DICKINSON, Presiding Justice, for the Court:
¶ 1. Justin David Shaffer was convicted of child-exploitation for soliciting sex from a twenty-nine-year-old female who he thought was thirteen. He argued to the Court of Appeals that he could not be guilty of child-exploitation because no child had been involved in the sting. The Court of Appeals agreed, but reversed and remanded for Shaffer to be sentenced for attempted child-exploitation—a crime for which he was neither indicted nor tried. Because the actual attempt to exploit a child violates the child-exploitation statute, we reverse the Court of Appeals and reinstate and affirm Shaffer's conviction and sentence.
¶ 2. Twenty-nine-year-old Deanna Doolittle attempted to catch sexual predators on the internet by pretending to be thirteen-year-old "Chloe." She developed a two-month internet relationship with Shaffer, finally agreeing to meet with him at a church in Byram, Mississippi, to have sex. When Shaffer arrived at the church, he was arrested and later indicted and convicted for exploitation of a child.
¶ 3. Because no actual child was involved in the sting, the Court of Appeals reversed and remanded for Shaffer to be sentenced for attempted child exploitation.
¶ 4. Mississippi's child-exploitation statute makes it illegal for anyone to
¶ 5. "Solicit" is defined as "the act or an instance of requesting or seeking to obtain something."
¶ 6. Shaffer clearly was "seeking to obtain" sex from a child when he entered a Yahoo! chat room and began an online relationship with Chloe. These sexually-explicit chats led to a phone conversation in which Shaffer convinced Chloe to meet him at a church in Byram, Mississippi. Shaffer will not now be heard to claim that his mistaken understanding of Chloe's age mitigates his attempt to have sex with a minor.
¶ 7. The act of solicitation does not require that the thing solicited even exists. For instance, when an owner "solicits" bids from potential contractors, no bids exist at the time of the solicitation—and bids may never exist. And the submission of a deficient bid by a contractor does not change the fact that a bid was solicited. Both Shaffer's and the owner's solicitations were complete when the solicitor made it known what they were looking for. Shaffer completed the crime of exploitation of a minor when he solicited sex from a minor—whether or not the person he was talking with was actually a minor.
¶ 8. This is the first time we have addressed this issue, but our decision is in concert with other jurisdictions. For instance, in United States v. Farner, the defendant, Farner, was convicted under federal law
¶ 9. The Fifth Circuit held that Farner had violated 18 U.S.C. § 2422(b), even though "Cindy" was an adult FBI agent.
¶ 10. The Minnesota Court of Appeals stated in State v. Coonrod
¶ 11. We find that Shaffer committed the crime of exploitation of a child when he solicited sex from "Chloe," so we reverse the Court of Appeals' judgment, and we reinstate and affirm the trial court's conviction and sentence.
¶ 12.
WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KING, J., NOT PARTICIPATING.
KITCHENS, Justice, dissenting:
¶ 13. I respectfully dissent from the decision of my esteemed colleagues in the majority that Shaffer's conviction of exploitation of a child should be affirmed. I agree with the conclusion of the Court of Appeals that the State failed to prove beyond a reasonable doubt the elements of the crime, as stated in the indictment and as found in the plain language of Mississippi Code Section 97-5-33(6) (Rev.2006). Shaffer v. State, 72 So.3d 1090, 1094-97 (Miss.Ct.App. Sept.14, 2010). Accordingly, I believe that, in the circumstances, the proper course is for us to reverse the conviction and render judgment in favor of Shaffer.
¶ 14. Justin David Shaffer was indicted on September 21, 2006, for exploitation of a child and possession of a weapon by a convicted felon. Count I of the indictment is as follows:
(Emphasis added.) Accordingly, the State included "a child under the age of [eighteen] years" as a material element of the crime charged in the indictment. In so doing, the State took upon itself the obligation of proving this allegation beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970) (declaring beyond a reasonable doubt as the standard of proof in criminal cases) (citations omitted).
¶ 15. Moreover, this indictment failed to put Shaffer on sufficient notice that his defense, namely that he had solicited an adult rather than a child under the age of eighteen, would be unavailable to him at
¶ 16. The majority concludes that Shaffer was seeking to obtain sex from a child, and that he "will not now be heard to claim that his mistaken understanding of Chloe's age mitigates his attempt to have sex with a minor." Maj. Op. at ¶ 6. This is contrary to established law, given that the State failed to prove beyond a reasonable doubt the element "a child under the age of [eighteen] years," as specifically and unequivocally charged in the indictment. See In re Winship, 397 U.S. at 362, 90 S.Ct. at 1071; see also Talley v. State, 174 Miss. 349, 164 So. 771 (1935) ("[A] person cannot be indicted for one offense and convicted upon evidence of . . . a different offense."). It logically follows that one cannot be convicted, as here, upon evidence which constitutes no crime at all, i.e., soliciting an adult for the purpose of engaging in sexually explicit conduct.
