Osborne v. State


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Docket Number: 2002-KA-00875-COA

Court of Appeals: Opinion Link
Opinion Date: 04-15-2003
Opinion Author: Thomas, J.
Holding: Affirmed

Additional Case Information: Topic: Aggravated assault - Prejudicial comment - Self-defense instruction - Lesser-included offense instruction
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ.
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 05-08-2002
Appealed from: DeSoto County Circuit Court
Judge: George B. Ready
Disposition: AGGRAVATED ASSAULT - TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FOURTEEN YEARS SUSPENDED PENDING GOOD BEHAVIOR.
District Attorney: John W. Champion
Case Number: CR-2002-35-RD

  Party Name: Attorney Name:  
Appellant: Latesha Lavette Osborne




DAVID CLAY VANDERBURG



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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Topic: Aggravated assault - Prejudicial comment - Self-defense instruction - Lesser-included offense instruction

Summary of the Facts: Latesha Osborne was convicted of aggravated assault and sentenced to twenty years with the last fourteen years suspended pending good behavior. She appeals.

Summary of Opinion Analysis: Issue 1: Prejudicial comment Osborne argues that the court erred in denying her motion for mistrial when an eyewitness for the State testified that Osborne was "gay." When an improper comment is made, the judge should request the jury to disregard the statement and deny a motion for mistrial absent serious and irreparable damage. There is no error if the judge sustains an objection to testimony and directs the jury to disregard it. Not only was the comment in this case minimally prejudicial, but Osborne herself referred to the comment in her own testimony as being a reason for the confrontation. Issue 2: Self-defense instruction Osborne argues that the court erred in denying her self-defense jury instruction. Whether the self-defense issue should be submitted to the jury turns on whether there is credible evidence in the record supporting it. Because Osborne claimed to have no idea how the victim was injured, there was no evidence to support a self-defense instruction. Issue 3: Lesser-included offense instruction Osborne argues that the court erred in denying her lesser-included offense jury instruction of simple assault, because she was fighting in self-defense and did not have a weapon. The evidence in a particular case generally warrants granting a lesser-included offense instruction if a reasonable jury could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the lesser-included offense. Osborne was either not guilty since she claimed she did not know how the victim was injured or she was guilty of aggravated assault as she caused injury under circumstances manifesting extreme indifference to the value of human life using a means likely to produce serious bodily harm. Therefore, there was no evidence to support a lesser-included offense instruction for simple assault.


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