UPDATE: Tharp decision delayed until Monday on assault claim

By Patsy R. Brumfield / Daily Journal

TUPELO – A Monday decision was promised on whether Tupelo attorney Kirk Tharp committed simple assault on a teenager Sept. 10.
Tharp was accused of simple assault during an alleged disturbance Sept. 10 at Mooreville One Stop.
Kurtis Yarbrough, then an 18-year-old Itawamba Community College student, claims Tharp grabbed him outside his vehicle and choked him after he and two others drove up to buy gas at the business.
Tharp insists Yarbrough instigated a confrontation by repeated verbal insults and threats, which Tharp said he could not explain from someone he didn’t know.
Tharp is represented by Harry Sumner and Victor Fleitas of Tupelo. Yarbrough is represented in a civil lawsuit against Tharp by Jamie Franks and Bill Wheeler of Tupelo.
County prosecutor James Moore represented the state and Yabrough’s complaint.
Recently, a circuit judge delayed any action in the civil suit until Tharp’s criminal case is resolved.
In the audience before the trial began was Brandon attorney John Toney, director of the Mississippi Commission on Judicial Performance. MCJP addresses complaints against state judges.
Tharp has been Mantachie’s municipal judge, as well as Sherman’s prosecuting attorney.
• • •
(Below is a running account of Thursday’s hearing in Lee County Justice Court with Judge Sadie Holland presiding. Please excuse the typos and glitches likely as I type rapidly.)
5:22 – Judge Holland in courtroom. Yarbrough a frail looking young man wearing hearing aids. Tharp a robust, tall adult. James Moore is prosecutor in this case.
Holland swears in various witnesses before testimony begins. Yarbrough takes the stand.
Moore meets at bench with other attorneys and asks to amend complaint, which reads “causing a disturbance,” rather than causing bodily injury. Fleitas says it is ambiguous but they are prepared to defend against a simple assault charge.
Moore goes on the record with a motion to amend the complaint, says he notices it doesn’t alleged causing bodily injury. Ask to amend it to be clear under 97-3-7(1)a which is simple assault causing bodily injury statute.
Fleitas says affidavit is defective because it fails to state the real charge. NHow the state notes which charge they will proceed on. We will waive defective indictment and go forward. Ask that it be subscribed to by Yarbrough by initialing the affidavit. (He does so.)
MOORE asks – YABROUGH, 19, of Mooreville.
YARBROUGH – 5’8” weighs 130. (Identifies Tharp at defense table) Lives with his grandparents, Bill and Betty Quigley. In school. Went to Mooreville HS. Finished 2012.
MOORE – Before Sept. 10, di dyou know him? (no)
YARBROUGH – 7:30 a.m. at Mooreville One Stop, Monday. Woke up about 7 a.m. at grandparents. Two friends stayed at house too. David Walls and Michael Davis, both 19. (describe?) David shorter. Michael taller, weighs more than me. (When woke up, went?) One Stop. With David and Michael. Been there many times. Live about 2 miles from there. Been going there 6 years. (Involved with other altercations there?) Yes. (When?) About a year before.
(Other times?) No. (Altercation before, anyone hurt?) No. Verbal altercation. (Sept. 10, 2012 – you arrived, where did you go?) Went to gas pump. I was driving my car. Windows up.
VIDEO to show what happens after Yarbrough arrives at the store.
YARBROUGH says he’s seen video with Moore. Tharp is near his vehicle. 26 secs later, Yarbrough’s vehicle comes into view and stops at gas pump at 30 secs. (When car comes to stop, are you windows up or down?) Up. (You’re driving?) Yes, two others in car. One in front, one in back. (David in front, Michael in back.) Windows up. (Parked, Tharp?) He’s at his driver side door. (Your car is parked behind his truck?) Yes.
(Where was Tharp on 30 sec?) At truck. By door. Now, he’s by rear door. (Moving toward your car?) Yes. (Pulled up, what doing in car?) Just talking. (Radio?) No. (Talking about?) Don’t remember. (Arrived in parking lot, did Tharp get your attention? As you got there?) Yes, Mr. Tharp. No one else. (Forward video 1 sec, now tell me when door starts to open?) Just did. (Sec 32?) Yes. Stopped 2 secs. (2 secs ago, Tharp?) At his truck, by his front door. (2 secs later?) He is at rear tire.
