BRIEF OF THE APPELLANT

E-Filed Document Apr 12 2016 23:20:38 2015-KA-01776-SCT Pages: 16 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI SAM HALES APPELLANT V. NO. 2015-KA-01776-SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No. 102214 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: bsube@ospd.ms.gov Counsel for Sam Hales

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI SAM HALES APPELLANT V. NO. 2015-KA-01776-SCT 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. Sam Hales, Appellant 3. Honorable Rance N. Ulmer, Trial Attorney for Appellant 4. Honorable Daniel C. Jones, District Attorney 5. Honorable Eddie H. Bowen, Circuit Court Judge th This the 12 day of April, 2016. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i

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....7 ARGUMENT...7 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... 7 CONCLUSION...1 0 CERTIFICATE OF SERVICE....1 1 ii

TABLE OF AUTHORITIES MISSISSIPPI CASES Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)(footnote omitted)......... 8 Bush v. State, 895 So. 2d 836, 844 (Miss. 2005).... 7-8, 10 Gray v. State, 728 So. 2d 36 ( 176-77)(Miss. 1998)...8 Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)...8 McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)...8, 10 iii

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI SAM HALES APPELLANT V. NO. 2015-KA-01776-SCT 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 First Judicial District in Circuit Court of Jasper County, Mississippi, and a judgment of conviction for the crimes of Count I: Sexual Battery, and Count II: Touching a Child for Lustful Purposes. On August 12, 2015, the jury returned a verdict of guilty as to Count I, Sexual Battery and Count II Touching a Child for Lustful Purposes. The trial judge subsequently sentenced Hales to twenty-five (25) years in Count I and fifteen (15) years under the supervision and control of the Mississippi Department of Corrections. The conviction and sentence followed a jury trial on August 12, 2015, Honorable Eddie H. Bowen, Circuit Judge, presiding. Hales is currently in the custody of the Mississippi Department of Corrections. 1

STATEMENT OF THE FACTS 1 JP testified that a man did something bad to him when he was little. Tr. 94. JP indicated that the person was the Appellant, Sam Hales. Tr. 94-95. JP stated that Hales lives beside his grandmothers house and is related to him. Tr. 95. JP stated that he was 12 years old and in the third or fourth grade when these bad things started happening to him. Id. JP stated that the first time something had happened to him was around February, because it was close to his sister s birthday. Tr. 96. JP was at the house of Hales to get a disability phone number for his mother. Tr. 96-97. According to JP, once he was in the house Hales told JP to wait in the living room. Tr. 97. JP stated that Hales came up behind him and Hales was playing with his penis. Id. Hales was coming out of the kitchen. JP claimed that Hales had his penis sticking out of his pants. Id. JP said that Hales did not say anything and just grabbed him and slung him in a chair. Id. JP stated that Hales then put his hand behind JP s head and told him to suck his penis. Tr. 98. JP stated that Hales pushed his head down on his penis. Id. JP stated that Hales penis went inside his mouth and Hales left his hand on JP s neck. JP stated that Hales let JP s head up because JP s mom was calling for him on the house phone. Id. JP said that Hales did not say anything to him and he went home. Tr. 98-99. JP stated that Hales penis was circumcised and had a mole on the tip of his penis. Tr. 99. JP did not tell anybody about that incident because he was afraid Hales would tell people and he did not want to worry his mother. Id. 1 Initials are used to protect the identity of the minor in this case. 2

JP stated that this happened in all about 15 times, and the last time he was in the fifth grade around Halloween in 2013. Tr. 99-100. The last time this happened JP was in Hales house and James (House) and his mother were also there. Tr. 100-01. JP stated that it was just he and Hales in Hales room. Tr. 101. Hales gave JP a book and told him to read it. Id. JP described the book as a nasty book that had pictures of naked men and naked women. Tr. 101-02. JP was also asked to read the words in the book. Tr. 102. While JP was reading in the book, Hales was playing with himself and trying to rub on JP. Id. JP stated that Hales was touching JP s penis outside of his clothes with his hand. Id. JP stated that after finishing reading the book, he leaning over and began sucking on Hales penis. Id. JP said that Hales told him to perform that act and he felt like he had to do it. Tr. 102-03. JP stated that Hales finally just let his head go and everything stopped. Tr. 103. JP stated that he did not tell anyone because he was afraid, but he eventually told some of his cousins. Tr. 104. He told them that there were two men making him do things with them. Id. One of the cousins that JP told what had happened, told JP s father of the activities. Tr. 105. JP s father talked to JP about it and he talked with JP s mother. Id. JP finally admitted the truth to his mother and she called the police. Id. JP decided to finally tell what was happening because he was tired of doing things with these people. Id. JP stated that he had a normal relationship and got along with Hales prior to the alleged incidents. Tr. 105-06. JP stated that he did not like Hales now. Tr. 106. On cross-examination, JP contradicted his earlier testimony about the first incident and admitted he was wrong. Tr. 107-08. JP earlier stated that his mother called him on the house phone, but he later admitted that he heard his mother calling him from the house and not on the phone. Tr. 108. 3

JP also stated that he knew Hales had a stroke June 9, 2012, and been using a cane ever since. Tr. 108. JP claimed that Hales was still able to pick him up and throw him on the couch, even though Hales can barely use his arm, and has to use a cane. Tr. 108-109. JP stated that even when Hales medical conditions, he was still able to force JP to perform oral sex. Tr. 109. JP admitted that he was confused where the last incident occurred. Id. JP initially testified that the last time anything happened it was in Hales room, but on cross-examination he stated the last time was in the living room. Id. In a prior interview, JP admitted on cross-examination that a man named James House made him perform oral sex on him. Tr. 110. JP also stated that he climbed in the living room window and the bedroom window of Hales home. Tr. 112-13. JP stated he was sure of the mole on the penis of Hales. Tr. 114. JP further admitted to having numerous incidents of getting in trouble at school. Tr. 115-18. When questioned about the first incident JP stated that Hales came out of the kitchen and was playing with himself, that Hales mother was laying there, awake when all of this happened within ten feet in front of her. Tr. 121. Hales mother was sick and could not walk. Tr. 128-29. JP admitted that Hales was on a cane from February thru October 2013, when all of these events allegedly occurred. Tr. 122. JP admitted that he went to Pine Grove in April 2012, prior to the alleged incidents in this case. Tr. 124. JP was sent by his mother for depression and anger problems. Id. JP s mother sent him because he had a knife and was carving into his wrist trying to kill himself. Id. JP admitted that he was having trouble at school. Id. 4

At Pine Grove, JP stated that he was told to take Prozac and was still suppose to be taking it. Tr. 125. JP admitted that on December 17, 2013, that he was reporting the incident because he did not want his mother to send him back to Pine Grove. Tr. 126. JP on redirect stated that he was positive Hales put his penis inside of his mouth and that Hales touched JP s penis with his hand. Tr. 129. Thomas Roach who is a corrections officer with the Jasper County Sheriff s Department testified that he strip searched Hales after he was booked in at the sheriff s department. Tr. 132. Roach stated that JP was circumcised. Id. On cross-examination, Roach stated that he did not notice any moles on the penis of Hales, but was not told to look for a mole on him. Id. Roach even admitted that he was told to pay close attention to what he was doing as far as strip searching him. Id. Roached stated he had to look at the penis of Hales to determine if he was circumcised. Tr. 132-33. Chris Thompson who was a criminal investigator for the Jasper County Sheriff s Department testified that he investigated the case against Hales. Tr. 134. He stated that Hales lived in Jasper County and was born April 15, 1959. Tr. 134-35. On cross-examination Thompson admitted that he did not go to Hales house to investigate, nor did he take any pictures of his house. Tr. 136-37. Thompson also did not take any pictures of the window that JP crawled through to get inside. Tr. 137. Thompson watching the videoing of JP, heard mention of a mole on the penis of Hales and did not tell his officers, but told the jailer to pay close attention doing his strip search. Id. Thompson stated that one man was circumcised and the other man was not, but did not distinguish between the men. However, Thompson did not recall anything about a mole being seen on a penis. Id. 5

Even though he was present, Thompson could not recall much of the conversation JP concerning what had happened. Tr. 139-40. Thompson stated that anything that was of any importance would be in his notes, but he did not have his notes either. Tr. 141. The defense and the prosecution stipulated to a statement of Dr. Lay be admitted into evidence. Dr. Lay s statement was that he examined Sam Hales on July 31, 2015, and Sam Hales had no mole on his penis. Tr. 150. Kathy House testified for the Appellant, Hales. Tr. 151. Kathy is Hales sister-in-law. Id. Kathy stated that she and her husband James House, along with Hales, and Hales mother all lived in the same house from the time period February 2013 thru October 2013. Id. Kathy stated that Hales mother stayed just a couple of feet away from the couch, where JP alleged that something had happened between him and Hales. Tr. 152. According to Kathy, Hales mother could have seen anything that was happening on the couch. Id. Hales mother was bedridden and Kathy or Mary Jones were there at all times in the house. Tr. 152-53. Kathy stated that someone had to be there with her to take care of her, because she could not do anything for herself. Tr. 153. Kathy even stated that Hales could not even take care of her, but he had a stroke and he could not lift her or feed her. Id. Kathy stated that she cleans house and never found any nasty books in Hales room. Tr. 157. She further stated that she has noticed a difference in Hales mental state since his stroke. Id. Kathy claimed that she has known JP for seven years and he was a sweet child, but that he was known to lie. Tr. 159. Kathy stated that he was tell stories on his grandmother. Tr. 159. On cross-examination, Kathy stated that outside care givers did come into the home to help take care of Hales mother. Tr. 161. Kathy also stated that the times that she had to leave the house, Mary Jones would be there. Tr. 165. She never saw Hales do anything with JP. Tr. 166. 6

Mary Jones also testified on behalf of Hales. Tr. 168. Jones version on events were synonymous with that of Kathy. Jones stated that Hales was never left alone with his mother, because he was unable to do anything for her. Tr. 173. She was bedridden. Jones also stated that Hales mother sleep in the room right next to the couch and would have heard someone call out a name. Id. Jones never saw any nasty books, while cleaning the entire house. Tr. 174. Jones stated that any time that she was out and Kathy was out, her sister Doris would step in and take care of Hales mother. Tr. 180. Hales is currently incarcerated with the Mississippi Department of Corrections. 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 sexual battery and touching of a child for lustful purposes. There was no physical evidence introduced to support the evidence. The victim s entire testimony was contradictory. The evidence supporting the convictions was against the overwhelming weight of the evidence. Therefore, this Court should reverse Hales convictions and sentence and remand this case for a new trial. 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. 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 7

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, Hales 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 or physically force him to perform oral sex. The victim continually contradicted himself and was unbelievable. JP claimed that Hales penis was circumcised and had a mole on the tip of his penis. Tr. 99. However, two different witnesses testified that Hales did not have a mole on his penis. Tr. 132, 150. Thomas Roach with the Jasper County Sheriff s Department testified that he conducted a strip search on Hales, and he did not notice any moles on the penis of Hales. Roach further admitted that he was instructed to pay close attention regarding the search in order to determine if he was circumcised. Tr. 132-33. In additionally, a stipulation was admitted into evidence from Dr. Lay. According to the statement from Dr. Lay, he examined Hales on July 31, 2015, and he concluded that Sam Hales 8

did not have a mole on his penis. Tr. 150. Based on this testimony and evidence presented to the court, JP was incorrect regarding the penis of Hales. Furthermore, JP initially testified that he was 14 years old and in the eight grade. Tr. 89-90. Then he stated he was 12 years old and in the third or fourth grade, finally settling on the third grade, when the first alleged interaction occurred. Tr. 95-96. Later JP states that the last time that something happened was later in the year around Halloween and he was in the fifth grade. JP constantly contradicted himself and seemed to make up facts as he testified. JP claimed that the first instance that occurred with Hales that Hales grabbed him and slung him in a chair. Tr. 97. He further stated that Hales also pushed his head down on his penis. Tr. 98. However, JP then stated that he knew Hales had a stroke in 2012, and had been using a cane ever since. Tr. 108. JP also stated that Hales was able to pick him up and throw him on the couch, even though Hales can barely use his arm. Tr. 108-09. JP also stated that his mother called the house phone and Hales let JP s head during that first alleged encounter. Tr. 98. However, just minutes later on cross-examination, JP admitted that is mother called him from the house and not on the phone. Tr. 108. JP also seemed confused where the last incident occurred. Tr. 109. JP initially testified that the last time anything happened it was in Hales room, but later stated that it occurred in the living room. Id. The testimony of JP was contradictory and did not prove beyond a reasonable doubt that Hales committed these crimes. JP also stated that he had been admitted to Pine Grove in April 2012, prior to the alleged incident in this case. Tr. 124. JP said his mother sent him for depression and anger problems because he had a knife and was carving into his wrist trying to kill himself. Id. JP told the court that while at Pine Grove he was taking Prozac and was suppose to continue taking it. Tr. 125. JP also admitted that he had trouble at school. Tr. 124. 9

Chris Thompson who was the criminal investigator in this case, offered no evidence that the case was even investigated. Tr. 136-37. Thompson could not even recall much of the conversation with JP concerning what had happened nor did he even bring any notes he took concerning for anything of importance. In a prior interview, JP indicated that another individual, James House, was made JP perform oral sex on him, but JP did not seem to mention that during trial. Tr. 110. The testimony of the minor victim, JP, was insufficient and contradictory to establish that Hales did in fact commit the crime beyond a reasonable doubt. JP s testimony created doubt and the Court acting as the thirteenth juror should disagree with the jury s decision of the conflicting testimony and reverse and remand this case for 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)). There was no physical evidence that a crime was committed nor any corroborating testimony of JP. The verdict of guilty was clearly against the overwhelming weight of the evidence. CONCLUSION The Appellant, Sam Hales, is entitled to have his convictions for Sexual Battery and Touching of a Child for Lustful Purposes be reversed and remanded for a new trial. Respectfully submitted, SAM HALES, APPELLANT /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 10

CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Sam Hales, 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 Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 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: th This the 12 day of April, 2016. Benjamin A. Suber, MS Bar No. 102214 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Honorable Eddie H. Bowen Circuit Court Judge Post Office Box 545 Raleigh, MS 39153 Honorable Daniel C. Jones District Attorney, District 13 100 Court Avenue, Suite 4 Mendenhall, MS 39114 Sam Hales, MDOC #28932 Central Mississippi Correctional Facility Post Office Box 88550 Pearl MS 39208 /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 11

Email: bsube@ospd.ms.gov 12