¶ 17. In Mississippi, when a duly constituted grand jury formally charges a person with a crime, the charging document is called a true bill of indictment. Respecting the grand jurors' charging function, they are under oath that they will "true presentment make," and that they will "present the truth, the whole truth, and nothing but the truth. . . ." Miss.Code Ann. § 13-5-45 (Rev.2002). In presenting, via indictment, that Shaffer sought to solicit a child under the age of [eighteen] years to engage in sexual conduct with him, when the undisputed truth is that the person to whom Shaffer was being accused of making such overtures was, at all relevant times, an adult, the indictment, as written, fell short of presenting the truth, the whole truth, and nothing but the truth; it simply was not true that the person allegedly solicited by Shaffer was a minor child "under the age of [eighteen] years," as the indictment plainly alleges.
¶ 18. Based on the State's theory of the case and its proof, as presented at trial, the correct charge should have been attempted exploitation of a child. The State adduced considerable evidence to the effect that Shaffer had engaged in multiple overt acts with a view toward sexual activity with the several adult women with whom he was communicating (none of whom was a sworn law enforcement officer), all the while believing, albeit mistakenly, that he was communicating with a child under the age of eighteen years.
¶ 19. Had the State incorporated into the grand jury's indictment appropriate language from Mississippi Code Section 97-1-7 (Rev.2006), Mississippi's longstanding general attempt statute, coupled with appropriate language from Section 97-5-33(6), Shaffer could have been prosecuted for unlawfully and feloniously attempting to solicit a child under the age of eighteen years to engage in sexually explicit conduct with him, and, if convicted, ". . . punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted." Miss.Code Ann. § 97-1-7 (Rev.2006).
¶ 20. The Court of Appeals held that the indictment insufficiently charged Shaffer with the crime of exploitation of a child, but that Shaffer could be adjudged guilty of attempted exploitation under the "direct-remand rule" and without further indictment pursuant to Mississippi Code Section 99-19-5 (Rev.2007). Shaffer, 72 So.3d at 1097-98. The direct-remand rule provides that "when the jury convicts of a
¶ 21. I disagree with the conclusion that an attempted solicitation of a child is a lesser-included offense where punishment under the general attempt statute "shall be . . . for an amount not greater than is prescribed for the actual commission of the offense so attempted." Miss.Code Ann. § 97-1-7 (Rev.2006). Moreover, the plain language of Section 99-19-5 does not mention appellate courts, but rather provides that "the jury may find the defendant guilty of . . . any attempt to commit the same offense" without including an additional count in the indictment. (Emphasis added.) This Court has never held that an attempted crime is a lesser-included offense of the completed crime and, thus, subject to the direct-remand rule. Shaffer moved for a directed verdict at the close of the State's case, based on his contention that the State had failed to prove all of the elements pled in the indictment beyond a reasonable doubt, a position in which he clearly was correct. His motion should have been sustained. Accordingly, remand for sentencing under the general attempt statute, Mississippi Code Section 97-1-7 (Rev.2006), is not the appropriate disposition of this case.
¶ 22. The State charged that Shaffer actually had solicited sexually explicit interaction with a child under the age of eighteen years, but its proof was at considerable variance with the charging document on which the case was tried. The jury was instructed that the State was required to prove, inter alia, the element "a child under the age of eighteen years," and that this, along with the other material elements of the crime charged, had to be proved beyond a reasonable doubt. However, that material element of the crime charged was not proven at all, and, instead, the proof adduced was that Shaffer's solicitation, in truth, was directed to adults, not to a child under the age of eighteen years.
¶ 23. Shaffer argued in the Court of Appeals that the evidence was insufficient to prove beyond a reasonable doubt every element of the crime with which he was charged. Accordingly, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under circumstances that every element of the offense existed." Coleman v. State, 947 So.2d 878, 881 (Miss.2006) (citations omitted). "Should the facts and inferences considered in a challenge to the sufficiency of the evidence `point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,' the proper remedy is for the appellate court to reverse and render." Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).
¶ 25. At the time of Shaffer's indictment, the statute under which the charge was prosecuted, Mississippi Code Section 97-5-33(6) (Rev.2006), provided: "No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct." (Emphasis added.) The trial court instructed the jury that a child meant a person "under the age of eighteen years." This was in keeping with the definition found in Mississippi Code Section 97-5-31(a) (Rev.2006), which reads: "As used in Sections 97-5-33 through 97-5-37, the following words and phrases shall have the meanings given to them in this section: `Child' means any individual who has not attained the age of eighteen (18) years."
¶ 26. Firmly established Mississippi law dictates:
Coleman, 947 So.2d at 881. The majority has impermissibly altered the plain meaning of the word child in Section 97-5-33(6) to include an adult. This Court "may not enlarge or restrict a statute where the meaning of the statute is clear." Gilmer v. State, 955 So.2d 829, 833 (Miss.2007) (citing State v. Traylor, 100 Miss. 544, 558-59, 56 So. 521, 523 (1911)).
