IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-KA-00979-COA
XTAVIER TERRY A/K/A BOO BOO APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/28/2023 TRIAL JUDGE: HON. ALAN D. LANCASTER COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: A. E. (RUSTY) HARLOW JR. KATHI CHRESTMAN WILSON ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JULIANNE KAY BAILEY DISTRICT ATTORNEY: WILLIAM ADAM HOPPER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/04/2025 MOTION FOR REHEARING FILED:
EN BANC.
McCARTY, J., FOR THE COURT:
¶1. After one man punched a woman in the face and then immediately walked into a club,
two other men kidnapped and sexually assaulted the woman for hours. The man who
punched the woman was subsequently charged with kidnapping. After a jury trial was held,
the man was found guilty.
¶2. On appeal, he claims that there were errors with the sufficiency and weight of the
evidence, that the crimes of his co-defendants should have been excluded from evidence, and
that he was entitled to a lesser-included-offense jury instruction.
FACTS ¶3. On the evening of October 4, 2019, Kelsey1 accompanied her boyfriend to a dice and
gambling club in Grenada County. Kelsey chose to remain in the car and sleep while her
boyfriend went inside. Hours later, in the early morning hours of October 5, she was awoken
abruptly when two men “snatched” her from her car.
¶4. Kelsey tried to “fight and run around the car” away from the men. But her efforts
were thwarted by a third man. Kelsey would later testify that the man “hit me in the eye and
said, Shut the f*** up.” The man hit Kelsey with such force that she “hit the ground,” and
then he walked away from her and went inside the club.
¶5. The two men who originally pulled Kelsey from her car then proceeded to sexually
assault and terrorize her for hours. Although they ultimately decided to let Kelsey go, the
men threatened to kill her and her family if she told anyone about what had happened. Once
she got to safety, Kelsey reported the attack to law enforcement officers.
¶6. The third man who punched Kelsey in the face was identified as Xtavier Terry. Terry
was indicted on one count of kidnapping.
PROCEDURAL HISTORY
¶7. Prior to the start of trial, the defense made an ore tenus motion in limine. Because the
indictment charged two other defendants in addition to Terry, the defense’s motion focused
on the exclusion of evidence pertaining to his co-defendants “other crimes or wrongs.”
Through counsel, Terry argued that because both co-defendants had “already entered guilty
1 We decline to identify victims of sexual assault and instead use a pseudonym.
2 pleas in their cases” and since the discovery failed to provide a basis for the State to use such
evidence as a permitted non-character purpose, it should be excluded.
¶8. In response, the State argued that Terry was “charged with aiding and abetting . . . the
kidnapping,” and “to be able to tell a complete story,” the victim should be able to talk about
“the whole time that she [was] actually kidnapped.” Finding that evidence of the co-
defendant’s crimes carried out during the attack “clearly falls under . . . motive, intent,
knowledge, . . . absence of mistake,” the trial court denied the motion.
¶9. The State called two witnesses at trial: the victim and the deputy who took her
statement. Kelsey testified first. Her testimony largely recounted the events that occurred
after Terry punched her and returned to the club.
¶10. Kelsey told the jury that after the two men took turns sexually assaulting her, they
drove around for hours “talking about killing me.” She recounted how the men told her they
would “burn me” and then “throw me in the Grenada Lake.” Kelsey confirmed the men
actually obtained a “gas jug” in which they intended to place her. She disclosed that the men
sexually assaulted her again, but this time, one of them videotaped the attack as a means of
blackmail. She testified that the men let her go shortly after because she had children.
¶11. The State then sought clarity regarding how Terry had helped the two men kidnap her,
and Kelsey responded, “By hitting me in the face.” Kelsey identified Terry in the courtroom
and described what he was wearing.
¶12. The State called Tim Gholston next, a deputy with the Grenda County Sheriff’s
3 Department. Deputy Gholston testified that “sometime around noon” on October 5, he
received a call and was dispatched to an area around an apartment complex. Once he arrived,
he disclosed that he made contact with Kelsey, who “was crying” and seemed jumpy. Deputy
Gholston further recounted that Kelsey “had a bruise right up under her left eye . . . . And
there was a red mark above her forehead. Along with that, her nose was red; and up under
her neck, it was real red[.]” The State rested its case-in-chief.
