propensity for violence toward human beings before the alleged killing
of Derrick Sanders on or about July 4, 2014;

5. That Eric Hodges, the defendant, failed to take ordinary care with the
dogs at the time of the alleged attack on Derrick Sanders; and

6. That David Glass failed to take reasonable precautions to avoid the
dogs at the time of the alleged attack on or about July 4, 2014.

(Emphasis added). The defense’s proposed jury instruction D-2 was identical to D-1, with
the exception of the name of the victim (David Glass) and date of attack.

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Language Model Jury Instruction 2726 states:

If you find beyond a reasonable doubt from the evidence in this case that:

1. On or about [date of the alleged crime], in ______ County;

2. [Name of defendant] owned [a/an] ______ [specify animal], a
[dangerous/mischievous animal, knowing that it was a
[dangerous/mischievous animal]; and

3. [Name of defendant] [intentionally willfully]:

A. Allowed the [dangerous/mischievous] animal to roam free; or

B. Did not take reasonable steps to confine the animal; and

4. While the animal was ___________ [specify (1) roaming free or (2) not
confined], the animal killed ______ [name of victim], a human being, who
acted reasonably to avoid the animal,

then you shall find ______ [name of defendant] guilty as charged.

Miss. Model Jury Instructions Comm’n, Proposed Mississippi Plain Language Model Jury

Instructions - Criminal, No. 2726, at 213-14 (2012) (instructive brackets in original)

(emphasis added).

¶34. Similarly, the suggestive Mississippi Practice Model Jury Instructions provide:

________ [Defendant’s name] has been charged in _ [count no.] with the
offence of manslaughter. If you find from the evidence in this case beyond a
reasonable doubt that:

1. On or about __ [date of the offense] in __ [county of offense];

2. That __ [victim’s name] was a human being; and

3. That [defendant’s name] was the owner of a mischievous animal and knew
of the mischievous animal’s propensity; and

4. ________ [Defendant’s name] [did unlawfully and willfully suffer it to go

15
at large/unlawfully kept it without ordinary care] and while such animal was
at large and not confined, did kill __ [victim’s name], who took reasonable
precautions to avoid the animal;

then you shall find the defendant guilty.

Mississippi Model Jury Instructions (Criminal) § 8:19 (Miss. Judicial Coll. 2d ed. 2019)

(emphasis added).

¶35. As Hodges acknowledges, he did not object to proposed jury instruction S-1 or S-2.

“To preserve a jury instruction issue on appeal, the defendant must make a specific objection

to the proposed instruction to allow the [circuit] court to consider the issue.” Caffie v. State,

269 So. 3d 1203, 1205 (¶11) (Miss. Ct. App. 2018). The State asserts the jury was

adequately instructed, but even if it was not, the issue is procedurally barred. Id.

¶36. Nevertheless, we will consider this issue for plain error. “[T]he Mississippi Supreme

Court has stated that instructing the jury on every element of the charged crime is so basic

to our system of justice that it should be enforced by reversal in every case where inadequate

instructions are given, regardless of a failure to object at trial.” Chesney v. State, 165 So. 3d

498, 503 (¶10) (Miss. Ct. App. 2015) (citation and internal quotation mark omitted); Pollard

v. State, 932 So. 2d 82, 87 (¶11) (Miss. Ct. App. 2006) (“[T]he trial court committed plain

error by adopting an instruction that did not fully instruct the jury on the elements of the

crime; thus, the procedural bar [based upon counsel’s failure to object] does not apply.”).

“[T]he 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); see also Chesney, 165 So. 3d at 503

(¶10). As the supreme court has also observed, “because the State has to prove each element

16
of the crime beyond a reasonable doubt, then the State also has to ensure that the jury is

properly instructed with regard to the elements of the crime.” Hunter v. State, 684 So. 2d

625, 635 (Miss. 1996).

¶37. The State asserts that the relevant instructions, as read to the jurors, included the

phrase “knowing their [the dogs’] propensity,” as follows:

If you find from the evidence in this case beyond a reasonable doubt that Eric
Hodges on or about the 4th day of July, 2014 in Benton County, Mississippi
owned a mischievous dog to wit; vicious dogs, knowing their propensity to go
at large or kept without ordinary care and such animal while so at large or not
confine, did kill Derrick Sanders, a human being, which took reasonable
caution to avoid the vicious dogs. Then you shall find the defendant guilty
under count one of the indictment. . . .

