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Pugh v. State

Court of Appeals of Mississippi

September 18, 2018

MARTIN BLAKE PUGH A/K/A MARTIN B. PUGH A/K/A BLAKE PUGH A/K/A MARTIN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/31/2017

          DESOTO COUNTY CIRCUIT COURT, HON. GERALD W. CHATHAM SR. JUDGE.

          ATTORNEYS FOR APPELLANT: JOHN T. LAMAR JR. TAYLOR A. HECK.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

          DISTRICT ATTORNEY: JOHN W. CHAMPION.

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          GRIFFIS, P.J.

         ¶1. This case involves the alleged sexual battery of an unconscious seventeen-year-old girl by three young men, one of whom recorded a portion of the sexual conduct on Snapchat. Martin Blake Pugh, Jayland Christipher Brittmon, and Matthew Anderson Craddock were indicted on the charges of conspiracy to commit sexual battery and sexual battery of an incapacitated person. Craddock was further indicted on the charge of depicting a child under the age of eighteen years engaging in sexual conduct.

         ¶2. Brittmon subsequently pleaded guilty to the conspiracy charge and to the reduced charge of simple assault. Craddock pleaded guilty to aggravated assault. Pugh proceeded to trial and was found guilty of both conspiracy to commit sexual battery and sexual battery of an incapacitated person.

         ¶3. Pugh was sentenced to serve one year in the custody of the Mississippi Department of Corrections (MDOC), with six months suspended, followed by four years and six months of post-release supervision on the conspiracy charge, and one year in the custody of the MDOC, with one year suspended, on the sexual battery charge, to run concurrently with the sentence for conspiracy. He was ordered to pay $200 restitution to the District Attorney; $1, 763 restitution to the DeSoto County Circuit Court Clerk; a $500 fine; $100 to the Crime Victim Compensation Fund; and all court costs. Pugh was further ordered to register as a sex offender upon his release from incarceration.

         ¶4. Pugh now appeals and argues: (1) the circuit court erroneously admitted into evidence the Snapchat video as well as various text-message conversations among the parties, (2) there is insufficient evidence to support his conviction of conspiracy to commit sexual battery, and (3) the numerous evidentiary errors amount to cumulative error and mandate reversal. We find no error and affirm.

         FACTS

         ¶5. On April 5, 2015, at approximately 3:00 a.m., Drew Kazemba received a Snapchat video from Craddock that showed "two guys having sex with a girl [who] looked unconscious, and it was a black guy and then there was a white guy on the other end having oral sex with her."[1] Kazemba saved the video because the girl looked unconscious. He showed the video to his mother and ultimately turned the video in to Marshall County law enforcement.

         ¶6. At trial, Kazemba testified that Craddock admitted to being one of the guys in the video and identified the unconscious-looking girl as Gina Warren.[2] The Snapchat video was offered and admitted into evidence as Exhibit 1, with no objection by Pugh.

         ¶7. Following Kazemba's testimony, Brittmon testified regarding the events of the night. Brittmon explained that on the night of Saturday, April 4, 2015, he, along with Pugh, Craddock, Kate Hill, and Blake Conner, went to a party in Byhalia. Gina, Brittmon's close friend, was also at the party and, according to Brittmon, spent most of the time flirting with Conner. Brittmon stated he did not see Gina flirt with Pugh or Craddock.

         ¶8. Later that night, Gina asked Brittmon for a ride to Hannah Ferguson's house. Brittmon, Pugh, Craddock, Hill, Conner, and Gina subsequently left the party around midnight. Brittmon testified that at the time they left the party, Gina was "pretty drunk." They dropped Hill off at her house and decided to go to Waffle House to eat. However, Brittmon explained that once they arrived at Waffle House, they "decided not [to eat] after [they] had to help [Gina] inside - [s]he couldn't make it alone to the restroom, so [they] decided just to leave." However, they did not take Gina to Hannah Ferguson's house "[b]ecause at one point [Gina] stated she didn't want to go, and then [they] figured it would be easier for [them] to just go to [Brittmon's] house and not to worry about it."