(How much time went by when you came to stop until Tharp walked to rear time?) 2 seconds. (Time you came to stop until your door opened?) 2 secs. (Did you see Tharp come toward you?) LEADING (Did you say anything to him?) Did he have a problem with me or know me? He was looking at me and coming toward me. (Tharp say?) Not really. (More video. Tell me to stop when you see Tharp at your car.) Now. (Paused on 37 secs. which is 5 secs further along?) Yes. (So, 5 plus 2 is?) Seven.
(You’ve been stopped how long when Tharp was atyour car?) 7 secs. Asked him, do I know you or do you have a problem with me? (Did he respond?) No sir. (Didn’t respond?) No. (More video … we’re 7 secs into it from when you stopped at gas pump. Where are you?) Inside my car, in driver seat. (What wearing?) Shorts, polo jacket. (Have anything in car that anybody would consider dangerous?) No. (More video. Tell me when you exit the car. I will stop.) Now. (Timer says 57 secs, I probably had a second or two delay. You’re out of car?) Yes. (He’s at your car door in about 18 seconds.)
(What was said between him and you during those 18 secs?) You don’t know you. Called me the N word. I’ll kill you. Stuff like that. (Demeanor?) He was angry. Loud, real loud. (He used the N word. What is your race?) Bi-racial. (What did you say to him?) What did I do to you? Why are you coming at me? I don’t know you. (Were you shouting?) Yes, toward the end. (When you got out, what happened?) He slammed the door. (When he slammed it, did it strike anything?) My leg. (Video shows slam, will stop it when it hits your leg. Did it cause injuyry?) Yes. Cut hole in my leg, on my shin. Still there. (He comes around to show the injury.) (Moore says it’s a scar in his shin.)
(Did it bleed?) Yes sir. (Video rolling, watch and tell me what we saw. After door slammed. Watch the altercation and I’ll have questions.) Yes sir. (Tell me when you see you and Tharp separate.) Now. (How did you separate?) My friends pulled us apart. Michael Davis. (Do you see a size difference between yourself and Mr. Tharp in the video?) Yes. 5 inches, 150-175 pounds. He weighs 220-230. (Timer on 1:15. Earlier, you stated you got out of car at 55 secs?) Yes. (Do math – how long were you tangled up?) 20 seconds. What video shows.
(You watched video. Is that the end of the physical contact?) Yes sir. (Everybody’s watched it. Ever see yourself during that time with Tharp, what did you do to him?) Nothing, I was trying to get away. (What was he doing to you?) Throwing me around. on ground. Hands on my neck, choking. (Other injuries?) Scratch on neck, that’s about it. (How did you feel while this was going on?) I was scared. (How many days a week do you go to store?) At least three. (Ever been banned there?) No sir. Going there 6 years.
(Know owner of store?) Jesse. (I’m goign to play the rest of the video and will ahve some questions. Watch yourself and Mr. Tharp. Right now, appears 5 people visible in that screen?) Yes. (Know them?) No sir. (It’s you, passengers, Tharp and someone in a red shirt. Know him?) Not really. Know of him, don’t know him. (Anyone else?) No sir. Shown entire physical altercation.
(Another person walks out in blck shirt. Who is that?) Gene. (Paused it at 1:40 point. Altercation stops at 1:15. Where are you?) By side of car. (Tharp?) Over by pumps toward the front of his truck. (Distance?) Yes. (Now, paused at 1:47 secs. Where are you?) Still by my car. (Tharp?) Walking back toward me. (What is he doing?) Coming back to talk or more trouble. (What’s being said after separated?) Yes. He was cussing everybody. I was looking for my hearing aids. (Why wear them?) Born with deafness. (Why looking for them?) They got knocked out.
(Now, it’s 1:52. Where are you?) At front of car. (Tharp?) At gas pump. Talking to everybody. Looking toward me. (Now 1:56. Gene… what’s his last name?) I don’t know. (Gene, where is he?) On other side of me… between me and Mr. Tharp. (Appears to be blocking anyone?) LEADING – prosecutor’s been testifying all trial Fleitas says.
(More video. Who is having words at 2:13?) Gene and Tharp. Toward each other. (More video. Paused 2:58. Where are you and friends?) In my car. Looking for hearing aids and phone. (Where is Tharp?) Back at his truck. (More video. Pause, where is Tharp’s truck? 3:54) Driving away. Now we’re outside my car. (I see at 4:02, describe what you see?) In car looking for phone and hearing aids. (Friends?) I’m looking down. (Tharp’s truck?) Driving away. (Anyone looking at Tharp?) No sir.
