Booze v. State
| Docket Number: | 2006-KA-01004-COA | |
| Oral Argument: | 05-15-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-18-2007 Opinion Author: ROBERTS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Aggravated assault - Lesser-included offense instruction Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-03-2006 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: William E. Chapman, III Disposition: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCED TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION. District Attorney: David Byrd Clark Case Number: 2005-0556 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JOHN W. BOOZE A/K/A JOHN BOOZE |
IMHOTEP ALKEBU-LAN |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS |
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| Topic: | Aggravated assault - Lesser-included offense instruction |
| Summary of the Facts: | John Booze was convicted of aggravated assault and sentenced to twenty years with fifteen years to serve. He appeals. |
| Summary of Opinion Analysis: | Booze argues that the court erred by not including a lesser charge of simple assault in the jury instructions, because he did not introduce a deadly weapon into the confrontation and was not an accessory. A trial court should not grant a lesser-included offense instruction if no reasonable jury could find the defendant guilty of the lesser-include-offense, and ultimately not guilty of at least one element of the principal charge. Viewing the testimony in a light most favorable to Booze, and drawing all reasonable inferences in favor of Booze, it is clear that, given the option, reasonable jurors could find Booze guilty of simple assault and not guilty of aggravated assault. The State amended Booze’s indictment to delete the word “serious.” By removing the word “serious” from the indictment the State proceeded to trial on the sole theory that Booze was guilty of aggravated assault by the fact that he aided and assisted his girlfriend in her commission of an aggravated assault. Stated differently, the State’s only theory of Booze’s guilt was that Booze was an accomplice to the aggravated assault. Booze admitted during his testimony that he started the fight by punching the victim in the face. Since this punch did not cause serious bodily injury, this alone would be sufficient to sustain a charge of simple assault. Secondly, if the jury determined that Booze did act as an accomplice with his girlfriend, but found the bottles used not to be deadly weapons, Booze could have been found guilty of simple assault under the theory of accomplice liability. In a situation such as this, where Booze started the fight with the victim with no intention to use a beer bottle as a weapon, and his girlfriend interjected herself in the altercation without request from Booze, it is not unreasonable for a jury to conclude that the intent required to sustain a charge of aggravated assault was not shown by the fact that Booze continued to fight. Accordingly, the circuit court erred when it did not grant the lesser-included offense instruction. |
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