                                  IN THE COURT OF APPEALS
                                           OF THE
                                    STATE OF MISSISSIPPI
                                          NO. 1998-KA-01123 COA
WHITNEY GLENN ISHEE                                                                                APPELLANT
v.
STATE OF MISSISSIPPI                                                                                  APPELLEE

DATE OF TRIAL COURT                           7/21/1998
JUDGMENT:
TRIAL JUDGE:                                  HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                    NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL

                                              BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                            KEN TURNER

NATURE OF THE CASE:         CRIMINAL-FELONY
TRIAL COURT DISPOSITION:    ATTEMPTED SEXUAL BATTERY (SECOND
                            OFFENDER). SENTENCED TO SERVE A TERM OF 30
                            YEARS IN MDOC
DISPOSITION:                AFFIRMED-08/29/2000
MOTION FOR REHEARING FILED: 9/27/2000; denied 11/21/2000
CERTIORARI FILED:           12/20/2000; granted 3/1/2001
MANDATE ISSUED:

      EN BANC

      SOUTHWICK, P.J., FOR THE COURT:

¶1. The defendant was convicted of attempted sexual battery. On appeal he argues that no overt act was
ever charged or proved, that prosecutor misconduct occurred during voir dire, that an improper closing
argument was permitted, and that the sentence exceeded the statutory maximum. We disagree with these
allegations and affirm.

                                          STATEMENT OF FACTS

¶2. The facts are not in significant dispute. It is the legal effect of the events that form the basis for several of
the appellate issues.

¶3. In April 1998 a mother and her nine-year old son were in a check-out line at the Wal-Mart store in
Philadelphia, Mississippi. While the mother remained in line, she sent her son back to the appropriate aisle
to get a box of cereal. Once the boy got to that aisle, the defendant Whitney Glenn Ishee approached him.
Ishee asked, using the vernacular, if he could engage in fellatio on the nine-year old. Simultaneously with the
verbal request, Ishee pointed to his own genitals. The boy refused, and the encounter ended. Ishee never
touched the boy nor made any effort to restrain him.

¶4. When the youngster got back to his mother, he told her what had happened. His explanation then and at
trial indicated that he understood the request. Ishee was arrested.

                                                DISCUSSION

      1 & 2. Defects in Indictment and insufficiency of evidence

¶5. Both of Ishee's first two issues raise the same legal question - did he engage in an overt act sufficient to
prove an attempt to commit a sexual battery?

¶6. One form of sexual battery involves sexual penetration with a child under fourteen years old. Miss.
Code Ann. § 97-3-95(1)(d) (Supp. 1999). Our issue is whether the accused did enough for his acts to
constitute an attempt. This state has a general attempt statute. It provides that when a person endeavors to
commit a crime "and shall do any overt act toward the commission thereof, but shall fail therein, or shall be
prevented from committing the same," he is guilty of an attempt. Miss. Code Ann. § 97-1-7 (Rev. 1994).

¶7. The Mississippi Supreme Court has quoted approvingly these descriptions of "attempt":

      The textwriters point out in 22 C.J.S. Criminal Law § 75(2) (1961) at 232 that: "In a considerable
      number of cases it has been said the act must be such as will apparently result, in the usual and natural
      course of events if not hindered by extraneous causes, in the commission of the crime itself, and an act
      apparently adapted to produce the intended result is sufficient to constitute the overt act essential to
      an attempt."

      It is said by the textwriter of 1 Wharton, Criminal Law and Procedure § 74 (1957): "To constitute an
      attempt, there must be an act directed to the commission of an intended crime, which act goes beyond
      mere preparation and is apparently suited for the intended purpose, although it 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. Whether an act has passed beyond the stage of preparation and constitutes
      an attempt is a question of degree.

      "It is also variously stated that an 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, 202-03 (Miss. 1968).

¶8. Though lengthy, these statements are explaining something at once simple and slippery. To have
committed an attempt, the accused must have left behind merely thinking about a crime or trying to get into
a position to begin committing it. He must instead have commenced the performance of the crime itself. To
determine just where Ishee was in the process, it would be helpful to consider different benchmarks in the
progress of a criminal event, beginning with the accused's first thought of committing the crime and ending
with its completion.

