Ishee v. State, No. 1998-CT-01123-SCT.

• Decision Date: 25 October 2001
• Docket Number: No. 1998-CT-01123-SCT.
• Citation: 799 So.2d 70
• Parties: Whitney Glenn ISHEE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

799 So.2d 70

Whitney Glenn ISHEE v. STATE of Mississippi.

No. 1998-CT-01123-SCT.

Supreme Court of Mississippi.

October 25, 2001.

Rehearing Denied November 21, 2001.

Edmund J. Phillips, Jr., Newton, for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Justice, for the Court:

¶ 1. Whitney Glenn Ishee was tried and convicted in the Circuit Court of Neshoba County for attempted sexual battery on a minor and was sentenced to thirty years imprisonment. This conviction and sentence were affirmed by the Court of Appeals. This Court granted Ishee's petition for writ of certiorari. We find no reversible error in the trial below. Thus, the judgments of the trial court and the Court of Appeals are affirmed.

FACTS

¶ 2. The facts in this case are not in dispute. On April 17, 1998, a mother and her nine-year-old son, C.G., were at a Wal-Mart store in Philadelphia, Mississippi. While in the check-out line, the mother sent C.G. back to get a box of cereal. Once on the cereal aisle, C.G. encountered Ishee. It was there that Ishee approached C.G. and asked, in vernacular terms, to perform fellatio on C.G. The child did not understand, and thus, Ishee repeated his request while gesturing to his own genitals. C.G. refused, grabbed a box of cereal, and returned to the check-out line. Once there, he told his mother what had occurred, and the police were called in. Ishee was apprehended while still in the store. There was some testimony at trial that Ishee had told an officer that he planned to take C.G. to the store's bathroom to perform the act.

¶ 3. Ishee was arrested and indicted on a charge of attempted sexual battery. Following trial, the jury returned a guilty verdict, and the trial judge sentenced Ishee to serve thirty years in the custody of the Mississippi Department of Corrections. A divided Court of Appeals affirmed. Ishee v. State, No.1998-KA-01123-COA (Miss.Ct.App.2000).

ANALYSIS

¶ 4. Ishee raises three issues on appeal. First, he alleges that the Court of Appeals erred in upholding the trial court's overruling his demurrer to the indictment. Second, Ishee alleges error in the Court of Appeals' affirming of the trial judge's denial of his motion for a directed verdict and a judgment notwithstanding the verdict. Third, he cites reversible error in the content of the prosecution's closing statement. The first two issues raised by Ishee raise essentially the same claim, which is that the facts at trial do not establish the necessary elements to constitute attempted sexual battery. Thus, we consider these issues together. Further, we additionally consider the issue of a defect within the indictment, which concerns the fact that the statute cited in the indictment is not the appropriate statute.

I. WHETHER AN OVERT ACT SUFFICIENT TO CONSTITUTE ATTEMPTED SEXUAL BATTERY WAS PROVEN?

¶ 5. Ishee contends that the indictment fails to allege that he attempted to commit sexual battery. The indictment alleges that Ishee attempted to commit sexual battery by "asking the said C.G. to engage in fellatio and pointing to his penis...." He also contends that the statutory overt act must be alleged in the indictment as an essential element of the crime. This Court has stated that, "[i]n prosecution for an attempt to commit an offense,... it is necessary to charge and prove some overt act done toward commission of offense; an `overt act' being one which manifests intention to commit crime." Dill v. State, 149 Miss. 167, 170, 115 So. 203 (1928). The indictment contains no allegation of acts other than Ishee asking the boy to engage in fellatio and pointing to his penis. Ishee contends that this is not an overt act sufficient to constitute an element of the offense. We disagree.

¶ 6. Miss.Code Ann. § 97-3-95 (2000), defines sexual battery. It states that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child." Id. Miss.Code Ann. § 97-3-97 (2000), includes fellatio in its definition of sexual penetration. An attempt consists of three elements: "(1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission." Bucklew v. State, 206 So.2d 200, 202 (Miss.1968).

