John B. Arnold, Jr. a/k/a John B. Arnold a/k/a John Bruce Arnold, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-01426-COA

JOHN B. ARNOLD, JR. A/K/A JOHN B. APPELLANT
ARNOLD A/K/A JOHN BRUCE ARNOLD, JR.

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/05/2021
TRIAL JUDGE: HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/27/2024
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., McDONALD AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. A jury convicted John Arnold Jr. of two counts of attempted kidnapping of a child,

one count of attempted escape, and one count of simple assault against a law enforcement

officer. He was sentenced to serve a total of fifty-five years in the custody of the Mississippi

Department of Corrections (MDOC). Arnold appeals his conviction, arguing the jury was not

properly instructed, the jury instructions constructively amended his indictment, his

convictions were not supported by sufficient evidence, and the trial court erred by denying

his motion to sever the charges in his multi-count indictment. Finding no error, we affirm.

STATEMENT OF THE FACTS
¶2. When Natalie Morgan got married to Tyson Langston in the mid-2010s, Arnold was

a family friend and served as a groomsman in their wedding. Morgan and Langston had

several children before the couple divorced, including a son, N.L.1 After the couple divorced

in 2016, Morgan began working for Arnold. They began a romantic relationship later that

year, which lasted about four months. After Morgan ended their relationship in early 2017,

she tried to remain friends, but due to Arnold’s possessive behavior, she ultimately broke off

all communication with him in May of that same year.

¶3. Arnold’s prosecution arose out of a series of events that occurred in February 2018.

At that time, N.L. was six years old and enrolled at Sudduth Elementary School in Oktibbeha

County. On February 16, 2018, Arnold called Julianne Jackson, a woman who worked for

him, and during the conversation told her that he was going to take N.L. out of school and

spend time with him that day. Morgan would later testify that Arnold never had permission

or authority to check the child out of school.

¶4. Arnold made his way to Starkville Academy that same day and asked for N.L. The

school receptionist informed Arnold that they did not have a student by that name, but Arnold

insisted and repeatedly asked for N.L. Arnold indicated he was there for a school play, but

a school administrator Lyn Moorehead told him their school was not having a play that day.

Arnold eventually started to leave, but instead of turning in the direction of the exit, he

walked back toward the school buildings. Moorehead followed him and asked if he needed

1
For protection and privacy, we use initials when referring to the minor child.

2
help with anything else. Arnold then headed to his vehicle, but instead of leaving, he got back

out of the vehicle and again started walking toward the school. Moorehead called Starkville

Academy’s head of school, Jeremy Nicholas, and requested his intervention. Before Arnold

reached the school, he was intercepted by Nicholas and stated he was related to N.L. and was

there for a play. Nicholas reiterated to Arnold that he had no reason to be there, N.L. was not

a student there, and no play was going on at the school. At this point, Arnold finally left and

drove off.

¶5. Morgan then received a call from Starkville Academy informing her that Arnold had

come to the school asking for N.L. In turn, Morgan called Sudduth Elementary School, where

N.L. actually attended, and alerted the receptionist, Latricia Bishop, in case Arnold came to

Sudduth Elementary. She confirmed Arnold was not allowed to see N.L. or check him out

of school. Bishop reported the information to the school principal and Resource Officer

Campbell.

¶6. Morgan also called her stepfather, Harold Clark, and told him what happened with

Arnold at the school. According to Clark, he received the call from Morgan in the morning

and later received a call from Arnold around 2 p.m., but did not answer. Shortly after the call,

Arnold appeared at Clark’s house. Clark informed Arnold that he did not understand why

Arnold went to the school and that he wished Arnold would not do that again. Clark made

Arnold promise him that Arnold would not attempt to see N.L. again.

¶7. Later that same day, Arnold showed up at Sudduth Elementary. He was standing near

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a computer kiosk machine the school used for student checkouts when Bishop recognized

him. Bishop alerted Officer Campbell of his presence and then asked Arnold if she could

help him. Arnold responded that he was there to check out N.L. from school. Bishop asked

for Arnold’s ID, but Arnold did not respond and walked out before turning back around and

coming back inside to the area of the checkout kiosk again. At that time, Officer Campbell

stepped in and escorted him outside. Bishop called Morgan and informed her that Arnold had

come to the school and attempted to check N.L. out of school.

¶8. That evening, Morgan reported this to Starkville Police and the Sheriff’s Office.

Starkville Police obtained an arrest warrant for attempted kidnapping and took Arnold into

custody that same night. He was released on bond three days later on February 19, 2018. One

of the conditions of his bond was that he have no contact with Morgan or any of her family,

and he was specifically advised those persons included Clark. Arnold violated the conditions

of his bond the next day by attempting to call Clark. Morgan reported this to the police and

Arnold was taken back into custody after his bond was revoked. He was released on bond

again on February 22, 2018, under the same conditions as before but with the additional

requirement that he wear an ankle monitor.