(Now, what are you doing?) Looking under my car, down on hands and knees. (Now 4:34. Looking at a view, do you see Tharp’s truck?) On other side of parking lot, talking to Gene. (Do you know his last name?) No sir. (Started moving your car?) I had to get gas and I wasn’t pulled up all the way. (Paused, saw person walking from your car toward where you said Tharp was. Play some more. Now 4:41. Who is that?) Me. (Why/) Realized phone was in my pocket and screen was shattered. (Identify this?) It’s my phone screen. (Shattered cell phone screen).
(Also, what’s in bag?) My hearing aid. Left one. It’s broken too. When got knocked out. (You’re wearing two today. Is one OK?) Yes. One broke back then. (How many do you have?) Four. Other one got lost after I found this one. Two got knocked out. Found them both. One broke. (More video. You said walked toward Tharp because cell phone was broken. Now back at car. Ever leave screen of video?) No. (Did Tharp’s truck ever come back into video?) No. Still talking to Gene.
(Your honor, I’m done with video. Would you like to see it again?) JUDGE – I’ve seen it.
(WHAT HAPPENED AFTER THAT?) He left. I didn’t leave. Stayed 30-45 minutes. Air in tires, asked if I wanted to press charges. The county sheriff’s department. (Did you call them?) No sir. (Ask anyone to?) No sir. (Did they question you?) Yes. Told them what happened. (Who you talked to?) No sir. (FLEITAS – Says this affidavit document is hearsay. This is classic. It cannot be admitted. I can be used but not as an exhibit.)
(Moore – exceptions for hearsay. This is Lee document, to prove he reported the incident and that it is part of the court record.) FLEITAS – He can say what he told the officer. It doesn’t get admitted through a document. If he wants to say what he told the officer. Document itself is hearsay because an officer wrote it down. (MOORE – This says what he told the officer.) FLEITAS – Huge difference. This document is not sworn. I can’t croxx-exmine this officer of this statment. If Yarbrough says what happened, I can cross examine him.
(MOORE – What did you tell officer?) (Yarbrough reads the affidavit… Says he really can’t read it. Tries to do so.) (Moore – had anyd ealings with Mr. Tharp since then?) Saw him in another store. Once. (Did you do anything at all to give him a reason to come to your car?) No sir. I asked him if he had a problem. (Can yo make someone so mad they want to attack you in 5 seconds?) No sir. Store in Lee County.
6:30 – FLEITAS to question Yarbrough
(Can you hear me well?) Yes sir. (Try to speak up when you respond.) (Know Greg Eid?) Yes. Know him. (Ever on social media. Facebook?) Yes. (YouTube?) Video on there a few years back. (What kind?) A fighting video. (You…are you nonviolent, peaceful?) Yes. (Well, did you put videos of you fighting so whole world could see it?) Yes. (Were you in those fights?) Yes. (Did you know they were being filmed?) No sir. (Fights with buddies for fun? Know what we’re talking about?) I know.
(Does a peaceful person post videos of fights with friends?) I was young then. I made a mistake. (Did you make one on Sept. 10?) No sir. (Isn’t that just one in a series?) OBJECT – This is a fishing trip, not something about Sept. 10. We’ve all made mistakes. This is irrelevant. He and friends fought for sport. OBJECT as irrelevant.
(Fleitas – was that fun? Did you charge admission?) MOORE – Irrelevant. (Fletas – Hes claiming he was a peaceful person. No explnation why Tharp would have interacted with him. he’s already admitted he was in fights with friends. For court to determine relevance.)
JUDGE – Let’s stick to what we’re here for. (Fleitas – but he’s had episodes of violence.) MOORE – Only videos, two years ago. Not relevant. IFleitas – charcter for violence is developed over time … is relevant. If he wants to say it was just wrastling… will be happy to show the degree of violence. Would be shocking to the court. Or he can deny them. Which way do we want to go? Can I ask this witness questions? Goes to his believability.)
MOORE – Sure all of us want your whole past dug into over a simple assault case on Sept. 10. What he’s done with friends … regardless, something years ago with him and buddies. Totally irrelevant. Seen video and it speaks for itself. Two years ago, I object to it.
JUDGE – let’s stick to simple assault charge.