¶9. First is the planning. Various individuals could be involved, though here there was no one else besides
the accused and the victim who are mentioned as participants.

¶10. Secondly there could be physical movement by the perpetrator after the planning and prior to any acts
that constitute elements of the crime. That might be included within the category of "preparation," i.e., the
accused's placing himself in a position to begin committing the crime. Here, the planning to commit a sexual
battery on a young boy at this grocery store could have occurred at Ishee's residence, and then he could
have traveled to the grocery store without any further planning. That would be preparation. So far no
criminal liability has arisen.




¶11. Only planning and preparation exist until there occurs some direct, unequivocal act which would lead
to the crime's commission unless interrupted by external causes.

¶12. To reiterate, the law on attempt is that there must be an intent to commit the crime charged, an overt
act, and a failure to complete the crime. The overt act is seen as the problem here, and perhaps in a related
fashion the failure to complete the crime is said not to result from some extraneous interruption in the
process started by the overt act. All we have is the accused's request of this boy to engage in the sexual
battery, and an acceptance of the boy's refusal.

¶13. No scientifically precise description is available regarding when an accused has left the preparation
stage and has entered the attempt stage. What is necessary is that "some appreciable fragment of the crime
must be committed so that the crime would be completed if the defendant were not interrupted." Bucklew,
206 So. 2d at 203. With an attempt, the intent to commit all the elements must exist but often none of the
physical acts will have occurred. The crime of sexual battery requires that a defendant have engaged in
sexual penetration with a child under the age of fourteen. Miss. Code Ann. § 97-3-95(1)(c). This was a
child of the proper age, but the crime is not committed until penetration occurs. All acts of the attempt stage
would be prior to that time.

¶14. We analyze now the proper stage in the continuum from planning through completion to place what
occurred here. It is easy to see this event as a solicitation to engage in sexual activities. The boy was not of
the age to consent, so obtaining his agreement to engage in the crime would not constitute legal consent.
There is no general solicitation statute similar to the general attempt statute. Soliciting the commission of a
crime was recognized as a crime at common law. Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 6.1 (1986). We have a statute that provides that "every offense not provided for by the
statutes of this state shall be indictable as heretofore at common law." Miss. Code Ann. § 99-1-3 (Rev.
1994). The supreme court has enforced this provision, though there are certain requirements for its
application. See State v. Allen, 505 So. 2d 1024, 1025 (Miss. 1987). Whether solicitation of the statutory
crime of sexual battery would be considered an "offense not provided for by the statutes" would take some
analysis that is unnecessary here.

¶15. A more fruitful examination is whether solicitation of a minor to engage in what would be sexual
battery is distinguishable from an overt act or is just one kind of overt act. Most of the case law on
solicitation from other jurisdictions has involved an actor who is trying to engage another competent adult to
commit a crime for him, such as to perform a murder or a burglary. American Law Institute, Model Penal
Code §5.02 (1985). What the solicitation here constituted was an enticement of a youngster to permit a
sexual crime to be committed upon him. The criminal effect of the enticement little depends on its details.
Had the accused offered a gift if the boy would go to a back room with him, or threatened him if he did not,
but nothing occurred after the offer, the stage of the crime and the responsibility for the event would
essentially be the same as in this case.

¶16. In various ways a person can attempt to lure a minor into a sexual encounter that would be a battery.
Is the luring an overt act towards committing the crime?

¶17. Several factors lead to the finding that this is an attempt. Ishee took substantial steps towards
committing this crime. He was physically at the scene in which the encounter would necessarily begin and
physically adjacent to the boy as he attempted to attract him to his designs. The manner in which the
defendant wanted to commit the crime was not by force, but by the child victim's willing (though not
qualifying as legally consensual) participation. Unless Ishee physically compelled the boy, something that
would likely have garnered too much attention in this public place, that refusal was the extraneous
interruption in the crime. Nothing stopped its continuation except the boy's refusal. If instead the boy had
agreed to go with him and the two started to walk out, the mother's stopping her son would be a later
interruption of the attempt. In either case, though, the attempt began with Ishee's entreaties.

