Green v. State

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT

DATE OF JUDGMENT: 06/02/2017 TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III TRIAL COURT ATTORNEYS: MICHAEL GUEST MARLIN A. MILLER WILLIAM ANDY SUMRALL THOMAS P. WELCH, JR. COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/18/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT : ¶1. Richard Lamar Green ("Green") was convicted in the Circuit Court of Rankin County for the attempted murder and kidnapping of his wife, Cathleen Green ("Cathy"). Green appeals his convictions, arguing that the State presented insufficient evidence to convict him of both counts. The Court finds that a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of both convictions based on the testimony, evidence, and applicable law. We affirm Green's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2. Green and Cathy had been arguing for a few days. Cathy wanted a divorce because she was ready to be with someone else. Green found Cathy's phone and demanded that she unlock it, but she refused. Green became so agitated by Cathy's refusal that he walked outside and retrieved a machete from the toolbox of his vehicle. He then walked back inside and into the bedroom where Cathy and their four-year-old son were watching cartoons. Green removed Cathy from her bed, separating her from their child. Cathy threw her phone to the child and told him to call 911. Green dragged Cathy out of the bedroom and away from her son. He then forcibly dragged her down the hall, leaving bruises up and down her arms. Cathy was kicking and flailing as she tried to free herself from Green's grip, but he would not release her. ¶3. Upon reaching the living room (and out of their child's sight), Green repeatedly struck Cathy in the head with the machete. She tried to defend herself and received defensive wounds in the process. Cathy was screaming, asking Green, "stop, stop, what are you doing?" Green told Cathy, "I'm going to kill you with this machete." She was rendered helpless on the living room floor. When Green came back past her, Green told their son, "don't look at mommy." Cathy began pleading for her life. She told Green, "I'm your wife. What have you done? I have kids. I only have so much time. I only have so much blood. proceeded from one room to another. Despite evidence to the contrary, Green further claimed that he never restrained Cathy or kept her from leaving. The trial court denied Green's motion. ¶9. The jury found Green guilty, as charged in the indictment, of attempted murder in Count I and of kidnapping in Count II. The jury unanimously sentenced Green to life imprisonment on Count I. The jury was unable to agree on a penalty for Count II. The trial judge held a sentencing hearing on Count II and sentenced Green to a term of thirty years to be served consecutively with the sentence in Count I in the custody of the Mississippi Department of Corrections. ¶10. Green filed a motion for judgment notwithstanding the verdict ("JNOV"), or alternatively, a motion for a new trial. Green argued, inter alia, that the verdict was against the overwhelming weight of the evidence, reasserting his arguments that he had abandoned any attempt to murder Cathy and that he had not kidnapped Cathy. The trial judge denied Green's motion. Aggrieved, Green appeals.

Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

ISSUES

¶11. Green does not challenge the weight of the evidence. Rather, Green challenges the sufficiency of the evidence, raising two issues on appeal:

I. Whether the State presented sufficient evidence to convict Green of kidnapping.
II. Whether the State presented sufficient evidence to convict Green of attempted murder.

STANDARD OF REVIEW

¶12. In considering whether the evidence is sufficient to sustain a conviction, this Court employs a de novo standard of review. Brooks v. State , 203 So. 3d 1134, 1137 (Miss. 2016) (citing Kirk v. State , 160 So. 3d 685, 695 (Miss. 2015)). "The relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Hearn v. State , 3 So. 3d 722, 740 (Miss. 2008) (quoting Bush v. State , 895 So. 2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v . State , 233 So. 3d 288, 289 (Miss. 2017)). "Under this inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence." Galloway v. State , 122 So. 3d 614, 665 (Miss. 2013). Appellate courts "should reverse only where, with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Boyd v. State , 977 So. 2d 329, 337 (Miss. 2008) (citation omitted) (internal quotations omitted).

DISCUSSION

I. Kidnapping ¶13. Green argues that the State failed to produce sufficient evidence to support his kidnapping conviction and asks this Court to reverse that conviction and to render a judgment of acquittal in his favor. Mississippi Code Section 97-3-53 defines kidnapping 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). ¶14. Green argues that any kidnapping was incidental to the "alleged assault" against Cathy, and that, if this Court affirms his conviction, "a kidnapping charge could be brought concurrently to every single assault." Curiously, Green cites Cuevas v. State , 338 So. 2d 1236, 1238 (Miss. 1976), in support of his argument. In Cuevas , a Scott County prisoner confronted a jailer with a pistol and forced him to accompany him downstairs to the sheriff's office at gunpoint. Cuevas , 338 So. 2d at 1237. Once downstairs, the prisoner forced a highway patrolman to accompany him to a vehicle in a nearby lot. Id. Then, the prisoner crossed the street to a building where he encountered two employees of an automobile agency. Id. The prisoner directed one employee to accompany him to the "parts department" of the building at gunpoint. Id. The prisoner then held two employees hostage in the parts department for nearly two hours. Id. The prisoner eventually surrendered and was charged with, and convicted of, kidnapping. Id. The prisoner challenged the sufficiency of the evidence to sustain the charge of kidnapping. Id. The Court found that the evidence was sufficient to support his conviction, holding that