FLEITAS (YOU SAID, I pulled into gas station with buddies. Haven’t said anything. Open car door. Tharp comes to car. He attacks me.) I pulled in to station with friends. He was looking at me in weird way. I say what he’s looking at me. I asked if he had a problem with me. (You get out?) No I stayed there. He’s yelling at me. (I didn’t say anything?) I said I’ve never seen you. (You pushed door open so Tharp had to take a step back?) I opened the door. I felt threatened. I was getting out. (Did he reach at you through the window?) No. (The window was shut. All you had to do was shut the door? Isn’t that what you could have done?) NO, not while he was yelling at me. He touched the door. I was just getting ready. (Because you’re brawler, aren’t you?) No. (He didn’t hit you. He never swung at you?) (You say it was self-defense. You pushed door open.) He was right there by door. (Fletias stands by Yarbrough…. door betwen you and him. You say he’s pointing You say you’re threatened. So, you shut the door? Right?) Probably what you do. In reflex. (According to you, all he’s doing is saying words to you?)
MOORE – HE’S BADGERING THE WITNESS. TRYING TO INTIMIDATE HIM.
FLEITAS (You don’t shut the door. You open it and Tharp goes back?) Correct. (You come up out of the car?) Yes. (You don’t come up, like hey man, this is cool. You come up ready to fight?) No, ready for him to hit me. How do you tell that? (But he doesn’t hit you.) Ithought he was going to. He was choking me and stuff. (You come out of the car at him.) Not AT HIM. (More words exchanged between you between time you got out of the car and the physical contact. Didn’t you tell him?) Tell him what? (When you opened the door, you didn’t like the way he was looking atyou and you began with MF this and MF that?) No. (When he came back you said, you don’t kinow who I am, I’m going to F you up?) No. He was already coming at me.
(There’s three of you in that car. You come up out of the car at him.) Not at him. (He’s seeing you come out and he shuts the door.) He grabs me around the neck. I never threatened him. He said he was going to kill me. (I’m a little troubled about this, Mr. Yarbrough. This happened on Sept. 10?) Yes. (OK, look at this document. What is this?) MOORE – a copy of a civil lawsuit. I am aware it has been filed. It’s in circuit court, it’s totally different. Object to this being used to gain leverage or any other advantage. It’s irrelevant today for him to explain about it.
FLEITAS (THIS IS SIMPLE. Seeking monetary damages after two days. Goes to his bias or his motive to providing testimony. Second, in complaint he makes factual allegations about what happened that day. I’m entitled to question him about veracity. They are “admissions” I can question him about and impeach him, if it come to that. And to his motive for being here.)
MOORE – Civil suit is irrelevant. He’s testified, lost hearing aids. Probably expensive. But being sought through the civil suit. We’ll be here all night if we try that lawsuit. (Fleitas – he signed affidavit and says it’s true. This is a matter of a man’s liberty. We were required to be here last).
FLEITAS – If he’d gotten on news and said this, I certainly could ask him about that. Same with this document. Basic rules of evidence. STATEMENTS in the complaint were about what happened on Sept. 10.
JUDGE – OK I’m going to allow you to question him about this, but we’re not going into a lot of detail.
FLEITAS (WHAT IS THIS DOCUMENT?) Yarbrough – yes. A complaint. (What is that?) When you complain about something. (Aren’t you suing Mr. Tharp? You want him to give you money?) Yes. (MOORE – As he demonstrated, he has no idea what this is. He isn’t an attorney.
FLEITAS – One more question. What is this document?
YARBROUGH – I was told to sign it. (Was it exp[lained/) MOORE – Getting into attorney client privilege. (Fleitas – I asked him if he knew what he was signing.) Told me to sign it and I signed it. Knew what I was signing. (Did you ever read it?) MOORE – your honor – again I object. Sure he’s gotten legal advice from counsel. Don’t think he’s capable to answer questions about it. He said what he signed was on advice of counsel. Let’s keep the two cases separate.
JUDGE – LET’S get backto our assault case.
FLEITAS – (One other thing, you made terrible allegations about Tharp using the N word. Do you know if you said that in your complaint?) I don’t remember. They said, sign it. I did. (Don’t know what’s in complaint?) No sir. (You spoke to a deputy after it. Todl him about incident?) Yes. (He asked you what Tharp told you? You told him?) Yes. (You said Tharp used the N word? One of the most terrible things a person can say? Did you tell the officer that?) Yes sir. (Why isn’t it in his report?) He wrote it. (If you told an officer that this man told you it, why isn’t in the report?) I don’t now.