¶9. The following day, on February 23, 2018, Arnold went to yet another school,

Henderson Ward Stewart Elementary, around the time of usual dismissal. A teacher working

the bus lane, Monica Nunn, noticed Arnold walking briskly toward the school building. She

approached him, and Arnold told her he was looking for N.L. When she asked the child’s

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grade or teacher, the only thing Arnold could tell her was that N.L. was six years old. Nunn

informed Arnold that six-year-old students are at Sudduth Elementary, and he appeared to

accept that answer and began walking away. As Arnold was leaving, Nunn realized that she

recognized his face from his mugshot photo that was posted online and notified Assistant

Principal Steve Eiland. While the pair were talking, Eiland noticed Arnold walking back

toward the school’s other entrance, and Nunn radioed to teachers to lock the gates and shut

the school doors. Eiland approached Arnold and asked what business he had at the school.

Arnold told Eiland he needed to pick up his son N.L. When he told Eiland that N.L. was in

Pre-K, Arnold was again told this was not the correct school. Arnold nodded and left the

school.

¶10. Law enforcement was notified and attempted to find Arnold using his ankle monitor.

The officers discovered that the monitor had been removed but were able to call the

monitoring company to learn the monitor’s last known location. The company informed them

that the last recorded location was traced back to an address less than half a mile from

Henderson Ward Stewart. Law enforcement eventually located Arnold at his attorney’s office

and placed him under arrest that same day for again violating the original bond and on a

second charge of attempted kidnapping.

¶11. On February 27, 2018, Arnold was outside at the Oktibbeha County jail in the

recreation yard talking to Sergeant Dustyn Smith through the fence. Sergeant Smith entered

the yard to get some water, and as he exited, Arnold attacked him from behind, grabbing him

5
around the neck. Arnold squeezed Sergeant Smith’s neck while pushing him toward the gate

and telling him to open it. Arnold then ran him into a wall, and in the tussle that ensued,

Sergeant Smith was able to get Arnold off him and then draw his taser to subdue Arnold.

Afterward, when Sergeant Smith was putting Arnold in the holding cell, Arnold stated, “I

don’t know what I was thinking. I’ve just got to get to that kid.” As a result of the events at

the jail, Arnold was charged with attempted escape and simple assault on a law enforcement

officer.

PROCEDURAL HISTORY

¶12. After the charges were initially filed, the trial court entered an order in March 2018

requiring Arnold to undergo a mental health evaluation. In the meantime, on July 6, 2018,

an Oktibbeha County grand jury returned a multi-count indictment against Arnold for two

counts of attempted kidnapping, one count of attempted escape, and one count of simple

assault against a law enforcement officer.

¶13. A competency hearing was later conducted and the trial court entered a ruling in

October 2018 finding Arnold incompetent to stand trial. Arnold was ordered to the State

Hospital for treatment, competency restoration, and testing. Upon completion of his

restoration at the State Hospital, a hearing to re-evaluate his competency was conducted in

November 2019, and the trial court found him competent to stand trial.

¶14. In March 2021, Arnold filed a motion requesting the trial court to appoint another

6
expert to conduct a M’Naghten analysis as to his state of mind at the time of the offenses.2

The trial court granted the motion, and Dr. John Montgomery completed the assessment. Dr.

Montgomery provided a written evaluation to the trial court, and the court adopted his

findings, including that Arnold knew the difference between right and wrong at the time of

the offenses. However, before trial, Arnold filed a notice of his intent to offer an insanity

defense to his charges.

¶15. In August 2021, Arnold filed a motion to sever the two charges of attempted

kidnapping from the charges of attempted escape and simple assault of a law enforcement

officer. After a hearing and a review of relevant factors, including the time between the

offenses and the connectivity of the witnesses and charges, the trial court denied the motion

to sever.

¶16. Trial commenced in November 2021, and the State presented the testimony of

Morgan, Clark, witnesses from the three schools, Arnold’s former employee, and law

enforcement officers. Arnold presented testimony from Dr. Montgomery in his defense.

Proposed jury instructions were submitted by both parties, including proposed elements

instructions for attempted kidnapping. The trial court rejected both the State’s and Arnold’s

elements instructions, however, and allowed the parties to redraft them. The State then

presented its modified elements instructions, S-1A and S-2A, which Arnold accepted, as well

as S-3A, an explanation of terms included within kidnapping, which Arnold did not contest.

2
M’Naghten’s Case, 8 Eng. Rep. 718, 1843 WL 5869 (1843).

7
¶17. The jury found Arnold guilty of all four counts. The trial court sentenced him to serve

twenty-five years for the conviction of the first count of attempted kidnapping. The court

then sentenced Arnold to a term of twenty-five years, with five years suspended and twenty

years to serve, and five years of post-release supervision for the conviction of the second

count of attempted kidnapping. The court also sentenced Arnold to serve five years for the

attempted escape and five years for the simple assault on a law enforcement officer. The

court ordered all four sentences to be served consecutively to one another in MDOC’s

custody. Arnold filed a motion for judgment notwithstanding the verdict or, in the alternative,

a new trial. The trial court denied his motion, and Arnold now appeals.