¶13. The defense then moved for a directed verdict, arguing that the State “failed to make
a prima facie case for kidnapping” because “[t]he State ha[d] not shown that there was a
concerted plan [between] these three defendants to kidnap [Kelsey].” The defense further
argued that the State failed to show Terry “restrained [Kelsey] or that he kept her from
moving or going away or anywhere.”
¶14. Countering the defense’s argument, the State responded that Kelsey’s testimony had
shown “[b]ut for Xtavier Terry’s action of punching her in the face, she would have been
able to get to safety. But he punched her in the face, knocked her down, and that gave plenty
of time . . . for [the co-defendants] to be able to grab her and seize her.” Considering the
evidence in the light most favorable to the State, the trial court denied the defense’s motion
for a directed verdict.
¶15. Ultimately, the jury found Terry guilty of kidnapping. He was sentenced to serve
twenty-five years in the custody of the Mississippi Department of Corrections. The trial
court denied his motion for judgment notwithstanding the verdict or a new trial. Terry then
4 appealed.
DISCUSSION
¶16. On appeal, Terry raises five assignments of error. In his first three, Terry contends
that the evidence was insufficient to support the conviction, that the verdict was against the
overwhelming weight of the evidence, and that the trial court should have granted his motion
for judgment notwithstanding the verdict. Because these arguments are interrelated, we
address them together. Next, we address whether the trial court improperly allowed Kelsey
to testify about what happened after Terry attacked her, and last, whether a lesser-included
instruction was warranted. Finding no error, we affirm.
I. The evidence was sufficient to sustain the kidnapping conviction, and the verdict was not against the weight of the evidence.
¶17. Terry first challenges the sufficiency and weight of the evidence as to his kidnapping
conviction. He argues that “[t]his case lacks any evidence that [he] was involved in the
kidnapping [of Kelsey], had any knowledge of the actions of [his co-defendants], or in any
way assisted [his co-defendants] in their crimes.” Terry further asserts that reversal of his
conviction is warranted because to “allow the jury verdict to stand on the charge of
kidnapping when the State failed to meet its burden of proof . . . specifically as to intent, has
resulted in an unconscionable injustice to [him].”
¶18. “We review a challenge to ‘the legal sufficiency of the evidence’ de novo[.]” Jones
v. State, 380 So. 3d 974, 980 (¶13) (Miss. Ct. App. 2024) (quoting Johnson v. State, 904 So.
2d 162, 166 (¶7) (Miss. 2005)). “When reviewing a challenge for sufficiency of the
5 evidence, this Court must determine whether, after reviewing 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.” Walker v. State, 390 So. 3d 504, 507-08 (¶9)
(Miss. 2024) (quoting Eubanks v. State, 341 So. 3d 896, 909-10 (¶41) (Miss. 2022)). To the
extent Terry also challenges the denial of his motion for a directed verdict, it is subsumed
within his challenge to the sufficiency of the evidence, as “[a]n appeal on the denial of a
directed verdict tests the sufficiency of the evidence.” Barker v. State, 826 So. 2d 103, 105
(¶8) (Miss. Ct. App. 2002).
¶19. This Court reviews a challenge to the weight of the evidence for an abuse of
discretion. Jones, 380 So. 3d at 980 (¶14). “Only in those cases where the verdict is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice will this Court disturb it on appeal.” Walker, 390 So. 3d at 508
(¶10) (quoting Baker v. State, 802 So. 2d 77, 81 (¶14) (Miss. 2001)).
¶20. Mississippi law is clear “that any person who is present at the commission of a
criminal offense and aids, counsels, or encourages another in the commission of that offense
is an ‘aider and abettor’ and is equally guilty with the principal offender.” Hamer v. State,
364 So. 3d 901, 910 (¶36) (Miss. Ct. App. 2022) (quoting Sneed v. State, 31 So. 3d 33, 41
(¶24) (Miss. Ct. App. 2009)). Furthermore, “[k]idnap[p]ing is not a specific intent crime.
Therefore, it is sufficient that the surrounding circumstances resulted in a way to effectively
become a kidnap[p]ing as opposed to the actual intent to kidnap.” Burrell v. State, 183 So.