(You say that Mr. Tharp hit you with his fist?) Fist, hands something. (I never saw him strike you.) I will show you on video. (….THEY WATCH VIDEO AGAIN)
FLEITAS – (yarbrough – right there, that’s it) (Fleitas – It looks like he’s trying to hold you back from striking him?) I was trying to get away. (Why did you come up after him out of the car?) I didn’t attack him. It’s my reflexes. I’m not going to be sitting down when he hits me. MOORE – OBJECT to Fleitas continuing to argue with him. He’s asked and answered several time.
FLEITAS – (Isn’t it true, Mr. Tharp was at gas station. You pulled up and saw a guy in a suit … maybe he looked at you funny … maybe didn’t… you got mad at him?) Not true. (You began mouthing off and dog-cussing him?) Not true. (He came to find out why?) Not true. (While he was asking you, you came up after him?) Not true. (Tharp trying to make sure tht you and your THUG FRIENDS were …. OBJECT)
FLEITAS – (What are those tattoos?) OBJECT (What is that ring around your head, it’s like a halo?) I wear a cap. OBJECT TO RELEVANCE. (Wear cap backward?) Backwards, frontwords.
JUDGE – this is frivilous
FLEITAS – (Now, you say that you were injured in this incident, correct?) My leg was bleeding. (I looked at the video, can’t see it.) I was mad and looking for my hearing aids. (You are so mad, you start chasing after Mr. Tharp while he was driving off?) Mad when saw my phone was broken. (You’re afraid of him?) I am. (So you chase him?) My brand new phone was broken. (When caught him? What were you going to do?) I STOPPED AND TURNED AROUND.
MOORE – OBJECT – he just answered. FLEITAS – IT’S IMPORTANT, what he’s thinking. He says he’s scared but video shows he’s chasing after Tharp.
FLEITAS – (Were you showing off for your friend? Were you impaired that morning? Dope, pills, booze?) No. (You do that?) MOORE – OBJECT (Fleitas – isn’t that true that you were stopped with marijuana?) MOORE – OBJECT
JUDGE – Let’s move on.
FLEITAS – All right, your honor.
FLEITAS – I TENDER THE WITNESS.
MOORE – A few followup questions. (When you were sitting in your car. I’m Tharp. Wehre was he standing?) right here. (Did he ever reach his arm between car frame and door?) Yes, 2-3 times. (Fleiast asked asbout shutting door?) His hand was there. (Did you take a swing?) Push him?) No, I couldn’t do that. He’s bigger than me. I’m 130 pounds. (How old are you?) 19. (Aren’t you a minor?) Yes sir. (Did your buddies try to get out and beat him up?) No, tried to stop him. (Hit him, choke him?) No. (Mr. Gene?) No.
7:04 p.m. – Moore completes questions. Says 2 quick witnesses. Call Mr. Gene.
FLEITAS – We may want to call him. We ask affiant to leave. He’s not allowed to remain in the courtroom. He’s a witness. MOORE – It’s alwasy been practiced in our court. But state is party. Bringing case because he signed the affidavit. FLEITAS – Rules of evidence … JUDGE – WE WILL ALLOW HIM TO STAY.
ROBERT EUGENE BRAGG – (Moore to question – at One Stop that day) Said a fight outside. I was eating breakfast. I’m 37, too old to be his friend. Live in Moroeville, all my life. Got outside, they were separated. Didn’t now Tharp. But Tharp was arguing with a woman off to the side. Hers was by his car. I walked out and somehow Tharp comes back toward Kurtis. I stepped in and held my hand up and told him to leave. Tharp started calling me a cowboy, I needed to move out of the way. He was walking toward Kurtis. Got him to his truck, he got in. Drove 10-15 feet. Stopped and talked to someone else. He was saying something about this kid, was going to get him. He called me a punk bitch. He drove off. (Told other guy) Said he had heard about this kid and was going to get him. Mr. Jimmy Hicks was person he told.
(Told hicks he heard about kids. What do you know?) They come to store, hang out and leave. Kurtis didn’t cause any trouble. (He called you cowboy and PB?) Yes. (What was Kurtis doing?) He was looking for his hearing aids. I told Kurtis to leave but he told me he was looking for them. (How as he acting?) Like he didn’t know what happened. He was stunned. Like everybody else. (Tharp[ talking to woman?) Yes, she said he should know better than to jump on a boy, that he was a larger man. She was louder than he was. Don’t know who she was.
