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Gabriel v. State

Court of Appeals of Mississippi

July 24, 2018

THOMAS EARL GABRIEL A/K/A THOMAS GABRIEL A/K/A THOMAS EARL GABRIELLE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/13/2016

          COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT HON. M. JAMES CHANEY JR. JUDGE

          OFFICE OF STATE PUBLIC DEFENDER JUSTIN TAYLOR COOK ATTORNEY FOR APPELLANT

          OFFICE OF THE ATTORNEY GENERAL SCOTT STUART ATTORNEY FOR APPELLEE

          RICHARD EARL SMITH JR. DISTRICT ATTORNEY

          BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

          GRIFFIS, P.J.,

         ¶1. Thomas Earl Gabriel appeals his conviction of child molestation and argues that the trial court erroneously admitted into evidence his statement to the police. Because we find the statement was neither relevant, nor probative, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In 2015, Gabriel lived with his wife Ann, Ann's daughter Ashley, and Ashley's three young children. On March 5, 2015, Ashley was changing her son's diaper when her four- year-old daughter Amber[1] indicated that Gabriel had touched her inappropriately. Specifically, Ashley stated she was changing her son's diaper, "when he reached down and grabbed himself." Ashley then heard Amber say, "Eww, he's touching himself the way Pawpaw[2] touches me." Ashley immediately checked Amber's vaginal area and noticed it was "very red," so she took Amber to the hospital for an examination. A physician determined that Amber's symptoms were consistent with sexual molestation.

         ¶3. Investigators with the Warren County Sheriff's Department went to the hospital and interviewed Ashley. Both Ashley and the investigators were aware of Gabriel's prior conviction of child molestation in Texas and his subsequent registration as a sex offender. After leaving the hospital, the investigators went to Gabriel's home. Gabriel's wife Ann had a police scanner and knew law enforcement was on the way to their house. As a result, Gabriel took a shower.

         ¶4. The investigators arrived and saw Gabriel, freshly showered, standing outside. As the investigators approached Gabriel, he turned and placed his hands behind his back. The officers advised Gabriel that he was not under arrest but went ahead and read Gabriel his Miranda rights.[3] Gabriel voluntarily waived his rights and spoke to the officers. He also consented to a search of his home. During the search, Gabriel verbally consented to the seizure of his computer and computer equipment. Before leaving, the officers asked Gabriel if he would be willing to meet officials at the police station in order to give a recorded statement. Gabriel agreed.

         ¶5. Prior to the recorded interview, Gabriel was again advised of his Miranda rights, and he provided a verbal and written waiver of those rights. He also read and signed a list of all items seized from his house during the consensual search.

         ¶6. During the interview, Gabriel denied the allegations Amber made and openly discussed various topics. Specifically, Gabriel discussed his prior conviction of child molestation as well as his sexual activity with his wife, including experimentation with bondage. Gabriel stated he would oftentimes play video games on his computer and would allow Amber to sit on his lap while he played those games. Gabriel further stated that he smokes marijuana and watches ...


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