Busby v. State


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Docket Number: 2006-KA-00570-COA

Court of Appeals: Opinion Link
Opinion Date: 05-22-2007
Opinion Author: IRVING, J.
Holding: Affirmed

Additional Case Information: Topic: Kidnapping - Lesser-included offense instruction
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-23-2006
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: CONVICTED OF KIDNAPPING AND SENTENCED TO SERVE A TERM OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: John W. Champion
Case Number: CR-2005-127-CD

  Party Name: Attorney Name:  
Appellant: SHAWN MATTHEW BUSBY




DAVID CLAY VANDERBURG



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY  

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Topic: Kidnapping - Lesser-included offense instruction

Summary of the Facts: Shawn Busby was convicted of kidnapping and was sentenced to three years. He appeals.

Summary of Opinion Analysis: Busby argues that the court should have granted his proposed jury instruction on simple assault/domestic violence. Although the court refused to grant Busby his proposed instruction, the court had already found that domestic violence was a lesser-included offense of Busby’s kidnapping charge when it dismissed count II of the indictment on that ground. The essential elements of a lesser-included offense are among the elements of the superior offense. Domestic violence is not a lesser-included offense of kidnapping, as the elements of domestic violence are not among the elements of kidnapping. The court was incorrect in dismissing count II of Busby’s indictment, as the State could validly have prosecuted Busby both for kidnapping and for domestic violence. However, the court’s error was clearly in Busby’s favor. Regardless of any error on the part of the court in interpreting domestic violence as a lesser-included offense of kidnapping, Busby was not entitled to his lesser-included offense instruction because domestic violence is not a lesser-included offense of kidnapping.


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