7:11 – FLEITAS – (Mentioned you’re 37, live in Mooreville. Went outside, they were separated.) I didn’t see an altercation. (Say … doyou work there?) No. (Did you tell Tharp you worked there?) Thought it would calm things down. (Did you say you need to get the F out of here, I’m going to K your A?) No. (What do you do?) Nothing. (You feel compelled to come up to Tharp and lie about wher eyou work? Then, he was arguing with woman but she was louder…?) It was back and forth. (Didn’t you grab his truck so he couldn’t leave?) No sir. (Never went to truck?) When I put him in his truck. Didn’t hold him down. (You aren’t law enforcement. You got no job.) He was coming back. I wanted to stop a fight. (Didn’t Kurtis come back around pump toward Mr. Tharp?) No sir. (Fleitas – let me show him a piece of the video. at 1:43. What’s he doing?) I stopped him. (Back to Yarbrough?) Yes. (You’re facing Tharp, that Yarbrough comes around pump taking off his jacket?) Yes, if grown man went at me I’d do the same. (MOORE – OBJECT TO SNIDE COMMENTS) (Fleitas – Tharp come to pump. There’s witness. There’s Yarbrough. Did Mr. Yarbrough not, when youwere facing Tharp, come at Mr. Tharp?) Not the way I see it. (I’m telling you ….. MOORE – WE OBJECT… ) (FLEITAS – Did you not just see Yarbrough coming back on Tharp?) Well, Yeh, on that. (So maybe what you see and what you were shown aren’t correct?) He approached first. (Did Yarbrough start back at Tharp>) Yes, I would have too.
MOORE – No re-direct.
7:18 – Moore – calls next witness
ANGIE WOOD – Works at Mooreville One Stop, several months. Lives in Mooreville. Partime for 6 years, more than part-time for several months. Changed ownership recently. (Were you working Sept. 10 incident?) Yes sir. Cashier. Can see some at pumps, other side just vehicles. Didn’t see altercation. Saw a gathering of people, made me think something was going on. (Normal?) Felt like something was up. I knew Mr. Tharp was an attorney. Knew something was up. (Seen him before?) Comes in from time to time, not often. Maybe once every 2-3 months. Not regular. (Yarbrough?) Probably once or twice a day. He was welcome. Always welcome. (Trouble/) I haven’t. (Trouble at store that would make anyone not want him there?) No. Don’t want troublemakers are the store. Don’t tolerate it. (Schoolchildren there often?) Yes. Couple of miles from school,
FLEITAS – Think this has gone fairly far afield. She says she didn’t see anything.
MOORE – (youg people hang out?) Yes. (Day in question, what did you do?) I got my phone and went outside. Heard a lot of hollering. Told them to stop and leave or I was calling the law. (Hollering… who?) Both parties, I guess. (Shouting from both?) At time I was out there, they were not communicating with each other. Tharp was with another customer, a lady. Kurtis was at his vehicle. (Who were you talking to?) Think … I wasn’t sure what was going on .. and a lot of yelling. Wasn’t directing it to anybody. I just told them to stop it. We haveyoung children coming in. I didn’t care who it was. I wanted it to stop. I went in and called the law.
(Was Mr. Gene there?) Don’t remember. (Hear Kurtis say anything?) No. (tharp?) He was speaking loudly to female customer. She was kind of scolding him. He was telling her that he wasn’t going to let anybody talk to him that way. I called the law. (Why?) Because they weren’t immediately leaving. When there’s a fight, I tell them to leave or I’m calling the law. (What was Kurtis’ demeanor when you went outside?) Kurtis seemed a little upset. At time, I didn’t know what was going on. I could tell Tharp was upset,but I wasn’t paying a lot of attention to Kurtis. A lot was happening. My main concern was to get all aprties away and tending to customers on the inside. (Told sheriff?) At first I thought it was kids jumping on Kirk,then later understood it was Tharp on Kurtis. That’s what I told sheriff’s dept.
7:28 – FLEITAS – (Didn’t see altercation?) No. (But told deputy that Tharp jumped Kurtis?) I first thought it was kids, but than once I went outside it seemed it was Mr. Tharp in altercation with them. Because he was upset and speaking to other customers. (Because he was upset has nothing to do with who started it?) I don’t know who started it. (Hesitated about incidents with Kurtis?) One incident, but Kurtis didn’t start that. Someone else jumped him. (About Tharp, always fairly level?) Other than that day. (Must have taken quite a provocation?) OBJECTION …I don’t know him that well.
