James Sims a/k/a James Arthur Sims, Jr. v. State of Mississippi

Jackson, MS - Criminal defense attorney represented James Sims with disorderly conduct and resisting arrest charges.

¶3. On January 7, 2016, at approximately 8:45 p.m., Officer Tara Crum with the

Southaven Police Department was dispatched to the SuperLo Food Store (SuperLo) in

response to a shoplifting call. When she arrived, a security guard informed her that he had

a female suspect detained in the store and that there was possibly a male suspect in the area.

At that point, Officer Crum radioed for other officers in the area to come and assist. Shortly

after, three or four officers arrived to help her look for the second suspect.

¶4. The security guard helped two of the responding officers locate the vehicle that

possibly belonged to the shoplifters. The vehicle was empty, which led them to believe that

the male suspect was still in the area. Officer Chase Joiner, one of the responding officers,

testified that the other officers broadcasted over the radio that they saw a rifle in the back of

the car. At that point, Officer Joiner parked his vehicle in the parking lot facing SuperLo to

3 Brady v. Maryland, 373 U.S. 83, 87 (1963).

2watch for the male suspect.

¶5. Shortly after, Sims walked out of the restaurant Tiger Hot Wings. Officer Joiner

watched Sims leave the restaurant, turn left toward SuperLo, and take four or five steps.

Sims then stopped "abruptly” when he saw the officers at the SuperLo and walked in the

opposite direction. Officer Joiner found this behavior to be "unnatural” and "suspicious” and

continued to watch Sims.

¶6. As Sims continued to walk away, he looked back at Officer Joiner "five or six times.”

Based on his behavior, Officer Joiner drove his car toward Sims and pulled into the parking

lot that Sims had just entered on foot. He rolled his window down and said he wanted to

talk. Sims kept walking and said, "For what man? What do you want?” At that point, Officer

Joiner turned on his blue lights and got out of his patrol vehicle. After being asked several

times, Sims finally walked back toward Officer Joiner in an aggressive manner with his

hands in his pocket and said, "What the f*** do you want?” Around this time, Officer

Joiner's partner, Officer Phillip Croy, arrived to assist. Officer Joiner asked Sims several

times to take his hands out of his pockets, and "he refused every single time.” Officer Joiner

testified that there were other people in the parking lot and the surrounding area during this

exchange.

¶7. Officer Joiner testified that he could not remember whether he had to physically

remove Sims's hands from his pockets or whether Sims removed them voluntarily. Either

way, Sims eventually placed his hands on the hood of Officer Joiner's patrol vehicle, and

3Officer Joiner conducted a pat-down search to look for weapons. Officer Joiner testified that

at this point, based on the totality of the circumstances, he believed that Sims was likely

involved with the shoplifting incident. Officer Joiner asked Sims to place his hands behind

his back, and, at that point, Sims said, "No. F*** you.” Officer Joiner ultimately detained

Sims to "identify [Sims] and . . . to confirm or dispel the suspicions [he] had regarding the

shoplifting.” At that time, Officer Joiner had not decided whether to arrest Sims. Sims

refused to take his hands off the hood of the vehicle and place them behind his back, so

Officers Joiner and Croy physically moved his hands and placed the handcuffs. Officer

Joiner testified that Sims was cursing them loudly and acting "irate.” After Sims was

handcuffed, he was still not compliant and continued to physically pull away. Officer Joiner

stated there was a "brief struggle” and that Sims was eventually placed in the patrol vehicle

and driven to the police station.

¶8. Once Sims was identified, it was discovered that there was a warrant for his arrest for

contempt, which Officer Joiner suspected was the reason for his behavior. Officer Joiner

also testified that it was later discovered that Sims had nothing to do with the shoplifting

incident. Once they arrived at the station, Sims "jerked away” from Officer Joiner and

refused to cooperate. Officer Croy's testimony at trial corroborated Officer Joiner's recount

of the events leading up to Sims's arrest. Sims was ultimately charged with disorderly

conduct, resisting arrest, and public profanity.

4

4 The public profanity charge was later dismissed. Additionally, Sims pled guilty to

the outstanding contempt-of-court charge.

