IN THE COURT OF APPEALS 2/25/97

OF THE

STATE OF MISSISSIPPI

NO. 94-KA-01029 COA

 VERNON HOLDER, III

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. MICHAEL RAY EUBANKS

COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

DEBORAH HONES GAMBRELL

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: DOUGLASS, RICHARD,

NATURE OF THE CASE: FELONY: AGGRAVATED ASSAULT

TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED AS HABITUAL

OFFENDER TO 20 YRS IN MDOC; SENTENCE SHALL NOT BE REDUCED OR

SUSPENDED, NOR SHALL DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION;

DEFENDANT TO BE TREATED FOR ANY PSYCHOLOGICAL OR CHEMICAL
DEPENDENCY PROBLEMS.

BEFORE BRIDGES, C.J., KING, AND PAYNE, JJ.

KING, J., FOR THE COURT:

Holder was convicted of aggravated assault and sentenced as a habitual offender to serve twenty

years in the custody of the Mississippi Department of Corrections. Aggrieved, Holder appeals and

assigns for review the following issues:

I. Whether the trial court erred by failing to exclude the testimony of a witness because the witness

was coerced into testifying;

 II. Whether the court erred when it failed to grant Holder’s motion for directed verdict because the

prosecution failed to prove each and every element of the aggravated assault offense;

 III. Whether the court erred when it denied Holder’s request to submit to the jury an instruction

on the lesser included offense--simple assault.

 We find no error and affirm the conviction and sentence.

 FACTS

On or about January 1, 1994, Holder went to visit the home of his uncle, James Holder. James was

not present, but Holder’s uncle, Walter Holder and James’s girlfriend, Rhonda McLemore were

present along with McLemore’s minor children. When Holder arrived, one of the minor children was

attempting to shoot pool on a miniature pool table in the living room; however, the child’s younger

sibling frustrated his efforts by reaching for the pool stick. A tug-of-war over the pool stick arose

between the children, and Holder intervened. Holder spoke harshly to the older child, took the pool

stick, and gave it to the younger child.

McLemore, who was in the kitchen, heard Holder’s harsh words and entered the living room. When

McLemore entered the living room, Holder was shooting pool on the table. McLemore and Holder

quarreled over the harsh words spoken to her child, and the dispute evolved into a physical battle.

Evidence regarding who was the first aggressor conflicts. Holder testified that McLemore entered the

living room, grabbed the pool stick from him, and hit him. McLemore testified that she entered the

living room and asked Holder to leave, whereupon Holder hit her with the pool stick on her shoulder.

Walter Holder could not corroborate either Holder or McLemore’s testimony because he was in the

kitchen when the quarrel commenced and did not see the initial blow.

Both Holder and McLemore testified that McLemore threw an ashtray at Holder and retrieved a

knife from the kitchen during the dispute, but Walter intervened, and either Holder or Walter

removed the knife from McLemore’s possession. Thereafter, McLemore retreated into the bedroom

and locked the door, but Holder kicked the door to the bedroom in and followed McLemore into the

bedroom, where the quarrel continued. McLemore fled from the bedroom into the yard, and Holder
followed. The dispute continued, and during the course of the dispute, Holder pushed McLemore

into a fence. McLemore suffered a dislocated shoulder and sustained several bruises during the

altercation.

ANALYSIS OF THE ISSUES AND DISCUSSION OF LAW

I.

DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF

MCLEMORE?

After McLemore had taken the stand, the district attorney asked McLemore for a narration of the

events which occurred during Holder’s visit. McLemore responded by stating that she could not and

left the witness stand. Thereafter, the district attorney requested a brief recess, which was granted by

the court. After the recess, McLemore returned to the witness stand, and defense counsel objected

and moved for a mistrial on the basis that McLemore could have been coerced or threatened into

testifying. In response to defense counsel’s objection and his motion, the state assured the court that

it merely asked McLemore to proceed with her testimony and advised her that she did not have to

fear the defendant. Defense counsel’s objection was overruled and motion for mistrial was then

denied.

Holder argues that McLemore’s testimony was coerced, and its admission into evidence deprived him

of due process. In support of this position, Holder cites the supreme court’s opinion in Harris v.

Canton Separate Public School Board, Nos. 90-CC-01288-SCT, 90-CC-01294-SCT (Miss. Apr. 21,

1994). Holder cites this case as holding that "an abuse of process such as coercion of a witness might

constitute a due process violation." However, on petition for rehearing, the opinion was withdrawn

and substituted.

In Harris, a middle school principal was terminated for assaulting and threatening a teacher. Prior to

the principal’s termination, a hearing was held at which the teacher was reluctant to testify. The

board’s attorney advised the teacher:

I want to make sure that you understand that your failure to cooperate with the Board in

finding out what happened could lead to your being terminated as teacher in the system.

That is not what the Board is interested in, that is not their choice at this point. But you

still don’t want to cooperate with us and tell us what happened?

Upon rehearing, the supreme court stated that it could be inferred from the teacher’s reluctance to

speak at the meeting and from her affidavit that she felt compelled to testify or lose her job.

