IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-01776-SCT SAM HALES

v. STATE OF MISSISSIPPI
DATE OF JUDGMENT: 11/17/2015 TRIAL JUDGE: HON. EDDIE H. BOW EN TRIAL COURT ATTORNEYS: CHRIS HENNIS STEPHANIE W OOD RANCE N. ULMER COURT FROM W HICH APPEALED: JASPER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: DANIEL CHRISTOPHER JONES NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND BEAM, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. Sam H a l e s was convicted and sentenced to serve a term of twenty -f ive y ears in the custody of the Mississippi Departm ent of Cor r e c t i ons (MDOC) f or one c ount of sexual battery and f

if teen y ears f

or one count of touching a child f or lustf ul purposes, f

or a total of f orty y ears, to be served day f or day

. Hales ar gues t h a t t he trial c ourt erred in denying his

mo t i on f or judgm ent notwithstanding the verdict ( JNOV) because the jury ’ s v erdi c t w a sagainst the overwhelm ing weight of the e vid e n c e . Finding no error, we af f irm Hales’s convictions and sentences. FACTS ¶2. J.P. 1 , who was f

o urteen y e ars old and in the eighth grade at the tim e of trial, lived with his m other, f

ather, and f

our s i sters. J.P. testif

ied that Hales lived n e a r h i m and that he was related to Hales, b ut J.P. was unsure of th e nature of their relationship. J.P. testif ied that Hales “did som ething bad to m e when I was little.” J.P. believed the f irst occurrence of abuse was in February when h e was in third grade. He r ecalled the incident happened around his sister’s birthday

. J.P. testif ied that he had gone to Hales’s house to get a phone num ber f or his m other. H ales told J.P. to wait in the living room . While J
. P. was waiting, Hales cam e out of the kitchen with his pants unzipped, playing w ith h is penis. J .P. testif ied that H ales “took

m e and slung m e i n the chair and grabbed, put his hand behind my head and told m e to suck his penis.” Hales pushed J.P.’s h ead d own to his penis, and Hales’s penis went inside J.P.’s

m outh. Hales kept his hand on J.P.’s neck and let J.P. go only when J.P.’s m other called on the house phone. ¶3. J.P. testif

ied that the last tim e he was a bused by Hales was 2013 when h e was in f if th g rade. J
. P
. believe the incident occurred ar ound Halloween or Thanksgiving. J
. P. testif i e d that h e w as in Hales’s b edroom and that Hales’s m other, Delores, and b rother, Jam es House, also were at hom e at the tim e. Hales gave J.P. a “nasty book” with pictures of naked m en and

wom en t o read. While J.P. was reading, Hales w as “playing with h im self , and h e w as trying

1 In itials are u sedto p ro t ect th e id en t ity o f th e m in o r ch ild

. 2to rub o n m e.” J.P. testif ied that H ales was touching J .P.’s penis outside h is clothes. Af ter J.P. f inished reading the book, Hales told J.P. to lean over and suck Hales’s penis. J.P. stopped when Hales f

i n ally let go of

his head. ¶4. J.P. testif

ied that Hales was circum cised and had a m o le on the t ip of his penis. J.P. testif i ed that he b elieved he was abused by Hales f if teen tim e s. J.P. did not tell any one about the abuse because he was worried about his m other, who recently had suf f e r ed a m ini stroke,

a n d h e w as af

raid Hales would convince every one that J .P. was lying. J.P. eventu a l l y t o l d three o f his cousins. J.P.’s oldest cousin told J.P.’s f ather what had happened, and J.P.’s f ather told J.P.’s m o ther. The f irst tim e J.P. talked to his m other, he told her that nothing had happened because Hales had told J.P. not to tell any one. When his m other asked him again, he told her the truth, a n d h is m other called the police. J.P. testif ied that h e f

inally told the truth because he was tired of Hales abusing him

. J.P. i dentif i ed H ales as the person who had sexually assaulted and f

o ndled him

. ¶5. J.P. acknowledged that he knew Hales h ad suf f ered a stroke in 2012 and had used a
cane ever since. J.P. testif ied that he had b een a dm itted to P ine G rove Behavioral Health and Addiction Services f

or approxim ately one week during the spring of 2012 f o r d epression and anger problem s. ¶6. Thom as Roach, a corrections of f icer w ith the Jasper Cou n t y S h e r i f f’s Departm ent, t estif ied that, when Hales was strip-searched, Roach h ad noticed Hales was circum c i s e d