(Afterwards, did you observe Mr. Bragg. Did you hear him say he worked there?) No I was out there just a few seconds.
7:31 – MOORE – We rest.
FLEITAS – We ask for a directed verdict. We don’t think anything happened. We’ve seen the video. Yarbrough pushed the door toward Tharp, came at him. Only saw a struggle to keep them from hitting each other. Proof has not been met in this case. Much ado about nothing being stirred up for no reason except to cause menace. We ask this case be dismissed.
MOORE – We objec to that. Allegations track simple assault statute. That caused injury to Kurtis Yarbrough, striking him. Nothing shows this young man swung at him, pushed him. Anything else. Within 5 seconds of arrival, Tharp is over there in his face, pointing at him between door frame and car frame. Very agitated and animated. This young man is sitting there. He didn’t go to Tharp’s car. Tharp stuck his finger in his face, very angry. Corroborated by two other witnesses. Cussing and shouting was Mr. Tharp. No one said Kurtis uttered a cuss word. He admits he probably argued with him at door. He told Mr. Hicks he would put these kids in their place. By benefit of video, after Tharp gave this young man a piece ofh is mind, he’s out of car and Mr. Tharp slams car door – shows him step out little gap and as soon BAM, Tharp slams door with such force that it actually spins him around 180 degrees, cuts his leg. How could it not? Immediately, he grabs him, chokes him, slams him against the car. He (Yarbrough) doesn’t throw a single punch. Ask court to deny a motion for a directed verdict. If they choose to put on witnesses, fine.
FLEITAS – It’s a little early to find anybody guilty.
JUDGE – I DENY THE MOTION AT THIS POINT.
FLEITAS – Call Jimmy Hicks.
JIMMY HICKS – Mooreville, lived there 35 years. Familiar with One Stop. There Sept. 10, 2012. Know Tharp, probably 12 years or longer. Seen Yarbrough at One Stop on different occasions. Vision was good that day. (What didyou see at One Stop?) Pulled up to get diesel. Some other cars there. Heard all this loud hollering, cussing and screaming. Coming from that guy right there and soe other people in his vehicle. They pulled up behind Tharp’s truck. I heard one of them say about a pretty boy, with suit and tie. They started that cussing afgain. (What saying?) it was coming from that boy right there.
(Then?) I pulled around but this boy jumped up and was yelling at Kirk. Gene was hanging onto Kirk’s door like he was tyring to swat at him. He was cussing. I got out and walked over there. One boy said let’s take papers out on him. He’s a lawyer, we can get money out of money. (Who?) These boys. That’s it. (Was Yarbrough in that group with remarks?) He was. Others with him. (Known Tharp at least 12 years?) Yes. (Has Tharp always deonstrated good character for honesty?) Always. (Yarbrough?) I haven’t. (Know if Yarbrough has a reputation for violence or fighting?) OBJECTION – SAYS HE DOESN’T KNOW HIM.
FLEITAS – (Seen him around/) Yes, at the store. Buying little cigars. OBJECT TO RELEVANCE. (FLEITAS – think it’s relevant) Day I looked at film. Seen him coming in with little cigars. (Anything else? Violent?) I don’t. Just what saw that day.
(MOORE – Consider Tharp a friend?) Yes sir. (Ever use him as your lawyer?) No, haven’t hired him. He wrote up a little deed before. (Seen the video?) I have. At store. One time. Watched it with Jesse, guy at the store. He was showing it. (Ever show you outside of your truck?) No. (Video covers area on both ends of gas pumps?) I pulled around into parking area next to building. Not in video. (Where you work?) I’m not. (Any reason?) Health problems. Just day work. (One Stop pretty regular?) I did but after all that deal, I didn’t like, so I got me another place for fuel. (What didn’t approve of? That they thought Tharp did wrong?) FLEITAS – OBJECT. (You said because of what’s gone one at the store.) I don’t hae anything against owner of store. Well, like that deal with that boy and his friends doing all that hollering and screaming. I just didn’t like it. Figured I didn’t need to be around it. They talked mighty rough to Mr. Tharp. When Kirk started to get into his truck, fat boy was hanging on. This one jumped out and was hollering, screaming and cussing.
