Gabriel v. State

270 So. 3d 58
CourtCourt of Appeals of Mississippi
DecidedJuly 24, 2018
DocketNO. 2016-KA-01669-COA
StatusPublished

This text of 270 So. 3d 58 (Gabriel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabriel v. State, 270 So. 3d 58 (Mich. Ct. App. 2018).

Opinion

GRIFFIS, P.J., FOR THE COURT:

¶ 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 Amber1 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 Pawpaw2 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 *60of 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 adult pornography. He explained that while watching adult pornography, child pornography would occasionally "pop up."

¶ 7. Ashley took Amber to the Child Advocacy Center, where a forensic interview was conducted by Tami Wallgren. During the interview, Amber advised that Gabriel touched her with his hand and finger. When asked to identify on a drawing where Gabriel touched her, Amber circled the "butt" and the "female genitals." Amber indicated that it had happened on more than one occasion and had occurred upstairs on Gabriel's bed. Ms. Wallgren opined that Amber's responses and demeanor were consistent with a child who has been sexually abused.

¶ 8. Gabriel was subsequently arrested and indicted on the charge of Count I, sexual battery, and Count II, child molestation. The indictment was amended to charge Gabriel as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2014).

¶ 9. Prior to trial, Gabriel moved to exclude his recorded interview with the investigators. Following a hearing on the motion, the circuit court denied the motion. Specifically, the circuit court found:

Although [Gabriel] did not confess to the crime with which he is charged, he made many incriminating statements. However, the parties have not presented any case law which says that prejudicial statements made by [Gabriel] should be excluded if [Gabriel] was properly advised of and waived his Miranda rights.

¶ 10. At trial, the recorded interview was admitted into evidence and played for the jury, despite Gabriel's continued objection. It is undisputed that no child pornography was found on Gabriel's computer, and he was not charged with any computer-related or drug-related offenses.

*61¶ 11. Amber testified at trial that Gabriel "rub[bed] his private on [hers]." She explained that her clothes, including her underwear, were on at the time and that Gabriel did not take off her clothes. Amber further testified that Gabriel did not use his hand, fingers, or any other part of his body to touch her.

¶ 12. Gabriel was convicted of Count II, child molestation, and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections as a habitual offender pursuant to section 99-19-81. Gabriel was further ordered to register as a sex offender upon his release from incarceration.

¶ 13. Gabriel now appeals and argues the trial court erroneously admitted "[his] statement to [the] police, which contained inadmissible[,] irrelevant[,] and prejudicial evidence."

STANDARD OF REVIEW

¶ 14. "This Court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard of review." Smith v. State , 986 So.2d 290, 295 (¶ 12) (Miss. 2008). "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence." Jefferson v. State , 818 So.2d 1099, 1104 (¶ 6) (Miss. 2002) (quoting Hughes v. State , 735 So. 2d 238, 270 (¶ 134) (Miss. 1999) ). "Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Id.

ANALYSIS

¶ 15. "Before evidence is admitted at trial, it must first be relevant." Brown v. State , 825 So.2d 70, 73 (¶ 7) (Miss. Ct. App. 2002) (citing M.R.E. 401 ). Pursuant to Mississippi Rule of Evidence 401, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the case." Under Mississippi Rule of Evidence 403, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confus[ion] of the issues, misleading [of] the jury, undue delay, wast[e] [of] time, or needless[ ] present[ation] [of] cumulative evidence."

¶ 16.

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Jefferson v. State
818 So. 2d 1099 (Mississippi Supreme Court, 2002)
Wade v. State
583 So. 2d 965 (Mississippi Supreme Court, 1991)
Brown v. State
825 So. 2d 70 (Court of Appeals of Mississippi, 2002)
Ruffin v. State
992 So. 2d 1165 (Mississippi Supreme Court, 2008)
Smith v. State
986 So. 2d 290 (Mississippi Supreme Court, 2008)
Hughes v. State
735 So. 2d 238 (Mississippi Supreme Court, 1999)

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Bluebook (online)
270 So. 3d 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriel-v-state-missctapp-2018.