¶18. Ishee had moved beyond planning, beyond preparation, and had begun the specific means of
committing the crime that he had chosen. He attempted to commit sexual penetration of a willing child but
was thwarted at the initial stage of the crime by the boy's refusal.

¶19. Mississippi has a limited version of a specific "anti-luring" statute. It is a crime to entice a child under
fourteen "with intent to detain or conceal such child from its parents," without regard to the specific purpose
of the concealment. Miss. Code Ann. § 97-5-5 (Rev. 1994). The statute also prohibits enticing for purpose
of "prostitution, concubinage, or marriage," but that is an alternative to proving that the purpose was to
conceal from the child's parents. Id. A luring statute that more specifically covers acts such as those
committed by Ishee might be useful, but the attempt statute applies to Ishee's conduct since his words made
clear just what he was attempting.

¶20. The dissent makes a thoughtful but contrary interpretation of these facts and legal precedents. We do
not question that the dissent is striving to uphold all judges' sworn obligation to be guardians of the law,
applying that law impartially such that it will be preserved against the onslaught of many different threatening
forces. With equal zeal for objectivity, the majority is engaged in the same task. That divergent conclusions
are reached means that we have different interpretations of the precedents, not that we have conflicting
goals for the endeavor.

¶21. We first take note of a precedent that the dissent finds convincing, West v. State, 437 So. 2d 1212
(Miss. 1983). Certainly that case involved a conviction for sexual battery in which the issue was whether the
accused had committed an overt act. The reason for reversal was not that the defendant had proceeded too
briefly along the road from planning through preparation to commission. Instead, it was reversed because it
remained ambiguous whether sexual penetration of his victim was intended even after the accused had
proceeded very far indeed. He had inveigled his victim inside his apartment, then without her consent felt
her breasts, spoke suggestively to her, and exposed himself. As the court said, "West had every
opportunity to penetrate if he had wished to do so," but never did. Id. at 1214. West never said that he
intended to do anything beyond what he committed. For all the evidence indicated, what he intended was
just the acts that he did and those were not sexual battery. Even assuming, though no evidence existed, that
initially the accused had an intent to commit the actual sexual penetration, "that intent had dissipated by the
time he committed his so-called 'overt acts'. Whether he lost his nerve, changed his mind, or whatever, his
failure to consummate the crime of sexual penetration was obviously his own decision." Id. Absent proof
both of intent and that an extraneous cause interrupted the crime, he could not be convicted for attempted
sexual battery. Id.

¶22. In Ishee's effort to convince this young boy to permit a sexual act to be performed upon him, there
was no ambiguity. After that announcement of intent, Ishee was thwarted by the extraneous cause of the
boy being unwilling to go along with him. Though the dissent argues that this makes all rejected requests for
sexual favors an attempted rape or battery, the holding is much more limited. The youth was not of an age
to consent, and thus to engage in sexual activities with him is a crime even if he does so willingly. We are
focusing on the facts that Ishee found a nine-year old boy in a place away from the oversight of others who
might be concerned for his welfare and sought the youth's cooperation in a sexual act. On such facts an
accused can be found to have committed a direct and unambiguous overt act that is intended to lead to the
commission of a sexual battery.

¶23. The hypothetical situation that the dissent extracted from the West opinion is quite helpful in the
analysis. "If one walks into a bank with a loaded pistol in his pocket intending to rob the bank and walks up
to the teller's window, but then changes his mind, he has not committed the crime of attempted bank
robbery. See Smith v. State, 279 So.2d 652, 653 (Miss.1973)." Id. We can quite agree. Yet if the person
contemplating bank robbery goes one step further and informs the teller that he has a pistol in his pocket
and wants all the money placed in a bag, then the attempt has begun. He is no longer loitering and hesitating
as he contemplates whether to commit the crime. He has approached and imposed on a victim the first,
definite and necessary public step in his scheme.