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Id
. at 1238. The Cuevas Court concluded that the prisoner's purpose in "seizing and detaining [the hostage] was obviously to make good his escape." Id. "The confinement and Williams v. State , 544 So. 2d 782, 790 (Miss. 1987) (holding that reasonable juror could have found that murder victim was also kidnapped when "she was dragged or carried into the woods from the truck"). Furthermore, Cathy testified that she was kicking and flailing as Green dragged her down the hallway, and that Green would not let her go. Cathy tried to free herself, but could not. Only after the asportation was complete did Green begin to hack Cathy with a machete until her blood and brain matter covered the floor and walls and she could no longer move. Then, he stepped over her body, left the home with her cell phone, and locked the door behind him. Viewing the evidence and testimony in the light most favorable to the State, a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of kidnapping. Graham , 185 So. 3d at 1003.

Attempted murder carries a minimum sentence of twenty years. Miss. Code Ann. § 97-1-7 (Rev. 2014). Kidnapping carries a minimum sentence of only one year. Miss. Code Ann. 97-3-53.

Inter alia, Green cites a Connecticut decision that involves legislative intent of a Connecticut statute. State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008). Equally unavailing is the Third Circuit's interpretation of a Virgin Islands statute and the wording of the Model Penal Code. Sep. Op. ¶ 28-29. The controlling law is Mississippi Code Section 97-3-53.

Graham was introduced in this appeal by Green, albeit for a different purpose.

II. Attempted Murder ¶19. Despite Cathy's testimony that Green had told her, "I'm going to kill you with this machete," Green argues that the State produced insufficient evidence to convict him of attempted murder, because he alleges he abandoned any attempt to kill Cathy by calling 911. Green requests that this Court reverse his conviction, render a verdict of not guilty, and remand for resentencing for aggravated assault. Mississippi Code Section 97-1-7(2) defines attempted murder as follows:

Every person who shall design and endeavor to commit an act which, if accomplished, would constitute an offense of murder under Section 97-3-19, but shall fail therein, or shall be prevented from committing the same, shall be guilty of attempted murder[.]

Miss. Code Ann. § 97-1-7(2) (Rev. 2014). "An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct [overt] act done toward its commission; and (3) the failure to consummate its commission." Brooks v. State , 18 So. 3d 833, 841 (Miss. 2009). "The mere intention to commit a crime is not punishable; 'the intention must therefore be coupled with an overt act.'" Croft v. State , 992 So. 2d 1151, 1159-60 (Miss. 2008) (quoting Bucklew v. State , 206 So. 2d 200, 202 (Miss. 1968)). ¶20. Green argues that he abandoned any attempt to kill Cathy, and that, under Mississippi's attempt statute, prevention from or frustration of the crime's completion must result from extraneous causes. Green cites West v. State , 437 So. 2d 1212, 1213 (Miss. 1983) (holding defendant did not commit the specific crime of attempted sexual battery because there was no sexual penetration), and Bucklew , 206 So. 2d at 202 (holding that defendant did not attempt to embezzle city funds because he did not commit an overt act toward the commission of the crime). Green asserts that the State's indictment and its jury instruction allege that the prevention or frustration of Green's attempt to murder Cathy was Green's calling 911. Thus, Green argues that the completion of the crime was prevented or frustrated by the 911 call and not by extraneous causes. ¶21. The State argues that, while Green did not succeed in killing Cathy, Green completed the crime of attempted murder. The State cites Jackson v. State , in which this Court held,

It must be remembered that an attempt to commit the crime of burglary (or an attempt to commit any other crime, for that matter) is just as much a crime as the completed act is a crime. Where a person with the intent to commit a crime performs some overt act toward the commission of the intended crime, he is guilty of the crime of "attempt to commit the crime," provided the act is more than mere preparation. One may intend to commit the crime of murder and may procure [a] firearm for that purpose, but until his acts go beyond mere preparation to the extent of doing some overt act in the actual carrying into effect his intent, he is not guilty of an "attempted murder." If, on the other

hand
, one proceeds beyond mere preparation, his voluntary abandonment will not bar his conviction.

