IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CT-01123-SCT

WHITNEY GLENN ISHEE

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 07/21/1998

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS, JR.

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS, JR.

DISTRICT ATTORNEY: KEN TURNER

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 10/25/2001

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 11/15/2001

EN BANC.

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 juror must resolve is not whether or not he or she wishes to "send a message" but whether

or not he or she believes that the evidence showed the defendant to be guilty of the crime charged.

The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the

prosecution and the accused. The function of the jury is to weigh the evidence and determine the

facts. When the prosecution wishes to send a message they should employ Western Union.

Mississippi jurors are not messenger boys.

Id. at 209.

¶13. However, despite these admonitions we have specifically held that we would not adopt a per se

reversible error rule on this issue. Payton v. State, 785 So. 2d 267, 271 (Miss. 1999). Here, again we

find the argument to be improper, but it does not constitute reversible error for two reasons. First, Ishee did

not object to the argument in the trial below. This Court has no original jurisdiction, and "it can only try

questions that have been tried and passed upon by the court from which the appeal is taken." Patrick v.

State, 754 So. 2d 1194, 1196 (Miss. 2000) (citing Leverett v. State, 197 So. 2d 889, 890 (Miss. 1967)

). Further, we do not find that the prosecutor's arguments rise to the level of impropriety that would warrant

reversal as plain error.

¶14. Second, we believe that Ishee's argument is without merit. It is important when considering this type of

issue that we "not only weigh the impact of the prosecutor's remark, but also take into account defense

counsel's opening salvo." Edwards v. State, 737 So. 2d 275, 299 (Miss. 1999) (citing Williams, 522

So.2d at 209). In his own closing argument, Ishee's attorney stated:

That's the same thing we have got here. We have got Instruction S-3, which says, the last sentence

from the bottom, "Whether an act has been passed-has passed beyond the state of preparation and

constitutes an attempt, is a question of degree," and if you say that Glenn Ishee is guilty of attempted

sexual battery, you might as well be saying he should have went [sic] ahead and put one hand on the

boy's mouth, grabbed him by the arm, and took [sic] him off to the bathroom, and committed

whatever act he wanted to commit. He might as well have gone ahead and done it.

And, the next fellow, the next perverted fellow that has the same thought knows what the jury says the

law is, well, then, he will know he has done reached [sic] the point of no return, and he might as well

commit the act....You think about what message this is going to be sending to other Defendants and

other people.

¶15. Thus, Ishee made his own "send a message" argument. Considering Ishee's own argument and the fact

that the prosecutor's "send a message" argument was made following it, there is a rational link between the
two. We have noted that "prosecutorial comments which under normal circumstances would constitute

error do not when the statements merely reiterate statements of defense counsel." Booker v. State, 511

So. 2d 1329, 1332 (Miss. 1987) (citations omitted). This is the case here. The prosecutor was merely

"'right[ing] the scale' tipped by defense counsel's comments." Id.; see also Gilliard v. State, 428 So. 2d

576, 583-84 (Miss. 1983), overruled on other grounds, Willie v. State, 585 So. 2d 660, 681 (Miss.

1991).

¶16. We find that Ishee's argument that the prosecutor's remarks were reversible error fails because it is

procedurally barred, but alternatively that it is without merit.

III. WHETHER THE MISCITATION CONTAINED IN THE INDICTMENT RISES TO

THE LEVEL OF PLAIN ERROR AND REQUIRES REVERSAL?

¶17. The indictment reads, without the formal requirements, that "Whitney Glenn Ishee...did willfully,

unlawfully and feloniously attempt to commit sexual battery upon C.G., a male child under the age of

fourteen (14) years by asking the said C.G. to engage in fellatio and pointing to his penis, contrary to and in

violation of Section 97-3-101, Miss. Code Ann. (1972)." The statute referenced in the indictment sets forth

the penalty for sexual battery, but not the elements of the crime. The proper charging statute would have

been Section 97-3-95. Here, Ishee filed a demurrer to the indictment, as discussed above, however, he did

not discuss this error. As stated earlier, this Court will generally not consider objections not raised below.

See Patrick, 754 So. 2d at 1196. Further, in this case Ishee has not raised this issue on appeal either.

However, "[t]his Court, on occasion when circumstances warranted, has noted the existence of error in trial

proceedings affecting substantial rights of the defendants although they were not brought to the attention of

the trial court or of this Court." Id. (quoting Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991)). Thus, we

must consider if Ishee's substantial rights were affected by this error.

