McCalpin v. State
| Docket Number: | 2011-CP-00269-COA Linked Case(s): 2011-CT-00269-SCT ; 2011-CT-00269-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-14-2013 |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2012 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Revocation of post-release supervision - Felony stalking - Section 97-3-107 Judge(s) Concurring: Lee, C.J., Barnes, Ishee, Roberts, Maxwell and Fair, JJ. Dissenting Author : Russell, J. Dissent Joined By : Irving, P.J. Concurs in Result Only: Carlton, J., concurs in result only without separate written opinion Procedural History: PCR Nature of the Case: PCR Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 01-21-2011 Appealed from: Tishomingo County Circuit Court Judge: James L. Roberts Disposition: POST-CONVICTION RELIEF DENIED Case Number: CV10-0225-R-T |
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| Note: | On 2/14/2013, the Supreme Court dismissed this appeal. The SCT opinion can be viewed at http://courts.ms.gov/Images/Opinions/CO83068.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Jay McCalpin |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Revocation of post-release supervision - Felony stalking - Section 97-3-107 |
| Summary of the Facts: | Jay McCalpin pled guilty to one count of fondling and two counts of sexual battery. He was sentenced to ten years, with seven years suspended and four years of post-release supervision. During the period of his post-release supervision, McCalpin was arrested and charged with felony stalking. MDOC initiated revocation proceedings following McCalpin’s arrest. McCalpin’s post-release supervision and suspended sentence of seven years were revoked. McCalpin was sentenced to four years and three years of post-release supervision. McCalpin filed a motion for post-conviction collateral relief which was denied. He appeals. |
| Summary of Opinion Analysis: | McCalpin argues that his post-release supervision was unlawfully revoked because the State had failed to prove that a crime had been committed and that it was more likely than not that he had committed the crime. However, there is ample evidence to support the circuit judge’s finding that it was more likely than not that McCalpin followed a girl. His vehicle was identified by the girl and her mother. His license plate matched the partial number seen by a witness. And McCalpin’s only alibi witness was a family member. There is evidence to support the circuit judge’s conclusion that the crime of felony stalking was committed. The circuit judge conceded that there was no evidence of any repetitious actions by McCalpin under section 97-3-107(1). In fact, the girl emphatically stated that she had never seen the man before. Instead, the circuit judge held that McCalpin had engaged in wilful and malicious harassment of the girl. Section 97-3-107(4) provides that a person “harasses” if he engages in “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.” Further, “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” There is sufficient evidence to show that McCalpin’s conduct was composed of a series of acts over a short period of time that evinced a continuity of purpose. The girl testified that McCalpin passed several cars at a high rate of speed and began to follow her closely. He continued to follow her as she pulled off of the highway into a parking lot. He parked directly behind her so that she could not move her vehicle. He continued to stare at her as her mother addressed him. Even after he began to leave, he stopped his car again to continue to stare at the girl. It was not until he was chased by a witness that McCalpin left the girl’s presence. The investigator used the phrase “scared to death” to describe the girl’s state of mind after the incident. This evidence further supports the circuit court’s finding that the State had met its burden to revoke McCalpin’s post-release supervision. |
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