Mitchell v. State

• Decision Date: 23 March 2021
• Docket Number: NO. 2019-KA-01768-COA,2019-KA-01768-COA
• Citation: 327 So.3d 142
• Parties: Victor A. MITCHELL a/k/a Victor Albert Mitchell a/k/a Victor Mitchell, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

327 So.3d 142

Victor A. MITCHELL a/k/a Victor Albert Mitchell a/k/a Victor Mitchell, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01768-COA

Court of Appeals of Mississippi.

March 23, 2021

Rehearing Denied August 10, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

BEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. Victor Mitchell was charged and convicted of conspiracy, attempted kidnapping, attempted sexual battery, and attempted extortion. Mitchell was sentenced to serve five years for the conspiracy, life for the attempted kidnapping, thirty years for the attempted sexual battery, and fifteen years for the attempted extortion.

¶2. Mitchell challenges his convictions on three grounds: (1) the sufficiency of the evidence did not support his convictions of attempted kidnapping, attempted sexual battery, and attempted extortion; (2) the indictment for the counts of attempted kidnapping and attempted sexual battery was defective; and (3) the jury instructions for the counts of attempted kidnapping and attempted sexual battery were defective.

FACTS

¶3. Mitchell claimed to be in a traffic accident with a large panel truck that caused him to run off the road, resulting in extensive damage to his Porsche. Angered by the wreck, Mitchell contacted the owner of the company—T.D.¹ Mitchell asked T.D. to pay for the repairs to his car, the remaining balance Mitchell owed on the car, and to buy his construction company for one million dollars. Even though T.D. did not believe the accident was the truck driver's fault, he agreed to pay for the repairs to the car and the balance owed by Mitchell. T.D. testified that he also offered to give Mitchell $10,000 "to help him out."

¶4. There is some uncertainty as to what T.D. provided and what Mitchell was given. However, witnesses testified that Mitchell felt he was cheated. Aggrieved, Mitchell spent nearly four months devising and formulating a plan to recoup the money he felt he was entitled to. While the exact plan varied and evolved from its initial inception, Mitchell ultimately decided to kidnap T.D., sexually assault him, and take pictures during the assault. Mitchell then intended to use those photos to extort money from T.D. by threatening to post them on social media.

¶5. Mitchell hired three men to help fulfill his plan: Howard Cameron, Glenn Evans, and Willie Lampley. Mitchell had initially offered Cameron $150,000 to just "beat up" T.D. Cameron told Mitchell that he had a friend, Glen Evans, who could help them.

¶6. A few days later, Mitchell met up with Cameron and Evans. Mitchell told the men that he wanted T.D. to be sexually assaulted and photographed in compromising positions. In addition to the $150,000 Mitchell had offered Cameron, he promised to pay Evans $25,000. That day, he gave each of the men $500. He also gave them $300 to purchase a burner phone and a camera. Additionally, Mitchell created code words to keep their plan secret. Cameron and Evans were the "dump trucks," and T.D. was the "truck driver."

¶7. Around a week later, Mitchell again met with Cameron and Evans. This time he drove the men to T.D.’s neighborhood and showed them where he lived. Mitchell also drove the men to a warehouse where T.D. worked. At the end of the meeting, Mitchell again paid the men $500 each.

¶8. A few months later, Mitchell met Willie Lampley. The pair met five days before the crimes when Lampley approached Mitchell at a job site seeking work. Instead of offering him a job with his company, Mitchell told Lampley to meet him later that evening in a Chili's parking lot. There, Mitchell told Lampley that a man owed him a lot of money and offered Lampley $25,000 to kidnap him. Mitchell told him that he needed an answer by the next day, or he would hire someone else. Lampley consulted with his mother and decided to contact law enforcement, who encouraged him to continue communicating with Mitchell.

¶9. Lampley then met with Mitchell again to discuss the job. Mitchell told Lampley that the man he wanted kidnapped was T.D. He wanted Lampley to kidnap T.D. and deliver him to Mitchell for two other men to "rape him or sodomize him or have sex with him on camera and put it on social media to make it look like he like[d] it if he [didn't] give him the money." Mitchell told Lampley where T.D. lived and instructed him to kidnap T.D. from there.