¶18. An indictment serves to alert the defendant of the charge against him. Westmoreland v. State, 246

So. 2d 487, 489 (Miss. 1971). We have noted that there "ought not to be...insistence upon forms which

are purely technical and surplusage" with indictments." Id. (citations omitted). We have found that when an

indictment cited the statute imposing the penalty rather than the statute containing the elements that the

reference to the statute "was mere surplusage in the indictment and the appellant could not have been

prejudiced by this erroneous reference." White v. State ,169 Miss. 332, 153 So. 387, 389 (1934).

¶19. This Court has held that "[i]f an indictment reasonably provides the accused with actual notice and it

complies with Rule 2.05 of the Unif.Crim.R.Cir.Ct.Prac., it is sufficient to charge the defendant with the

crime." McNeal v. State, 658 So. 2d 1345, 1350 (Miss. 1995) (citations omitted). Rule 2.05 of the

Uniform Criminal Rules of Circuit Court Practice is now Rule 7.06 of the Uniform Circuit and County Court

Rules. Rule 7.06 requires that the indictment be "a plain, concise and definite written statement of the

essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of

the accusation." URCCC 7.06 It is clear that the indictment charging Ishee fulfilled these requirements.

Ishee was certainly on notice regarding what he was charged with. The indictment alerted Ishee that he was

charged with attempted sexual battery, and it detailed the acts which the State intended to put on as

evidence of Ishee's commission of the crime.

¶20. The defect in the indictment is not cause for reversal. It is procedurally barred, as Ishee did not object

to it below, nor did he raise it on appeal to this Court. Further, it does not rise to the level of an error

affecting Ishee's substantive rights.
CONCLUSION

¶21. We find no error below that warrants reversal. First, Ishee's actions toward C.G. were sufficient to

constitute an overt act toward the commission of sexual battery. Second, any error in the prosecutor's

closing argument was procedurally barred. Further, as it was invited by defense counsel, the allegation of

misconduct is without merit. Third, any technical deficiency in the indictment does not rise to a reversible

error in this case. Thus, the trial court's judgment and the Court of Appeals' judgment are affirmed.

¶22. JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.

PITTMAN, C.J., WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR. BANKS, P.J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND

MILLS, J. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

BANKS AND McRAE, P.JJ.

BANKS, PRESIDING JUSTICE, DISSENTING:

¶23. Because it is my view that Ishee's actions had not risen to the level of an attempt, I respectfully dissent.

¶24. I agree with the majority that the nature of this crime is important. Consent is not an issue. Indeed, the

child's failure to give consent may, under proper circumstances, be viewed as an interruption or prevention.

Nevertheless, at the time of the incidents at issue here, Ishee was simply not in a position to immediately

commit the crime, within reason and human experience, even if consent had been obtained. He was not in a

place of seclusion or semi-seclusion but rather in an open store where any such action would be readily

detected. If the facts were different; had Ishee and the child been in the store restroom or any similar place

where the act could reasonably have been completed or had he sought to lead or take the child to such a

place, the majority would be on firmer ground. However, that is not the case. Ishee had neither the means

nor opportunity to commit the act, and, as such, no attempt can lie.

¶25. Ishee's conduct, although certainly dispositive of his intent, was nothing more than a solicitation. It is

generally recognized by legal authorities in other jurisdictions that solicitation of another to commit a crime is

only preparatory to the crime and not an overt act that would support a conviction for attempt of the crime

solicited. See, e.g., People v. La Fontaine, 144 Cal. Rptr. 729 (Cal. Ct. App. 1978); State v. Baxley,

633 So.2d 142 (La. 1994); State v. Harney, 14 S.W. 657 (Mo. 1890); State v. Pierpoint, 147 P. 214

(Nev. 1915); Gervin v. State, 371 S.W.2d 449 (Tenn. 1963). ¶26. A minority of jurisdictions and the

Model Penal Code hold that the opposite is true; that soliciting certain acts is more than mere preparation

and, if strongly corroborative of the actor's criminal purpose, sufficient to establish the substantial step

requirement to support a conviction for criminal attempt. See, e.g., State v. Fristoe, 658 P.2d 825 (Ariz.

Ct. App. 1982); Wittschen v. State, 383 S.E.2d 885 (Ga. 1989); Young v. Commonwealth, 968

S.W.2d 670 (Ky. 1998); Model Penal Code § 5.01(2)(g), 10 U.L.A, 499-500 (1974).