4¶9. Sims testified that he did not head toward SuperLo when he left Tiger Hot Wings as

stated by Officer Joiner. He instead claimed he was walking to a nearby gas station. Sims

also claimed that Officer Joiner was lying during most of his testimony. Sims admitted to

seeing Officer Joiner's patrol vehicle but claimed he only glanced at it initially. Sims also

testified that he immediately complied and stopped walking as soon as he heard Officer

Joiner speak to him. He stated that he never had a chance to put his hands behind his back

and that the officers threw him against the car and handcuffed him. Finally, Sims denied

knowing that he had a warrant out for his arrest for contempt of court until Officer Joiner told

him.

¶10. On May 11, 2016, Sims was convicted of disorderly conduct and resisting arrest in

municipal court. He appealed the judgment to county court. The county court held a bench

trial, which occurred on December 4, 2017, and February 13, 2018. At the close of trial, the

county court found Sims guilty of disorderly conduct and resisting arrest. Sims subsequently

filed an untimely motion for judgment notwithstanding the verdict (JNOV) or alternatively,

a new trial. The county court ultimately found Sims's delay in filing was a result of

"inadvertence” and denied Sims's post-trial motion pursuant to Mississippi Rule of Criminal

Procedure 25.1(c). Sims then appealed the county court's judgment to circuit court on March

12, 2018. Sims and the City submitted briefs for the court's review. After reviewing the

briefs and the county court record, the circuit court affirmed the county court's judgment on

5July 9, 2019, under Mississippi Rule of Criminal Procedure 30.1(c).5

Sims appealed.

STANDARD OF REVIEW

¶11. "In a bench trial, the trial judge is 'the jury' for all purposes of resolving issues of

fact.” Sendelweck v. State, 101 So. 3d 734, 738-39 (¶19) (Miss. Ct. App. 2012) (citing Evans

v. State, 547 So. 2d 38, 40 (Miss. 1989)). "As such, a 'judge sitting without a jury is

accorded the same deference with regard to his findings as a chancellor, and his findings are

safe on appeal where they are supported by substantial, credible, and reasonable evidence.'”

Carlson v. City of Ridgeland, 131 So. 3d 1220, 1223 (¶13) (Miss. Ct. App. 2013) (citing

Doolie v. State, 856 So. 2d 669, 671 (¶7) (Miss. Ct. App. 2003)).

ANALYSIS

1. The City did not commit a Brady violation.

¶12. Sims argues that the City committed a Brady violation by suppressing audio

recordings between the officers who responded to the shoplifting incident at the SuperLo.

5 Rule 30.1(c) requires a circuit court to affirm a county court's judgment when there

is no prejudicial error:

On appeal, legal arguments may be heard in any countywithin the jurisdiction

of the circuit court and shall be considered solely on the record made in

county court. If no prejudicial error be found, the circuit court shall affirm

and enter judgment in like manner as affirmances in the Supreme Court. If

prejudicial error be found, the circuit court shall reverse as is provided for

reversals in the Supreme Court. If a new trial is granted, the cause shall be

placed on the docket of the circuit court and a new trial held therein de novo.

MRCrP 30.1(c).

6More specifically, Sims claims that "the [exculpatory] information passed between the

officers on the radio would have shown that at the time Officer [Joiner] stopped [Sims] that

he knew that Sims was not involved in the shoplifting incident at the grocery store.”

¶13. The week before trial, Sims filed a motion requesting additional evidence, which

included the alleged audio recording and subpoenas for several employees at the police

department. On the first day of trial, the City maintained that it had provided everything

requested through discovery, including "an audio recording in the sallyport as well as

dispatch recordings.” The next day, defense counsel sent the City prosecutor a letter, again

requesting additional evidence and subpoenas. The City filed a motion to quash the request

for the subpoenas, and the court heard the matter on what was supposed to be the second day

of trial. The City reiterated that it had provided all the available requested evidence it had

to Sims. Although the court had "a real problem with [defense counsel's] sloppiness” in

waiting until "the last minute,” it entered an order the same day of the hearing requiring the

City to provide "a complete record of the dispatch recordings for the time and date relevant

to the facts in this case.” When trial resumed February 13, 2018, there was no further

discussion of any missing evidence. The City contended that it fully complied with the

county court's order.

