         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00762-COA

KEVIN LEIGH WILLIAMS A/K/A KEVIN                                             APPELLANT
WILLIAMS

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           05/09/2016
TRIAL JUDGE:                                HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                  COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    ROBERT FRED LINGOLD JR.
                                            HADLEY ELIZABETH GABLE
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: WILSON DOUGLAS MINOR
NATURE OF THE CASE:                         CIVIL - OTHER
TRIAL COURT DISPOSITION:                    DENIED APPELLANT’S REQUEST FOR
                                            RELIEF UNDER THE MISSISSIPPI
                                            WRONGFUL CONVICTION ACT
DISPOSITION:                                AFFIRMED: 05/16/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

       FAIR, J., FOR THE COURT:

¶1.    In 2013, Kevin Williams was found guilty of failing to register as a sex offender. This

Court later reversed his conviction based on an insufficient indictment. See Williams v.

State, 169 So. 3d 932, 933 (¶1) (Miss. Ct. App. 2014).             Williams then requested

compensation under the Mississippi Wrongful Conviction Act. See Miss. Code Ann. §§ 11-

44-1 to -15 (Rev. 2012). At the close of trial, the circuit court held that Williams had failed

to meet the statute’s requirements and ruled in favor of the State. Finding no error, we
affirm.

                                           FACTS

¶2.       On August 1, 2008, Williams was indicted for sexual battery of a fourteen-year-old

female child by a Hinds County grand jury. He pled guilty to one count of sexual battery and

was sentenced to serve twenty years, with nineteen years and three months suspended. As a

result of his guilty plea, Williams was required to register as a sex offender with the

Mississippi Department of Public Safety. See Miss. Code Ann. § 45-33-25 (Rev. 2015).

When Williams registered, he listed an address in Crystal Springs, Mississippi, as his primary

residential address. Officer Greg Farrell was assigned as Williams’s probation officer.

¶3.       On September 10, 2012, Officer Farrell went to the address provided. Williams, 169

So. 3d at 934 (¶4). Williams was not there. Id. Following his visit, Officer Farrell

completed a violation report, forwarded it to Williams’s county of conviction, and notified

Copiah County Sheriff’s Department Investigator Tommy Roberts. Id.

¶4.       Investigator Roberts went to the address to determine whether Williams was living

there and whether he was in violation of his registration duties as a convicted sex offender.

Id. at (¶5). He spoke with Williams’s brother, Chris, who said that Williams did not live

there. Id. Investigator Roberts testified that he first went to the home on September 4, 2012,

and again on September 18, 2012.1 Id.


          1
          In Williams’s criminal appeal, this Court noted the inconsistencies of Officer
Farrell’s and Investigator Roberts’s dates. Williams, 169 So. 3d at 934 n.3. Officer Farrell
testified that he did not meet Williams until September 5, 2012, and that he did not go to the

                                              2
¶5.    On September 18, 2012, Williams was arrested for failure to register as a sex offender.

He was detained in the Copiah County Detention Center on December 26, 2012, and

convicted on March 12, 2013. This Court reversed his conviction in July 2014, and Williams

was released a few weeks later.

                                STANDARD OF REVIEW

¶6.    “A circuit court judge sitting without a jury is afforded the same deference as a

chancellor.” City of Jackson v. Lewis, 153 So. 3d 689, 693 (¶4) (Miss. 2014) (quoting City

of Jackson v. Sandifer, 107 So. 3d 978, 983 (¶16) (Miss. 2013)). An appellate court will not

disturb “a circuit court’s findings following a bench trial unless the findings ‘are manifestly

wrong [or] clearly erroneous, or an erroneous legal standard was applied.’” Id. (quoting

Sandifer, 107 So. 3d at 983 (¶16)). Further, those “findings ‘are safe on appeal where they

are supported by substantial, credible, and reasonable evidence.’” Id. (quoting City of

Jackson v. Law, 65 So. 3d 821, 826 (¶15) (Miss. 2011)).