¶27. Conceding that the law on this point is elusive and nebulous, I find useful the test adopted by the

Indiana Supreme Court in Ward v. State, 528 N.E.2d 52 (Ind. 1988). In Ward, the defendant approached

a minor child on a public street and asked if he would like for the defendant to perform fellatio on him. Id.

at 53. The defendant made three such requests, at which point the child refused. Id. The child then notified

the sheriff, and the defendant was arrested and charged with attempted child molestation. Id. The defendant

argued that his actions were merely a solicitation and cited authorities in support of the position that a
solicitation could never be the substantial step constituting an overt act required in criminal attempt. Id. The

Indiana Supreme Court rejected the defendant's argument, setting forth a two-part test to determine

whether the defendant's actions did indeed constitute an overt act. Id. at 54.

¶28. In the first prong of the test, the court held that a solicitation may be a substantial step only when: 1)

the solicitation takes the form of urging; 2) the solicitation urges the commission of the crime at some

immediate time and not in the future; and 3) the cooperation or submission of the person being solicited is

an essential feature of the substantive crime. Id. In the second prong the court assessed the specific crime

charged and the wrongful human nature that the legislature sought to sanction. Id. It reasoned that the more

serious the crime attempted or greater the menace to the social security from similar efforts on the part of

the defendant or others, the further back in the series of acts leading up to the consummated crime should

the criminal law reach in holding the defendant guilty for attempt. Id.

¶29. Applying the same test to the circumstances here, the second prong of the test is clearly satisfied in that

sexual battery of a child is serious enough to warrant drawing a fairly early line to identify and sanction such

behavior as an attempt. It is the first prong, which itself involves three parts, which is problematic. Here,

once Ishee's request was refused, nothing further occurred. There is, then, no evidence of the "urging" prong

of the test. Additionally, there is the question of immediacy. There is nothing to suggest that Ishee intended

to perform the act solicited there in the aisle of a store with customers milling about, not to mention the

possibility of electronic surveillance. Nor is the third portion of the first prong met. Cooperation or

submission of a minor under fourteen years of age, is irrelevant to the crime charged. See Miss. Code Ann.

§ 97-3-95 (2000).

¶30. As reprehensible as Ishee's conduct was, it did not constitute an overt act in furtherance of his intent.

As guardians of the law, we must adhere to those principles that we are sworn to uphold and protect, no

matter how unpleasant or disconcerting. Accordingly, I dissent.

McRAE, P.J., AND MILLS, J., JOIN THIS OPINION.

MILLS, JUSTICE, DISSENTING:

I.

¶31. Disagreeing with the majority's disposition and its holding in issues one and three, I respectfully dissent.

With regard to issue one, the majority finds that "Ishee's actions went beyond mere preparation to where he

clearly began to commit the crime." I disagree and would hold that Ishee's actions did not clearly begin

to commit the crime of sexual battery. Perhaps another crime was begun, but not sexual battery. The

indictment fails to allege that Ishee physically attempted to accomplish the crime of sexual battery. The

indictment charges that Ishee "did willfully, unlawfully and feloniously attempt to commit sexual battery upon

C.G., a male child under the age of fourteen (14) years, by asking the said C.G. to engage in fellatio and

pointing to his penis, contrary to and in violation of Section 97-3-101, Miss. Code Ann. (1972)." The

statutory overt act must be alleged in the indictment as an essential element of the crime. In Dill v. State,

149 Miss. 167, 170, 115 So. 203 (1928), this Court instructed that, "[i]n a prosecution for an attempt to

commit an offense, under [the attempt] statute, it is necessary to charge and prove some overt act done

toward the commission of the offense. . . ." (emphasis added). The indictment contains no allegation of acts

other than Ishee's asking C.G. to engage in fellatio and pointing to his penis. Ishee contends, and I
reluctantly agree, that the pointing is of no moment and the request to engage in fellatio is, at most,

preparation for the crime, not an overt act sufficient to constitute an element of the crime.

¶32. As aptly stated by the majority, an 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." Edwards v. State, 500 So. 2d 967, 969 (Miss. 1986). I agree with the

majority that elements (1) and (3) are met in this case. However, the acts alleged in the indictment, "asking

to engage in fellatio" and "pointing at the penis," simply are not overt acts within the meaning of the attempt

statute quoted above. Thus I would hold that Ishee's demurrer to the indictment should have been

sustained.

