BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Mar :00: KA COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JASON BOZEMAN APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: bsubei@ospd.ms.gov Counsel for Jason Bozeman

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JASON BOZEMAN APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Jason Bozeman, Appellant 3. Honorable Wilbert L. Johnson, Trial Attorney for Appellant 4. Honorable Brenda F. Mitchell, District Attorney 5. Honorable Charles E. Webster, Circuit Court Judge nd This the 2 day of March, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUE...1 ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE... 1 STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....3 ARGUMENT...3 ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE... 3 CONCLUSION...5 CERTIFICATE OF SERVICE....6 ii

4 TABLE OF AUTHORITIES MISSISSIPPI CASES Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)(footnote omitted) Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)....4 Gray v. State, 728 So. 2d 36 ( )(Miss. 1998)...4 Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)...4 McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)...4 MISSISSIPPI STATUTES Mississippi Code Annotated Section Mississippi Code Annotated Section iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JASON BOZEMAN APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Tunica County, Mississippi, and a judgment of conviction for the crimes of Count I: Fondling, Count II: Sexual Battery, and Count III: Sexual Battery. On April 8, 2014, the jury returned a verdict of guilty as to Count I, Fondling and not guilty on Count II and Count III. The trial judge subsequently sentenced Bozeman to twelve (12) years in an institution under the supervision and control of the Mississippi Department of Corrections with four (4) years suspended. The conviction and sentence followed a jury trial on April 7, 2014, Honorable Charles E. Wester, Circuit Judge, presiding. Mr. Bozeman is currently in the custody of the Mississippi Department of Corrections. 1

6 STATEMENT OF THE FACTS 1 On or about December 15, 2012, the minor victim, MW, was staying at the home of her grandmother, Sherry Craft. Tr. 40. Mrs. Craft called the mother of the child, Betsy Wren on or about December 15, 2015, and informed her that MW had disclosed to her that Jason Bozeman had been touching her daughter. Tr. 41. Detective James Clark testified at trial that Mr. Mike Wren and Mrs. Betsy Wren called the Tunica County Sheriff's Department and reported that their daughter, MW, had disclosed to her grandmother that Bozeman had inappropriately touched her. Tr. 14. MW was approximately eight (8) years old at the time of the report. Tr. 15. At that point, Detective Clark took a report from the parents of MW at the Tunica County Sheriff's Department on December 17, 2012, and then after the meeting, Detective Clark called the Oxford Forensic Center in order to set up a forensic interview. Tr. 16. Meredith Rawls conducted the forensic interview. Tr Detective Clark stated that the forensic interview took place in January of Tr. 18. Cased on Detective Clark's investigation into this matter, he charged Jason Bozeman for the crimes committed against the minor victim MW. Tr. 19. The mother of the victim, Mrs. Betsy Wren, testified that there was no medical examination conducted in order to determine whether the child had been molested. Tr. 51. Meredith Rawls, the forensic interviewer who interviewed the victim, was qualified as an expert in the field of forensic interviewing. Tr. 71. She testified that MW disclosed to her during the forensic interview that: "... Jason (Bozeman) kissed her inside her mouth with his tongue, she further 1 Initials are used in place of the victims real name. 2

7 Tr disclosed that he kissed her vagina, inside her vagina, with his mouth and kept wiping spit off of her vagina. (MW) disclosed that he put his two fingers inside of her buttocks whenever she was seven and whenever she was eight. She reported that she felt scared. She reported that she tried to pretend that she was asleep on one occasion. (MW) further reported that it hurt really bad when his fingers touched inside her buttocks. (MW) further disclosed that Jason put his penis and hand inside her vagina as well as on her vagina..." Meredith concluded that MW s responses during the forensic interview were consistent with that of a child who had been sexually abused. Tr. 87. At trial, MW, the minor victim, testified that Bozeman touched her "private parts" with his hands. Tr She also testified that Bozeman used his private parts to touch her. Tr Bozeman was indicted by a grand jury on August 12, 2013, for one count of Fondling pursuant to Mississippi Code Section and two counts of Sexual Battery pursuant to SUMMARY OF THE ARGUMENT At trial, the State failed to prove beyond a reasonable doubt that the Appellant did in fact commit the crime of fondling allowed as alleged in Count I. There was no physical evidence introduced to support the evidence. The evidence supporting the conviction in Count I was against the overwhelming weight of the evidence. for a new trial. Therefore, this Court should reverse Bozeman's conviction and sentence and remand this case ARGUMENT ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. 3

8 When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). In reviewing such claims, the Court sits as a thirteenth juror. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(citing Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)(footnote omitted)). [T]he evidence should be weighed in the light most favorable to the verdict. Herring, 691 So. 2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)). It means that as the thirteenth juror, the court simply disagrees with the jury's resolution of the conflicting testimony, and the proper remedy is to grant a new trial. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)(footnote omitted)). In the present case, Bozeman is at a minimum entitled to a new trial as the verdict was clearly against the overwhelming weight of the evidence. the State failed to produce any physical evidence that the Appellant did in fact inappropriately touch the minor victim. The mother of the victim, Mrs. Betsy Wren, testified that there was no medical examination conducted in order to determine whether the child had been molested. Tr

9 The testimony of the minor victim, MW, and what she told the forensic interviewer, Meredith Walls, is insufficient to establish that Bozeman did in fact commit the crime beyond a reasonable doubt. And the verdict of guilty was against the overwhelming weight of the evidence. CONCLUSION The Appellant, Jason Bozeman, asks this court to reverse and remand his conviction for a new trial. Respectfully submitted, JASON BOZEMAN, APPELLANT /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 5

10 CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Jason Bozeman, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable John R. Henry, Jr. Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable Charles E. Webster Circuit Court Judge Post Office Drawer 998 Clarksdale, MS Honorable Brenda F. Mitchell District Attorney, District 11 Post Office Box 848 Cleveland, MS Jason Bozeman, MDOC # Carroll-Montgomery County Correctional Facility Highway 35 Vaiden, MS nd This the 2 day of March, Benjamin A. Suber, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 6

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