Wilson v. State, No. 2003-KA-02416-SCT.
| Decision Date | 02 December 2004 |
| Docket Number | No. 2003-KA-02416-SCT. |
| Citation | 904 So.2d 987 |
| Parties | Donald WILSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Tommy Wayne Defer, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before SMITH, C.J., CARLSON and DICKINSON, JJ.
¶ 1. Donald Wilson and Sandy Tyler separated after living together and parenting two children. Wilson notified Tyler that he was coming to visit the children on March 21, 2002. When Wilson arrived, he spoke to Tyler through the screen door of her apartment. Tyler turned her back for a moment, and Wilson broke the lock off of the screen door and entered the apartment without Tyler's permission. Wilson told Tyler that he had "something especially for [her]." He showed her a gun and began loading it. Tyler tried to run away, but Wilson chased her into a bedroom where he pushed her into a door and then hit her repeatedly with the gun. After an extended struggle, Wilson pointed the gun at Tyler and instructed her to take the children out to his car. When Tyler refused, Wilson threatened to kill her. While Wilson was placing one of the children into the car, Tyler attempted to run to her neighbor's apartment for help. Wilson followed Tyler and dragged her by her hair and clothing away from the apartment building, and struck her repeatedly with the gun. Wilson then pointed the gun at Tyler's head and pulled the trigger several times, but the gun failed to fire. Tyler then ran into the neighbor's apartment, and Wilson fled.
¶ 2. After Wilson was indicted on one count of attempted aggravated assault with a deadly weapon by a Yalobusha County Grand Jury on June 26, 2002, he was tried and found guilty on July 8, 2003. Wilson was sentenced on September 24, 2003 to serve ten (10) years in the custody of the Mississippi Department of Corrections with the last four (4) years suspended.
¶ 3. Wilson appeals and asks us to review his nine assignments of error. We have and find none to have merit. Therefore, we affirm.
¶ 4. Wilson was charged with a violation of Miss.Code Ann. § 97-3-7(2)(b), which states:
A person is guilty of aggravated assault if he attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years.
At trial, Wilson submitted proposed jury instructions D-12 and D-13, which stated:
¶ 5. Both proposed instructions were refused by the trial court. Wilson asserts that these were the only instructions that set forth his theory of the case, and therefore the trial court erred in denying them under Humphrey v. State, 759 So.2d 368, 380 (Miss.2000).
¶ 6. Wilson claims that because he and Tyler have children together, he was entitled to jury instructions on the crime of aggravated domestic assault under Miss. Code Ann. § 97-3-7(4), which provides:
A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against a family or household member who resides with the defendant or who formerly resided with the defendant, or a current or former spouse, or a person with whom the defendant has had a biological or legally adopted child and upon conviction, the defendant shall be punished as provided under subsection (2) of this section; provided, that upon a third or subsequent offense of aggravated domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than five (5) nor more than twenty (20) years.
Id. (emphasis added).
¶ 7. This statute, according to Wilson, means that, in order to convict him of a felony, the State was required to show that he was a third offender. Because no such evidence was presented, he claims he could only be guilty of a misdemeanor.
¶ 8. The State responds that Wilson's proposed jury instructions were confusing, misleading, and incorrect statements of the law and were properly rejected under Thomas v. State, 818 So.2d 335 (Miss. 2002). The State contends that Wilson misreads § 97-3-7 when he argues that aggravated domestic assault is a felony only upon a third conviction. The State claims that a first or second offense of aggravated domestic assault is punishable as either a felony or a misdemeanor, and becomes a mandatory felony upon the third offense. The State also argues that, for a first or second offense under § 97-3-7(4), the trial judge has the discretion to sentence the offender to less than one year (making the offense a misdemeanor), or more than one year (making the offense a felony). The State also asserts that aggravated domestic assault is not a lesser-included offense of aggravated assault, and to instruct the jury on the offense of aggravated domestic assault would have changed the identity of the crime with which Wilson was charged.
¶ 9. Wilson's proposed jury instructions were properly rejected. Whether a perpetrator should be presented to a grand jury, and under what charge, are decisions generally left to the prosecutor's discretion. United States v. Batchelder 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (). Additionally, this Court has recently recognized that "the charge, or reduction thereof, is completely in the discretion of the prosecutor and ultimately the trial judge at the trial stage." Powers v. State 883 So.2d 20, 33 (Miss.2003). In the case sub judice, the decision to charge Wilson with attempted aggravated assault rather than aggravated domestic violence was a matter of prosecutorial discretion. The trial court correctly recognized this and did not err in refusing to give an instruction on aggravated domestic violence.
¶ 10. Furthermore, Wilson's proposed jury instructions incorrectly stated the law and were therefore properly rejected under Humphrey v. State, 759 So.2d 368 (Miss.2000). This Court held in Humphrey that "[a] defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law ..." Id. at 380 (citing Heidel v. State, 587 So.2d 835, 842 (Miss. 1991)).
¶ 11. Wilson's proposed jury instructions misinterpret § 97-3-7. Section 97-3-7 provides definitions and punishments for simple assault, aggravated assault, and also for simple domestic violence and aggravated domestic violence. Under that statute aggravated domestic violence is the same crime as aggravated assault, except that aggravated domestic violence is committed against a victim within the category of persons specified in the statute, e.g., a family member or spouse.1 Similarly, simple domestic violence is the same crime as simple assault, except that simple domestic violence is committed against a person within the category listed in the statute.2 Furthermore, § 97-3-7 provides the same punishment for aggravated domestic violence as the punishment for aggravated assault.3 Thus, Wilson's sentence would not have changed had his crime been characterized as aggravateddomestic violence rather than aggravated assault.
¶ 12. Characterizing Wilson's offense as domestic violence would neither have reduced his crime to a misdemeanor, nor reduced his sentence. Wilson's proposed jury instructions D-12 and D-13 misstated the law under Miss.Code Ann. § 97-3-7, and were therefore properly rejected. Wilson is entitled to no relief on this issue.
¶ 13. After his conviction, Wilson filed a motion for judgment notwithstanding the verdict or in the alternative...
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