6 3d 19, 23-24 (¶13) (Miss. 2015) (quoting Milano v. State, 790 So. 2d 179, 187 (¶32) (Miss.
2001)).
¶21. Terry contends that “the only evidence presented by the State that [he] had committed
any crime was that he punched” the victim, and therefore the State “failed to show any intent
. . . as to kidnapping . . . [or] that he aided or abetted [his co-defendants] in their crimes.”
But Terry is mistaken. As Burrell makes clear, “kidnapping is not a specific intent crime.”
Id. So the State was not required to prove Terry intended to kidnap Kelsey but, instead, that
he aided his co-defendants when he “secretly confine[d] . . . forcibly seize[d] and confine[d]”
her or caused her “to be confined or imprisoned against . . . her will.” Miss. Code Ann. § 97-
3-53 (Rev. 2014).
¶22. At trial, Kelsey testified that after two men snatched her from her car, she was
“screaming” and “trying to run away” from them. While attempting to escape, Terry walked
up to her, “hit [her] in the eye, and said, Shut the f*** up.” Not only was Kelsey
unsuccessful in getting away from her first two attackers, but she testified that she “hit the
ground” after Terry’s punch. And only after Terry hit her were his co-defendants able to
continue their attack on Kelsey, resulting in her confinement and subsequent sexual assault.
Indeed, when asked how Terry aided his co-defendants in her confinement, Kelsey
responded, “By hitting me in the face.”
¶23. The record reflects that Terry punched the victim in the face at a time when it was
clear she was attempting to flee her attackers and that his actions directly prevented her from
7 doing so. Terry’s punch generated the opportunity for his co-defendants to commit their later
crimes against the victim. We find that a rational trier of fact could have found the evidence
supported that Terry aided his co-defendants in secretly confining, forcibly seizing, or
causing Kelsey to be confined or imprisoned against her will in violation of law. See
Graham v. State, 185 So. 3d 992, 1004 (¶34) (Miss. 2016) (finding that the victim’s
testimony that she had been punched “supported [her] allegation of having been forcibly
confined” in violation of Mississippi’s kidnapping statute). Accordingly, we find that the
proof was sufficient and that the verdict was not against the overwhelming weight of the
evidence.
II. The trial court did not abuse its discretion by allowing the victim’s testimony concerning the crimes of Terry’s co-defendants.
¶24. Terry next argues that the trial court erred by denying his motion in limine to exclude
evidence relating to the crimes of his co-defendants. Specifically, he argues that by allowing
the jury to hear testimony about his co-defendants’ crimes, they were “inflamed” and “unable
to separate the crimes committed by [him] and [his co-defendants].”
¶25. On appeal, Terry resumes an argument he made in the trial court that allowing the
victim to testify about the crimes of his co-defendants was a violation of Mississippi Rule
of Evidence 404(b)(1). He argues in part that “the evidence of the co-defendants[’] crimes
in no way proved motive, opportunity, intent, plan, preparation, identity, or absence of
mistake or accident, but did manage to unfairly prejudice the jury against [him].”
¶26. “This Court reviews the trial court’s decision to admit or exclude evidence under an
8 abuse of discretion standard of review.” Randall v. State, 395 So. 3d 458, 462 (¶17) (Miss.
Ct. App. 2024) (citing Deeds v. State, 27 So. 3d 1135, 1140-41 (¶15) (Miss. 2009)). “[T]his
Court will not reverse a trial judge’s decision on the admissibility of testimony offered at trial
unless prejudice amounting to reversible error resulted from such a decision.” Dukes v. State,
369 So. 3d 553, 558 (¶13) (Miss. 2023) (citing Bishop v. State, 982 So. 2d 371, 375 (¶15)
(Miss. 2008)).
¶27. Generally, “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character . . . to show that on a particular occasion the person acted in accordance
with the character.” MRE 404(b)(1) (emphasis added). However, “[t]his evidence may be
admissible for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” MRE 404(b)(2).