¶14. In Brady v. Maryland, the United States Supreme Court held that a prosecution's

suppression "of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or bad

7faith of the prosecution.” Brady, 373 U.S. at 87. To succeed on his Brady claim, Sims must

prove that (1) the State possessed evidence favorable to the defendant; (2) Sims did not

possess the evidence nor could he obtain it himself with any reasonable diligence; (3) the

State suppressed the favorable evidence; and (4) had the evidence been disclosed to Sims,

there is a reasonable probability that the outcome of his proceedings would have been

different. Claiborne v. State, 176 So. 3d 769, 773-74 (¶13) (Miss. 2015). First and foremost,

Sims cannot prove that the City possessed any additional audio recordings between the

officers. Second, Sims cannot prove that had the City possessed this alleged "exculpatory”

information, the outcome of his trial would have been different. Officer Joiner testified as

to why he detained (and eventually arrested) Sims, and Officer Croy corroborated Officer

Joiner's testimony to the extent he was present. Regardless of any audio recordings prior to

Sims's arrest, the fact remains that none of those recordings would change the circumstances

surrounding Sims's arrest forthe charges of disorderlyconduct and resisting arrest. For these

reasons, Sims's Brady claim fails.

2. The City did not present perjured testimony.

¶15. Sims claims that Officer Joiner committed perjury when he testified that he heard

another officer state on the radio that a rifle was in the suspect's vehicle. Sims further claims

Officer Joiner "fabricated” that information to justify stopping Sims in the parking lot.

¶16. "The prosecution violates the defendant's rights under the Fourteenth Amendment to

the United States Constitution when it knowingly presents false evidence or allows it to go

8uncorrected when it appears.” Robinson v. State, 247 So. 3d 1212, 1235 (¶59) (Miss. 2018),

cert. denied 139 S. Ct. 829 (2019). To prove the defendant's rights have been violated, a

defendant "must first demonstrate that a prosecution witness knowingly provided false

testimony.” Id. at (¶59) (citing Havard v. State, 86 So. 3d 896, 901 (¶18) (Miss. 2012)). A

new trial is appropriate when the false testimony has "any reasonable likelihood” that may

"affect[] the judgment of the [fact finder].” Id. (quoting Napue v. Illinois, 360 U.S. 264, 271

(1959)).

¶17. At trial, Officer Joiner was the only witness to testify that he heard an officer state

there was a rifle in the suspect vehicle. The dispatcher testified that she could not recall if

any officer made that exact statement. Additionally, one of the responding officers testified

that he did not recall seeing a rifle in the vehicle but also admitted he could not "recall a

whole lot” since the incident occurred nearly two years prior.

¶18. After review, we find that Sims is unable to meet his burden to prove that Officer

Joiner "knowinglyprovided false testimony.” No other witness contradicted Officer Joiner's

testimony. The State's witnesses could not recall all the details, presumably because of the

time lapse between the incident and trial. Further, Sims fails to show how this alleged false

testimony would have had "any reasonable likelihood” to affect the trial court's judgment.

Id. Accordingly, this issue is without merit.

3. There is sufficient evidence to support Sims's convictions.

¶19. Sims next argues there was insufficient evidence to support his convictions. We apply

9a de novo standard of review to challenges to the sufficiency of the evidence. Sanford v.

State, 247 So. 3d 1242, 1244 (¶10) (Miss. 2018). In doing so, "we view the evidence in the

light most favorable to the State and decide if [a] rational [finder of fact] could have found

the State proved each element of the crime.” Lenoir v. State, 222 So. 3d 273, 279 (¶25)

(Miss. 2017). The issue is not "whether we think the State proved the elements. Rather, we

must decide whether a reasonable [finder of fact] could rationally say that the State did.”

Poole v. State, 46 So. 3d 290, 293-94 (¶20) (Miss. 2010).