¶33. This Court has stated:

[A]n attempt is a direct movement toward the commission of the crime after the preparations have

been made; that 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.

Bucklew v. State, 206 So. 2d 200, 203 (Miss. 1968) (quoting 1Wharton, Criminal Law & Procedure

74 (1957) (emphasis added)). Ishee was charged with attempt to commit sexual battery. The offense of

sexual battery requires sexual penetration. Miss. Code Ann. § 97-3-95 (2000). "Sexual penetration"

includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another

person's body by any part of a person's body, and insertion of any object into the genital or anal openings

of another person's body. Miss. Code Ann. § 97-3-97(a) (2000). Thus the State was required to prove

that Ishee attempted to sexually penetrate C.G. within the meaning of § 97-3-97, but that he failed therein

or was prevented from committing the same by some extraneous act. See West v. State, 437 So. 2d 1212

(Miss. 1983).

¶34. The central issue in West, was whether there was sufficient evidence in the record to support the jury's

verdict that Larry Van West was guilty of attempted sexual battery. The facts were uncontradicted that no

penetration occurred, and the prosecution, in effect, conceded that there was no attempt to penetrate. Id.

This Court found that West had the opportunity to penetrate if he had wished to do so, and the case was

reversed and rendered.

¶35. The ultimate issue in the present case is whether asking another for permission to engage in fellatio and

pointing to the penis to clearly communicate the message amounts to an attempt to commit sexual battery.

In my opinion, the answer is "no." While a direct ineffectual act toward the commission of a crime is one of

the elements of the crime of attempt, the ineffectualness of the act is relevant only to distinguish between the

attempt and the completion of the crime. Obviously, Ishee's request was ineffectual. However, had C.G.

agreed to the request, the crime still could not have been consummated without additional action on Ishee's

part. The majority makes a point of stating that children react differently than adults, and because of this

finds that Ishee's actions were sufficient to constitute attempted sexual penetration of a willing child. I

disagree with this reasoning. The fact that C.G. was a minor and could not legally consent to such an act is
not relevant to our deliberation. The focus is properly on the actions taken by Ishee to consummate the

intended act. Hence, the request, without more, could not have led to the commission of the offense.

Similarly, the pointing, without more, could not have led to the commission of the offense.

¶36. Based upon the facts before us, all that we have is a request to allow a sexual activity to take place.

The request was dishonored. The encounter ended. Judicial transformation of that request into an element

of the intended offense, though morally desirable in this case, requires a suspension of logic which I cannot

undertake. At most, Ishee's request was an attempt to locate a victim, not an attempt to sexually penetrate

that victim. In fact, Ishee could not really start commission of the crime which he intended until he found a

willing victim. Ishee's stated motive was to find a willing victim to perform the act. He likely did not intend to

perform the act in the aisle of Wal-Mart even if his victim had consented.

¶37. Except with children, lack of consent on the part of the victim is always an element of the offense, but

never an issue unless the defendant is claiming that the activity was consensual. Further, proof of lack of

consent is never sufficient to prove the crime of attempt if no overt acts have been taken toward the

commission of the crime, even if the proof of lack of consent is overwhelming. In the present case, there is

no evidence that Ishee did anything to further his design after C.G. told him "no, thank you." This is

important, given the fact that Ishee did not have the present ability to commit the offense charged.

¶38. I reach the ultimate conclusion that the overt acts alleged in the indictment in the present case were

insufficient to charge an attempt to commit the crime of sexual battery. Having concluded that the acts

alleged in the indictment were not sufficient to charge the crime of attempt to commit sexual battery, it

necessarily follows that the trial court erred in overruling Ishee's demurrer to the indictment. Accordingly, I

would find that the cause should be reversed and rendered.

II.

¶39. I agree with the majority's disposition of issue two. The prosecutor's remarks, while tacky, could

logically be construed as responding to the defense's comments. Nevertheless, I would admonish

prosecutors to refrain from using the "send a message" argument during guilt determination. No matter the

repugnance of the crime, defendants in criminal cases are entitled to due process of law and the duty rests

with the district attorney's office to see that justice is served in a manner consistent with widely held notions

of due process and respect for state and federal constitutional rights.

III.