. Roach testif

ied that he d id not conduct a detailed inspection to determ ine if Hales had a m ole

3on the tip of his p enis. 2 Chris Thom pson, a crim inal investigator with t h e Jasper County Sherif f’s Departm ent, testif

i e d that Hales’s date of birth was April 15, 1959, and Hales’s address was in District One of Jasper County
. ¶7. The State rested and Hales m oved f or a directed v erdict. The trial court overruled the

m otion, f inding that there was “suf f icient evidence f

or the case t o go t o the jury

. The credibility

of the victim

is f or the jury

to determ ine.” ¶8. Kathy House, Hales’s s i ster-in-law, t estif ied that s h e , h e r h u s b and J am e s, and her

m other-in-law D elores all lived with Hales. H ouse testif ied that Delores was bedridden and stay ed in her bedroom but that Delores could see every thing that happened on the couch in the living room . House testif ied that either she or Mary Jones, her s i ster-in-law, w ould be at the house at all tim es to take care of Delores. House a l so testif ied that she cleaned the house, including Hales’s room , and never saw any “nasty ” books. House stated that she noticed a change in Hales’s m ental state af ter his stroke and that he s om etim es r am bled and had dif f i c u l ty answering questions. House testif ied that she had k

nown J.P. f

or approxim ately seven y ears and that he seem ed like a sweet child, but that he was known to lie. ¶9. On cross-exam ination, House denied that she ever lef t the house to run errands. She testif i ed that if she were n ot at the house caring f or D elores, h e r s i s ter-in-law w as there. House testif

ied that she had a good relationship with Hales and d id not want to see him go to prison. House testif

ied that, while she agreed m olesting a child w as som ething o ne would do only in private, she never saw Hales m o lest J.P.

2 D r. A K eith L ay

Jr. testif iedb y stip u latio n th at H ales d idn o t h av e a m o le o n h is p en is. 4¶10. Jones testif ied that she also lived in the hom e with her b rother, Hales. Jones testif ied that h er m other, Delores, was bedridden and slept in a room tha t h a d b e e n b u ilt onto the house. Delores would have been able hear e v ery thing that h appened in the living room ; however, her v i ew to the l iving room was blocke d b y a w a l l

. Jones testif ied that Hales’s stroke had a “bad ef

f e ct” on h im

. She testif

ied that Hales “couldn’t think like he u sed to and couldn’t hardly use h is l ef t – w ell he couldn’t use his l ef t s ide f or awhile.” Jones testif

ied that Hales’s m ental state had im proved, but h e s till r am

bled w hen he was asked q uestions. Jones

never lef t her m o ther a lone because she was unable t o c are f o r herself

. J ones also testif

ied that when she cleaned the house, she never f o und any nasty b ooks in Hales’s room

. ¶11. O n c r o s s - e x a mination, Jones testif ied that there w ere places that Hales c ould hav e hidden pornographic m aterials. Jones testif ied that she loved her brother and did n o t want him to go to prison. ¶12. H a l e s u l t i ma tely was indicted on one count o f s e xual battery an d o n e c o u n t o f touching a child f

or lustf u l purposes. Af

ter a two-day trial, a Jasper County j ury f ound Hales guilty of both counts. At a bif urcated h earing, H ales was sentenced to a term of twenty -f ive y ears f or sexual battery and a term of f if teen y ears f

or touching a child f

or lustf u l p urposes. The trial judge denied Hales’s m otion f or JNOV, and Hales appealed. ANALYSIS ¶13. Hales r a i s e s o n l y o ne issue on appeal–whether the trial court erred in denying his

m otion f or new trial be c ause his verdict was a gainst the overwhelm ing weight of the evidence.