ANALYSIS

I. Jury Instructions

¶18. Arnold raises three issues related to the jury instructions, specifically pertaining to

Instructions S-1A, S-2A, and S-3A. “Jury instructions are generally within the discretion of

the trial court, and the settled standard of review is abuse of discretion.” McDowell v. State,

311 So. 3d 1252, 1259-60 (¶17) (Miss. Ct. App. 2021) (quoting Johnson v. State, 252 So. 3d

597, 599 (¶8) (Miss. Ct. App. 2017)). To determine “whether error lies in granting or

refusing a jury instruction, the instructions actually given must be read as a whole and in

context.” Clark v. State, 343 So. 3d 943, 985-86 (¶183) (Miss. 2022) (quoting Ronk v. State,

172 So. 3d 1112, 1125 (¶20) (Miss. 2015)). We “will not reverse the trial court when the jury

instructions, ‘taken as a whole, fairly—although not perfect—announce the applicable

8
primary rules of law.’” McDowell, 311 So. 3d at 1259-60 (¶17) (quoting Johnson, 252 So.

3d at 599 (¶8)).

¶19. Arnold claims the trial court erred by giving jury instructions that (1) failed to instruct

on every element of the crime by not including the elements for a completed kidnapping; (2)

misstated the law when defining a kidnapping; and (3) contained a “variance” in the language

used to describe the elements for a conviction such that it constructively amended his

indictment.

A. The instructions contained the essential elements of
attempted kidnapping.

¶20. First, Arnold claims S-1A and S-2A did not include the essential elements of the

attempt charges because they did not contain the elements for the crime of a completed

kidnapping.3 As stated earlier, the record from trial shows that Arnold did not ultimately

3
Instruction S-1A (as given by the trial court) stated the elements of attempted
kidnapping in Count 1 as follows:

1. On or about February 16, 2018, in Oktibbeha County;
2. John B. Arnold unlawfully designed and endeavored to commit the
crime of kidnapping;
3. By committing the following overt acts:
a. Attempting to remove [N.L.], a child under the age of
sixteen from Starkville Academy and/or Sudduth
Elementary School without the permission of [N.L.]’s
parents; but
4. John B. Arnold failed therein and/or was prevented from kidnapping
[N.L.]

Instruction S-2A was identical but changed the date and the school name.

9
object to either of the S-1A or S-2A element instructions as given and did not specifically

raise the issue of including the elements for a completed kidnapping. Rather, Arnold agreed

to the trial court’s giving instructions S-1A and S-2A, and at that time, the instructions

advised the jury of the elements for only attempted kidnapping. If the “defendant fails to

object to a jury instruction at trial, the defendant is procedurally barred from challenging the

instruction on appeal.” McGilvary v. State, 290 So. 3d 1273, 1280 (¶24) (Miss. Ct. App.

2020). Also, where “a party acquiesces to the giving of a jury instruction, that party is

procedurally barred from later raising an error with the instruction on appeal.” Spiers v. State,

361 So. 3d 643, 654-55 (¶36) (Miss. 2023) (quoting Williams v. State, 234 So. 3d 1278, 1287

(¶34) (Miss. 2017)). Therefore, because Arnold failed to make an objection at trial and

agreed to the instructions given, he is procedurally barred from raising this issue on appeal,

“and our review is restricted to the plain-error doctrine.” Hollingsworth v. State, 269 So. 3d

456, 458 (¶7) (Miss. Ct. App. 2018).

¶21. In an analysis under plain error review, “[o]nly an error so fundamental that it creates

a miscarriage of justice rises to the level of plain error.” Willis v. State, 999 So. 2d 411, 414

(¶9) (Miss. Ct. App. 2008). The indictment charged Arnold with two counts of attempted

kidnapping in violation of the Mississippi Code Annotated section 97-1-7 (Rev. 2014), which

is the statute governing attempt crimes. He was not indicted for a violation under the

kidnapping statute, Mississippi Code Annotated section 97-3-53 (Rev. 2014), and he was not

charged with the crime of a completed kidnapping.