¶24. For that bank teller or for this young boy, the crime has begun. That something might still stop it before
completion is not the concern of the victims nor of the law. When the dissent states that this means that
there can be no abandonment of an attempt, the response is that there is no evidence here of abandonment,
only frustration. Had the boy willingly gone with Ishee, there would have been more time for Ishee to have
changed his mind about his plans. Speculation about that occurring would be similarly available for any
crime that had not proceeded beyond the attempt stage. What is important is whether the attempt itself has
occurred. We have found that it did.

¶25. We conclude that neither the indictment that charged this overt act nor any weakness in the evidence
that proved it forms a basis for reversal for the conviction.

      3. Impropriety of sentence

¶26. The sentence imposed here was thirty years. Had he committed a sexual battery, Ishee as a second
offender could have been incarcerated for as long as forty years. 1995 Miss. Laws ch. 596, § 15; revised
Act codified Miss. Code Ann. § 97-3-101 (Supp. 1999). The sentence for an attempt of a non-capital
crime can be the same as for the crime itself. Miss. Code Ann. 97-1-7 (Rev. 1994).

¶27. At trial and now on appeal, Ishee points out that the same statute provides that if the conviction is for
an attempt to commit a capital crime, the maximum sentence is only ten years. Id. Ishee argues that
punishing an attempt to commit a non-capital crime more severely than a capital one is illogical, which it
may be, and "misconstrues legislative intent," which it most certainly does not. The statute unambiguously
provides the dichotomy noted by Ishee's counsel.

¶28. We must look back over 150 years to find a statutory code that treated the sentencing for attempt
differently than section 97-1-7 does today. The 1848 Code provided for a ten year sentence for an attempt
to commit a capital crime, and a multi-category list of lesser punishments for attempts of other crimes. Miss.
Code ch. 64, art. 12, Title 8(3) (1848). Every other code that has had a section on sentences for attempts
has taken the approach of the present statute. E.g., Miss. Code ch. 64, art 20 (1857). It appears that at
least in that 1857 Code, there were many more capital crimes than today, while very few non-capital crimes
had sentences longer than ten years. Miss. Code ch. 64 (1857) (over 200 crimes; only seven non-capital
crimes had sentences more than ten years).

¶29. If that explains the original basis to sentencing for attempts, it is not necessarily invalid to continue the
approach even though non-capital crimes with lengthy sentences are now numerous. If there is a defect, it is
not suggested on this appeal when the argument solely is that applying section 97-1-7 as written
misconstrues legislative intent.

      4. Closing argument

¶30. In the prosecutor's summation for the jury, he responded to a defense argument:

      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.

Continuing with this theme, the prosecutor later said this:

      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.

¶31. The legal defect in such arguments is that they at least in part encourage jurors to consider factors
other than what is in the court's instructions to them. Prosecutors may respond by saying that such
arguments also encourage jurors to make the tough decision of finding guilt when the evidence requires it.
That may be, but on balance the potential that it encourages jurors to loosen their dependence solely on the
law and evidence makes it error.
¶32. Though error, such argument has not usually been found to cause reversal. Williams v. State, 522
So.2d 201, 209 (Miss.1988). Here, it can also be argued that the prosecutor's statement was permissible
because the defense counsel in his own jury argument had injected into jury deliberations the notion that a
message needed to be sent. Defense counsel said that conviction would give a harmful message to the next
person considering asking a young child to engage in sexual acts. If Ishee were convicted, that next person
who "has the same thoughts" will understand that he has "reached the point of no return, and he might as
well commit the act." This jury argument notwithstanding, the conviction was not based on deviant thoughts.
Thoughts were replaced with action when Ishee sought to lure a young boy to have a sexual battery
performed upon him.

¶33. We do not decide if the invitation given by the defense to discuss community messages was exceeded
by the response. Fundamental to our appellate task is the need that an issue be raised below and the trial
court be given an opportunity to address it. Here counsel did not object that the prosecutor was improperly
asking the jury to "send a message." Without either an objection or at least the "send a message" issue's
being raised in the motion for new trial, the complaint is waived. Turner v. State, 721 So.2d 642, 646
(Miss. 1998).(1)

     5. Voir Dire

¶34. The final argument is that the prosecutor made improper comments during voir dire.