¶28. But our law recognizes other exceptions to the otherwise general prohibition under
Rule 404(b)(1). Neal v. State, 451 So. 2d 743, 759 (Miss. 1984). “Proof of another crime is
admissible where the offense charged and that offered to be proved are so interrelated as to
constitute a single transaction or occurrence or a closely related series of transactions or
occurrences.” Id.; see also Bruce v. State, 35 So. 3d 1236, 1239 (¶12) (Miss. Ct. App. 2010)
(allowing evidence “if it sheds light upon the motive or if it forms a part of a chain of facts
intimately connected so that in order to interpret its general parts, the whole must be heard”
(internal quotation marks omitted)). Crucially, “the state has a legitimate interest in telling
a rational and coherent story of what happened.” Hodges v. State, 912 So. 2d 730, 780
9 (¶120) (Miss. 2005) (quoting Shaw v. State, 513 So. 2d 916, 919 (Miss.1987)).
¶29. “[R]egardless of its origin, before a [trial court] admits other-acts evidence, it must
be filtered through Mississippi Rule of Evidence 403.” Bowman v. State, 283 So. 3d 154,
165 (¶39) (Miss. 2019). “Under Rule 403, when weighing admission of relevant evidence,
a trial judge may exclude relevant evidence if its probative value is substantially outweighed
by the danger of unfair prejudice.” Id. (emphasis added) (alterations omitted). “The
weighing and balancing task required by Rule 403 asks only that a judge rely on his/her own
sound judgment.” Masters v. State, 285 So. 3d 192, 197 (¶16) (Miss. Ct. App. 2019)
(quoting O’Connor v. State, 120 So. 3d 390, 398 (¶20) (Miss. 2013)).
¶30. First, we note that Terry’s argument does not fit squarely within the confines of Rule
404(b)(1). The plain text of the Rule specifies that the prohibited uses of an individual’s
“crimes, wrongs, or other acts” for purposes of proving character are confined to the acts of
that individual, not others. Therefore, the crimes Terry’s co-defendants later committed that
same night could not, as a matter of law, have been admitted to prove Terry’s character or
show that he acted in accordance with that character.
¶31. Terry argues that “[t]he jury should have only been allowed to hear the evidence
related to the crimes committed by [him]” and that “there was no basis to allow the jury to
hear about the . . . other crimes committed by [his co-defendants].” In essence though, Terry
protests that the complete picture of what his actions ultimately precipitated is irrelevant and
unfairly prejudiced him. Yet as detailed above, “but for” Terry’s unprompted attack on the
10 victim, she would have been able to escape the restraint by his co-defendants. The victim’s
horrific confinement and resulting sexual assault were a direct result of Terry’s actions.
¶32. Kelsey’s testimony regarding the crimes of Terry’s co-defendants was admissible
because their crimes were “integrally related in time, place and fact” with Terry aiding in her
kidnapping, and “[t]he two offenses arose out of a common nucleus of operative facts.”
Wheeler v. State, 536 So. 2d 1347, 1352 (Miss. 1988). Further, and in line with Bruce and
Hodges, Kelsey’s testimony allowed the State to “tell a rational and coherent story of what
happened” to her, and “it forms a part of a chain of facts intimately connected . . . that in
order to interpret its general parts, the whole must be heard.”
¶33. Exercising its sound judgment, the trial court found that the crimes of Terry’s co-
defendant’s “clearly f[e]ll[] under. . . motive, intent, knowledge . . . absence of mistake,” all
of which are permissive uses under Rule 404(b)(2). Therefore, we find no abuse of
discretion in the admission of Kelsey’s testimony regarding Terry’s co-defendants.
III. The simple assault instruction was properly rejected.
¶34. Lastly, Terry argues that the trial court erred by refusing to give the jury his requested
instruction. Specifically, Terry contends that he “should have been allowed to give jury
instruction D-5 on simple assault” because “[t]he jury could have inferred from the evidence
that [he] was guilty of the less[e]r included offense of simple assault.”