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¶22. The case of Scott v. State, 231 So. 3d 1024, 1034 (¶31) (Miss. Ct. App. 2016), is

particularly instructive regarding the required elements for an indictment for attempt under

section 97-1-7. In that case, Scott was indicted and convicted of attempted rape and on

appeal raised that the trial court should have instructed the jury on the statutory definition of

rape within the elements instruction. Id. Notably, the attempt elements instruction was nearly

identical to the one given here. After review, this Court stated, “a proper jury instruction on

attempt requires the ‘three elements stated in the statute of (1) a design or endeavor to

commit an offense, (2) an overt act toward commission thereof, and (3) a failure to

consummate the act.’” Id. at 1035 (¶31) (quoting Henderson v. State, 660 So. 2d 220, 223

(Miss.1995)). As a result, we found “the instruction properly recited the law on attempted

rape.” Id. at 1036 (¶40). We have also recently rejected the exact same claim in an attempted

murder case, Carpenter v. State, No. 2022-KA-00398-COA, 2023 WL 5026260, at *4 (¶23)

(Miss. Ct. App. Aug. 8, 2023), mot. for reh’g denied (Jan. 9, 2024), petition for cert. filed

(Jan. 22, 2024).4 There, we also pointed out that “[p]roviding the jury with the elements of

both attempt and the attempted felony could lead to confusion about what crime the

defendant was charged with and what elements were required to be proved.” Id.

¶23. The same reasoning from Scott and Carpenter applies here to an instruction on the

elements of attempted kidnapping. Therefore, the trial court did not commit plain error when

4
While we recognize that Carpenter v. State, No. 2022-KA-00398-COA, 2023 WL
5026260 (Miss. Ct. App. Aug. 8, 2023), mot. for reh’g denied (Jan. 9, 2024), petition for
cert. filed (Jan. 22, 2024), is not yet binding caselaw, it offers a helpful comparison.

11
it gave instructions S-1A and S-2A.

B. The descriptive instruction of kidnapping did not misstate
the law.

¶24. Second, Arnold claims Instruction S-3A contained an incorrect definition of

kidnapping.5 At trial, Arnold did not object to the language of which he now complains.

Arnold’s counsel objected to the first version of jury instruction S-3A the State proposed.

The transcripts show that at trial, Arnold’s counsel objected to the “definitional instructions”

in S-3, but only to one specific, unrelated paragraph of the instructions. “To preserve a jury

instruction issue on appeal, the defendant must make a specific objection to the proposed

instruction to allow the trial court to consider the issue.” Lee v. State, 369 So. 3d 625, 633

(¶19) (Miss. Ct. App. 2023) (quoting Sands v. State, 315 So. 3d 1066, 1070 (¶10) (Miss. Ct.

App. 2020)). But “[a]sserting grounds for an objection on appeal that differ from the ground

given for the objection at the trial level does not properly preserve the objection for appellate

review.” Taylor v. State, 367 So. 3d 228, 238-39 (¶32) (Miss. Ct. App. 2020) (quoting Bursey

v. State, 149 So. 3d 532, 535 (¶5) (Miss. Ct. App. 2014)). Therefore, this issue is

procedurally barred and is limited to a plain error review in this appeal. See Hollingsworth,

269 So. 3d at 458-59 (¶8).

5
Instruction S-3A contained several provisions, but the provision regarding
“kidnapping” given by the trial court stated:

The Court instructs the Jury that “kidnapping” as used in these instructions
includes the attempt to confine a child under the age of sixteen (16) years
against the will of the child’s parents or legal guardians.

12
¶25. Arnold’s argument focuses on two words in the S-3A instruction—“attempt” and

“confine.” However, consistent with our reasoning above, the use of the word “attempt” is

not an incorrect statement of the law applicable to this case because he was indicted under

the attempt statute: section 97-1-7 of the Mississippi Code Annotated. Further, despite the

unnecessary complexity of the language utilized in section 97-3-53, the kidnapping statute

includes some derivative of the word “confine” multiple times. Arnold is correct that S-3A

does not include the statutory language “forcibly seize, inveigle or kidnap.” But to be clear,

our caselaw has previously pointed out that “[c]onfinement of the victim . . . is an essential

element of the crime of kidnapping.” Scott, 231 So. 3d at 1037 (¶50) (quoting 3 Jeffrey

Jackson et al., Encyclopedia of Mississippi Law § 23:81 (2016)). Therefore, like our previous

holding in a similar appeal involving a kidnapping instruction, “while greater specificity in

the instructions here would have been preferred, we find that the instructions given in this

case are not so flawed that they rise to the level of plain error.” Mitchell v. State, 327 So. 3d

142, 155 (¶66) (Miss. Ct. App. 2021).

C. The instructions did not constructively amend the
indictment.

¶26. Similar to his previous argument, Arnold contends that the language complained of

in S-3A constructively amends his indictment. However, because of the failure to object

previously discussed, our review is again limited to the plain-error doctrine. “When an issue

of an improper amending of the indictment through instructions is made, the Supreme Court

has insisted that this specific issue have first been raised at the trial level.” Stewart v. State,

13
839 So. 2d 535, 539 (¶16) (Miss. Ct. App. 2002). Again, if the “defendant fails to object to

a jury instruction at trial, the defendant is procedurally barred from challenging the

instruction on appeal.” McGilvary, 290 So. 3d at 1280 (¶24).

