         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-KA-01904-COA

JEREMY WILLIAM RADAU A/K/A JEREMY                                            APPELLANT
RADAU A/K/A JEREMY W. RADAU

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                           10/04/2013
TRIAL JUDGE:                                HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: SCOTT STUART
DISTRICT ATTORNEY:                          JOEL SMITH
NATURE OF THE CASE:                         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                    CONVICTED OF CAPITAL MURDER AND
                                            SENTENCED TO LIFE IN THE CUSTODY
                                            OF THE MISSISSIPPI DEPARTMENT OF
                                            CORRECTIONS
DISPOSITION:                                AFFIRMED - 12/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ.

       MAXWELL, J., FOR THE COURT:

¶1.    Jeremy Radau was convicted of capital murder after beating a seventy-four-year-old

man to death with a baseball bat. While Radau admits killing the elderly man, he disputes

he intended to commit a robbery—the underlying felony that elevated the crime to capital

murder. But Radau’s girlfriend testified robbery was the motive. And authorities recovered

the stolen cash and the baseball bat Radau lifted from the victim’s apartment after killing him
with it. After review, we find sufficient evidence supports the capital-murder conviction, and

the verdict was not against the weight of the evidence. We affirm.

                              Facts and Procedural History

¶2.    Around 7:30 a.m. on September 19, 2009, Radau and his girlfriend, Megan Kinberger,

went to Charles Pickell’s apartment in Biloxi.       The couple had been on a binge all

night—with Radau drinking heavily and Kinberger drinking and taking Xanax. According

to Kinberger, they intended to rob Pickell.1 And Megan had also hoped to get some Xanax

pills from him.

¶3.    Pickell’s neighbor, Bernard Brown, heard the couple pounding on Pickell’s door.

When Pickell answered the door, Radau told Pickell he was friends with his daughter and

was there to see if he needed food or money. Pickell let Radau and Kinberger in the

apartment. Brown was suspicious of the couple, so he called Pickell and asked him if he

knew them. Pickell said he did and that he was fine. But Brown thought the encounter was

unusual. So when the couple momentarily left to go to their car before returning to Pickell’s

apartment, Brown videoed the two. Brown then left for choir practice.

¶4.    Once inside the apartment, Radau claimed the three began negotiating a price for

Kinberger’s cleaning services. Apparently, Kinberger had previously cleaned Pickell’s

apartment and bought pills from Pickell. Radau testified that he asked Pickell how much

money he had, and Pickell gave him $140 in cash. Radau claimed he told Pickell for an extra


       1
       Radau testified that they did not intend to rob him but only went there to get some
Xanax pills.

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$100, Pickell could have sex with Kinberger. Pickell supposedly said he did not have any

more money, but he offered to swap Xanax for sex with the girl. Radau claimed Kinberger

was okay with this arrangement, but he was not.

¶5.    The three then began to argue, and Kinberger testified that at some point she left the

living room and began rummaging through Pickell’s bedroom drawers, looking for

something to steal. After she used the bathroom, Kinberger returned to the living room,

where she discovered Radau beating Pickell “pretty hard” with a baseball bat. Kinberger saw

Radau with money in his hand and noticed one of Pickell’s pants pockets was inside out.

¶6.    Radau’s story was a bit different. He claimed Pickell tried to hit him with the baseball

bat, which Radau wrestled from him. Radau then purportedly hit Pickell with the bat,

knocking him into his recliner. Radau testified that “[w]hen [Pickell] tried to get back up,

I hit him again[.] . . . And he tried to get back up again after the third time, so I just hit him

again, but this time I just blacked out from there.” As Radau put it, “I just kept hitting him

until he stopped moving so he wouldn’t get back up.” Radau claimed Pickell had already

given him cash but it was not enough. According to Radau, the situation had “to do with

money, pills, [and] prostitution”—not a robbery.

¶7.    Kinberger suggested they call for help since Pickell was still alive and making noises.

But Radau said they should flee. Radau took Pickell’s baseball bat because he knew it would

be evidence.2 Kinberger testified that Radau counted the stolen cash 3 in the parking lot. The


       2
        Radau testified that when leaving the apartment he hid the baseball bat in his pants.
Authorities retrieved the baseball bat from Radau’s car the next morning. Blood on the bat

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couple then drove to the beach, rented a room at the Motel Six in Gulfport, then snacked on

Krispy Kreme donuts.

¶8.    Later that day, Brown returned from choir practice. Pickell’s sister had been unable

to reach Pickell by phone, so she called Brown to check on him. Brown noticed the

apartment door was cracked open, which was unusual. After knocking and not getting an

answer, he walked in and found Pickell beaten and covered in blood in his recliner.4 Pickell

was not breathing, and Brown called 911.

