TIMOTHY B. SHARP A/K/A TIMOTHY B. SHARPE A/K/A TIMOTHY SHARP A/K/A TIMOTHY R. SHARP, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
DATE OF JUDGMENT: 05/23/2013.
COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. THOMAS J. GARDNER III. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED.
TIMOTHY B. SHARP, APPELLANT, Pro se.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL.
BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.
¶1. Timothy Sharp was granted an evidentiary hearing on his successive post-conviction relief (PCR) motion because his sexual battery and fondling victim filed an affidavit recanting her trial testimony.
But after reviewing the affidavits and hearing from the victim, the judge found the victim's affidavit and PCR hearing testimony were not credible. So the judge denied Sharp's request for a new trial. After review, we cannot say the judge's determination was clearly erroneous. We thus affirm.
¶2. In 2001, Sharp was convicted of one count of sexual battery and one count of fondling. Sharp was sentenced to thirty years for the sexual-battery conviction, with ten years suspended. He also received five years for the fondling conviction, to run concurrently with the twenty years he had to serve in Mississippi Department of Corrections (MDOC) custody. His convictions and sentences were affirmed by this court on direct appeal in 2004. See Sharp v. State, 862 So.2d 576, 581-82 (¶ 21) (Miss.Ct.App. 2004). Sharp later filed a PCR motion, arguing he received ineffective assistance of counsel. The trial court dismissed his motion, and this court affirmed. See Sharp v. State, 979 So.2d 713, 716 (¶ 10) (Miss.Ct.App. 2007). Sharp then filed a motion for leave to proceed in the trial court on a claim of newly discovered evidence, which the Mississippi Supreme Court granted in 2013. And Sharp filed a second PCR motion based on the victim's recanted testimony. After an evidentiary hearing, the circuit judge denied Sharp's most recent PCR motion. Sharp appealed.
¶3. The basis of Sharp's present PCR motion was that his victim, A.S., recanted her trial testimony. A.S., who was Sharp's female relative, was ten years of age at the time of the trial. A.S. testified about " two episodes of sexual contact with Sharp: one of which contained all of the necessary elements of the crime of sexual battery and the other of which contained all the necessary elements of a charge of fondling or gratification of lust." Sharp, 862 So.2d at 578 (¶ 6).
¶4. On September 7, 2012, A.S. signed an affidavit, recanting her trial testimony. She claimed that in 2000 she testified falsely against Sharp because she " was scared and didn't know what to do about [her] family." She insisted Sharp " did not commit any sexual crime against [her]" and she wanted " him to be released from prison." A.S. apologized for putting Sharp " through this" and claimed she did so because she " was only 10 at the time and [Sharp] got drunk often and would hit [her] mom and that scared [her]." ...