¶27. Within the framework of the requirements of plain error review, as previously

described, we find no merit to Arnold’s claim that the language from S-3A varied such that

it constructively amended his indictment. First, it is important to note that the information

contained in S-3A is not an elements instruction informing the jury of the proof required to

find Arnold guilty of the crime for which he was indicted. As previously discussed, he was

specifically indicted for attempt under section 97-1-7. Because he was indicted under the

“attempt” statute, the elements that must be proved include “(1) a design or endeavor to

commit an offense, (2) an overt act toward commission thereof, and (3) a failure to

consummate the act.” Scott, 231 So. 3d at 1035 (¶38) (quoting Henderson, 660 So. 2d at

223). As such, the trial court characterized the content of S-3A as “a legal explanation of

those terms of art” in the essential elements instructions outlined in S-1A and S-2A.

Instruction S-3A was not made to mirror the indictment or track the language of the charging

statute. Accordingly, the comparison of language in S-3A to the language in Arnold’s

indictment does not reflect an actual variance that would constructively amend his

indictment.

¶28. Even if this Court were to find that the indictment could be affected by the contents

of S-3A, “not all variances between the indictment and instructions constitute a constructive

14
amendment.” Morton v. State, 246 So. 3d 895, 903 (¶20) (Miss. Ct. App. 2017) (quoting

Graham v. State, 185 So. 3d 992, 1001 (¶25) (Miss. 2016)). “To properly categorize an

instruction as error, its variance from the language of the indictment must be material.”

Young v. State, 271 So. 3d 650, 657 (¶27) (Miss. Ct. App. 2018) (quoting Faulkner v. State,

109 So. 3d 142, 147 (¶16) (Miss. Ct. App. 2013)). Under this concept, “[t]he central question

is whether the variance is such as to substantially alter the elements of proof necessary for

a conviction.” Clark, 343 So. 3d at 999 (¶268) (quoting Bell v. State, 725 So. 2d 836, 855

(¶61) (Miss. 1998)).

¶29. Setting aside the fact that S-3A was not the requisite elements instruction, this

instruction does reflect a difference in language—from the phrase “forcibly seize, inveigle

or kidnap” in the indictment to the word “confine” in the instruction. “Assessing the effect

of the variance on the integrity of [Arnold’s] trial, we find that [S-3A] did not substantially

alter the requisite elements of kidnapping.” Young, 271 So. 3d at 656 (¶28). Therefore, even

if the instruction resulted in a variance, the difference in the terms was not material because

“[t]he essence of the charged offense remained the same, as the instruction still required the

jury to find beyond a reasonable doubt that [Arnold attempted to] kidnap[] [N.L.], a minor

child under the age of sixteen, against the will of [his] parents.” Id.

¶30. Each of Arnold’s claims of error related to the jury instructions are procedurally

barred on appeal as a result of Arnold’s failure to object and properly preserve the issues at

trial. Procedural bars notwithstanding, even under a plain error review, each of his challenges

15
to the jury instructions lacks merit. We therefore find that there was no error in the jury

instructions that warrants reversal.

II. Sufficiency of the Evidence

¶31. Next, Arnold challenges the sufficiency of the evidence supporting his convictions,

specifically the intent element required for attempted kidnapping. He alleges that the

evidence presented at trial did not show that Arnold intended to kidnap N.L. but, rather, that

the evidence established Arnold was incapable of forming the requisite mens rea for

attempted kidnapping.

¶32. The trial court denied Arnold’s JNOV motion, and we review that ruling de novo.

McCray v. State, 263 So. 3d 1021, 1029 (¶24) (Miss. Ct. App. 2018). This Court “will

reverse only where with respect to one or more of the elements of the offense charged, the

evidence so considered is such that reasonable and fair-minded jurors could only find the

accused not guilty.” McDowell, 311 So. 3d at 1259 (¶16) (quoting McCray, 263 So. 3d at

1029 (¶24)). “[A]ll evidence supporting a guilty verdict is accepted as true, and the

prosecution must be given the benefit of all reasonable inferences that can be reasonably

drawn from the evidence.” Sullivan v. State, 281 So. 3d 1146, 1161 (¶35) (Miss. Ct. App.

2019) (quoting Jerninghan v. State, 910 So. 2d 748, 751 (¶6) (Miss. Ct. App. 2005)).

Viewing the evidence in the light most favorable to the prosecution, we ask whether “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” McDowell, 311 So. 3d at 1259 (¶16).

16
¶33. “A person is guilty of an attempted crime when he ‘designs and endeavors to commit

an offense . . . and . . . does any overt act toward the commission thereof’ but fails.” Spiers,

361 So. 3d at 658 (¶49) (quoting Miss. Code Ann. § 97-1-7(1)). “Courts interpret ‘attempt’

to mean the intent to do something, and some actual effort to put the intent into effect.”

Sullivan, 281 So. 3d at 1162 (¶38) (quoting Gibson v. State, 660 So. 2d 1268, 1270 (Miss.

