Travis Jerome Harvey v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-KM-01184-COA

TRAVIS JEROME HARVEY APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/29/2015
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: THOMAS JON-WILLIAM BELLINDER
ATTORNEYS FOR APPELLEE: DAVID L. MORROW JR.
JOHN R. HENRY JR.
CITY PROSECUTOR: DAVID L. MORROW JR.
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION: CONVICTED OF RESISTING ARREST AND
SENTENCED TO TEN DAYS IN THE
RANKIN COUNTY JAIL, WITH ALL TEN
DAYS SUSPENDED; TO PAY A $500 FINE,
WITH $200 SUSPENDED; AND TO SERVE
SIX MONTHS OF UNSUPERVISED
PROBATION
DISPOSITION: AFFIRMED - 06/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.

GREENLEE, J., FOR THE COURT:

¶1. This is an appeal from a circuit court’s affirmance of a county court’s appellate ruling

on a misdemeanor conviction in municipal court.

¶2. Travis Jerome Harvey was arrested for public drunkenness, public profanity, and

resisting arrest. The Brandon Municipal Court dismissed the public-profanity charge and
convicted him of public drunkenness and resisting arrest. He appealed. The County Court of

Rankin County dismissed the public-drunkenness conviction and affirmed the resisting-arrest

conviction. The Rankin County Circuit Court affirmed the county court’s decision. Harvey

appeals the circuit court’s decision. He argues that his conviction for resisting arrest is

inconsistent with the dismissal of the public-drunkenness and public-profanity charges, and

that probable cause did not exist for the arrest in the first place. We disagree and, therefore,

affirm.

FACTS AND PROCEEDINGS BELOW

¶3. On February 2, 2013, Officer Joey Shows of the Brandon Police Department initiated

a traffic stop of a vehicle for an inoperable taillight. After the vehicle came to a complete

stop, a passenger got out of the vehicle and ran into a nearby residence. Sergeants Phillip

Underwood and James King, and Officer Richard Jamison Perry, all of the Brandon Police

Department, arrived to assist Shows. Soon after, Harvey exited the same residence and

engaged the officers in the street, yelling obscenities and profanities. Underwood made

contact with Harvey and smelled marijuana on Harvey during the exchange. Harvey became

combative during the exchange with Shows and Underwood while multiple bystanders were

present. Perry arrived on the scene as the exchange was taking place and, after personally

observing Harvey’s behavior, determined Harvey appeared to be publicly drunk, was

engaging in public profanity, and posed an increasing threat to King, Shows, and

Underwood. Perry informed Harvey he was under arrest. Harvey resisted arrest, snatching

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his hand away and walking away from Perry after being told he was under arrest. Harvey was

ultimately secured by Perry and King. Harvey was charged with public drunkenness,

profanity in public, and resisting arrest.

¶4. On November 13, 2013, the Brandon Municipal Court dismissed the profanity-in-

public charge and found him guilty of resisting arrest and public drunkenness. Harvey

appealed to the County Court of Rankin County. On June 17, 2014, the county court

dismissed the public-drunkenness charge and affirmed the resisting-arrest charge against

Harvey. Harvey made a motion for a judgment notwithstanding the verdict (JNOV), and it

was denied. On August 14, 2014, Harvey appealed his resisting-arrest conviction to the

Rankin County Circuit Court. The circuit court affirmed the county court’s resisting-arrest

conviction on July 29, 2015. On August 7, 2015, Harvey appealed the circuit court’s decision

to this Court. We affirm.

DISCUSSION

¶5. A trial judge’s decision in a bench trial will be affirmed as long as it is supported by

substantial, credible, and reasonable evidence. Parish v. State, 176 So. 3d 781, 785 (¶13)

(Miss. 2015). The findings of a trial judge sitting without a jury are reversed only where the

findings are manifestly erroneous or clearly wrong. Sendelweck v. State, 101 So. 3d 734, 739

(¶19) (Miss. Ct. App. 2012) (citing Amerson v. State, 648 So. 2d 58, 60 (Miss. 1994)).

¶6. On appeal, Harvey argues that the arrest was unlawful because probable cause did not

exist to arrest him, and that it was inconsistent to find him guilty of resisting arrest yet

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dismiss the charges of public drunkenness and public profanity.

I. Cause for Arrest

¶7. According to Mississippi Code Annotated section 97-29-47 (Rev. 2014), a person is

guilty of public drunkenness or public profanity when he “profanely swear[s] or curse[s], or

use[s] vulgar and indecent language, or [is] drunk in any public place, in the presence of two

or more persons.” Underwood, King, and Perry all testified that Harvey was in a public street

shouting numerous expletives at Underwood with multiple bystanders present. Perry, the

arresting officer, testified that he personally observed Harvey engaging in his expletive-laden

tantrum with Underwood in the public street with bystanders present. See S.M.K.S. v. Youth

Court of Union Cty., 155 So. 3d 747, 750 (¶10) (Miss. 2015) (“It is well settled that an

officer may make an arrest for a misdemeanor committed in his presence without a warrant.”

(quoting Bird v. State, 154 Miss. 493, 122 So. 539, 540 (1929))). Further, Harvey’s own

witness, Al Ray Lewis, testified that Harvey exited the house on his own initiative, that no

one ever approached the house or knocked on the door, that Harvey engaged the officers in

the public street, and that there were bystanders present during the exchange. Perry’s

personally observing Harvey committing a misdemeanor gave him sufficient cause to arrest

Harvey. Thus, the arrest was lawful. Therefore, we find that Harvey’s claim is without merit.

II. Resisting Arrest

¶8. According to Mississippi Code Annotated section 97-9-73 (Rev. 2014), a person is

guilty of resisting arrest when he uses force, violence, threats, or any other manner to evade

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the lawful arrest by a law-enforcement officer. First, the arrest was lawful for the reasons

already stated. Perry personally observed Harvey profanely swear in a public place with

multiple bystanders present. Second, Underwood, King, and Perry all testified that Harvey

physically resisted Perry’s lawful arrest by pulling his hands away when Perry attempted to

handcuff him, walking away from Perry after his first attempt to arrest Harvey, and further

refusing to submit to Perry and King so much that they had to take Harvey to the ground to

gain control of him. Thus, Harvey did, in fact, resist a lawful arrest. The fact that the public-

drunkenness and public-profanity charges were later dismissed is of no matter. Chambers v.

State, 973 So. 2d 266, 270 (¶11) (Miss. Ct. App. 2007) (citing Hubbard v. State, 938 So. 2d

287, 289 (¶16) (Miss. Ct. App. 2006)) (holding that an inconsistent verdict between charges,

in and of itself, is insufficient to reverse a criminal conviction). Therefore, we find that

Harvey’s claim is without merit.

CONCLUSION

¶9. We find no error in the circuit court’s finding that Harvey was lawfully arrested and

did in fact resist arrest. Therefore, we affirm the circuit court’s conviction of Harvey for

resisting arrest.

¶10. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF RESISTING ARREST AND SENTENCE OF TEN DAYS IN THE
RANKIN COUNTY JAIL, WITH ALL TEN DAYS SUSPENDED; TO PAY A $500
FINE, WITH $200 SUSPENDED; AND TO SERVE SIX MONTHS OF
UNSUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,

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JAMES AND WILSON, JJ., CONCUR.

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