¶10. Unsatisfied with the response from law enforcement at this point, Lampley reached out to T.D. himself to warn him about the plan that was to take place that night. Lampley told T.D. that he knew personal information about him from his conversations with Mitchell, including T.D.’s home address, car tag number, what vehicle he drove, his routines, where he went to church, and what time he went to work. T.D. then contacted law enforcement, and a plan was developed to arrest Mitchell, Cameron, and Evans.

¶11. In cooperation with law enforcement, Lampley continued communicating with Mitchell and consented to have his phone calls recorded. Twelve conversations took place between Lampley and Mitchell that night. Lampley told Mitchell that he had T.D. and to meet him at a new location. Mitchell arrived at the location with Cameron and Evans. Upon their arrival, the three men were arrested. During a search of the vehicles driven by Mitchell and Cameron, officers found cell phones, duct tape, a ski mask, rubber gloves, guns, a black hoodie, black gloves, a flashlight, thief masks, pirate facial hair, fake teeth, zip ties, and a "dong with a suction cup."

¶12. Mitchell was indicted and convicted of conspiracy, attempted kidnapping, attempted sexual battery, and attempted extortion. He was sentenced to serve five years for the conspiracy, life for the attempted kidnapping, thirty years for the attempted sexual battery, and fifteen years for the attempted extortion, all in the custody of the Mississippi Department of Corrections. Mitchell made a motion for a directed verdict, which was denied. Post-trial, Mitchell moved for judgment notwithstanding the verdict or a new trial. That motion was also denied. Aggrieved, Mitchell now appeals his convictions.

DISCUSSION

I. The evidence sufficiently supported the attempted-kidnapping conviction.

¶13. Mitchell challenges the sufficiency of the evidence supporting his convictions of attempted kidnapping, attempted sexual battery, and attempted extortion. He argues that his conduct did not constitute the "overt act" element of attempt. Rather, Mitchell asserts that his actions "were mere preparations for the commission of the crimes planned."

¶14. "In determining challenges to the legal sufficiency of the evidence, the Court views the evidence in a light most favorable to the State." Alexander v. State , 770 So. 2d 1017, 1018 (¶6) (Miss. Ct. App. 2000). "If sufficient evidence exists to support the jury's verdict, then the conviction will stand." Id . In the case at bar, the State was obligated to provide sufficient evidence to prove the elements of attempted kidnapping, attempted sexual battery, and attempted extortion.

¶15. "[A]n attempt to commit a crime 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). "The mere intention to commit a crime is not punishable; the intention must therefore be coupled with an overt act." Moffett v. State , 287 So. 3d 975, 979 (¶14) (Miss. Ct. App. 2019). "Whether an act has passed beyond the stage of preparation and constitutes an attempt is a question of degree." Bucklew , 206 So. 2d at 202. The act "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[.]" Id . at 203. However, the act "need not be the last or final step in the sequence." Id . at 202.

¶16. Kidnapping is defined as follows: "Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will[.]" Miss. Code Ann. § 97-3-53 (Rev. 2014). Therefore, the crime of attempted kidnapping requires a showing that Mitchell intended to kidnap T.D., made "a direct ineffectual act done toward" the kidnapping, and failed "to consummate" the kidnapping. Bucklew , 206 So. 2d at 202.

A. The first and third elements of attempted kidnapping were supported by sufficient evidence .

¶17. The first element, the intention to kidnap T.D., was sufficiently supported. Mitchell concedes as much in his brief. He states that "[t]he evidence is sufficient to show that Mitchell and two other men made plans to kidnap and sexually assault [T.D.]."

¶18. Likewise, the third element, the failure to consummate the kidnapping, was also satisfied. While Mitchell does not expressly concede this point, he implies as much in his brief by stating that "because Lampley thwarted the plan by notifying the potential victim and involving the police, the crime was not even possible." "The attempt statute requires that, before one may be convicted of attempt, he shall fail therein, or shall be prevented from committing the same." West v. State , 437 So. 2d 1212, 1214 (1983). "[S]uch prevention must result from ‘extraneous causes.’ " Ishee v. State , 799 So. 2d 70, 74 (¶9) (Miss. 2001) (quoting West v. State , 437 So. 2d 1212, 1214 (Miss. 1983) ).

¶19. Our precedent establishes that "[o]ne of the leading cases in the United States on attempt to commit a crime is Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A. N.S. 898 (1908)." Duke v. State, 340 So. 2d 727, 729 (Miss. 1976). In Stokes , a defendant hired a man, Robertson, to murder his paramour's...