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

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KM-01581-COA

JAMES SIMS A/K/A JAMES ARTHUR SIMS, JR. APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/09/2019
TRIAL JUDGE: HON. CELESTE EMBREY WILSON
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: WANDA TURNER-LEE ABIOTO
MARY A. BROWN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ASHLEY LAUREN SULSER
DISTRICT ATTORNEY: JOHN CHAMPION
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
DISPOSITION: AFFIRMED - 05/04/2021
MOTION FOR REHEARING FILED: 05/18/2021 - DENIED; AFFIRMED -
09/21/2021
MANDATE ISSUED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

MODIFIED OPINION ON MOTION FOR REHEARING

¶1. The motion for rehearing is denied. The original opinion of this Court is withdrawn,

and this modified opinion is substituted in its place.

¶2. James Sims was convicted of disorderly conduct1 and resisting arrest2 in the

Southaven Municipal Court. He subsequently appealed his convictions to the DeSoto County

1
See Miss. Code Ann. § 97-35-7(1)(i) (Rev. 2014).
2
See Miss. Code Ann. § 97-9-73 (Rev. 2014).
County Court. Following a bench trial de novo, the county court judge found Sims guilty of

both crimes. The court sentenced Sims to serve six months of supervised probation for the

disorderly-conduct conviction and a consecutive six months of unsupervised probation for

the resisting-arrest conviction. Sims was also ordered to complete an anger management

course and pay $1,058 in fines, costs, and assessments. Sims then appealed to the DeSoto

County Circuit Court, which affirmed the county court’s judgment. The circuit court allowed

Sims to file an out-of-time appeal, which resulted in his appeal now before this Court.

¶3. On appeal, Sims argues that his convictions should be reversed because (1) the City

of Southaven (City) committed a Brady3 violation; (2) the City presented perjured testimony;

(3) the evidence was insufficient to support his convictions; and (4) the trial court’s judgment

was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

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

Southaven Police Department was dispatched to the SuperLo Foods 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 “second individual” in

the area. At that point, Detective 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.

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

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

2
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 the SuperLo

to watch for the male suspect.

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

watched Sims leave the restaurant, turn left toward the 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.

¶7. 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

3
exchange.

¶8. 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

Officer 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.

¶9. 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

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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

¶10. Sims testified that he did not head toward the 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.

¶11. 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

4
The public profanity charge was later dismissed. Additionally, Sims pled guilty to
the outstanding contempt-of-court charge.

5
“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

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

STANDARD OF REVIEW

¶12. “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)).

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 county within 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).

6
ANALYSIS

1. The City did not commit a Brady violation.

¶13. 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.

More 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.”

¶14. 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

7
county court’s order.

¶15. 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

faith 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 for the charges of disorderly conduct and resisting arrest. For these

reasons, Sims’s Brady claim fails.

2. The City did not present perjured testimony.

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

8
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.

¶17. “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

uncorrected 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)).

¶18. 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.

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

Joiner “knowingly provided 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

9
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.

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

a 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).

¶21. Sims is guilty of disorderly conduct under section 97-35-7(1)(i) if the City proved 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

10
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

lead to a breach of the peace.”).

¶22. 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’

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.

¶23. 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” for suspecting legal wrongdoing. 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.”

11
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

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

information available to [him].” Id.

¶24. 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. Chief Judge Barnes’ dissent admits that the officer

observed Sims exit another business, walk toward the 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

12
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 him

concerning his potential involvement in the crime being investigated.

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

scene 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.

¶26. Further, Judge Westbrooks’ 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

13
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

description 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 the 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.

¶27. 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 disorderly manner in violation of section 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.

14
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.

4. The verdicts were not against the overwhelming weight of the
evidence.

¶28. 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)).

¶29. 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.

CONCLUSION

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¶30. 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’s

convictions and sentences.

¶31. AFFIRMED.

CARLTON AND WILSON, P.JJ., GREENLEE, SMITH AND EMFINGER, JJ.,
CONCUR. BARNES, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY WESTBROOKS, McDONALD AND McCARTY, JJ. WESTBROOKS,
J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J.,
McDONALD AND McCARTY, JJ.

