FILED

MAY O1 2023
Serial: 245732 OFFICE OF THE CLERK
SUPREME COURT
COURT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

No. 2022-KA-00988-COA

ANTHONY GERALD FOX Appellant

v.

STATE OF MISSISSIPPI Appellee

EN BANC ORDER

This matter comes before the Court en bane on Anthony Gerald Fox's motion for bail

pending his direct appeal ofhis conviction for culpable negligence manslaughter. The Hinds

County Circuit Court denied Fox's request for bail pending appeal. The matter is now before

this Court by Fox's motion pursuant to Rule 9 of the Mississippi Rules of Appellate

Procedure. We review the circuit court's denial of appeal bail for abuse of discretion. Parks

v. State, 228 So. 3d 853, 872 (~174) (Miss. Ct. App. 2017).

"A person convicted of any felony, [other than felony child abuse, sexual battery of

a minor, or any offense in which a sentence of death or life imprisonment is imposed,] shall

be entitled to be released from imprisonment on bail pending an appeal to the Supreme

Court, within the discretion of a judicial officer[.]" Miss. Code Ann.§ 99-35-l 15(1)-(2)(a)

(Rev. 2020). Thus, Fox is not necessarily prohibited from being released on bail pending his

appeal. However, he must first show "by clear and convincing evidence that [his]

release ... would not constitute a special danger to any other person or to the community."

Id. Second, he must show "that a condition or a combination of conditions may be placed
on [his] release that will reasonably assure [his] appearance ... as required." Id. Finally, he

must show that "the peculiar circumstances of the case [must] render it proper." Id. "Clear

and convincing evidence is so clear, direct, weighty, and convincing that it enables the fact

finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the

case." Koestler v. Koestler, 976 So. 2d 372, 381 (131) (Miss. Ct. App. 2008). "Clear and

convincing evidence is such a high standard that even the overwhelming weight of the

evidence does not rise to the same level." Id.

After a full consideration of all matters before the trial court in this cause, the trial

court found that Fox's "release would constitute a special danger to a person or to the

community" and that "there are no peculiar circumstances of the case that render it proper

for the convict, Anthony Fox, to be released after a felony conviction for manslaughter

pending an appeal to the Supreme Court."

After due consideration of the matters presented, we find that the circuit court did not

abuse its discretion when it denied Fox's request for bail pending appeal.

THEREFORE, the appellant's motion for bail pending appeal is denied.

SO ORDERED, this the /

efday of May, 2023.

H. EMFINGER, J
THE COURT

TO DENY: WESTBROOKS, McDONALD, cCARTY, SMITH AND EMFINGER, JJ.

TO GRANT: BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE AND

LAWRENCE, JJ.

2
CARLTON, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN
STATEMENT JOINED BY BARNES, C.J., WILSON, P.J., GREENLEE AND
LAWRENCE, JJ.

3
 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-00988-COA

Anthony Gerald Fox

v.

State of Mississippi

CARLTON, P.J., OBJECTING TO THE ORDER WITH SEPARATE

WRITTEN STATEMENT:

11. I find that the circuit court abused its discretion in denying Anthony Fox's motion for

bail pending appeal, and I therefore object to this Court's May 1, 2023 order.

12. Mississippi Code Annotated section 99-35-115(1)-(2)(a) (Rev. 2020) provides that

"[a] person convicted of any felony, [other than felony child abuse, sexual battery of a minor,

or any offense in which a sentence of death or life imprisonment is imposed,] shall be entitled

to be released from imprisonment on bail pending an appeal to the Supreme Court, within

the discretion of a judicial officer[.]" In order to be released on bail pending his appeal, Fox

must first show "by clear and convincing evidence that [his] release ... would not constitute

a special danger to any other person or to the community." Id. Second, he must show "that

a condition or a combination of conditions may be placed on [his] release that will reasonably

assure [his] appearance ... as required." Id. Finally, he must show that "the peculiar

circumstances of the case [must] render it proper." Id. We review the circuit court's denial

of appeal bail for abuse of discretion. Parks v. State, 228 So. 3d 853, 872 (174) (Miss. Ct.

App. 2017).

13. Although Fox bore the burden of proof on his motion for bail pending appeal, the
circuit court stated that not all of Fox's witnesses would be allowed testify at the hearing.

The circuit court did, however, indicate that it would consider the affidavits and letters that

were submitted. During the hearing on Fox's motion for bail pending appeal, he called five

witnesses, each of whom clearly stated they did not believe Fox was a special danger to the

community. The record reflects that Fox was released on a $250,000 bond during the entire

pendency of his trial, and testimony from the bail hearing showed that Fox was employed by

the Clinton Police Department until he was convicted. Although the prosecution argued that

Fox did not meet his burden of proof in his motion for bail pending appeal, the prosecution

did not rebut Fox's evidence in any way. In fact, the prosecution did not call any witnesses

who testified that Fox presented a danger to the community. The prosecution also presented

no other documentary evidence of any type to rebut Fox's evidence that he presented no

special danger to any other person or to the community.

14. Additionally, in response to Fox's September 2022 motion asking this Court to grant

bail pending appeal, the Attorney General's office initially stated that the State does not

oppose Fox's request. However, George Robinson's family subsequently filed a response

opposing Fox's request for bail pending appeal. This Court ultimately found Fox's motion

to be premature and entered a panel order stating that the circuit court should address Fox's

request for bail pending appeal before this Court considers the issue. As stated, on remand,

the prosecution argued that Fox did not meet his burden of proof for bail pending appeal

pursuant to section 99-35-115(2)(a). However, the prosecution failed to call any witnesses

or present any documentary evidence to rebut Fox's evidence.

2
15. At the conclusion of the hearing on Fox's motion in the circuit court, the court found

that there were "individuals who took the stand that threatened the [circuit court], threatened

the [circuit judge], [and] threatened those that were on the jury." However, no such evidence

was presented during the hearing on Fox's motion for bail pending appeal, and no evidence

of any threatening behavior by Fox was presented during the bail hearing or at trial.

Although there was testimony that Fox's wife damaged a prosecutor's vehicle and that a

spectator in the audience shouted expletives after the jury announced Fox's conviction,

nothing supports a conclusion that these individuals did so at Fox's behest. Nevertheless, the

circuit court denied Fox's request for bail pending appeal after finding that his "release

would constitute a special danger to a person or to the community[,]" and "there are no

peculiar circumstances of the case that render it proper for ... Fox ... to be released" after

his felony conviction.

16. Because the State presented no evidence to rebut Fox's evidence that the conditions

placed on his release would be sufficient to assure his appearance and that Fox did not

present a special danger to any other person or to the community, in accordance with section

99-35-115(2)(a), I find that the circuit court abused its discretion when it denied Fox's

request for bail pending appeal. I would therefore grant Fox's motion for bail pending

appeal.

BARNES, C.J., WILSON, P.J., GREENLEE AND LAWRENCE, JJ., JOIN

THIS SEPARATE WRITTEN STATEMENT.