1995)).6

¶34. “[W]hether the requisite intent to commit a crime is present is ‘a question of fact to

be gleaned by the jury from the facts shown in each case.’” Stewart, 839 So. 2d at 539 (¶19)

(quoting Shive v. State, 507 So. 2d 898, 900 (Miss.1987)). It is often the case that “the State

is not privy to direct evidence of intent because of the impossibility of peering inside a

defendant’s mind[.]” Moffett v. State, 287 So. 3d 975, 979 (¶14) (Miss. Ct. App. 2019)

(quoting Thomas v. State, 277 So. 3d 532, 535 (¶14) (Miss. 2019)). As such, generally “[t]he

intent to commit a crime or to do an act by a free agent can be determined only by the act

itself, surrounding circumstances, and expressions made by the actor with reference to his

intent.” Voyles v. State, 362 So. 2d 1236, 1242-43 (Miss. 1978) (quoting Shanklin v. State,

290 So. 2d 625, 627 (Miss. 1974)); see also Stewart, 839 So. 2d at 539 (¶19) (quoting Shive,

507 So. 2d at 900) (“Intent may be proven by the ‘surrounding circumstances’ and

6
“What appellant intended to do with or to the child if he had succeeded in taking
[him] home, or wherever he intended to take [him], may be a matter for speculation. The
statute does not require such purpose or motive to be proven.” McGuire v. State, 231 Miss.
375, 381-82, 95 So. 2d 537, 540 (1957).

17
‘circumstantial evidence.’”). “[T]he jury is free to infer intent from the defendant’s ‘acts

coupled with the surrounding facts and circumstances.’” Moffett, 287 So. 3d at 979 (¶14)

(quoting Thomas, 277 So. 3d at 535 (¶14)).

¶35. Applied to this case, “the crime of attempted kidnapping requires a showing that

[Arnold] intended to kidnap [N.L.], made ‘a direct ineffectual act done toward’ the

kidnapping, and failed ‘to consummate’ the kidnapping.” Mitchell, 327 So. 3d at 148 (¶16)

(quoting Bucklew v. State, 206 So. 2d 200, 202 (Miss. 1968)). We ask whether sufficient

evidence existed for a rational jury to find that Arnold “intended to kidnap the child within

the meaning of the statute[,]” and we note that Arnold’s “ultimate motive in confining or

depriving [N.L.] of [his] liberty is immaterial.” McGuire v. State, 231 Miss. 375, 95 So. 2d

537, 540 (1957).

¶36. Looking at the record as a whole, the evidence shows that as to the first count of

attempted kidnapping arising from actions taken on February 16, 2018, Arnold called his

work assistant and told her that he was going to take N.L. out of school despite that Morgan

had never given him the authority to do so. He went to two different schools within a short

time frame asking about and searching for N.L. At the first school, Arnold made his way onto

the school premises three different times in three different areas of the school property

despite being told N.L. was not a student there, and Arnold lied to school officials claiming

to be a relative of N.L. Arnold went directly to the office area of the second school and again

sought to check out N.L. Arnold proceeded to go near a kiosk machine used to check

18
students out from school and was asked for identification before being asked to leave.

¶37. As to the second charge for attempted kidnapping arising out of actions on February

23, 2018, the evidence shows Arnold was placed on an ankle monitor and was informed after

the first instance that he was not allowed to contact N.L. He removed his ankle monitor,

ignored his restrictions, and went to yet another school near dismissal time. Arnold told a

teacher he was looking for N.L. and attempted to gain entry into the school twice through

two different entrances despite being told he was at the wrong school. He also told the

principal that he needed to pick up “his son” N.L.

¶38. “The [evidence] shows that [Arnold] did commit overt acts in an effort to have the

child go with him to his home or some other place[,]” in defiance of N.L.’s parents’

instruction to stay away from N.L. and in disregard of court orders restricting him from

contacting N.L. Id. From the evidence presented, a reasonable juror could infer that Arnold

intended to remove N.L. from school without permission and, thus, formed the requisite

intent for attempted kidnapping. We find that sufficient evidence existed for a rational jury

to find that the State proved the essential elements for the crime of attempted kidnapping

beyond a reasonable doubt.

III. Severance of the Multi-Count Indictment

¶39. Finally, Arnold argues the charges for attempted kidnapping should have been severed

from the charges for attempted escape and assault in his multi-count indictment, and he

contends the trial court’s denial of his motion to sever was an abuse of discretion. Mississippi

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Code Annotated section 99-7-2 (Rev. 2014), allows for more than one crime to be charged

in the same indictment if certain requirements are met. Specifically, the relevant portion of

the statute states:

Two (2) or more offenses which are triable in the same court may be charged
in the same indictment with a separate count for each offense if: (a) the
offenses are based on the same act or transaction; or (b) the offenses are based
on two (2) or more acts or transactions connected together or constituting parts
of a common scheme or plan.