¶35. The district attorney informed the jury that after the grand jury issued an indictment, it was the
obligation of the State "to get the ball rolling" at trial, and that it had the "burden of proof or the
responsibility of going forward by calling witnesses." Ishee argues that it was improper for the prosecutor to
assume the judge's responsibility of explaining the law and, secondly, that the description was erroneous
because the State did not just have the burden of "going forward."

¶36. Ishee also argues that error occurred when the jurors were asked by the prosecutor if they understood
that once the State has put on evidence "and you are convinced that the Defendant is guilty, that he no
longer enjoys that presumption of innocence, it's erased? Does everyone understand that?" That is said to
be the seeking of a pledge from the jury.

¶37. Instructions given by the court at the end of trial explained that a defendant's presumption of innocence
"abides with him throughout the trial of the case until the evidence convinces you to the contrary beyond all
reasonable doubt." If any echoes of the prosecutor's statements during voir dire lingered during post-trial
deliberations, this instruction certainly overwhelmed them.

¶38. As with the issue regarding the closing argument, here too there was no contemporaneous objection to
the statements. We do not address whether there was any error in the fairly innocuous explanations that are
the basis of complaint here. We do hold that there was no plain error that must now be the basis of reversal.

¶39. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF
CONVICTION OF ATTEMPTED SEXUAL BATTERY (SECOND OFFENSE) AND
SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
NESHOBA COUNTY.

     McMILLIN, C.J., LEE, MOORE, MYERS, AND PAYNE, JJ., CONCUR.
      IRVING, J., DISSENTS WITH SEPARATE OPINION, JOINED BY KING, P.J.,
      BRIDGES AND THOMAS, JJ.

      IRVING, J., DISSENTING:

¶40. The facts of this case are despicable. The request made by Ishee to this young child is revolting and
abominable. Ishee's action speaks of the wretchedness of his soul, void of a moral center, and reeking with
the decadence and moral decay of our society. Yet, the legitimacy, credibility, and longevity of our system
of justice demand that we not shrink from our sworn obligation to be guardians of the law and apply it
impartially, without hesitation and with equal force to all, even to wretched souls who seemingly are bereft
of any standard of decency when it comes to satisfying their insatiable sexual appetite. For this reason, I
must respectfully dissent, even when I would rather join the majority on the primrose path and affirm the
conviction and punishment meted out to Ishee for his dastardly act.

¶41. I agree with majority that the "facts are not in significant dispute," and I would go a step further and
say that the facts are not in dispute at all. I also point out that Ishee made no "effort to convince" this young
boy as the majority asserts. Ishee simply made a request which was promptly and politely denied by the
young boy. To illustrate this point, it is helpful to view C.G.'s testimony. C. G. testified that he was in the
checkout line at Wal-Mart with his mother when she sent him back for cereal. He said that while he was on
the cereal aisle a man, later identified as Ishee, came up to him and asked him, "Can I suck your d--k?" C.
G. said that he did not know what the man meant, so the man repeated the same thing, this time pointing "at
his n--s." C. G. said that his response to the man's request was, "No, thank you," and returned to where his
mother was in the checkout line and told her what had just happened. However, before returning to the
checkout, he obtained the cereal his mother had sent him to get.

¶42. Our highest court has enunciated and pronounced with great clarity principles of law that are, without
doubt, precedential beacons of light that must guide and control the deliberation we bring to bear upon the
sordid facts of this case. I believe those pronouncements on what must be shown to constitute the crime of
attempt to commit a criminal offense compel the conclusion that Ishee did not commit the offense of
attempted sexual battery.

¶43. Ishee argues that asking a child under the age of fourteen to engage in fellatio is not by itself attempted
sexual battery because "asking" is not an essential element 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)."

¶44. The code section referenced in the indictment sets forth the penalty for, not the crime of, sexual
battery. In my opinion, to properly charge the offense of attempted sexual battery, the charge must be laid
under Miss. Code Ann. § 97-3-95 (Supp. 1999), which makes sexual battery a crime, and Miss. Code
Ann. § 97-1-7 (Rev. 1995) which sets forth the elements of the crime of attempt to commit an offense and
prescribes the punishment therefor. Ishee did not raise this omission on appeal. Therefore, I will not address
it further.