                                       DISCUSSION

¶7.    The Mississippi Wrongful Conviction Act, Mississippi Code Annotated sections

11-44-1 through -15, became effective on July 1, 2009. Section 11-44-1 reads:

       The Legislature finds that innocent persons who have been wrongly convicted
       of felony crimes and subsequently imprisoned have been uniquely victimized,
       have distinct problems reentering society, and should be compensated. In light



home until September 10, 2012. Id. Investigator Roberts testified that he first went to the
home on September 4, 2012, after he heard of the possible violation from Officer Farrell.
Id.

                                              3
       of the particular and substantial horror of being imprisoned for a crime one did
       not commit, the Legislature intends by enactment of the provisions of this
       chapter that innocent people who are wrongfully convicted be able to receive
       monetary compensation.

To succeed, a claimant must prove by a preponderance of the evidence that:

       (a) He was convicted of one or more felonies and subsequently sentenced to
       a term of imprisonment, and has served all or any part of the sentence; and

              (i) He has been pardoned for the felony or felonies for which he was
              sentenced and which are the grounds for the complaint and the pardon
              is based on the innocence of the claimant which must be affirmatively
              stated in the pardon; or

              (ii) His judgment of conviction was reversed or vacated; and

                     1. The accusatory instrument was dismissed or nol prossed; or

                     2. If a new trial was ordered, he was found not guilty at the new
                     trial; and

       (b) He did not commit the felony or felonies for which he was sentenced and
       which are the grounds for the complaint, or the acts or omissions for which he
       was sentenced did not constitute a felony; and

       (c) He did not commit or suborn perjury, or fabricate evidence to bring about
       his conviction.

Id. § 11-44-7(1). Unlike a criminal trial, the claimant in a civil action is no longer entitled

to a presumption of innocence, and the State does not have the burden of proof. Isaac v.

State, 187 So. 3d 1009, 1012 (¶11) (Miss. 2016). If the claimant meets his burden, he is

entitled to “Fifty Thousand Dollars ($50,000.00) for each year of incarceration regardless of

the number of felonies for which [he] was convicted” and reasonable attorney’s fees. Miss.

Code Ann. § 11-44-7(2).

                                              4
¶8.    The issue on appeal is whether the circuit court erred in finding Williams failed to

prove by a preponderance of the evidence that he did not commit the crime of failing to

register as a sex offender. See id. Williams testified on his own behalf, claiming he

continuously lived at the reported Crystal Springs address from the time he got out of jail

until September 18, 2012. He also testified two of his brothers lived with him. According

to Williams, sometime in 2012, his brother who lived in Hazlehurst called him and said that

he needed to get in touch with Investigator Roberts. He chose not to because he “hadn’t seen

[Investigator Roberts] yet.” After he rested his case, Williams submitted a copy of this

Court’s opinion reversing his conviction.

¶9.    The State introduced the transcript from Williams’s criminal trial containing Officer

Farrell’s and Investigator Roberts’s testimony. Investigator Roberts repeated his testimony

at the civil trial, stating that, when he went to visit Williams twice at his registered address

(September 11 and September 18), he was not there. He added that he spoke with Williams’s

brother Chris both times. On his second visit, he recorded video of his conversation with

Chris. The recording, which had been admitted at Williams’s criminal trial, was admitted

into evidence over Williams’s objection. On the recording, Chris said Williams was not

living there and that he had not seen or heard from Williams since September 4. We further

note that Williams did not call either of his brothers to testify. The circuit court, as fact-

finder, was therefore free to presume that their testimony would have been adverse to

Williams and favorable to the State. See Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 518


                                               5
(1958).

¶10.   Following the trial, the court made the following findings of fact: Williams was

arrested for failure to register as a sex offender, his conviction was later reversed and his

indictment dismissed, he was not present at the claimed residence at any time when Officer

Farrell and Investigator Roberts visited, and Williams was aware Investigator Roberts was

looking for him to verify his address. The court ultimately found that Williams had failed

to show by a preponderance of the evidence that he was wrongfully convicted, as required

in section 11-44-7(1)(b). We find substantial evidence to support the circuit court’s ruling

in favor of the State.

¶11. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., NOT
PARTICIPATING.




                                             6