Miss. Code Ann. § 99-7-2 (Rev. 2014). As such, the State was permitted to charge Arnold

with four different offenses in the same indictment if the offenses were listed as four separate

counts and if the four offenses were based on the same act or transaction or were based on

two or more acts or transactions that intertwined or that constituted parts of a common

scheme.

¶40. “If a criminal defendant believes that the State has wrongfully proceeded on a

multi-count indictment, he or she should file a motion to sever the offenses.” Stribling v.

State, 81 So. 3d 1155, 1162 (¶30) (Miss. Ct. App. 2011). Once the “motion to sever is made,

the State bears the burden of making out a prima facie case showing the offenses charged are

within the language of the statute.” Singleton v. State, 151 So. 3d 1046, 1050 (¶15) (Miss.

Ct. App. 2014) (quoting Harper v. State, 102 So. 3d 1154, 1158 (¶9) (Miss. Ct. App. 2012)).

“If the State meets its initial burden, the defendant may thereafter rebut the State’s case by

showing the ‘offenses were separate and distinct acts or transactions.’” Id. (quoting Rushing

v. State, 911 So. 2d 526, 533 (¶14) (Miss. 2005)). The trial courts are instructed to conduct

20
a hearing on the issue of whether to sever the counts in an indictment, and “[i]f the trial court

holds such a hearing, this Court gives deference to the trial court’s findings, unless an abuse

of discretion occurred.” Id. at 1050 (¶16) (quoting Broderick v. State, 878 So. 2d 103, 105

(¶6) (Miss. Ct. App. 2003)).

¶41. There are three factors that a trial court takes into consideration for severing

indictments: “(1) whether the time period between the occurrences is insignificant; (2)

whether the evidence proving each count would be admissible to prove each of the other

counts; and (3)[]whether the crimes are interwoven.” Singleton, 151 So. 3d at 1050 (¶17)

(quoting Stribling, 81 So. 3d at 1162 (¶29)).7

¶42. According to Arnold, his multi-count indictment should have been severed because

(a) the attempted kidnappings occurred at a separate and distinct time (pre-arrest) from the

attempted escape and assault (post-arrest); (b) the evidence for the attempted kidnappings

would not be admissible to prove his guilt for the attempted escape and assault on the

grounds of prior bad acts; and (c) the facts underlying the attempted escape and assault are

not based on the same act or transaction as the attempted kidnappings, nor are the four counts

connected by a common plan. Arnold alleges there is no connection between the four counts

due to the facts of the offense in the attempted escape being too remote from the offense in

the attempted kidnappings.

¶43. At the hearing on Arnold’s motion to sever, the trial court determined (1) not a long

7
See Corley v. State, 584 So. 2d 769, 772 (Miss. 1991).

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time period existed between each offense in the indictment; (2) the witnesses were similar

such that testimony and evidence for one count would also be admissible in separate trials

of the other counts, (3) his insanity defense was based on evidence that spanned all four

offenses, and (4) all four offenses were intertwined by an underlying nexus or connection to

N.L. Therefore, the trial court found that the four counts against Arnold were sufficiently

interwoven, and the multi-count indictment was proper.

¶44. Giving deference to the trial court’s findings, we apply the three factors set out by our

supreme court and consider “whether the time period between [Arnold’s four] occurrences

is insignificant, whether the evidence proving each count would be admissible to prove each

of the other counts, and whether [Arnold’s four] crimes are interwoven.” Harper, 102 So.

3d at 1158 (¶9) (quoting Corley, 584 So. 2d at 772).

¶45. Here, each of the four counts in the indictment is based on events that occurred within

a period beginning on February 16, 2018, and ending on February 28, 2018. The lapse of

time between Arnold’s actions underlying the first attempted kidnapping and those

underlying the attempted escape and assault (both of which involve acts from the same day)

was twelve days. The lapse of time between his actions from the second attempted

kidnapping and his actions from the attempted escape and assault was only five days. We

cannot conclude that the trial court reversibly erred in finding that the time element was

insignificant.

¶46. As for the second factor regarding witness similarity, Arnold’s argument on appeal

22
focuses on whether the evidence of each separate crime was admissible for the other crimes

under Mississippi Rule of Evidence 404. However, “[t]he issue of whether the evidence

might be admissible pursuant to Mississippi Rule of Evidence 404(b) is not relevant to the

trial court’s consideration of a motion to sever offenses in a multi-count indictment.” Gunn

v. State, 174 So. 3d 848, 857 (¶25) (Miss. Ct. App. 2014) (quoting Harper, 102 So. 3d at

1158 (¶9)). “Whether the evidence would be admissible under [Rule 404] has no bearing on

whether the trial court should allow a multi-count indictment.” Corley, 584 So. 2d at 772.

