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Walls v. State3/14/2000
used here ever being simple assault. I think it does. Even viewing the evidence in the light most favorable to Walls, I believe that no reasonable jury could have found him innocent of aggravated assault, yet guilty of simple assault. It is my opinion that Walls's use of this particular kind of knife and his deliberate wielding of this deadly weapon removes this case from the simple assault provision of the statute. I therefore respectfully dissent from the majority's finding that the trial judge erroneously refused Walls's request for a lesser offense instruction on simple assault.
. Additionally, as to Walls's second issue on appeal, I find no error in the trial court's decision to sentence Walls as an habitual offender. In relevant part, the habitual offender statute provides: "Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times . . . ." Miss. Code Ann. § 99-19-81. "We have on several occasions held that 'priors' arising out of incidents occurring on the same date may nevertheless be 'separate incidents at different times' within Section 99-19-81." Pittman v. State, 570 So. 2d 1205, 1207 (Miss. 1990). There need be little separation between the two crimes to satisfy the statutory requirements.
. In Nicolaou v. State, the defendant had embarked on a crime spree that involved two murders followed by two kidnapings committed in the course of fleeing the murder scene. Nicolaou v. State, 534 So. 2d 168, 173 (Miss. 1988). The court held that the murders were related to the same incident but that the kidnapings were separate incidents from the murders for considerations of habitual offender sentencing. Id.
. In Pittman, the defendant burglarized, apparently in rapid succession, two school buildings that shared the same campus but operated as different schools under separate names and with different administrations. Pittman, 570 So. 2d at 1205-06. Again, the court held that these two break-ins, even could it be shown that they were done "as quickly as one could physically accomplish these acts," would nonetheless, be separate incidents for purposes of habitual offender analysis. Id. at 1207.
. Based on the Mississippi Supreme Court's prior interpretation of the statute, I am persuaded that the trial court was correct in finding these two prior assault convictions arose out of separate incidents. Multiple crimes committed during the course of a series of related events may constitute separate and distinct offenses for purposes of Section 99-19-81. Thus, as to Walls's second issue on appeal, I respectfully dissent and would affirm the trial court's decision to sentence Walls as an habitual offender.
PAYNE, J., JOINS THIS SEPARATE OPINION.
LEE, J., JOINS AS TO ISSUE I.
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