         ¶9. When they got to Brittmon's house, Conner got in his car and left. Brittmon stated that they "[had] to pretty much help [Gina] inside" as she was "still in the same condition." Once inside Brittmon's house, Brittmon, Pugh, Craddock, and Gina went to Brittmon's bedroom. Although they were going to send Gina upstairs, Gina "jumped in bed and got undressed." Brittmon and Pugh then got in the bed with Gina. Craddock was on the floor or in an adjoining bathroom.

         ¶10. According to Brittmon, Gina unbuckled Pugh's pants and began performing oral sex on him. Brittmon was about to tell them to get out when Gina grabbed his hand and stuck it in her pants. Brittmon stated they all "start[ed] messing around" and "pretty much all three had sex with [Gina] at some point throughout the night." Brittmon explained that Craddock got involved "randomly throughout the escapade." Brittmon had sex with Gina first, then Pugh, then Craddock, and then Brittmon had sex with Gina again for a second time. The Snapchat video, previously admitted into evidence, was then published to the jury.

         ¶11. Following publication of the video, Brittmon testified that there was no break in the time period while the three men were having sex with Gina. Instead, "[i]t happen[ed] all at the same time."

         ¶12. Brittmon further testified that he recalled seeing a flashlight but did not realize that it was a Snapchat video. Brittmon learned of the Snapchat video "[o]nce everything [w]as finished" and he checked his phone. Brittmon agreed that the video was received shortly after the incident occurred.

         ¶13. Following the incident, Brittmon and Pugh took Craddock home. Brittmon testified that they discussed the video at one point but did not talk about it a lot. However, Brittmon stated that Pugh was aware of the video at that time. After Brittmon and Pugh dropped off Craddock, they returned to Brittmon's house and went to sleep.

         ¶14. The next morning, Gina woke up and asked why her clothes were off. Brittmon told her that she had gotten hot. Neither Brittmon nor Pugh advised Gina that they had had sex.

         ¶15. Several hours later, Gina texted Brittmon and the following conversation occurred:[3]

Gina: Hey! Thanks [f]or letting me crash at your house.
Brittmon: [H]aha no problem. [B]ut I gotta tell you somethin[g].. we kinda had sex last night and I feel so bad about it. I wouldn't have done it but you kept grabbin at my wang lol[.] I wanted to tell you this morning but you didn't remember and that made me feel even worse. [B]ut you deserve to know the truth.
Gina: You're not joking are you?
Brittmon: [U]nfortunately I'm not[.]
Gina: Shit happens don't worry about it[.]
Brittmon: [C]ool beans[.]
Gina: [Brittmon, ] are you sure you aren't just making this up because I swear to God I got there[, ] threw up[, ] and went to bed[?]
Brittmon: Why would I make this up haha[?]
Gina: Idk a joke[.]
Brittmon: [L]ol[, ] no as much as I wish it was[.]

         ¶16. Gina again texted Brittmon on Monday, April 6, 2015, and asked about the Snapchat video. Their conversation was as follows:[4]

Gina: [Brittmon, ] wtf is this[?]
Brittmon: [Craddock] probably made up a story cus that did not happen.
Gina: Was he even at your house?? Hannah [F]erguson apparently said there is a video of me or something but I don't believe it[.] I know you wouldn't let something like this happen to me [Brittmon]. I'm already disappointed with me and you because obviously I was plastered[, ] but if this shit is true I'm probably going to be pissed[.]
Brittmon: [Y]eah that dickhead walked in with his [message was cutoff.]

         Brittmon explained that he told Gina that Craddock walked in on them while they were having sex and took a video on his phone.

         ¶17. Following his text-message conversation with Gina, Brittmon texted Craddock and Pugh and advised that people were aware of the Snapchat video. The following group discussion occurred:[5]

Brittmon: CRADDOCK[, ] WHY DOES [GINA] KNOW ABOUT THE SNAPCHAT YOU FUCKIN IDIOT[?] YOU ARE GETTING YOUR ASS BEAT[.]
Craddock: How does she know?? I didn't tell anyone[.]
Brittmon: [Y]our stupid sent it to people and they fuckin talk you dumb piece of shit[.] [S]omeone mentioned the snap[.] [F]uck you [Craddock;] we ain't even cool[.] I told her u walked in while me and her were fuckin just [to] fuck with me and got it on snap[;] that's it[.]
Craddock: [redacted for the jury]
Brittmon: [A]lready did ya fuck[.] [W]ho the fuck did you ...

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