BARNES, C.J., DISSENTING:

¶32. I respectfully dissent from the majority’s determination that there was sufficient

evidence to support Sims’s convictions for disorderly conduct and resisting arrest. As the

majority notes, for the charge of disorderly conduct, the State had to prove that Sims “failed

or refused 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.” (Emphasis added). Furthermore, “[t]he offense of resisting arrest presupposes

a lawful arrest.” Chambers v. State, 973 So. 2d 266, 271 (¶13) (Miss. Ct. App. 2007)

(quoting Brendle v. City of Houston, 759 So. 2d 1274, 1284 (¶33) (Miss. Ct. App. 2000)).

In this case, the officer did not observe Sims committing any crime; nor do I find that the

officer had reasonable suspicion to stop Sims, much less probable cause to arrest him.

16
Accordingly, I find the State failed to prove that the arrest was “lawful,” and Sims cannot be

guilty of disorderly conduct or resisting arrest.

¶33. If a police officer has “reasonable suspicion, grounded in specific and articulable

facts” that a “suspect is wanted in connection with criminal behavior,” the officer may detain

the person for a brief investigatory stop. Eaddy v. State, 63 So. 3d 1209, 1213 (¶14) (Miss.

2011). “Grounds for reasonable suspicion to make an investigatory stop generally come from

two sources: either the officers’ ‘personal observation’ or an informant’s tip.” Id. at (¶15)

(citing Williamson v. State, 876 So. 2d 353, 355 (¶11) (Miss. 2004)). Here, there was no tip

that Sims was the person involved in the shoplifting that the officers were investigating.

¶34. With all respect to majority, a finding that Officer Joiner had “reasonable suspicion”

to detain Sims because he “appeared ‘highly suspicious’” is simply a conclusion not

“grounded in specific and articulable facts.” The only articulable fact was that Sims was

“glancing” at Officer Joiner’s patrol car. Officer Joiner’s testimony was only that Sims

exited Tiger Hot Wings, took a few steps toward the SuperLo, and then changed direction,

walking past the patrol car and across the parking lot. Officer Joiner acknowledged,

however, on cross-examination that he had no verifiable evidence that Sims had committed

any crime at the time of his arrest; he had arrested Sims prior to knowing the outstanding

warrant for contempt of court:

Q. And you said that once he had been arrested for resisting arrest and
disorderly conduct you learned that he had a warrant outstanding.

A. Correct.

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Q. At the time you first stopped Mr. Sims, you did -- he had not committed
a crime in your presence, had he?

A. Not to my knowledge. It was suspected that there was possibly
criminal activity, but . . .

Q. I understand suspected. I’m asking had he committed one in your
presence.

A. Not in my presence, no.

....

Q Okay. And I just want to be clear that at the point that you found out
about the warrant[,] you had already arrested him for disorderly conduct
or resisting arrest, hadn’t you?

A. Correct, based on his actions.

....

A. . . . I had already put him in handcuffs and ran his information, and they
advised that he did have a warrant for his arrest.

Moving for a directed verdict, defense counsel argued that Officer Joiner “had no reasonable

suspicion that Mr. Sims had committed any crime when he made his initial stop of him,” and

“[t]here was no breach of peace threatened, no circumstances around that.” I find there was

insufficient evidence presented that Officer Joiner had “reasonable suspicion, grounded in

specific and articulable facts” to detain Sims.

¶35. I further find that the situation surrounding Sims’s detention was not so “ambiguous”

as to warrant the investigatory stop. As the majority notes, even when attempting to resolve

an “ambiguous situation,” the circumstances surrounding the detention must still be

18
“reasonable.” See Gonzalez v. State, 963 So. 2d 1138, 1141-42 (¶13) (Miss. 2007). The

majority admits that the security guard at the store merely identified a possible “second

individual.” Although Officer Joiner averred that “[t]hey gave a description, yeah, as a male,

that she arrived to the store with a male,” none of the other officers who testified could recall

any defining characteristics of this possible second suspect, including Detective Crum, who

interviewed the security guard. Further, Detective Crum testified that there were several

other businesses near the store, some of which were open that evening, including “a very

busy gas station that’s directly across from it, within the same parking lot . . . , a Regions

Bank in the parking lot and some food businesses, McAlister’s, [and] a nail salon.”

However, Officer Joiner elected to single out Sims, who was leaving work and who, I think

reasonably, elected not to involve himself in an active crime scene by avoiding the SuperLo.

To reiterate, I find that there were no “specific and articulable facts” warranting Sims’s

investigatory stop in this instance.

