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IN THE COURT OF APPEALS 05/07/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-01185 COA

JEROME BENBOW A/K/A JEROME L. BENBOW APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HENRY L. LACKEY COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: TIMOTHY BALDUCCI ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: LARRY LITTLE NATURE OF THE CASE: CRIMINAL- AGGRAVATED ASSAULT ON A LAW OFFICER TRIAL COURT DISPOSITION: SENTENCED TO SERVE 20 YEARS IN THE MDOC WITH 8 YEARS SUSPENDED AND 12 YEARS TO SERVE

BEFORE THOMAS, P.J., BARBER, AND SOUTHWICK, JJ.

BARBER, J., FOR THE COURT: Jerome Benbow was convicted of aggravated assault in the Circuit Court of Lafayette County. He was sentenced to a term of twenty years imprisonment with eight years of the sentence suspended and twelve years to serve in the custody of the Mississippi Department of Corrections. Feeling aggrieved by the judgment against him, Benbow appeals, raising the following issue:

WHETHER THE TRIAL COURT ERRED BY FINDING AS A MATTER OF LAW THAT JANICE BENBOW BEARLY WAS A LAW ENFORCEMENT OFFICER UNDER THE MEANING OF THE STATUTE THAT ENHANCES THE PENALTY FOR AGGRAVATED ASSAULT AGAINST A LAW ENFORCEMENT OFFICER.

FACTS On November 21, 1988, Janice Benbow Bearly was shot twice on the campus of the University of Mississippi while performing her duties as a traffic officer. Jerome Benbow, the victim's ex-husband, was subsequently indicted for aggravated assault upon a law enforcement officer. During the trial, the judge found as a matter of law that the victim was a "law enforcement officer." After a jury trial, Benbow was found guilty of aggravated assault on a law enforcement officer. ANALYSIS Benbow argues that the trial court committed reversible error when it instructed the jury that the victim was a law enforcement officer as a matter of law so as to require an enhanced penalty from that of aggravated assault. Benbow proceeds by making a strong argument in support of his position that the victim was not a "law enforcement officer" within the meaning of section 97-3-7(2) of the Mississippi Code. The issue of whether or not his victim was a law enforcement officer acting within the scope of her official duties is relevant only to sentencing. After stating the elements of the crime of aggravated assault and the possible sentences upon conviction thereof, viz., "imprisonment in the county jail for not more than one (1) year, or in the penitentiary for not more than twenty (20) years," section 97-37(2) then declares that a "person convicted of aggravated assault" upon those in certain named classes "shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both." Miss. Code Ann.

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