¶45. Ishee also argues that the statutory overt act must be alleged in the indictment as an essential element
of the crime. I agree. In Dill v. State, 149 Miss. 167, 170, 115 So. 203 (1928), the 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).

¶46. The indictment contains no allegation of acts other than Ishee's asking C.G. to engage in fellatio and
pointing to his penis. It is Ishee's contention that the pointing was of no moment and that the entirety of the
alleged crime was his asking C.G. to engage in fellatio. Ishee contends that 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.

¶47. In Edwards v. State, 500 So. 2d 967, 969 (Miss. 1986) (quoting Bucklew v. State, 206 So. 2d
200, 202 (Miss. 1968)), the Mississippi Supreme Court opined that 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."

¶48. If the acts alleged in the indictment, "asking to engage in fellatio" and "pointing at the penis," were not
overt acts within the meaning of the attempt statute quoted above, then Ishee's demurrer to the indictment
was proper and should have been sustained. I now examine those acts to determine their legal sufficiency.

¶49. Blacks Law Dictionary, 6th Edition defines "overt act" as:

      An open, manifest act from which criminality may be implied. An outward act done in pursuance and
      manifestation of an intent or design. An open act, which must be manifestly proved.

      An overt act essential to establish an attempt to commit a crime is an act done to carry out the
      intention and it must be such as would naturally effect that result unless prevented by some extraneous
      cause. It must be something done that directly moves toward the crime and brings the accused nearer
      to its commission than mere acts of preparation or of planning, and will apparently result, in the usual
      and natural course of events, if not hindered by extraneous causes, in the commission of the crime
      itself.

¶50. Ishee directs our attention to that portion of Bucklew where the court, quoting 1Wharton, Criminal
Law and Procedure 74 (1957), said this:

      [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, 206 So. 2d at 203 (emphasis added).

¶51. Ishee was charged with attempt to commit sexual battery. The offense of sexual battery requires
sexual penetration. Miss. Code Ann. § 97-3-95 (Supp. 1999). "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 (Rev. 1994).
¶52. The offense with which Ishee was charged required the State to prove that Ishee attempted to sexually
penetrate C.G. within the meaning of code section 97-3-97 quoted above 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).

¶53. In West, Larry Van West was convicted of the crime of attempted sexual battery, the same offense for
which Ishee now stands convicted. "The evidence established without serious contradiction that on March
2, 1981, West inveigled his victim, a female student at the University of Southern Mississippi, into
an apartment near where she lived, made a few suggestive comments, and without her consent,
fondled her breasts, put his hand inside her panties, and later exposed himself. West, 437 So. 2d at
1213.

¶54. The West court observed that the question was not "whether what West did was criminal or whether it
offended sensibilities," but "whether what West did constituted the specific crime of attempted sexual
battery." Id. In arriving at the conclusion that West's actions did not constitute the crime of attempted sexual
battery, the court analyzed the following statutes: (1) Miss. Code Ann. § 97-3-95, which makes one guilty
of the crime of sexual battery if he engages in sexual penetration with another person without his or her
consent; (2) Miss. Code Ann. § 97-3-97, which defines sexual penetration as inclusive of 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; (3) Miss. Code Ann. § 97-1-7, which sets forth the elements of the crime of attempt to commit a
criminal offense.

¶55. The West court held that Miss. Code Ann. § § 97-3-95 and 97-3-97 must be read in combination
with Miss. Code Ann. § 97-1-7 in determining whether one has committed the offense of attempted sexual
battery. Section 97-1-7 reads in pertinent part as follows:

      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, . . . be punished. . . .

¶56. The West court held that its concern 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. West, 437 So. 2d at 1214. The court held that West had every opportunity to
penetrate if he had wished to do so.

¶57. Finally, the West court, citing Smith v. State, 279 So. 2d 652, 653, held that if one walks into a bank
with a loaded pistol in his pocket intending to rob the bank and walks up to the teller's window, but then
changes his mind, he has not committed the crime of attempted bank robbery. Id.

