327 So.3d 142
Miss. Ct. App.2021Background
- Victor Mitchell enlisted three men to kidnap T.D., have him sexually assaulted on camera, and use the recordings to extort money after a dispute over money and repairs.
- Mitchell paid and equipped co-conspirators (burner phones, disguises, restraints) and showed them T.D.’s home/work locations; he gave code words and advanced payments.
- Willie Lampley cooperated with police, warned T.D., recorded calls with Mitchell, and helped arrange a sting that led to arrests at the meeting location.
- At arrest officers recovered weapons, disguises, zip ties, duct tape, burner phones, and a dildo/sex toy; Mitchell was indicted and convicted of conspiracy, attempted kidnapping, attempted sexual battery, and attempted extortion.
- Mitchell appealed, arguing (1) insufficiency of evidence for the three attempted offenses, (2) the indictment was defective for failing to allege an overt act in the attempt counts, and (3) the jury instructions omitted the overt-act element.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — attempted kidnapping | State: Mitchell showed intent, committed overt acts (recruiting, payments, surveillance, equipment, meeting to effect handoff), and was prevented by extraneous causes | Mitchell: conduct was mere preparation; no overt act toward kidnapping | Affirmed — evidence sufficient to show attempt (intent + overt act + prevention) |
| Sufficiency — attempted sexual battery | State: planned assault to be filmed; procured sex toy and equipment; set handoff and met conspirators — overt acts toward penetration | Mitchell: no overt act toward sexual penetration; only preparations | Affirmed — evidence satisfied overt-act requirement for attempted sexual battery |
| Sufficiency — attempted extortion | State: plan’s express purpose was to film sexual assault and threaten public posting to obtain money | Mitchell: attempt elements not met | Affirmed — evidence supported intent to create material for extortion and attempt to obtain money by threat |
| Indictment defect for omission of overt act | State: ‘attempt’ inherently alleges overt act (citing Resendiz-Ponce) and defendant had ample pretrial notice | Mitchell: attempting charges must allege a specific overt act; omission renders counts defective | Court: indictment was defective for omitting overt acts but error was harmless because Mitchell received sufficient notice before trial; affirmed |
| Jury instructions omitting overt act | State: failure to object at trial waived error; instructions tracked indictment and used the word ‘attempt’ so no plain error | Mitchell: omission deprived jury of essential element and is reversible error | Court: issue procedurally barred; any error was harmless or not plain error; affirmed |
Key Cases Cited
- Bucklew v. State, 206 So. 2d 200 (Miss. 1968) (defines attempt as intent + overt act + failure/ prevention and explains degree between preparation and attempt)
- Stokes v. State, 46 So. 627 (Miss. 1908) (attempt where defendant started mission and was prevented by extraneous circumstances)
- United States v. Resendiz-Ponce, 549 U.S. 102 (2007) (Supreme Court held the word “attempt” can imply the overt-act element so a specific overt act need not always be alleged)
- Ishee v. State, 799 So. 2d 70 (Miss. 2001) (overt act required for attempted sexual battery; acts must be more than mere preparation)
- Tran v. State, 962 So. 2d 1237 (Miss. 2007) (defective indictment may be harmless if defendant had actual notice of allegations before trial)
- Maxie v. State, 330 So. 2d 277 (Miss. 1976) (indictment for attempt must allege intent and an overt act)
- Harrell v. State, 134 So. 3d 266 (Miss. 2014) (failure to instruct jury on every element of charged crime is reversible error)