¶ 7. It is clear from the facts below that the first and third elements of attempt are met. It is the second element that is the bone of contention between Ishee and the State. As explained by this Court in Bucklew, what is required is an act which goes beyond mere preparation and which is suited for the intended purpose-here, sexual penetration. Id. at 202-03. As we clearly stated in Bucklew, the act "may be any act in the series of acts which would ordinarily result in the commission of the crime, and need not be the last or final step in the sequence." Id. In a further attempt to define what constitutes an overt act, we stated:

[A]n attempt is a direct movement toward the commission of the crime after the preparations have been made; the defendant's act must be a direct, unequivocal act toward the commission of the intended crime; that his acts must have progressed to the extent of giving him power to commit the offense and nothing but an interruption prevented the commission of the offense; that the defendant's act must reach far enough toward the accomplishment of his intention to commit the offense to amount to a commencement of the consummation or to be a step in the direct movement toward its commission; and that some appreciable fragment of the crime must be committed so that the crime would be completed if the defendant were not interrupted.

Id. at 202-03 (citations omitted).

¶ 8. It is clear that "[w]henever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design constitute an `attempt'." Id. at 203 (quoting Williams v. State, 209 Miss. 902, 48 So.2d 598 (1950)). Ishee was charged with attempted sexual battery. According to the statutory definition of this crime, the State had to prove that Ishee attempted to sexually penetrate C.G., but either failed to or was prevented from doing so. From the facts below, there was sufficient evidence that Ishee's intent was to take C.G. to the Wal-Mart bathroom and perform fellatio on him. Toward this goal, Ishee wandered around Wal-Mart, found a young boy alone, approached him, asked him if he could perform fellatio on him, and gestured to his own genitals to explain his request. Ishee's actions went beyond mere preparation to where he clearly began to commit the crime. The only thing that halted the commission of this crime was the boy's refusal, coupled with his leaving Ishee's presence. It would be a stretch of the imagination to accept Ishee's argument that because he did not grab C.G. or attempt to detain him that no overt act occurred.

¶ 9. Ishee further argues that our holding in West v. State, 437 So.2d 1212 (Miss. 1983), supports a claim that he abandoned any attempt to commit the crime by allowing C.G.'s refusal to end the encounter. We stated in West that "[t]he gravamen of this offense of attempt is that the accused have done an overt act toward sexual penetration `and be prevented from its commission.'" Id. at 1214 (quoting State v. Lindsey, 202 Miss. 896, 899, 32 So.2d 876, 877 (1947)). We further stated that such prevention must result from "extraneous causes." Id. In West, the defendant's failure to penetrate "was not the product of his victim's admittedly ineffective resistance or the intervention of extraneous causes." Id. Here, the crime involved was perpetuated on a child. And, as a general rule, children react differently than adults. Ishee's request constituted an overt action toward the attempted sexual penetration of a willing child. His attempt was thwarted by the extraneous cause of the boy's refusal.

¶ 10. Based on the evidence presented at trial, a sufficient overt act occurred to justify Ishee's conviction for attempted sexual battery.

II. WHETHER THE "SEND A MESSAGE" ARGUMENT USED BY THE PROSECUTION IN ITS CLOSING STATEMENT CONSTITUTES REVERSIBLE ERROR?

¶ 11. Ishee contends that the prosecutor was guilty of misconduct in his closing argument. In closing, the prosecutor, stated:

The defense asked you to think about what kind of message you would be sending if you find—what kind of terrible message you would be sending if you find the Defendant guilty. Think about this: What if you find him not guilty? What message are you sending then? You are saying these sexual predators can go to Wal-Mart and cruise for nine year olds all day long and ask them to perform perverted sexual acts until one of them finally says yes, and then it's a crime.

And later, while continuing with his closing argument, the prosecutor said:

The way to stop it is to tell the Glenn Ishees of the world you can't go to a public place like that and wait for a young child to be by himself and then swoop down on him and try to commit perverse sexual acts, because if you do, you are going to have to answer to that.

One way or the other, we are going to send a message with this verdict. I hope it's a message that we all can live with in Philadelphia and feel like our kids are safe to go to stores in Philadelphia.

¶ 12. It is true that this Court has repeatedly cautioned prosecutors against using the "send a message argument." Evans v. State, 725 So.2d 613, 675 (Miss. 1997); Chase v. State, 699 So.2d 521, 537 (Miss.1997); Hunter v. State, 684 So.2d 625, 637 (Miss.1996); Williams v. State, 522 So.2d 201, 209 (Miss.1988). In fact, in Williams we stated:

The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each

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