¶20. Sims is guiltyof disorderlyconduct under section 97-35-7(1)(i) iftheCityproved that,

with intent to breach the peace, he "fail[ed] or refuse[d] to promptly comply with or obey a

request, command, or order of a law enforcement officer, having the authority to then and

there arrest any person for a violation of the law. . . .” Miss. Code Ann. § 97-35-7(1)(i).

Both Officer Joiner and Officer Croy testified they repeatedly asked Sims to remove his

hands from his pockets, and he refused each time. They also testified that Sims was "irate”

and cursing at them with people in the surrounding area. Both this Court and the Mississippi

Supreme Court have held these types of actions sufficient to prove disorderly conduct. See

Sendelweck, 101 So. 3d at 741 (¶27) (holding that there was sufficient evidence of disorderly

conduct based on the "actions, behavior, and offensive language” of the defendant); S.M.K.S.

v. Youth Court of Union Cnty., 155 So. 3d 747, 750 (¶12) (Miss. 2015) (holding the officer

lawfully arrested defendant for disorderly conduct when he failed to "obey [the officer's]

commands to show his hands or to place his hands on the car under circumstances that could

10lead to a breach of the peace.”).

¶21. Sims is guilty of resisting arrest under section 97-9-73 if the City proved that Sims

resisted or obstructed by force, threats, violence, or any other means, an officer's attempt at

a lawful arrest. Miss. Code Ann. § 97-9-73. The evidence discussed above shows that

Sims's arrest was lawful. The evidence also shows that Sims refused to place his hands

behind his back and that the officers had to physically move his hands in order to handcuff

him. Additionally, Officer Joiner testified that there was a "brief struggle” before Sims was

placed in the patrol vehicle.

¶22. Chief Judge Barnes's dissent claims that Officer Joiner did not have "reasonable

suspicion to stop Sims, much less probable cause to arrest him.” The United States Supreme

Court provides a framework for determining whether reasonable suspicion exists at the time

of a stop:

When discussing how reviewing courts should make reasonable-suspicion

determinations, we have said repeatedly that they must look at the "totality of

the circumstances” of each case to see whether the detaining officer has a

"particularized and objective basis” forsuspecting legalwrongdoing. This

process allows officers to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative

information available to them that "might well elude an untrained person.”

United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added) (quoting United States

v. Cortez, 449 U.S. 411, 418 (1981)). Essentially, the Supreme Court held that a review of

reasonable suspicion should be based on the totality of the circumstances. Further, an

officer's "'particularized and objective basis' for suspecting legal wrongdoing [and his] own

11experience allows [him] to make inferences from and deductions about the cumulative

information available to [him].” Id.

¶23. The Mississippi Supreme Court has held that "[t]o stop and temporarily detain is not

an arrest, and the cases hold that given reasonable circumstances an officer may stop and

detain a person to resolve an ambiguous situation without having sufficient knowledge to

justify an arrest.” Gonzales v. State, 963 So. 2d 1138, 1141 (¶13) (Miss. 2007) (quoting

Singletary v. State, 318 So. 2d 873, 876 (Miss. 1975)). In his bench ruling, the county court

judge stated that the events surrounding the incident "would most appropriately be described

as an ambiguous situation.” We agree. Officer Joiner was called to the crime scene where

one person was under arrest for shoplifting, and the security guard indicated there "may” be

a possible male suspect in the area. The dissent admits that the officer observed Sims exit

another business, walk toward SuperLo (the location of the crime), then change direction.

The officer testified that Sims appeared "highly suspicious” and that he kept "glancing” back

at the patrol car. At this point in time, the officer, who is at the scene of a crime where one

person is under arrest and is advised that there may be other individuals involved in the

crime, observes Sims change directions from the patrol car and continue to glance back at

the patrol car in a suggestive manner. Based on the totality of the circumstances, the officer

had reasonable suspicion to stop Sims and question himconcerning his potential involvement

in the crime being investigated.

¶24. The dissents claim that it was not an "ambiguous” situation despite two officers on

12scene being told that another male "may” be involved. However, upon arrival, Officer Joiner

was engaging in an investigation in looking for a possible "male” suspect. Sims was a male.