¶35. “We review a trial judge’s denial of a lesser-included-offense jury instruction de
novo.” Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013). “A defendant has an
11 ‘absolute right’ to a jury instruction for a lesser-included offense if the evidence supports
such an instruction.” Brown v. State, 285 So. 3d 671, 676 (¶12) (Miss. Ct. App. 2019). “[A]
lesser-included offense is one in which all the essential ingredients are contained in the
offense for which the accused is indicted[.]” Eubanks, 341 So. 3d at 913 (¶62) (quoting
Downs v. State, 962 So. 2d 1255, 1261 (¶23) (Miss. 2007)). To receive a lesser-included
offense instruction, “a defendant must point to some evidence in the record from which a jury
reasonably could find him not guilty of the crime with which he was charged and at the same
time find him guilty of a lesser-included offense.” Anderson v. State, 361 So. 3d 609, 614
(¶13) (Miss. 2023) (quoting Gilmore, 119 So. 3d at 286 (¶13)).
¶36. Therefore, because “[t]he lesser included crime is encompassed within the crime for
which the accused is indicted[,]” it follows then that the “accused [cannot] be guilty of the
offense for which he is indicted without at the same time being guilty of the lesser included
offense.” Gause v. State, 65 So. 3d 295, 300 (¶14) (Miss. 2011) (emphasis added) (quoting
State v. Shaw, 880 So. 2d 296, 301 (¶18) (Miss. 2004)). But the inverse is not true, as “a
criminal defendant no longer has the unilateral right under Mississippi law to insist upon an
instruction for lesser-related offenses which are not necessarily included in the charged
offense(s), i.e., so-called lesser-nonincluded-offense instructions.” Hye v. State, 162 So. 3d
750, 751 (¶2) (Miss. 2015).
¶37. Terry was charged with violating Mississippi’s kidnapping statute. His indictment
states he “did willfully, unlawfully, feloniously, and purposely or knowingly . . . with or
12 without the intent to secretly confine, . . . forcibly seize and confine [Kelsey], or . . .
otherwise inveigle or kidnap [Kelsey] with the intent to cause . . . [Kelsey] to be confined or
imprisoned against her will in violation of Section 97-3-53 of the Mississippi Code.” Under
Mississippi law, “[a]ny person who . . . with or without intent to secretly confine . . . forcibly
seize[s] and confine[s] any other person, or . . . inveigle[s] or kidnap[s] any other person with
intent to cause such person to be confined or imprisoned against his or her will” is guilty of
kidnapping. Miss. Code Ann. § 97-3-53.
¶38. But the law governing Terry’s requested instruction for simple assault maintains that
“[a] person is guilty of simple assault if he or she (i) attempts to cause or purposely,
knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily injury
to another with a deadly weapon or other means likely to produce death or serious bodily
harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily
harm[.]” Miss. Code Ann. § 97-3-7(1)(a) (Rev. 2020).
¶39. Terry’s assertion that “[t]he jury could have inferred from the evidence that [he] was
guilty of the less[e]r included offense of simple assault” is misplaced. Kidnapping focuses
on confinement of the victim against the person’s will. In contrast, simple assault focuses on
bodily injury to the victim. A plain reading of both statutes reveals that simple assault is not
“encompassed within” the crime of kidnapping, as Terry could “be guilty of [kidnapping]
without at the same time being guilty of [simple assault].” Gause, 65 So. 3d at 300 (¶14).
In this situation, the type of instruction that Terry requested was a lesser-nonincluded-offense
13 instruction, which our Supreme Court has expressly held criminal defendants no longer have
a right to insist upon. See Hye, 162 So. 3d at 751 (¶2).
¶40. Simple assault is not a lesser-included offense of kidnapping, as the elements of
simple assault are not among the elements of kidnapping. Cf. Busby v. State, 956 So. 2d
1112, 1115 (¶11) (Miss. Ct. App. 2007) (finding “domestic violence is not a lesser-included
offense of kidnapping, as the elements of domestic violence are not among the elements of
kidnapping”). As in Busby, “the two are independent crimes with distinct elements.” Id.
Therefore, Terry was not entitled to his requested instruction, and it was properly rejected.
CONCLUSION
¶41. Having reviewed the arguments of Terry and the State and the record and transcript,
we find there was sufficient proof that he kidnapped the victim in this case, the verdict was
not against the overwhelming weight of the evidence, the victim’s testimony was admissible
to tell a completely story of what happened, and no lesser-included-offense instruction was
warranted. Therefore, Terry’s conviction and sentence are AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR.