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[T] Sharp v. State

June 16, 1998

BOBBY JOE SHARP, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



Before Bridges, C.j., Herring, And Southwick, JJ.

The opinion of the court was delivered by: Herring, J., For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 07/29/96

TRIAL JUDGE: HON. THOMAS J. GARDNER III

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: FONDLING: SENTENCED TO SERVE 10 YRS IN THE MDOC & 5 YRS SUSPENDED PENDING CONDITIONS THAT DEFENDANT DOES NOT VIOLATE ANY LAWS OF THIS STATE & PAYS ALL COURT ORDERED FEES; DEFENDANT SHALL PAY $500 FINE & PAY COURT COST IN THIS CAUSE

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Bobby Joe Sharp was convicted of unlawfully fondling a child under the age of fourteen and was sentenced to serve ten years with the Mississippi Department of Corrections, with five of those years suspended pending his good behavior. Sharp now appeals to this Court for relief. We rule that the trial court did not commit reversible error, and we affirm.

A. THE FACTS

On August 4, 1995, Anita Mitchell, with her husband, her two daughters, and two sons, made a social visit to the home of Bobby Joe Sharp and his wife, Chris Sharp. The two couples played cards that evening while the children played. Mrs. Mitchell's two daughters, ages eleven and twelve, wanted to spend the night at the Sharp home. The adults agreed that two girls would stay the night, as they had done many times in the past.

At the trial in this case, the twelve-year-old girl testified that she fell asleep that evening on the couch in the living room of the Sharps' trailer home. She was awakened by Mr. Sharp when she felt his hand move into her pants. At the time, the child was wearing a top, a bra, and a pair of pants. She stated that she was frightened and was afraid of being hurt by Mr. Sharp. Therefore, she pretended to be asleep during this episode. According to the child, Mr. Sharp rubbed her with his hands, touching her breasts and her "private," and kissed her all over her body including her breasts and her "private." She further testified that he kissed her on the lips and put his tongue in her mouth. Somehow, she ended up on the floor, and Mr. Sharp fell asleep on the couch. Thereafter, she grabbed an afghan and ran out of the trailer home to the home of Steve and Penny Timms, the son-in-law and daughter of Chris Sharp.

Once at the Timms home, the child knocked on the door and was allowed inside the trailer by Steve Timms. Mr. Timms testified that because of the rain, the child appeared on his door step soaking wet and said that she was afraid. According to the child, she had known Steve Timms all her life.

After putting on dry clothes, the child fell asleep. Later the next morning, but before daybreak, Chris Sharp went to the Timms home looking for the Mitchell daughter. The child went back to the Sharp home with Mrs. Sharp where Mrs. Sharp demanded that Bobby Joe Sharp apologize to the child for his actions. The child stated that after the apology, Mrs. Sharp asked her not to tell anyone about what had happened because if she did, Mrs. Sharp would never see her husband again.

At approximately 8:00 a.m. on the morning of August 5, 1995, Anita Mitchell and her husband arrived at the Sharp home to pick up their two children. Mrs. Mitchell testified that while she was at the Sharp home, the child told her that she needed to talk to her, but wanted to talk to her mother at home. The Mitchells left the Sharp home and returned to their home around noon on that day. At that time, the child went with her mother into her mother's bedroom and told her of the events that took place on the preceding evening.

At trial, the prosecution sought to introduce the testimony of Anita Mitchell concerning the statements made to her by her daughter on August 5, 1995. After a proffer and after hearing the arguments of counsel, the trial court admitted the hearsay testimony of Mrs. Mitchell into evidence and ruled that testimony had the required indica of reliability and was also relevant. Dr. William Marcy, a physician who examined the child, also testified for the State. Dr. Marcy's examination took place approximately one month following the incident in question. He was permitted to disclose to the jury the description which the child gave him of the sexual assault. However, the trial court sustained the Appellant's objection to Dr. Marcy's disclosure of the name of the child's assailant which he obtained during his examination of the child.

Officers Jim Johnson and John Hall of the Lee County Sheriff's Department also testified for the State. Johnson interviewed and took a written statement from the child on August 5, 1995.

Bobby Joe Sharp testified on his own behalf. He denied all of the child's accusations against him and stated that the child was lying. In addition, he testified that he did not see the child the next morning and did not make an apology to her. According to Sharp, he awoke at 5:00 a.m. and had to be at work at 6:00 a.m. The Appellant's wife, Chris Sharp, testified that she did not ask Mr. Sharp to apologize to the young girl. Mrs. Sharp did say that she left her home in search of the child after realizing that she was not in the house and was informed by Mr. and Mrs. Timms that the child showed up at their home in the middle of night saying she was afraid.

Several witnesses testified for the Appellant concerning Mr. Sharp's good reputation in the community for truth and veracity. Steve Timms testified that when the child appeared on his doorstep stating that she was afraid, she refused to say why she was afraid. Mr. Timms stated that on other occasions when the child had visited with his family members, she had become frightened by storms, and on at least one occasion, she wandered out of their home in the middle of the night. Penny Timms likewise stated that the child would not identify why she was frightened and that she had been fearful of storms in the past. The child's mother, however, denied in her testimony that her daughter was fearful during rain storms.

Following the submission of the case to the jury for decision, the jury announced to the court after approximately two and a half hours of deliberation that it was deadlocked. The trial court ascertained that the vote of the jurors at that time was six to six. One juror indicated to the trial Judge that the group might be able to reach a verdict if given another opportunity. Therefore, the Judge directed the jury to retire to the jury room for further deliberations. After further deliberations lasting approximately an hour, the jury returned a unanimous guilty verdict. Thereafter, Mr. Sharp was sentenced to serve ten years in the custody of the Mississippi Department of Corrections with five years suspended pending Mr. Sharp's good behavior. In addition, the trial court imposed a $500 fine on Mr. Sharp and assessed him with all court costs associated with the trial. After the trial court denied Mr. Sharp's post-trial motions for relief, he perfected this appeal.

B. THE ISSUES

On appeal, Sharp raises the following issues taken verbatim from his appellate brief:

I. WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT, APPELLANT ON THE INDICTED CHARGE.

II. THE PROSECUTION FAILED TO PRESENT A PRIMA FACIE CASE AND THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR NEW TRIAL.

IV. WHETHER THE TRIAL COURT ERRED IN CHARGING THE JURY TO RESUME DELIBERATIONS WHERE [THE JURY] EXPRESSED THAT THEY WERE HOPELESSLY DEADLOCK[ED].

V. WHETHER SHARP'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES WAS VIOLATED BY THE ADMISSION OF HIGHLY PREJUDICIAL HEARSAY.

VI. WHETHER THE TRIAL COURT ERRED IN ITS RULING OF SHARP'S 803 (25) MOTION IN LIMINE CONCERNING HEARSAY.

VII. WHETHER THE TESTIMONY OF DR. MARCY WAS INADMISSIBLE BECAUSE HEARSAY AND WHETHER TESTIMONY WAS IRRELEVANT AND PREJUDICIAL PURSUANT TO RULES OF EVIDENCE.

VIII. WHETHER TESTIMONY FROM OFFICER HALL THAT SHARP DID NOT GIVE HIM A STATEMENT AND THE INAPPROPRIATE INFERENCES MADE THEREIN WERE VIOLATIVE OF SHARP'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION.

C. ANALYSIS

I. WAS SUFFICIENT EVIDENCE PRESENTED TO CONVICT APPELLANT ON THE INDICTED CHARGE?

In reviewing the sufficiency of the evidence on appeal, we are to give the prosecution the benefit of all inferences that may reasonably be drawn from the evidence presented at trial. Brooks v. State, 695 So. 2d 593, 594 (Miss. 1997). If the facts and inferences result in a finding that reasonable persons could not have found the accused guilty beyond a reasonable doubt, then we are bound to reverse. Id. However, if substantial evidence exists to such a degree that reasonable jurors, in ...


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