According to the State, “[w]hile the aural reading by necessity lacks punctuation, it is very

nearly verbatim to the statutory language of [section] 97-3-45.” From this reasoning, the

State asserts that reading the jury instructions “as a whole” demonstrates that the jury was

adequately instructed on each of the essential elements of the crimes, including the

requirement that Hodges knew that his dogs had a propensity for violence. See Caffie, 269

So. 3d at 1205 (¶11) (“The jury instructions are to be read as a whole, with no one instruction

to be read alone or taken out of context. When read together, if the jury instructions state the

law of the case and create no injustice, then no reversible error will be found.”) (citation and

internal quotation marks omitted).

¶38. In contrast, Hodges asserts that there were only two substantive jury instructions in

this case, S-1 and S-2. These instructions were identical, except for the names of the

deceased and the applicable dates. Neither instruction, whether in written form or as read

17
to the jury, articulated the essential requirement that the jury find that Hodges knew of his

dogs’ dangerous propensity.

¶39. Further, the written instructions, which the jury took with them during deliberations,

had numbered paragraphs for each proposed element of the crime. The only “knowledge”

element in the substantive instructions was that the jury find that Hodges “2) owned a

mischievous animal(s), to wit; vicious dogs, 3) knowing their propensity to go at large, . . . .”

(Emphasis added).

¶40. We find that the omission of any element regarding Hodges’s knowledge of his dogs’

propensity for mischievousness is particularly relevant in the light of the trial court’s general

instructions to the jury. In jury instruction C-1, the jurors were specifically instructed to

review the written instructions before they began deliberations, as follows:

You will enter into the jury room for deliberations and the court suggests that
you discuss the facts of the case, review the written instructions before you
begin voting or attempting to decide the case. The burden of proving the
defendant guilty of every material element of the crime for which he is charged
is upon the State of Mississippi.

(Emphasis added). Thus, contrary to the State’s argument that the jury instructions, read as

a whole, stated the law of the case, we find that the instructions, as a whole, omit the

essential element that the jury find that Hodges knew that his dogs had a dangerous

propensity.

¶41. As we recognized above, both this Court and the supreme court have consistently held

that the “failure to instruct the jury on the essential elements of the crime is plain error.”

Bolton, 113 So. 3d at 544 (¶4) (finding plain error where jury instruction on burglary omitted

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essential element of the crime); Shaffer v. State, 740 So. 2d 273, 282 (¶31) (Miss. 1998)

(holding that the court’s failure to instruct the jury on an essential element of the crime

charged, denied the defendant his fundamental right to due process”); Chesney, 165 So. 3d

at 503 (¶22) (finding plain error where the jury instruction failed to properly instruct the jury

on an essential element of venue).7

¶42. Nor will we engage in a harmless error analysis. In Harrell v. State, 134 So. 3d 266,

271 (¶18) (Miss. 2014), the supreme court expressly rejected the idea that “appellate courts

[may] engage in harmless error analysis when the trial courts fail to instruct juries as to the

elements of the crime charged.” Instead, the supreme court held in Harrell “that it is always

and in every case reversible error for the courts of Mississippi to deny an accused the right

to have a jury decide guilt as to each and every element.” Id. at 275 (¶30). We therefore

reverse and remand for a new trial on this issue. Bolton, 113 So. 3d at 544 (¶4).

¶43. The other issues on appeal are (1) whether Hodges’s convictions should be reversed

because there was insufficient evidence presented on two essential elements of the charged

crime, or, alternatively, whether the verdict was against the overwhelming weight of the

evidence; and (2) whether Hodges’s received ineffective assistance of counsel. Although we

7
In Esters v. State, No. 2017-KA-01300-COA, 2019 WL 125897, at *5 (¶20) (Miss.
Ct. App. Jan. 8, 2019), cert. denied, 276 So. 3d 659 (Miss. 2019), cited by the State, we
found no plain error reversal was warranted where “[a]lthough perhaps technically
imperfect, . . . instruction S-1A nevertheless covered the substance of the essential elements
of auto burglary and properly instructed the jury on the crime charged.” That is not the
situation in this case. As we discuss above, the jury was not instructed on an essential
element of section 97-3-45, and thus plain-error reversal is warranted. Indeed, we recognize
this principle in Esters, as follows: “We must reverse . . . where the trial court fails to
instruct the jury on the essential elements of the crime.” Id. at *4 (¶17).

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have found that it was plain error when the trial court failed to instruct the jury on an

essential element of the manslaughter charges against Hodges, we will briefly address

Hodges’s assertion regarding the sufficiency of the evidence because a finding for Hodges

on this claim would result in a reversal and rendering of the judgment in his favor. See

Newell, 175 So. 3d at 1267 (¶5); Husband v. State, 204 So. 3d 353, 360 (¶19) (Miss. Ct. App.

2016).

