Carter v. State, No. 2004-KA-01639-COA.

• Decision Date: 31 January 2006
• Docket Number: No. 2004-KA-01639-COA.
• Citation: 932 So.2d 850
• Parties: Bruce CARTER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

932 So.2d 850

Bruce CARTER, Appellant, v. STATE of Mississippi, Appellee.

No. 2004-KA-01639-COA.

Court of Appeals of Mississippi.

January 31, 2006.

Rehearing Denied May 2, 2006.

Melvin G. Cooper, Biloxi, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

EN BANC.

GRIFFIS, J., for the Court.

¶ 1. Bruce Carter appeals his conviction of attempted kidnapping. We find no error and affirm.

FACTS

¶ 2. On Sunday December 15, 2002, at around 2:00 p.m., Shanta Marie Joseph left her home and walked toward her grandmother's house, which was approximately four or five blocks away. Carter, driving a black Mustang, pulled up beside Joseph and began talking to her. Carter attempted to entice Joseph into his car. Carter told Ms. Joseph that "you just need to loosen up a little bit, the only thing you need is a little attention," and "what you need to do is just let somebody like me do this and that for you." As will be discussed in more detail below, Carter made several lewd and sexually specific comments toward Ms. Joseph. She refused to get in Carter's car, and she continued her walk toward her grandmother's house.

¶ 3. Carter parked his car, got out and approached Ms. Joseph. She attempted to avoid Carter by crossing to the other side of the street. Carter followed her and grabbed her arm. She jerked her arm free of Carter's grasp and fled to her grandmother's house where she called the police.

¶ 4. Carter was charged and convicted of attempted kidnapping. The circuit court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections. After the court denied Carter's motion for new trial or judgment notwithstanding the verdict, he perfected his appeal. Carter asserts four issues for our consideration:

1. Was the evidence of attempted kidnaping sufficient to permit the jury to pass upon Carter's guilt? In other words, was the verdict contrary to the weight of the evidence?

2. Did the trial court err in excluding juror no. 12?

3. Did the trial court err in denying relief on Carter's motion for psychological evaluation?

4. Did the trial court err in admitting evidence that Carter was identified in a photographic lineup?

ANALYSIS

1. Was the evidence of attempted kidnaping sufficient to permit the jury to pass upon Carter's guilt? In other words, was the verdict contrary to the weight of the evidence?

¶ 5. The critical inquiry on the issue of legal sufficiency is whether the evidence shows "beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Where the evidence fails to meet this test, it is insufficient to support a conviction. Id. The relevant question, after viewing the evidence in the light most favorable to the prosecution, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

¶ 6. Carter was indicted for attempted kidnapping. Mississippi Code Annotated Section 97-3-53 (Rev.2000) provides for the crime of kidnapping:

Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, . . . shall, upon conviction be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the state penitentiary.

Section 97-1-7 (Rev.2000) provides for the punishment of attempt:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

Hence, courts interpret "attempt" to mean the intent to do something, and some actual effort to put the intent into effect. Murray v. State, 403 So.2d 149, 152 (Miss. 1981). The "gravamen" of the offense of an attempt to commit a crime is found in the statutory requirement that an overt act toward the crime be committed and the defendant be prevented from its consummation. State v. Lindsey, 202 Miss. 896, 899, 32 So.2d 876, 877 (1947).

¶ 7. Carter argues that his conduct was not sufficient to prove the "overt act" element of attempt. Carter relies on three decisions. First, in Green v. State, 67 Miss. 356, 356, 7 So. 326, 326 (1890), the supreme court ruled that the overt act requirement was not met on a charge of attempted rape when a man "caught hold" of the presumed victim's riding skirt, who was able to "strike her horse" and ride away. The court held that "[w]e may conjecture the purpose of the defendant to have been to commit a rape, but on the facts disclosed, it is conjecture only, and not an inference reasonably drawn from the evidence." Id., 7 So. at 326.

¶ 8. Next, in State v. Lindsey, the supreme court held that the facts were insufficient to support a finding of attempted rape when a man chased a woman through a "lonesome and secluded place in the country," and was prevented from committing any offense because the woman reached someone she knew. Lindsey, 202 Miss. at 901-02, 32 So.2d at 878.

¶ 9. Finally, in Tremaine v. State, 245 Miss. 512, 516, 148 So.2d 517, 518 (1963), a man obtained entry into a woman's home, under false pretenses, raised her bathrobe, and grabbed her. He even told her that he would "silence [her] in one blow" if she screamed. Id., 148 So.2d at 519. The court held that although there was a strong possibility that the man was going to use force against the victim, based on these facts and court precedent, there was insufficient evidence to satisfy the overt act requirement of attempted rape. Id., 148 So.2d at 519.

¶ 10. The State counters with the recent decision in Hersick v. State, 904 So.2d 116 (Miss.2004). Larry Hersick sat outside a Wal-Mart when an eleven-year-old girl ran by. Id. at 120 (¶ 1). Hersick "grabbed the girl by her upper right arm and pulled her a distance of about five to ten feet into the parking lot. The girl jerked away from Hersick and ran" to safety. Id. Hersick was tried and convicted of attempted kidnaping. Id. at (¶ 2). On appeal, Hersick claimed that his conviction was against the overwhelming weight of the evidence. Id. at 120-21 (¶ 2). The court rejected this argument and found that the evidence supported a verdict of attempted kidnaping. Id. at 127 (¶¶ 43-44).

¶ 11. In Jenkins v. State, 507 So.2d 89 (Miss.1987), the court affirmed the attempted kidnaping conviction of Douglas Jerome Jenkins. Jenkins and another man attempted to forcibly seize and confine grocery store patron as he was entering his car. Id. at 90. Jenkins and his accomplice went to a grocery store with the intent to rob the store. Id. at 90-91. When their plan fell through, they left the store. Id. at 91. Jenkins and his accomplice then turned their intentions toward Ira Kynerd, a patron of the store who was in the parking lot. Id. However, this crime was thwarted when "Kynerd foiled the attempt by refusing to get into the car and simply walking away — in a public parking lot in broad open daylight. . . ." Id. at 93. Nevertheless, the supreme court affirmed Jenkins' conviction of attempted kidnaping and held that:

while we must state in candor that this is anything but the strongest case for the prosecution we have seen, the evidence was such that, when considered under our familiar standard of review, we have no authority to disturb the jury's finding that the prosecution had proved each and every element of the offense of attempted kidnapping.

Id.

¶ 12. In this case, the evidence is very similar to that presented in Hersick and Jenkins. According to the victim, Ms. Joseph, Carter pulled up beside her while she was walking home. He engaged her in a conversation that turned lewd and sexually suggestive. He began by repeatedly offering her a ride, and she declined each time. Carter then began to make lewd sexual advances. He asked her to engage in sexual relations with him, and she declined. Carter then parked his car, got out and chased the victim down the street. Carter eventually grabbed the victim's arm. The victim testified that, "I was scared he was going to put me back in his car and take me somewhere. I've never been put in [such a] predicament before, never."

¶ 13. Following Hersick and Jenkins, we find that the evidence was sufficient to establish an overt act toward the commission of a crime, i.e., attempted kidnapping. Therefore, we find no merit to this issue.

2. Did the trial court err in excluding juror no. 12?

¶ 14. Next, Carter contends that the trial court should have granted his Batson challenge, based on racial discrimination, as to juror no. 12. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) is a landmark case in jury selection. Batson established a three-part test for a defendant to make out a prima facie case of purposeful discrimination in jury selection. The defendant must show:

(a) that he is a member of a cognizable racial group;

(b) that the prosecutor exercised peremptory...