¶58. As stated, it was also necessary for the indictment to allege the overt act or acts constituting the
attempt. Dill, 149 Miss. at 170, 115 So. at 204. The question for us is whether asking another for
permission to engage in fellatio and pointing to the penis to clearly communicate the message amount to an
attempt to commit sexual battery. I think the answer to the question is an emphatic "no."

¶59. While a direct ineffectual act toward the commission of a crime is one of the elements of the crime of
attempt to commit a specific crime, the ineffectualness of the act is relevant only to distinguish between the
attempt and the commission of the crime. Admittedly, Ishee's request was ineffectual but had C.G. agreed
to the request, the crime still could not have been consummated without additional action on Ishee's part.
The fact that C.G. was a minor and could not legally consent to such an act is of no moment in our
deliberation because the focus is on what action was taken by Ishee to consummate the act. Hence, the
request, without more, could not have led to the commission of the offense. It is not debatable that the
pointing to the penis, without more, could not have led to the commission of the offense.

¶60. The majority's effort to distinguish West points out even more poignantly the fallacy in the majority's
reasoning. The majority says that the reversal occurred in West because "it remained ambiguous whether
sexual penetration of his victim was intended even after the accused had proceeded very far indeed."
Majority opinion at 7. The defendant in West "had proceeded very far indeed" and without the victim's
consent. In other words, the majority's argument implies that the actions taken by the defendant in West
were inconsequential and could not be placed on the continuum from planning through completion because
it was unclear as to the intentions of the West defendant when he was fondling his victim's breasts and
placing his hand inside her panties. I suppose in the view of the majority, actions do not speak louder than
words. The majority then says "a ha!" We do not have that problem in our case because Ishee spoke his
intentions rather than demonstrated them. To say the least, this seems to be faulty reasoning to me and a
contorted way to try and waltz around the strong West precedent as to what must be shown to constitute an
attempt.

¶61. If West can be reconciled with the majority's lack-of-consent-trip-wire analysis discussed later in this
opinion, then whenever one asks another to engage in sexual relations and is refused, the asking party has
committed either an attempted rape or attempted sexual battery even though nothing had been done in
furtherance of that design. It cannot be argued legitimately that a different result is ascertainable depending
on the victim's age. The reason for this is simple; the age of a victim has nothing whatsoever to do with
whether another has taken acts sufficient to constitute an attempt at sexual battery. It is the action of the
actor that is the focus of the overt act in an attempt case, not the conduct of the intended victim.

¶62. The majority attempts to deflect the argument -- that under the majority's analysis, the mere asking
constitutes an attempt to commit the offense if the request is refused -- by positing that "[t]he youth was not
of an age to consent, and thus to engage in sexual activities with him is a crime even if he does so willingly."
My short answer to that is engaging in consensual sexual activities with an adult other than one's spouse is
also a crime in this state. Miss. Code Ann. § 97-29-1 (Rev. 1994).

¶63. What we have here is really nothing more than a request to allow an activity to take place. The request
was dishonored, and the encounter ended. To try and transform that request into an element of the intended
offense, as does the majority, is a legal leap of acrobatic proportions that just cannot be made, no matter
how desirous. At most, Ishee's request was nothing more than an attempt to locate a victim, not an attempt
to sexually penetrate a victim. In fact, Ishee could not really start planning the ultimate act until he found a
willing victim. The majority acknowledges that Ishee's motive was to find a willing victim for consummation,
that he obviously did not intend to perform the act in Wal-Mart even if his victim had consented. I find the
majority's discussion of what could have or might have occurred at Ishee's home before he went to Wal-
Mart to be an unhelpful effort to bolster its beleaguered argument. There is no evidence in the record
concerning this encounter other than what is set forth in this opinion, and there is certainly nothing in the
record to suggest in the slightest that Ishee even knew C.G. would be at Wal-Mart.
¶64. In our case, the majority says it was the refusal to consent, and nothing more, that halted the
completion of the crime. It seems to me that if the victim's refusal to consent is the trip wire, there would
never be a need to show anything more than lack of consent on the part of the victim. Thus, under this
reasoning, the State would have made its case in West when it showed lack of consent on the part of the
victim. It would not have been necessary to proceed any further because the crime was then in progress,
and as the majority says, "that something might still stop it before completion is not the concern of the victim
nor of the law." Majority opinion at 8.