¶ 27. The State argued to the trial court and to the Court of Appeals that Mississippi Code Section 97-5-33(8) is to
¶ 28. The State further argued in its brief that the 2007 amendment served only to clarify that the legislature had always intended to utilize Section 97-5-33(8) to preclude the defense that the crime was not directed at an actual child. The 2007 amendment to Section 97-5-33(8) provides:
Miss.Code Ann. § 97-5-33(8) (Supp.2011) (emphasis added). Section 97-5-33(8) as amended in 2007 does not apply, however, because the alleged conduct giving rise to the crime with which Shaffer was charged occurred between June 29, 2006, and July 9, 2006. To apply the 2007 amendment in the present case would result in Shaffer's having been prosecuted under an ex post facto law. An ex post facto law is one which "punish[es] as a crime an act previously committed, which was innocent when done . . . make[s] more burdensome the punishment for a crime, after its commission. . . [or] deprive[s] one charged with [a] crime of any defense available according to law at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). See U.S. Const. art. I, § 10, cl. 1.
¶ 29. The majority has interpreted the word child, found in Mississippi Code Section 97-5-33(6), to include an adult posing as a child in contravention of the well-established principle that criminal statutes are to be strictly construed against the State and liberally in favor of the accused. Coleman, 947 So.2d at 881. To affirm this conviction would ignore the fact that the elements of the crime, as charged in the indictment, defined child as a person under eighteen years of age, and that the jury was instructed accordingly. Because the State failed to prove beyond a reasonable doubt the material elements of the crime, as charged in the indictment, this Court should reverse and render the conviction as to Count I, exploitation of a child.
CHANDLER, J., JOINS THIS OPINION.
CHANDLER, Justice, dissenting:
¶ 30. I respectfully dissent. I concur with the analysis and result advocated by my learned colleague, Justice Kitchens. I write separately to provide a discussion of why I would not apply the direct-remand rule to this case.
¶ 32. The Court of Appeals held that the direct-remand rule applied, permitting its remand to the trial court for Shaffer's resentencing for attempt. In support of this result, the Court of Appeals cited Mississippi Code Section 99-19-5(1), which states:
Miss.Code Ann. § 99-19-5(1) (Rev.2007). The Court of Appeals held that, because under Section 99-19-5(1), the child-exploitation charge had placed Shaffer on notice that he could be found guilty of attempted child-exploitation, the direct-remand rule applied. But the direct-remand rule only permits resentencing for a lesser-included offense. As Justice Kitchens points out, this Court never has held that attempt is a lesser-included offense of the completed crime.
¶ 33. Whether attempt is a lesser-included offense of the completed crime varies by jurisdiction, and depends upon the elements set out in that jurisdiction's statute codifying attempt. Under the federal approach, the crime of attempt includes two elements: (1) that the defendant acted with the culpability required by the underlying substantive offense, and (2) that the defendant took a substantial step toward the commission of the substantive offense. U.S. v. Barlow, 568 F.3d 215, 219 (5th Cir.2009). Because the substantive offense includes both of the elements of an attempt to commit that offense, the federal courts have held that attempt is a lesser-included offense of the substantive offense. U.S. v. Castro-Trevino, 464 F.3d 536, 543 (5th Cir.2006) (citing U.S. v. York, 578 F.2d 1036, 1040 (5th Cir.1978)); U.S. v. Remigio, 767 F.2d 730, 733 (10th Cir.1985). The Fifth Circuit has held that, when a defendant was convicted of the substantive offense, but the facts were sufficient to support only a conviction of attempt, the court is empowered to modify the judgment to reflect attempt without impacting the defendant's rights. Id.
¶ 34. In contrast, this Court has held that attempt is an indictable offense, separate and distinct from the completed crime. Mason v. State, 430 So.2d 857, 858 (Miss.1983). In Mississippi, the crime of attempt includes the following three elements: (1) an intent to commit an offense; (2) an overt act toward its commission; and (3) the failure to consummate its commission. Miss.Code Ann. § 97-1-7 (Rev. 2006). We have held that the failure to consummate the completed crime is an essential element of attempt as defined by Section 97-1-7. Id.
¶ 36. Because the crime of attempt includes the essential element of failure to consummate the completed crime, which is not an element of the completed crime, attempt is not a lesser-included offense of the completed crime. Therefore, the direct-remand rule would not apply to permit resentencing for attempt. I would find that the direct-remand rule is inapplicable to Shaffer's conviction for the completed crime of child-exploitation, where the proof sufficiently supported only the crime of attempted child-exploitation. For this reason, and for the reasons articulated by Justice Kitchens, I would reverse and render.
KITCHENS, J., JOINS THIS OPINION.