Furthermore, “[t]here is no authority for restricting the multi-count-indictment statute

because some element of proof necessary as to one charge would be inadmissible on another

charge if tried separately.” Roberson v. State, 287 So. 3d 219, 243 (¶81) (Miss. Ct. App.

2017) (quoting Armstead v. State, 978 So. 2d 642, 648 (¶49) (Miss. 2008)). Additionally,

“the fact that some of the witnesses would testify as to only some of the offenses” has “never

alone been a factor to determine questions of trials involving multi-count indictments.”

Gunn, 174 So. 3d at 857 (¶23) (quoting Harper, 102 So. 3d at 1158 (¶12)).

¶47. The evidence for both attempted kidnappings consisted of testimony from N.L.’s

family members, eyewitnesses from the schools, and law enforcement officials. For the

attempted escape and assault, the evidence consisted of eyewitness testimony from the law

enforcement officer at the Oktibbeha jail.

¶48. The testimonial evidence from the attempted kidnappings, such as N.L.’s mother’s

testimony, would be admissible in a separate trial for the attempted escape to show Arnold’s

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“motive, opportunity, intent, preparation, and plan.” N.L.’s mother could attest to Arnold’s

persistent and reoccurring actions searching for and trying to find N.L. As the State

mentioned at the severance hearing, this testimony would support the argument that Arnold

was referring to N.L. when he told the jail officer he “needed to get to that kid.” The

testimony would also provide evidence that his actions in trying to get out of jail were a

continuation of his plan or scheme to kidnap N.L. Conversely, the jail officer’s testimony

regarding Counts 3 and 4 would be admissible at separate trials for the attempted

kidnappings for the same reasons. The officer’s testimony about Arnold’s statement during

his attempted escape could be presented for the attempted kidnappings to show a continued

motive, intent, or plan by Arnold to pursue and kidnap N.L.

¶49. The trial court stated at the hearing, “There are pretty much the same witnesses to

prove the counts. There is one or two different witnesses, mainly the jailer, as far as the

assault goes and the escape. But the escape, as stated reasonably, the escape at least in the

indictment is, that he needed to get that kid.” Ultimately in this case, “the trial judge correctly

recognized that[] in trying the [four] counts together, there would be some evidence in

common and some not.” Golden v. State, 968 So. 2d 378, 383 (¶17) (Miss. 2007).8 Because

the trial court took into account the factors that were common and the overlapping evidence,

8
“[A]lthough all the evidence for each count could not be used to prove the other
counts, much of the [witnesses’] testimonies and evidence offered by the State was
admissible to prove the other counts.” Kirkland v. State, 373 So. 3d 149, 160 (¶60) (Miss.
Ct. App. 2023).

24
the trial court did not abuse its discretion in considering the second factor.

¶50. Lastly, for “the third factor, the question posed is whether the [four crimes] committed

by [Arnold] were interwoven, that is, part of a common plan or scheme.” Id. at 384 (¶18).

The trial court found there was a common thread in Arnold’s crimes. The court stated, “Here,

you’ve got sort of the underlying nexus or connection is absolutely this child, this Mr.

[N.L.].” Further, the record shows the trial court determined that “[N.L.] seems to be sort of

the common issue in Counts 1, 2, and potentially 3. I think 4 is actually also relevant to show

that the alleged steps that this defendant may go to try to get to this [N.L.].” The trial court

found the four crimes intertwined.

¶51. The evidence in this case supports the trial court’s determination. The attempted

kidnappings were connected by the fact that both are for the same offense of attempted

kidnapping, both targeted at the same victim (N.L.), and both occurred within days of each

other. The attempted escape has a connection to the attempted kidnappings in that those

attempted kidnapping offenses were the reason Arnold was in jail at the time the attempted

escape arose. We mostly agree with the trial court that for “Count 3, the indictment at least

charges that [Arnold] said he needed to get out so he could get that kid. Now, I understand

it doesn’t say ‘N.L.’ or whatever the child’s initials are. But that’s something that I think a

jury could infer based upon the evidence of the other two counts.” The assault arises out of

the same occurrence and set of facts as the attempted escape clearly establishing a

connection. Therefore, we cannot find that the trial court’s determination that the four

25
offenses were intertwined was reversible error.

¶52. Based on our review of the record, the trial court did not abuse its discretion by

finding the time periods insignificant and the similarity of witnesses and the crimes to be

interwoven. The trial court’s denial of Arnold’s motion to sever was not reversible error.

CONCLUSION

¶53. We find that the jury instructions given at Arnold’s trial properly announced the

elements for the charged offenses of attempted kidnapping, were not a misstatement of the

law, and did not contain a variance that constructively amended his indictment. Additionally,

we find that sufficient evidence was presented to support the convictions of both attempted

kidnappings. Furthermore, we find that the court did not abuse its discretion when it denied

Arnold’s motion to sever his indictment. Thus, we affirm the trial court’s ruling and Arnold’s

convictions and sentences.

¶54. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ.,
CONCUR.

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