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Close only counts in horseshoes, hand grenades, and attempted child enticement

State v. Shayd C. Mitchell, 2017AP1536-CR, District 3, 8/7/18 (not recommended for publication); case activity (including briefs)

Mitchell was stopped two blocks away from the Family Video store he was walking to for an assignation with someone he thought was a 15-year-old boy. That was close enough to get him convicted of attempted child enticement.

Police saw an advertisement on Craigslist from a male seeking to have intercourse with a young (though not necessarily underage) boy. An officer posing as a 15-year-old boy named “Chris” responded to the ad by text message and, after a series of messages, the two arranged to meet at the video store. The ad poster texted “Chris” when he left for the store and again when he was walking down 6th Street to the store, telling “Chris” he should walk down the street toward him. Police found Mitchell, dressed like the ad poster said he’d be dressed, walking down 6th Street toward the store. He was stopped, admitted where he was headed and why, and was found to be in possession of a phone with the number from the ad and the text messages with “Chris.” (¶¶3-8).

Mitchell challenges the sufficiency of the evidence to convict him of attempted child enticement:

¶13      Mitchell appears to argue that … the police intercepted him too early. Mitchell observes that police apprehended him prior to his arriving at Family Video. He argues the two-block distance “offered substantial opportunities for him to reflect and abandon his plans.” He also points to the text exchange as showing that he was not going to decide whether to go through with the sexual activity until he “could evaluate [‘Chris’] (at a distance if necessary) to determine if he met the physical and other criteria Mitchell set for a sex partner.” In Mitchell’s view, “[a] discussion with Mitchell and the decoy was needed before a decision was made to go to Mitchell’s apartment for illicit sexual activity.”

¶14      Whether Mitchell might have had a change of heart if given more time is irrelevant in light of the principles regarding attempted crimes, … To convict Mitchell of attempted child enticement, the jury was required to find that he had formed the intent to commit the crime and had taken an action in furtherance of that intent. See Wis. Stat. §§ 939.32(3) and 948.07(1) (2015-16); Wis. J.I.-Criminal 2134B (2016). Mitchell does not appear to take issue with the “intent” aspect; rather, the gist of his argument is that merely walking toward the Family Video was not a sufficient act in furtherance of his intent to take “Chris” back to his residence for sexual contact.

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¶20     … Mitchell ignores that the relatively short distance between the Family Video and where he was apprehended could have significant evidentiary value to a reasonable juror. In the context of his trial, the distance was a fact for the jury to weigh in reaching its conclusion on whether Mitchell had taken action in furtherance of his intent to commit child enticement. Under the facts in this case, the jury could reasonably conclude the two-block distance, combined with all the other evidence, was sufficient for finding Mitchell guilty of attempted child enticement. In no event is the two-block distance a fact making the totality of the evidence insufficient, as a matter of law, to support his conviction for attempted child enticement.

Mitchell relies on State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700; State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284; and State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, asserting they show the defendant must at least arrive at the designated meeting place to show action in furtherance of intent. The court of appeals rejects that reading of the cases:

¶17     Far from supporting Mitchell’s position, Grimm, Robins, and other case law foreclose his argument that a jury could not reasonably find that his proceeding on foot to the Family Video was not an action taken in furtherance of an attempt to entice a child into a building or secluded area…. According to Grimm, “Robins makes it clear that going to meet at the planned time and place is a sufficient unequivocal act in furtherance of the criminal objective of child enticement, when earlier conversations provide reasonable inferences of that criminal objective.” Grimm, 258 Wis. 2d 166, ¶19. Like the defendants in Grimm and Robins, Mitchell was apprehended while heading to the designated meeting place, at the designated time.

The court also finds support in State v. Koenck, 2001 WI App 93, ¶¶3-6, 28. 242 Wis. 2d 693, 626 N.W.2d 359, where, like here, the defendant was apprehended off the premises of the designated meeting place, but was headed on foot in that direction. (¶¶18-19). Though all of these cases involve challenges to whether the complaints alleged probable cause, they establish the principle that reaching the rendezvous is not strictly necessary to show an attempt.

The court also quickly rejects Mitchell’s argument that the state failed to prove he intended to entice “Chris” into a “secluded place,” as § 948.07 requires, because there’s no evidence showing the Family Video store was a secluded place. The evidence clearly showed the Family Video was not where the sexual activity was to occur, as Mitchell explicitly stated in repeated text messages that  he meant to take “Chris” back to his residence. (¶21).

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