¶36. The majority also asserts that Sims “did not have a right to . . . conduct himself in a

disorderly manner[,]” noting his “irate” behavior, profanity toward the officers, and refusal

to “remove his hands from his pockets.” In Jones v. State, 798 So. 2d 1241, 1247 (¶12)

(Miss. 2001), the Mississippi Supreme Court recognized that law enforcement has “no right

to arrest [a] defendant unless it was evident to [the officer] at the time that some breach of

the peace was being threatened or a crime was being committed in his presence.” (Quoting

Terry v. State, 252 Miss. 479, 173 So. 2d 889, 891 (1965)). “A person has a fundamental

19
right to use reasonable force to resist an unlawful arrest.” Id. at 1254 (¶39); see also Johnson

v. State, 754 So. 2d 576, 578 (¶13) (Miss. Ct. App. 2000) (“[A] person may resist his own

unlawful arrest.”).

¶37. In this instance, any disorderly conduct or “breach of peace” stemmed from Sims’s

unlawful detention. Officer Joiner testified that it was not until he turned on his blue lights

that Sims engaged with the officer, uttering profanity and accusing the officer of harassing

him because he was black. Worried because Sims had his hands in his pockets and was

walking toward him “in an aggressive manner,” the officer admitted that “maybe” he cursed

at Sims, explaining that when someone is being aggressive, “I’m probably going to say, [g]et

your F’g hands out of your pocket, just to -- that’s a common practice. I know it may be

unprofessional, but at the same time, sometimes people don’t understand. That’s the only

language that they do understand.” Officer Joiner also could not remember if Sims

voluntarily put his hands on the hood of the patrol car or if the officer had to do it. Officer

Joiner said it was when he patted Sims down that he decided to “detain” him “to confirm or

dispel the suspicions that [he] had regarding the shoplifting”; so he asked Sims to put his

hands behind his back. Sims refused, telling the officer, “No. F**k you.” It was at that

point officers physically restrained Sims, while Sims attempted to pull away from them. As

noted, Officer Joiner was not aware of the outstanding warrant until after Sims was taken

into custody.

¶38. I acknowledge that the supreme court determined in S.M.K.S. v. Youth Court of Union

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County, 155 So. 3d 747, 750 (¶12) (Miss. 2015), that a person’s refusal to comply promptly

with an officer’s command “constituted a circumstance ‘which may cause or occasion a

breach of the peace[.]’” The totality of the circumstances in S.M.K.S., however, was more

egregious than here, as that suspect was in close proximity to a vehicle involved in a “shots

fired” situation; so police were concerned he may have been armed.6 See id. at (¶11). The

only information available to Officer Joiner, according to his testimony, was that the female

shoplifter “arrived to the store with a male”; he acknowledged that there was no other

identifying characteristics of the potential suspect. And, as already noted, no other witness

could recall if the second individual had been identified as a male. Sims simply had the

unfortunate timing to be leaving his place of work at the precise time police were

investigating a nearby shoplifting. It was ultimately determined that Sims had no connection

to the shoplifting. The officer had no lawful reason to ask Sims to put his hands behind his

back—ostensibly to be handcuffed.

¶39. This Court addressed similar circumstances in Harrell v. State, 109 So. 3d 604, 605

(¶1) (Miss. Ct. App. 2013), where the defendant was charged with disorderly conduct and

failing to obey law-enforcement commands after becoming “irate” and refusing to comply

6
I also find the other case cited by the majority, Sendelweck v. State, 101 So. 3d 734,
740 (¶25) (Miss. Ct. App. 2012), distinguishable, as the defendant in that case initiated the
contact with law enforcement. When officers arrived at the scene, summoned by
Sendelweck, the defendant “walked across the street and irately pointed his finger in [the
officer’s] face, refused the officer’s request to calm down, instead continuing “to yell and
curse.” Id. Here, it was the officer who initiated contact, flashed his blue lights, and
“maybe” cursed Sims when he protested what he alleged to be harassment.

21
with the officer’s instructions. We concluded that because the officer lacked “the requisite

reasonable suspicion that Harrell was engaged or had engaged in criminal conduct, [his]

statements and actions after the unlawful stop are fruit of the poisonous tree and are,

therefore, inadmissible.” Id. at 607 (¶11). Likewise, I find Sims’s conduct after being

detained could not be used to support his detention and arrest. See also Mastin v. State, 180

So. 3d 732, 738 (¶18) (Miss. Ct. App. 2015) (finding that “[b]ecause the evidence was

insufficient to establish the legality of [the defendant’s] arrest, it was also insufficient to

establish that he resisted a lawful arrest”).

¶40. Here, Officer Joiner’s suspicion was not reasonable and was ultimately disproved.

Because the State failed to prove that Sims’s arrest was lawful, his motion for a directed

verdict should have been granted by the trial court, and I would vacate Sims’s convictions

for disorderly conduct and resisting arrest.

WESTBROOKS, McDONALD, AND McCARTY, JJ., JOIN THIS OPINION.

WESTBROOKS, J., DISSENTING:

¶41. I, too, respectfully dissent from the majority’s determination that there was sufficient

evidence to support Sims’s convictions for disorderly conduct and resisting arrest. I join and

wholeheartedly agree with Chief Judge Barnes’s dissent. I especially agree that Joiner had

no characteristics identifying him as the potential second suspect, as no description of the

second suspect was ever given, and would also point out that there was only a “possible”

second suspect as stated by the police—there was no corroborating testimony from the

22
security guard or anyone present at the SuperLo regarding a second suspect. I write

separately to emphasize that Officer Joiner lacked reasonable suspicion and based on his own

testimony and the evidence, he exhibited implicit bias that led him to target Sims because he

was Black.

¶42. On January 7, 2016, in Southaven, Detective Tara Crum responded to a report of

shoplifting at the SuperLo Foods store at approximately 8:44 p.m. At the time, the security

guard detained a white female suspect, and it was believed that there had been another

individual involved. The white female was apprehended while caught in the act. It was

believed the other potential person exited the store prior to her getting caught. There was no

ascertainable information given regarding the potential second suspect—no gender, no race,

no ethnicity, no handicaps, no clothing—nothing.7 Detective Crum admitted that she did not

recall relaying the description of the second person over the radio. Detective Crum also

testified there was nothing in her report describing the second suspect.

¶43. On this chilly winter evening, Sims, a surgical assistant, left his second job at his

family’s business, Tiger Hot Wings, after cooking for over eight hours. Tiger Hot Wings sat

in the same parking lot as the SuperLo and a gym. There was also a Regions Bank, a

McAlister’s Deli, and other commercial businesses in the vicinity. Sims testified that police

officers came into the restaurant and that he served them all the time. He believed he had no

7
Also there is nothing in the record that confirmed the “other person” existed or even
that the shoplifting was undertaken by two people.

23
reason to be afraid of (or avoid) them. Sims also stated that the police often parked in the

parking lot near the SuperLo.

¶44. Sims had ridden to work with his stepfather, Dennis Craddock, the owner of the

family operation. They planned to leave work together. Dennis waited on the last customer

to pick up an order. In the meantime, unaware of the shoplifting incident at the SuperLo,

Sims walked out to go to the Citgo gas station to get some orange juice and male

enhancement pills. It was chilly outside but just warm enough for Sims to wear only a

thermal shirt. With no coat on, he kept his hands in his pockets. He could have gone to the

SuperLo or a Kwik Mart for orange juice, but only Citgo had what he was looking for. As

Sims was leaving Tiger Hot Wings, he noticed that there were people walking toward their

cars from the surrounding businesses. He also noticed a police car, glanced at it, and kept

walking straight toward the Regions Bank parking lot heading toward Citgo.

¶45. When Sims left Tiger Hot Wings, Officer Joiner was sitting in the parking lot

observing the storefront of the SuperLo. Officer Joiner testified that there were several

people walking in and out. Sims made a left-hand turn out of the store, then took four to five

steps in the direction of the officers who were near the suspect vehicle. At that point Officer

Joiner observed Sims stop abruptly the moment he saw the officers and change direction.

Officer Joiner found this to be unnatural because people often approached officers to see

what had happened or asked if it was ok to enter a store amid an investigation. Officer Joiner

locked in on Sims and pursued him. Also notable are Officer Joiner’s testimony and

24
submitted documents where he used the term “Black male” to describe the potential suspect.

¶46. As mentioned earlier, Detective Crum provided no ascertainable description or

detailed characteristics of the second suspect, and there was no confirmation from anyone

present at the SuperLo that a second suspect was present.8 She did not identify the second

suspect as being “male” or “Black.” Detective Crum further confirmed that her investigation

ended at 9:02 p.m. A memo from Officer Croy stated that he did not arrive to assist Officer

Joiner until 9:00 p.m. and Office Joiner stated that Sims was detained at 9:02 p.m. The scope

of the officers’ investigation into Sims is reasonably suspect as Sims had not been implicated

in the shoplifting, the investigation lasted only two minutes, and Sims was detained at the

exact moment that the lead detective, Crum, said the investigation ended. It is also suspect

that in his detailed narrative contained in the incident report dated January 8, Officer Joiner

used the term “Black male” ten times. Officer Joiner’s memo submitted on January 29, used

the description eight times in referencing Sims. Officer Joiner’s bias is also evidenced by

the fact that he admitted that Sims was detained and in handcuffs for resisting arrest and

disorderly conduct before Officer Joiner learned of the outstanding warrant.

¶47. “Both the Fourth Amendment to the United States Constitution and Article III, Section

23 of the Mississippi Constitution protect an individual’s right to be free from unreasonable

searches and seizures.” Cole v. State, 242 So. 3d 31, 38 (¶12) (Miss. 2018) (quoting Eaddy

v. State, 63 So. 3d 1209, 1212-13 (¶12) (Miss. 2011)). “To determine whether the search and

8
The security guard did not testify at trial.

25
seizure were unreasonable, the inquiry is two-fold: (1) whether the officer’s action was

justified at its inception, and (2) whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.” Id. (emphasis added)

(quoting Gonzales v. State, 963 So. 2d 1138, 1142 (¶14) (Miss. 2007)). Both the United

States Supreme Court and the Mississippi Supreme Court have stated that “[p]olice officers

may detain a person for a brief, investigatory stop consistent with the Fourth Amendment

when the officers have ‘reasonable suspicion, grounded in specific and articulable facts[,]’

[which] allows the officers to conclude the suspect is wanted in connection with criminal

behavior.” Eaddy, 63 So. 3d at 1213 (¶14); see also Terry v. Ohio, 392 U.S. 1, 21 (1968).

“The Mississippi Supreme Court also has divided ‘[p]olice activity in preventing crime,

detecting violations, making identifications, and apprehending criminals’ into three types of

action: (1) voluntary conversations, (2) investigative stops and temporary detentions, and (3)

arrests.” Harrell v. State, 109 So. 3d 604, 606 (¶8) (Miss. Ct. App. 2013) (quoting Singletary

v. State, 318 So. 2d 873, 876 (Miss. 1975)).

¶48. “To assess whether the [officer’s] stop was justified at its inception . . . we must

review which facts, including any rational inferences drawn therefrom, were known to the

agents beforehand.” Cole, 242 So. 3d at 39 (¶18) (citing Terry v. Ohio, 392 U.S. at 21).

Joiner’s stop of Sims was not justified at its inception. Reasonable suspicion cannot be

“unparticularized” or founded on a “mere hunch.” United States v. Jaquez, 421 F.3d 338,

341 (5th Cir. 2005). Officer Joiner lacked specific and articulable facts because there were

26
none to begin with. First, there was absolutely no pronouncement of a description of a

second suspect from the security guard, Detective Crum, or dispatch. There is absolutely

nothing in the record that supports either Officer Joiner or Officer Croy’s statement that they

were told there was a possible male suspect. The alleged second suspect goes from having

no description or defining characteristics to being described as a Black male ten times in

Joiner’s investigative report. Second, there was no evidence that the alleged person

participated or even knew that a shoplifting occurred or was afoot. There definitely was no

information that Sims was aware of or participated in the criminal activity at the SuperLo.

Next, this incident stemmed from the belief that the ghost suspect was in the parking lot.

Officer Joiner testified that he observed Sims exit Tiger Hot Wings (not loitering in the

parking lot). Fourth, Sims walked out, glanced, and went about his business. Even if he

looked back, this without more attending facts is unremarkable and not enough to give the

officer reasonable suspicion. United States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir.

1999) (holding “that a look of surprise is of little significance”). Simply walking off does

not give rise to reasonable suspicion either. But see Illinois v. Wardlow, 528 U.S. 119, 124-

25 (2000) (An “unprovoked flight” in a “headlong” manner in a high-crime area gave rise

to reasonable suspicion.).

¶49. Reasonable suspicion must have existed at the time Officer Joiner approached Sims

and ordered him to stop walking. United States v. McKinney, 980 F.3d 485, 490 (5th Cir.

2020). The fact that Sims was in an area near where a crime had occurred, “standing alone,

27
is not enough to support a reasonable, particularized suspicion that [Sims] [committed] a

crime.” Wardlow, 528 U.S. at 124. Sims was unaware of the shoplifting incident that

occurred at the SuperLo. It is notable that Officer Joiner and Sims both stated that there were

other people walking in the parking lot, but Officer Joiner did not believe these people to be

suspicious.

¶50. There is a clear disconnect between Detective Crum’s wholly, absolute lack of

description of the alleged second suspect and Officer Joiner’s determination that Sims, a

Black male, fit the generic description. Officer Joiner’s self-determined theory pertaining

to the second suspect, which led him to detain Sims, had no basis in fact and did not rise to

the level of reasonable suspicion. As there was no reasonable suspicion for Sims to have

been detained in the first place, I agree with the dissent that the conduct giving rise to Sims’s

conviction for disorderly conduct and resisting arrest should have been suppressed.

¶51. The majority references Gonzales v. State, 963 So. 2d 1138 (Miss. 2007), for support.

Maj. Op. ¶24. The facts in Gonzales are distinguishable from the facts in this case.

Gonzales’s stop stemmed from a traffic stop where the highway patrol officer believed there

was no tag displayed on the vehicle. Id. at 1139 (¶3). Gonzales’s car tag was not

conspicuously visible as required by Mississippi Code Annotated section 27-19-323 (Rev.

2006). Gonzales, 963 So. 2d at 1143 (¶20). While engaging Gonzales in a conversation, the

officer noticed that Gonzales not only appeared very nervous but also looked to the passenger

as if to get an idea as to how to answer the officer’s questions. Id. at 1139 (¶2). She (Officer

28
McMullin) also smelled marijuana. Id. Officer McMullin told Gonzales why she pulled him

over, and he pointed out the temporary tag in the lower lefthand corner of the dark tinted rear

window; however, that was after the smell of marijuana had given her reasonable suspicion.

Id. at 1139-40 (¶¶2-3). Also notable is that Gonzales consented to a search of the vehicle,

which resulted in the discovery of marijuana residue and loose marijuana. Id. at 1140 (¶4).

¶52. The first edict annunciated in Gonzales is that “[t]he rule is simple. Unless the

marijuana was discovered during a legal search, it may not be seized. If it was illegally

seized, it may not be admitted into evidence.” Id. at 1140 (¶9). Our Supreme Court relied

on a United States Supreme Court’s decision, stating:

The principal components of a determination of reasonable suspicion or
probable cause will be the events which occurred leading up to the stop or
search, and then the decision whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to reasonable
suspicion or to probable cause.

Id. at 1141 (¶10) (emphasis added) (quoting Ornelas v. United States, 517 U.S. 690, 696

(1996)).

¶53. I do not contest the law as pronounced in Singletary and Gonzales, but it is clear that

a condition precedent must exist in the equation when evaluating whether circumstances

justify reasonable suspicion or probable cause. As mentioned earlier, there was no

description or confirmation there was a second suspect. The events here are based on a

single shoplifter and no certainty there was a second shoplifter, much less that they were

male or a Black male. The circumstances here were not ambiguous. Detective Crum’s

29
testimony was hearsay, albeit the defense failed to object. The respective testimonies of

Officers Joiner and Croy referenced by the majority in paragraph twenty-six are speculative

at best and do not render the circumstances unambiguous.

¶54. With all due respect to the majority opinion, the issues and facts relative to reasonable

suspicion and probable cause are normally addressed by two tribunals (i.e., by a justice court

or municipal court judge during a probable cause hearing when the charges are brought and

secondly, by a circuit court judge who has to make a decision on the legality of the stop

and/or seizure). There is nothing extraordinary about this matter being previewed by three

courts as opposed to one or two. Our obligation as the appellate court is to review and find

errors made in those tribunals and reverse when we find necessary—as we have done before.

With regard to any luxury, James Sims was not afforded the luxury or the freedom to leave

work to walk to a gas station and glance (or look) at a police car in front of his family’s

restaurant. Officer Joiner used his luxury and privilege to brand Sims with the

uncorroborated description of a second suspect. He coupled that with the authority of his

badge and used it to stop and arrest Sims prior to having any knowledge of a misdemeanor

warrant.

¶55. From my perspective, today’s opinion tacitly supports open season for a glance. For

the foregoing reasons, I respectfully dissent from the majority’s decision to affirm Sims’s

convictions.

BARNES, C.J., McDONALD AND McCARTY, JJ., JOIN THIS OPINION.

30