5¶14. “A m otion f or new trial challenges the weight of the evidence. Sheffield v. State , 749 So. 2d 123, 127 (Miss. 1999). A reversal is warranted only if t h e t r i a l c o u rt abused its discretion in denying a m otion f or new trial.” Ivy v. State , 949 So. 2 d 748, 753 (Miss. 2007). In Bush v. State , 895 So. 2d 836 ( Miss. 2005), this C ourt set out the standard of review f or weight of the evidence, stating: [ w]hen reviewing a denial of a m otion f or a new trial based on an o bjection to the weight of the evidence, we will only disturb a verdict w hen it is s o contrary to the overwhelm ing weight of t h e evidence that to allow it to stand w ould sanction an unconscionable injustice. Herr ing v . State , 691 S o. 2d 948, 9 57 (Miss.1997). W e have stated that on a m otion f or new trial: the court sits as a thirteenth j uror. The m otion, however , is addressed to the discretion of t h e court, which should be exercised with caution, and the power t o grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily

against the verdict. Am iker v. Drugs For Less, Inc. , 796 So. 2d 942, 947 (Miss. 2 000).

. . . [ T]he evidence should be weighed in the l ight m ost f avorable to the verdict. H

erring , 691 So. 2d at 957. Bush , 895 So. 2d at 844. ¶15. Hales was charged w ith sexual battery under Mississippi Code Section 97-3-95(1)(d), which p rovide s t h at “[ a ] person is guilty of sexual battery if he or she engages in sexual penetration with

. . . [ a] child under th e a ge of f ourteen (14) y ears of age, if the person is twenty
- f our (24) or m ore m onths older than the child.” Hales a l so was c harged with touching a child f or lustf ul purposes under Mississippi Code Section 97-5-23, which provides that: [ a]n y p e r s o n above the age of eighteen (18) y ears, who, f or the purpose of gratif ying his or her lust, o r i ndulging h i s o r her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or

6any m em ber thereof

, o r with any object, any child under the age of sixteen (16) y ears, with or without the child’s consent . . . shall be guilty of a f elony

. Miss. Code Ann. § 97-5-23 (Supp. 2016). ¶16. Hales argues that he i s entitled to a new trial b ecause the State f a iled to produce any phy sical evidence that Hales i nappropriately touched the m inor victim or phy sically f orced J.P. to perf

orm o ral s ex. Hales also argues that J.P. “continually contradicted him self and was unbelievabl e . ” Hales claim s the testim ony of J.P. was insuf f i cient to establish that Hales

comm itted the crim es bey ond a reasonable doubt. ¶17. W e have held that the “victim ’s testim ony regarding the o ccurrence of sexual battery , even in the absence of corroborating phy sical evidence, i s l e g a lly suf f icient to sustain a conviction f

or s exual battery .” Gazzier v . S t ate , 744 S o. 2d 776, 779 (Miss. 1999). J.P. testif i ed in detail r e garding t h e f i r s t a n d last tim es that Hales had f ondled and sexually assaulted him

. A lthough Hales attem pted to im

peach J .P.’s t estim ony , J.P.’s testim ony was not substantially contradicted. Any conf lict in the testim ony was resolved in the State’s f avor b y the j ury , which has the duty to weigh the credibility of witnesses and their t e s t i mo n y . Clem ons v. State , 1 99 So. 3d 670, 674 (Miss. 2 016). Revi e w i n g the evidence in the light

m ost f avorable to the jur y ’ s v erdict, we conclude that the e vidence p resented at trial suf f i ciently supported a f

inding that Hales sexually assaulted and f ondled J .P. W e f

ind that this issue is without m erit. CONCLUSION ¶18. W e f

ind that H ales’s a ssignm ent of error is without m erit an d a f f irm his sentences and convictions.
7¶19. C O UNT I : CONVICTION OF S EX UAL BAT T E R Y A N D S E N T E N C E O F

TWENTY-FIVE (25) YEARS IN THE CUSTO D Y OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF TOUCHING A CHIL D F O R L U S T F U L P U RP OSES A N D S ENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF C O RRE C T I O N S , A F F I RM E D . S E N T E N C E S S H A L L RU N C O N S E C U T I V E L Y A N D D A Y -FOR-DAY, AND THESE SENTENCES SHALL NOT BE REDUCED O R SUSPENDED. T HE APPELLANT SHALL NOT BE ELIGIBLE FOR P A R OLE, PROBATION OR EARLY RELEASE. WALLER, C .J., D ICKINSON , P.J., KITCHENS, KING, COLEMAN, MAXW ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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