Brown v. State, 91-KA-00600
| Decision Date | 10 March 1994 |
| Docket Number | No. 91-KA-00600,91-KA-00600 |
| Citation | 633 So.2d 1042 |
| Parties | Lawrence BROWN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Robert A. Davis, Rex K. Jones, Hattiesburg, for appellant.
Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.
Lawrence Brown was indicted under a multicount indictment charging him with burglary of an inhabited dwelling (Count 1), rape of Toni Sue Davis (Count 2), sexual battery of Toni Sue Davis (Count 3), 1 and aggravated assault of Wendy Davis (Count 4). A jury found Brown not guilty of burglary of an inhabited dwelling but found him guilty of rape and aggravated assault. He was sentenced to serve twenty years in the Mississippi Department of Corrections for rape and ten years in the Mississippi Department of Corrections for aggravated assault, the second sentence to run consecutive to the first. Because Brown's conviction of aggravated assault of Wendy Davis is not supported by the evidence, we reverse and remand for the sole purpose of sentencing him for simple assault on this charge.
This is a companion case to Davis v. State, 611 So.2d 906 (Miss.1992). The sordid facts forming the basis of criminal charges are set forth in Davis, and there is no need to repeat them. Brown was the strange man in Mrs. Davis' bedroom when she awakened around 2:00 to 2:30 a.m. on the early morning of July 19, 1989. He admitted being on the Davis premises and having intercourse with Mrs. Davis but insisted that his participation in the events resulted from the express request of Charles Ralph Davis, the victim's husband.
Although Brown asserts error in his conviction of the rape of Mrs. Davis, we have concluded, after careful examination of the record, that there is no reversible error in his conviction on this charge of the indictment. We, therefore, direct our attention towards Brown's conviction of aggravated assault of Wendy Davis.
Wendy, eight-year-old daughter of Toni Sue and Charles Ralph Davis, was asleep in the bed with her mother when Brown entered the Davis bedroom prior to the rape. Brown threatened to kill Mrs. Davis and told her in explicit words he was going to have sex with her. Mrs. Davis submitted to Brown's desires and neither screamed nor yelled for fear of awakening Wendy. When a foreign object was subsequently forced into her vagina, Mrs. Davis, unable to control the pain, screamed and Wendy awakened. Wendy started screaming. Brown pointed a gun toward Wendy and commanded her to "shut up." Wendy complied. Brown did not touch or make any advances toward Wendy. After relating the gun pointing incident, Wendy testified:
Q Okay. Do you remember what the black man did with the gun?
A Unh-unh. [Negative] I don't know where he laid it.
Wendy did testify that she was afraid of getting shot when the gun was pointed toward her.
This is the full extent of the testimony supporting the verdict on this count. The undisputed evidence shows Brown had the means and opportunity to cause Wendy great bodily harm but did not "attempt" to do so. Nothing prevented Brown from discharging the firearm. On the other hand, the same evidence shows conclusively that Brown attempted by physical menace to put Wendy in fear of imminent serious bodily harm.
Upon conclusion of the State's case-in-chief, Brown moved for a directed verdict alleging the evidence failed to show he attempted, by use of a deadly weapon, to cause bodily injury to Wendy. The motion was renewed upon conclusion of all the evidence. Brown sought and was refused a peremptory instruction on the issue and preserved the point in his new trial motion. On appeal, he maintains that the evidence showed clearly he could have only been guilty of simple assault. We agree. Murray v. State, 403 So.2d 149 (Miss.1981), controls the issue. In Murray, we reversed a verdict of aggravated assault upon a law enforcement officer by a prison inmate because the proof failed to show an actual unequivocal intent on the part of the inmate to cause the officer bodily harm when the inmate had the means and opportunity to do so. In Murray, we stated:
In 1974, the Legislature revised the statutory crimes of assault and assault and battery. 1974 Miss.Laws, Ch. 458 (codified in Mississippi Code Annotated Sec. 97-3-7 (Supp.1980)). The first paragraph of this act defines simple assault and provides the punishment therefor. The pertinent portions read as follows:
1) A person is guilty of simple assault if he ... (c) attempts by physical menace to put another in fear of imminent serious bodily harm; ...
The second paragraph of the act deals with aggravated assault and the punishment therefor, the pertinent portions of which read as follows:
(2) A person is guilty of aggravated assault if he ... (b) attempts to cause ... bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; ...
The serious question before this Court from an examination of the record is whether the accused is guilty of aggravated assault or the lesser offense embraced therein of simple assault.
To be guilty of aggravated assault under facts as revealed in this record it is necessary that the accused "attempted to cause bodily injury to another with a...
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Shields v. State
...the aggravated assault charged in the indictment. ¶ 4. There is simply no evidence rising to the level of attempt under Brown v. State, 633 So.2d 1042 (Miss.1994). Here, the evidence demonstrates that, while Shields threatened Brown, he made no attempt to cause her harm. Thus the State and ......
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Tate v. State, 1999-KM-01325-SCT.
...at an individual is sufficient to support a conviction for simple assault. Gibson v. State, 660 So.2d 1268 (Miss. 1995); Brown v. State, 633 So.2d 1042 (Miss.1994); Woodall v. State, 234 Miss. 759, 107 So.2d 598 (1958). These cases did not involve the protection of property but are, nonethe......
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Gibson v. State, 92-KA-00166-SCT
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...a gun when she tried to come to the aide of her mother. The facts leading to Brown's conviction are further summarized in Brown v. State, 633 So.2d 1042 (Miss.1994), and reported in detail in the companion case of Davis v. State, 611 So.2d 906 (Miss.1992). There is no need to fully repeat t......