¶65. The West court noted, as quoted earlier in this opinion, that all of the acts taken by West were without
his victim's consent. Why was her lack of consent not sufficient for the West court to conclude that the
attempt had been completed? Stated another way, why was her refusal to consent not viewed -- as the
majority views C.G.'s refusal here -- as an extraneous cause that thwarted the commission of the act?
Viewed this way, West's later actions would have been indeed immaterial. Assuming they were not
immaterial, then the focus must shift to his later actions. Clearly West intended to fondle his victim's breasts
and to place his hand inside her panties. It would appear that these actions were giant steps toward
constituting the ultimate offense and actions taken well before there could be any legitimate argument that he
had abandoned his design.

¶66. The majority says, "West never said he intended to do anything beyond what he committed." Majority
opinion at 7. With all due respect for the majority, I must say the West opinion does not indicate that the
defendant said anything one way or the other, and to say that "West never said he intended to do anything
beyond what he committed" is to imply that West made a statement of his intentions. My reading of West
indicates that the supreme court was applying the law of attempt to a set of facts without authorship other
than the assertion that it was the proof offered by the State.

¶67. The West court, citing State v. Lindsey 202 Miss. 896, 899, 32 So. 2d 876, 877 (1947), made it
clear that the gravamen of the offense of attempt is that the accused have must done an overt act toward
sexual penetration but failed therein or that he was prevented from committing the same." West, 437 So. 2d
at 1214. The court concluded that the proof showed "neither an attempt nor a failure but a volitional
stopping short." Id. The question must be asked, stopping short of what? The answer cannot be
"penetration," for if penetration had occurred, the offense would have been transformed from the attempt
stage to the commission stage. The only reasonable deduction is the proof regarding West's actions fell
short of an attempt to penetrate. Yet the proof was overwhelming that West took several actions which can
only be interpreted as acts toward the commission of the offense. To try and distinguish West on the basis
that West's intentions were ambiguous is not to accord common sense to West's actions.

¶68. It is true that the West court spoke of an abandonment of intentions because no penetration occurred
when there was every opportunity for that to have occurred. But as stated earlier in this opinion, if that had
occurred, the offense would have been sexual battery, not attempt to commit sexual battery. Thus, the
court's discussion of lack of intent in West is of no help to the State's case here. Further, the majority's
reliance on C.G's response is of no help because as stated earlier in this opinion, even a "yes" response to
Ishee's request would not have allowed the crime to be committed without additional action on the part of
Ishee. How then can the "no" response be more legally potent than a "yes" response would have been?

¶69. The giant fallacy in the majority's argument is its attempt to transform the victim's lack of consent into
an extraneous act that thwarts the commission of the crime. A 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. This is true even if the proof of lack of consent is
overwhelming. Under the majority's reasoning, the attempt to commit a crime like this one would be
completed once the victim muttered his lack of consent, even if the defendant went on about his business,
telling the intended victim as he departed, "okay, sorry I asked. Have a nice day." In our case, there is no
evidence that Ishee did anything to further his design after young C.G. told him "no, thank you." Had Ishee
not been arrested, it is a safe bet that he would have gone about his business. C.G. certainly went about his
business. He testified that after the encounter with Ishee, he proceeded to get the cereal that he came for
before returning to where his mother was.

¶70. This brings me to the ultimate conclusion that the overt acts alleged in the indictment were not sufficient
to charge an attempt to commit the crime of sexual battery. Having concluded that the acts alleged in the
indictment were insufficient to charge the crime of attempt to commit sexual battery, it necessarily follows
that, in my opinion, the trial court erred in overruling Ishee's demurrerto the indictment. I would reverse and
render the judgment of the trial court finding Ishee guilty of attempt to commit sexual battery.

      KING, P.J., BRIDGES AND THOMAS, JJ., JOIN THIS SEPARATE WRITTEN
      OPINION.

      1. The motion for new trial did state generically that the court had "committed error in overruling
      Defendant's objections to the District Attorney's improper arguments to the jury," but that obviously
      does not make any new objections but only incorporates those actually made during the closing
      argument itself.