Sims had an outstanding warrant for his arrest for contempt of court. Sims certainly had a

reason to avoid the officers, which corroborates the officer's testimony that Sims was acting

suspiciously. The dissents have the luxury of now knowing that Sims was not involved in

the crime being investigated. The officers did not have that luxury. They were conducting

an investigation as to whether one or two people were involved in a crime for which they

were called to a scene to investigate.

¶25. Further, Judge Westbrooks's dissent maintains that Officer Joiner had no reasonable

suspicion to stop Sims, adding that Officer Joiner "exhibited implicit bias that led him to

target Sims because he was Black.” This conclusion makes factual determinations not made

by the three previewing courts that found Sims guilty of disorderly conduct and resisting

arrest. Pursuant to United States Supreme Court precedent, this Court must view what

Officer Joiner knew at the time and not from 20/20 hindsight. See Arvizu, 534 U.S. at 273.

As previously stated, both Officer Joiner and Officer Croy testified that upon arrival, they

were told there was a possible male suspect in the area who may have been involved in the

crime for which one suspect was already in custody. Officer Joiner testified that he "might”

have asked if the suspect was black or white in an attempt to obtain a description of the

suspect. Officer Croy similarly testified that he "believe[d] [Officer Joiner] did ask on the

radio to one of the other officers on scene if it was a black male or white male.” No racial

13description was provided at that time. Officer Joiner continued to patrol the area and

eventually stopped in front of the SuperLo parking lot to observe the storefront. At that

point, he saw Sims exiting Tiger Hot Wings, which is located approximately fifty to one

hundred yards to the left of SuperLo. According to Officer Joiner, Sims was acting

"unnatural” and "suspicious” when he "abruptly” changed direction after seeing the officers

and continued to "look back” while walking away. Again, he was told upon arrival that a

male suspect may be involved. Under the totality of the circumstances, Officer Joiner had

reasonable suspicion to stop and question Sims.

¶26. Even though Officer Joiner had reasonable suspicion to stop and question Sims, Sims

had every right to refuse to answer the officer's questions under the Fifth Amendment of the

United States Constitution. Sims did not avail himself of that right. What Sims did not have

a right to do is to conduct himself in a disorderlymanner in violation ofsection 97-35-7(1)(i).

As discussed above, both officers testified that Sims repeatedly refused to remove his hands

from his pockets, was "irate,” and continued to curse at the officers in a public place with

people nearby. Both Sendelweck and S.M.K.S. have held that kind of behavior qualifies as

disorderly conduct within the meaning of the statute. Thus, Sims's arrest was lawful.

Reviewing the evidence in the light most favorable to the City, a reasonable finder of fact

could have found that the City proved each element to convict Sims of disorderly conduct

and resisting arrest. Accordingly, we find that the evidence was sufficient to support Sims's

convictions.

144. The verdicts were not against the overwhelming weight of the

evidence.

¶27. Sims finally asserts that the trial judge's judgment was against the overwhelming

weight of the evidence. Our role as an appellate court is to "view the evidence in the light

most favorable to the verdict and disturb the verdict only when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Little v. State, 233 So. 3d 288, 289 (¶1) (Miss. 2017). "It is

enough to say that the [trial judge sitting without a jury], and not the reviewing court, judges

the credibility of the witnesses as well as the weight and worth of their conflicting

testimony.” Walker v. State, 791 So. 2d 885, 887 (¶2) (Miss. Ct. App. 2001) (quoting Burrell

v. State, 613 So. 2d 1186, 1192 (Miss. 1993)).

¶28. As previously discussed, the City presented ample evidence to show that Sims was

guilty of both disorderly conduct and resisting arrest. Further, the trial judge, sitting as the

finder of fact, judged the credibility of the witnesses and weighed the conflicting testimony.

In viewing the evidence in the light most favorable to the verdicts, it cannot be said that

allowing the guilty verdicts to stand would sanction an unconscionable injustice.

We find that Sims failed to show that the City committed a Brady violation. We also

find that Sims failed to prove the City presented perjured testimony. Further, we find that the City presented sufficient evidence to support Sims’s convictions and that the verdicts were not against the overwhelming weight of the evidence. Accordingly, we affirm Sims’sconvictions and sentences.



AFFIRMED