¶9.    The next morning, Radau and Kinberger went to Kinberger’s mother’s house, where

they were arrested.

¶10.   On September 13, 2010, Radau was indicted for capital murder, with robbery as the

underlying felony.    A jury found him guilty, and the judge sentenced him to life

imprisonment. Radau appealed.

                                        Discussion

       I.     Sufficiency of the Evidence

¶11.   While Radau admits he killed Pickell, he argues the evidence was insufficient to show

the killing occurred during a robbery. We disagree.


matched Pickell’s DNA. Blood on Radau’s underwear also matched Pickell’s DNA.
       3
         Kinberger testified Radau had a hundred and some twenties. $342 in cash was
recovered from Radau, which was admitted into evidence.
       4
          Several photographs of the scene were admitted into evidence. One showed
Pickell’s bloody body in the recliner. There was blood spatter on the walls, blinds, and
ceiling. The cause of death was determined to be massive head injury from multiple blows
to the head, laceration of the scalp, and brain damage.

                                             4
¶12.   In considering the legal sufficiency of evidence, we consider all evidence in the light

most favorable to the State. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). And

“[c]redible evidence consistent with guilt must be accepted as true.” Davis v. State, 130 So.

3d 1141, 1150 (¶37) (Miss. Ct. App. 2013). “We are instructed to give the State the benefit

of all favorable inferences reasonably drawn from the evidence.” Id. (citing Jones v. State,

20 So. 3d 57, 64 (¶16) (Miss. Ct. App. 2009)). Weight and credibility are matters for the jury

to resolve. Id. “Reversal is proper when reasonable and fair-minded jurors could only find

the accused not guilty.” Id. Our task is to decide if a reasonable juror could not possibly find

the defendant guilty based on the evidence presented. Id.

¶13.   Our review shows Radau’s jury was properly instructed on capital murder during a

robbery.5 Capital murder is the “killing of a human being without the authority of law by any

means or in any manner . . . [w]hen done with or without any design to effect death, by any

person engaged in the commission of the crime of . . . robbery[.]” Miss. Code Ann. § 97-3-

19(2)(e) (Rev. 2014).



       5
           Jury Instruction S-2A states:

       If you find from the evidence . . . beyond a reasonable doubt that: . . . [Radau]
       did . . . willfully, unlawfully, feloniously and with or without deliberate design,
       . . . kill and murder [Pickell], a human being, without authority of law, . . .
       while in the commission of the crime and felony of [r]obbery as defined by
       [s]ection 97-3-73, . . . in that [Radau] did . . . willfully, unlawfully and
       feloniously, with intent to permanently deprive the owner thereof, take, steal,
       and carry away the personal property of [Pickell], from the presence and
       against the will of the said [Pickell] by violence to his person, then you shall
       find [Radau] guilty of capital murder.

                                               5
¶14.   To establish robbery, the State had to prove beyond a reasonable doubt that Radau:

“(1) feloniously took (2) the personal property of another (3) in his presence or from his

person and (4) against his will, (5) by violence to his person or putting such person in fear

of some immediate injury to his person.” Batiste v. State, 121 So. 3d 808, 842 (¶63) (Miss.

2013). “The element of felonious intent may be shown by the facts surrounding the crime.”

Id. at (¶64). When a person is found with a “dead victim’s personal property, the jury

reasonably may infer that the defendant had the requisite intent to rob.” Id.

¶15.   Here, Kinberger testified that she and Radau went to Pickell’s house to rob him. They

backed their car into a parking space before approaching the apartment. And once inside,

Kinberger looked for something to steal. When she reappeared in the living room, she saw

Radau with cash in hand, as he beat Pickell to death with a bat. She also noticed Pickell’s

pants pocket was inside-out. Kinberger recalled Radau counting the stolen cash. And law

enforcement recovered cash from Radau the next morning. They also found the stolen blood-

stained bat. Considering this evidence in the light most favorable to the State, the underlying

robbery was clearly proven.

       II.    Weight of the Evidence

¶16.   Radau also insists the verdict was against the overwhelming weight of the evidence.

His weight-based challenge is identical to his attack on the sufficiency of the evidence.

When a weight-of-the-evidence argument is made, we weigh the evidence “in the light most

favorable to the verdict.” Bush, 895 So. 2d at 844 (¶18) (citing Herring v. State, 691 So. 2d

948, 957 (Miss. 1997)). We will disturb a verdict only in those rare cases where “it is so

                                              6
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice.” Id. For the same reasons we found the State sufficiently

proved robbery, we likewise find the robbery-based capital-murder guilty verdict was by no

means against the weight of the evidence. We affirm.

¶17. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT
THE POSSIBILITY OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO HARRISON COUNTY.

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




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