However, the evidence of coercion was insufficient to overcome the Board’s presumption of

integrity; therefore, Harris’s due process rights were not violated.

Unlike the witness in Harris, McLemore was not threatened with the deprivation of an interest or

privilege--she would be jailed if she refused to testify. McLemore’s reluctance toward testifying

probably arose because she felt uneasy about testifying against the nephew of her boyfriend.

Therefore, we do not find that McLemore’s reluctance toward testifying resulted from coercion and

that Holder’s due process rights were violated. This assignment of error lacks merit.
II.

DID THE TRIAL COURT ERR IN FAILING TO GRANT HOLDER’S MOTION FOR

DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE EACH

AND EVERY ELEMENT OF THE AGGRAVATED ASSAULT OFFENSE?

Holder assigned as error the trial court’s denial of his motion for a directed verdict; however, in the

body of his brief, Holder argues that a new trial should be ordered because the state failed to disclose

material evidence affecting McLemore’s credibility. Because Holder failed to argue the assignment

regarding the court’s denial of the motion for directed verdict, we assume that Holder has abandoned

the assignment. Therefore, we do not consider whether the trial court erred when it denied Holder’s

motion for directed verdict. Estes v. State, 533 So. 2d 437, 440 (Miss. 1988).

In addition, Holder did not assign as error the issue regarding the state’s failure to disclose material

evidence affecting McLemore’s credibility. Generally, an unassigned error may not be urged as

grounds for reversal. Read v. State, 430 So. 2d 832, 838 (Miss. 1983) (citation omitted). In spite of

the fact that Holder failed to assigned this issue, Holder did not identify specifically the information

the state failed to disclose. Moreover, the record is void of any evidence supporting Holder’s

contention that the state failed to disclose material evidence affecting McLemore’s credibility. A

party seeking reversal of the judgment of a trial court must present this Court with a record adequate

to show that an error of reversible proportions has been committed. Hansen v. State, 592 So. 2d 114,

127 (Miss. 1991) (citations omitted). Holder failed to satisfy this requirement; therefore, we are

unable to give credence to this assignment of error.

III.

DID THE TRIAL COURT ERR IN DENYING HOLDER’S REQUEST FOR AN

INSTRUCTION ON THE LESSER INCLUDED OFFENSE SIMPLE ASSAULT?

Holder argues that the trial court erred by denying the defense the following jury instruction, which

attempted to define the elements of simple assault:

The court instructs the jury that if you find the Defendant is guilty of an attempt to cause

or purposely, knowingly, or recklessly cause bodily injury to Rhonda McLemore or

negligently cause bodily injury to Rhonda McLemore with a deadly weapon or other

means likely to produce death or serious bodily harm or an attempt by physical means to

put Rhonda McLemore in fear of eminent serious bodily harm, then you shall find the

Defendant guilty of the lessor included offense of simple assault.

Holder emphasizes his prior comradeship with McLemore and argues that because he did not intend

to cause her serious bodily injury, the court should have granted the requested instruction. In support

of this argument, Holder cites Stubbs v. State, 441 So. 2d 1386, 1389 (Miss. 1983) (citation omitted)

. In Stubbs, the supreme court said that a simple assault instruction is proper when the element of

intent is absent from the assault. Holder and McLemore’s prior comradeship does not conclusively

establish Holder’s lack of intent to commit aggravated assault. Intent to cause serious bodily injury

may reasonably be inferred from the fact that Holder pursued and persisted in his attacks upon

McLemore even after she had retreated to the bedroom. Notwithstanding the fact that there was
sufficient evidence substantiating a finding that Holder intended to cause serious bodily injury, the

court instructed the jury as follows:

The court instructs the jury that the defendant Vernon Holder, III, has been charged with

the crime of aggravated assault, and therefore, if you believe from the evidence in this

case, beyond a reasonable doubt that the defendant, Vernon Holder, III, on or about the

1st day of January, 1994, in Lamar County, Mississippi, did wilfully, unlawfully,

feloniously, purposely, and knowingly commit an aggravated assault upon one Rhonda

McLemore, a human being by the following manner, by attempting to cause serious bodily

injury to Rhonda McLemore with a deadly weapon, to wit: A pool stick and/or a broom

handle, then you shall find the defendant Vernon Holder, III, guilty as charged of

aggravated assault.

 If you find that the Defendant did not intend to cause serious bodily injury but did intend

to cause some lesser injury to Rhonda McLemore, then you shall find the defendant guilty

of the lesser included charge of simple assault.

A lesser included offense instruction was submitted to the jury when the court instructed the jury to

find Holder guilty of simple assault if it determined that Holder did not intend to cause McLemore

serious bodily injury. This assignment of error lacks merit.

In conclusion, we find that Holder’s appeal lacks merit and therefore, affirm the conviction and

sentence.

THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION

OF AGGRAVATED ASSAULT AND SENTENCE OF 20 YEARS IN THE CUSTODY OF

THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS

AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, PAYNE,

AND SOUTHWICK, JJ., CONCUR.

HERRING, J., NOT PARTICIPATING.