The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 04/04/97
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AS TO AGGRAVATED ASSAULT; REMANDED FOR RESENTENCING ON SIMPLE ASSAULT-10/15/98
MOTION FOR REHEARING FILED:
¶1. Clonelle Shields, "a.k.a. Stank", was indicted and found guilty of aggravated assault. The evidence demonstrated only simple assault; but, Shields was not indicted for simple assault, nor was the jury instructed on simple assault. The State concedes that the trial Judge erred and argues that the case should be remanded for a trial on the simple assault charge. Shields contends that the proper remedy is dismissal of the State's charges against Shields. Shields raises the following issues on appeal.
I. THAT THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR A DIRECTED [SIC] AT THE CLOSE OF THE STATE'S CASE-IN-CHIEF.
II. THAT THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR A DIRECTED [SIC] AFTER THE DEFENDANT RESTED HIS DEFENSE.
III. THAT THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S REQUESTED JURY INSTRUCTION D-1.
¶2. On May 26, 1995, Elaine Brown ("Brown") and her brother returned to her apartment in the Canal Street apartments in Canton, Mississippi. Brown's brother parked in front of her door and, as they were exiting the car, an altercation developed between Brown's brother and a person identified as "the Rivers boy." The "Rivers boy" apparently had a gun, which he passed to Shields, who sat down on the back of Brown's car. Brown told Shields and "the Rivers boy" to leave and get off her car, at which point Shields removed the weapon from his pocket and threatened to kill Ms. Brown. Ms. Brown went in to her apartment and called the police. Shields was arrested.
¶3. All three issues raised by Shields on appeal turn on the sufficiency of the evidence to prove the indicted charge of aggravated assault. The State wisely concedes that there was insufficient evidence to carry 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 the Appellant are correct that insufficient evidence exists to sustain a verdict of guilt upon aggravated assault.
¶5. The question remains, however, as to the proper remedy. Shields contends, without citation to authority, that since the State choose to exclusively pursue the aggravated assault charge through the indictment and through ...