¶44. We find that had the jury been properly instructed, the State offered sufficient

evidence to support the manslaughter verdicts against Hodges with respect to the deaths of

Sanders and Glass. “In reviewing the sufficiency of the evidence, the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any

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

doubt.” Smith v. State, 275 So. 3d 100, 109 (¶28) (Miss. Ct. App. 2019). In this regard, this

Court “may only reverse a denial of a JNOV motion when, with respect to one or more of the

elements of the offense charged, the evidence so considered is such that reasonable and

fair-minded jurors could only find the accused not guilty.” Id.

¶45. As set forth above, the elements of manslaughter under section 97-3-45 are that the

defendant owns a dangerous animal and, knowing its dangerous propensity, willfully allows

it to go at large or keeps it without ordinary care, and the animal kills someone while so at

large or not confined. Additionally, it must be shown that the victim did not take reasonable

precautions to avoid the animal. Miss. Code Ann. § 97-3-45. Hodges’s first assertion is that

the State failed to prove that he had knowledge of his dogs’ dangerous propensity before

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Sanders’s and Glass’s deaths. Id. We disagree. The jury heard the testimony of Chief

Deputy Batts that three of Hodges’s dogs were chained up in Hodges’s yard and “were

agitated, barking, [and] straining against their chains.” Chief Deputy Batts testified that he

“was concerned about the dogs [and] he pulled his side arm.” Similarly, Sheriff McMullen

testified that when he went to the Hodgeses’ home, the large dogs that were chained up in

the yard were “aggressive[ly] barking” and that “[t]hey would run at [him] on the chain” as

he approached Hodges’ home. Sheriff McMullen also testified that Hodges had to come with

him when he transported these three dogs because one of the dogs had already chewed

through the plastic crate that it was in. Further, Sheriff McMullen testified that Hodges told

him “that he let the dogs loose some at night and that way he could tell if someone was

messing around his house or his property out there they would let him know.” We find that

the jury could reasonably infer from this testimony that Hodges’ dogs were at large and that

Hodges was aware of the aggressive, dangerous propensity of his dogs.

¶46. Further, with respect to Hodges’s knowledge prior to Glass’s death, in particular, the

jury also heard Sharon Reader’s testimony that when she was coming out of her house,

Hodges’s dogs came “charging from down by the mailbox coming up the hill and [she] ran

back in the house.” It was after this happened that Reader called Hodges’s wife, Mary Ann,

because Reader feared for her grandchildren’s safety. Reader testified that she asked Mary

Ann to ask Hodges to keep his dogs tied up because she was afraid they were going to attack

her grandchildren. This phone conversation took place just two and a half weeks before

Glass was killed. We find that a jury could reasonably infer that Mary Ann had conveyed

21
this information to her husband regarding the very dogs kept in their own household.

¶47. Hodges also asserts that as to Sanders’s death, only, the State did not present sufficient

evidence that Sanders took “reasonable precautions to avoid the [dogs].” Id. We also find

no merit in this assertion. The bodies of both victims were found on public property, near

a public road. A jury could reasonably conclude that Sanders would stay on public property

road to avoid dogs protecting private property. Hodges asserts, however, that there was also

undisputed testimony that Sanders’s shoe was found in Hodges’s driveway. We find,

however, that the jury was entitled to weigh this evidence against the fact that Sanders’s

mutilated body was found on public grounds, that Sanders, himself, had not been in Hodges’

driveway, and that he took reasonable means to protect himself and avoid the dogs by

walking in public areas.

¶48. These issues are all questions for the jury, and, upon being properly instructed, we

find that viewing the evidence in the light most favorable to the prosecution, reasonable

jurors could have found beyond a reasonable doubt that Hodges was guilty of manslaughter

for the deaths of Sanders and Glass. Gillett v. State, 56 So. 3d 469, 505 (¶102) (Miss. 2010)

(“The jury determines the weight and credibility to give witness testimony and other

evidence. This Court may not pass upon the credibility of witnesses and, where the evidence

justifies a verdict, it must be accepted as having been found worthy of belief.”) (citation and

internal quotation mark omitted). For the same reasons, we would find that had the jury been

properly instructed, the trial court would not have abused its discretion in denying Hodges’s

motion for a new trial because the jury’s verdict was not “so contrary to the overwhelming

22
weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

Smith, 275 So. 3d at 110 (¶35).

¶49. We do not address Hodges’s ineffective-assistance-of-counsel claim because “our

supreme [court] has held that if a case is reversed on other grounds, a claim of ineffective

assistance is moot.” Husband, 204 So. 3d at 360 (¶19) (citing Read v. State, 430 So. 2d 832,

841 (Miss. 1983)) (other citation omitted).

¶50. REVERSED AND REMANDED.

BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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