Jackson v
. State , 254 So. 2d 876, 878 (Miss. 1971) (emphasis added). ¶22. Based on this Court's holding in Jackson , the State asserts that, because Green's action of striking Cathy with the machete went beyond mere preparation, he cannot claim that he voluntarily abandoned his attempt by calling 911 afterward. We agree. ¶23. The jury heard testimony that Green intended to murder Cathy and that Green took action to carry out the crime, well beyond mere preparation, by repeatedly striking her with a machete. Even if Green prevented Cathy from succumbing to the wounds he inflicted by calling 911 after he left the home, he completed the crime of attempted murder when he proceeded beyond mere preparation in carrying out his intent to kill Cathy. Jackson , 254 So. 2d at 878. Thus, any alleged "abandonment" by Green "will not bar his conviction." Id. See also Bucklew , 206 So. 2d at 204 ("[A] voluntary abandonment of an attempt which has proceeded beyond mere preparation will not bar a conviction for the attempt."). The State presented sufficient evidence such that a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of attempted murder. ¶24. Green alternatively argues in a footnote that the attempted-murder statute, Mississippi Code Section 97-1-7(2), is "probably" unconstitutionally vague and overbroad. Green states that the Court need not address this argument in order to reverse based on the State's alleged failure to produce sufficient evidence to convict Green of attempted murder. As discussed, a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of attempted murder. Furthermore, Green cites no authority for his argument that the attempted-murder statute is "probably" unconstitutionally vague and overbroad. The Court declines to consider Green's alternative argument. See Byrom v . State , 863 So. 2d 836, 853 (Miss. 2003) ("Failure to cite relevant authority obviates the appellate court's obligation to review such issues.").

CONCLUSION

¶25. The State produced sufficient evidence such that a rational juror could have found that the elements of kidnapping and attempted murder had been proved beyond a reasonable doubt. The Court affirms Green's convictions and sentences. ¶26. AFFIRMED.

COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, P.J.

KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART: ¶27. Although I agree with the majority's conclusion that the State produced sufficient evidence to support Green's attempted murder conviction, I respectfully dissent from the majority's finding that the State produced sufficient evidence to support his kidnapping conviction. I would find that Green's act of moving Cathy from the bedroom of her house to the living room of her house merely was incidental to the attempted murder. ¶28. Green argues that, because his confinement of Cathy had no significance independent of his assault of Cathy, his kidnapping conviction should be reversed and rendered. "When assessing the legal sufficiency of a conviction, a reviewing court determines 'whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Powell v. State , 249 So. 3d 355, 361 (Miss. 2018) (quoting Cotton v. State , 144 So. 3d 137, 142 (Miss. 2014)). Pursuant to Mississippi Code Section 97-3-53, the crime of kidnapping is committed when

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). However, when a confinement is merely incidental to a lesser crime than kidnapping, this Court has found that confinement to be insufficient to support a kidnapping conviction. Cuevas v. State , 338 So. 2d 1236, 1238 (Miss. 1976). In Cuevas , this Court held,

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Cuevas
, 338 So. 2d at 1238. ¶29. Green's case is akin to the strong-armed robbery illustration in Cuevas. Here, Green did not remove Cathy from her house or transport her to any location outside of her own house. The Model Penal Code states that "a person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation . . . ." Model Penal Code § 212.1 (Am. Law Inst. 2017) (emphasis added). Similarly, after an analysis of kidnapping laws in numerous jurisdictions, the United States Court of Appeals for the Third Circuit determined that four factors are used in each approach to kidnapping:

(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

Gov't of Virgin Islands v
. Berry , 604 F.2d 221, 227 (3d Cir. 1979). ¶30. The instant case involves no substantial duration of detention or asportation. Green's act of moving Cathy to the living room also created no significant danger to Cathy independent of Green's attempt to murder her. In fact, Green stated that when he became agitated with Cathy, he first went to his truck to retrieve his machete; he then came back into the house and commenced his assault on Cathy. Therefore, although the majority reasons that Green began his assault on Cathy only after the asportation was complete, Green already had commenced his attempted murder on Cathy when he walked into the house to the bedroom where Cathy was located. Because Green's removal of Cathy to the living room and his assault of Cathy are so interwoven, I believe that the removal was merely incidental to the attempted murder of Cathy. Accordingly, I would hold that, considering the evidence in the light most favorable to the verdict, the evidence was insufficient to support Green's kidnapping conviction. I would affirm his conviction of attempted murder.

See also State v . Salamon , 287 Conn. 509, 545-46, 949 A.2d 1092, 1119 (2008) ("Although [the cases cited above] involve varying statutory language and analyses, they share a common theme, namely, that it is unlikely that the legislature intended to expose an accused to a kidnapping conviction, and the severe sanctions accompanying such a conviction, when the restraint involved is merely incidental to the commission of a separate, underlying crime."). --------

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS OPINION.