¶40. I would find the indictment in this case fatal on other grounds. The indictment charges that Ishee "did

willfully, unlawfully and feloniously attempt to commit sexual battery upon C.G., a male child under the age

of fourteen (14) years, by asking the said C.G. to engage in fellatio and pointing to his penis, contrary to and

in violation of section 97-3-101, Miss. Code Ann. (1972)." The statute referenced in the indictment sets

forth the penalty for sexual battery, not the elements of the crime. Although he filed a demurrer to the

indictment on the grounds discussed in the preceding section, Ishee did not raise this particular point with

the trial court or on appeal. I agree with the majority that we generally find such omissions to be a

procedural bar on appeal. However, when justice so requires, we must apply the plain error rule advanced

in Miss. R. Evid. 103(d). I believe that such an occasion is here presented because the indictment wholly

failed to state the elements of the crime. The indictment grounded on the penalty statute of the Code, rather

than the criminal statute, cast an intolerable pall over federal and state guarantees of due process.
¶41. A discussion of the applicable statutes is necessary to a full understanding of this issue. Miss. Code

Ann. § 97-3-101 (2000) provides:

(1) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(a), (b), or (2)

shall be imprisoned in the State Penitentiary for a period of not more than thirty (30) years, and for a

second or subsequent such offense shall be imprisoned in the penitentiary for not more than forty (40)

years.

(2) (a) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is at

least eighteen (18) but under twenty-one (21) years of age shall be imprisoned for not more than five

(5) years in the State Penitentiary or fined not more than Five Thousand Dollars ($5,000.00), or both;

(b) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is

twenty-one (21) years of age or older shall be imprisoned not more than thirty (30) years in the State

Penitentiary or fined not more than Ten Thousand Dollars ($10,000.00), or both, for the first offense,

and not more than forty (40) years in the State Penitentiary for each subsequent offense.

(3) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(d) who is

eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser

term of imprisonment as the court may determine, but not less than twenty (20) years.

(4) Every person who shall be convicted of sexual battery who is thirteen (13) years of age or older

but under eighteen (18) years of age shall be sentenced to such imprisonment, fine or other sentence

as the court, in its discretion, may determine.

This statute deals with the penalty for violation of the sexual battery statute, rather than the elements of the

crime of sexual battery and Ishee was indicted under this section only.

¶42. Section 97-3-95 is the proper charging statute for the offense of sexual battery. It reads as follows:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:

(a) Another person without his or her consent;

(b) A mentally defective, mentally incapacitated or physically helpless person;

(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or

more months older than the child; or

(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.

(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the

age of eighteen (18) years if the person is in a position of trust or authority over the child including

without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest,

physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Miss. Code Ann. § 97-3-95 (2000). However, since the charged crime in the case instanter was an

attempt rather than a completed act, the elements of the crime of attempt should have been set forth in the
indictment. The applicable statute, Miss. Code Ann. § 97-1-7 (2000), states:

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.

¶43. I am cognizant of our holdings in White v. State, 169 Miss. 332, 338, 153 So. 387, 388 (1934) and

Westmoreland v. State, 246 So. 2d 487, 492 (Miss. 1971), that reference to the penalty section rather

than the statute making the acts of a crime was mere surplusage, but I think the majority's reliance on them

misplaced. The indictment in this case is different because, in both White and Westmoreland, the language

of the indictment was found to be sufficient to charge the particular crime, despite the erroneous citation to

the statute.

¶44. Here, in order to properly charge the offense of attempted sexual battery, the charge should have been

brought under Miss. Code Ann. § 97-3-95 (2000), which makes sexual battery a crime, and Miss. Code

Ann. § 97-1-7 (2000) which sets forth the elements of the crime of attempt to commit an offense and

prescribes the punishment therefor, or alternatively, should have stated sufficient allegations of facts to

charge the crime committed. This simply was not done here. The indictment failed to allege that Ishee

attempted to penetrate the victim, as that term is defined. I would find that this failure coupled with the

erroneous citation of the penalty statute makes the indictment insufficient to charge Ishee with attempted

sexual battery.

¶45. Finally, I would note that under the facts of the present case, it is probable that Ishee could have been

more appropriately charged under Miss. Code Ann. § 97-5-5 (2000), Mississippi's anti-luring statute. This

was the actual crime committed, and the majority has swallowed a camel to strain out a gnat in order to

protect a conviction in this cause.

¶46. Based upon the foregoing, I would find that the indictment was defective and should have been

dismissed. I further would reverse the judgments of the Court of Appeals and the Neshoba County Circuit

Court, and render judgment here dismissing the indictment with prejudice and discharging Whitney Glenn

Ishee.

BANKS AND McRAE, P.JJ., JOIN THIS OPINION.