(When you say he walked toward Kirk’s truck … at end of the video?) No, I witnessed the fat boy hanging onto the door. This one was hollering and cussing. (Smaller than you?) Yeh, I’m fat too. Gene was hollering, get out and I’ll show you what a man is. I watched the video. What I testified was what was happeing. This boy hollering and cussing, Gene hanging onto the door. (See Tharp altercation?) No. (Never saw it?) No. I didn’t see any licks throwed. Looked like their hands… Kirk had his hands up. I didn’t see no fight. It wasn’t no fight. (You’re not shown, that’s your truck. Do you know anybody shown in the video has an opinion that this young man cussed Kirk Tharp?) All I know is what I heard with my two ears.
MOORE – All I have 7:50
FLEITAS – (Did Gene seem to be in cahoots with Yarbrough?) He said he was his buddy. MOORE – OBJECT, IMPROPER INDIRECT.
JUDGE – ANYTHING ELSE? FLEITAS – NO FURTHER QUESTIONS.
7:51 – Fleitas calls Monica Wolven
MONICA WOLVEN – (Sept. 10, at One Stop?) Yes. (Know Tharp?) Know him. Friends with my brother. (Yarbrough, know him?) No sir. (Sept. 10 – something happened?) I took kids to school and pulled in there. Noticed a commotion. I saw Kirk and car pull behind him at gas pumps, three boys in it. They they were outside, lots of hollering, commotion in a threatening type behavior. (Who was threating?) I didn’t see anything but this young man and a friend hollering and cussing. Just a threatning way toward Mr. Tharp. (What did Tharp do?) He just … kind of shaking his head, confused. He talked to others. I spoke with him. He drove away. (Did you see Yarbrough yelling obsenities at Tharp or threatening remarks?) Yes sir. (Hear Tharp say anything back?) NO sir. (Did they continue to yell curses and make threats as he drove away?) Yes. (Violent?) Yes. (Did Tharp do same back to them?) Looked like trying to figure out what the problem was.
(Did you ask who the boys were?) That’s what I saw of him. They seemed quite enraged. (Young children?) Concerned about their going to One Stop, without me. (Make you want to stay away?0 Yes sir.
MOORE – (Have you watched the video?) Part of it, at Tharp’s office. Never been my lawyer. Live in Mooreville. (Video, show you?) Showed me when I pulled up iuntil I left. Just my car. (Saw vehicle with young men curse Tharp?) Saw them pull up. It was really crowded there. (Next?) Recall seeing… didn’t take long, a lot of hollering and threatening type behavior. (Where was Tharp?) Standing outside truck then. Behavior went on maybe 3 minutes. (If I were to tell you to watch video … clearly shows that no more than 5 seconds after they stop, Tharp is at the door, your recollection of 3 minutes of hollering is wrong?) OBJECTION – TESTIFYING, CALLS FOR SPECULATION. VIDEO ITSELF RUNS FOR 4 MINUTES.
(MOORE – she testifies they harassed Tharp for 3 minutes before he went to the car. Something wrong with her memory.) (FLEITAS – She said after they were separated, it took 3 minutes.)
(MOORE – complete. 8:01. FLEITAS – NO MORE QUESTIONS
FLEITAS – Calls Larry Bailey
LARRY BAILEY – Works for contractor. Got off at 4 p.m. (Fleitas – At One Stop on Sept. 10) Yes, with Monica. Know Tharp only from that morning. Yarbrough only that morning. Saw both of them. (What did you see?) We pulled up, Tharp gassing truck. Yarbrough and another kid – a lot of gestures, aggressive behavior. Could tell a lot of hollering, a lot of quick nervous gestures from other young men. Could tell by body language of crowd that something was going on, an altercation of some kind. Tharp by his truck, didn’t make any aggressive gestures toward anyone else. (Did you hear yelling?) I couldn’t hear specifics. Just saw him and two others, bouncing around and screaming at him. See aggressive body language. (Why you were there?) Just dropped kids off at school. (Describe young men?) Aggressive, very. Confrontational. (Tharp?) Like man trying to get gas to leave. Dressed for business. On way to work. (Go into store?) Yes. Going on when went in and when went out.
MOORE – (Did you see any physical altercation?) No did not. (See young men pull up?) Already there when I got there. (When you got there, know physical contact?) Only now. (After physical contact?) Yes, only going on appearance of people there, that’s it. Riding with Monica.
FLEITAS (So, what you saw – cursing, was after whatever had taken place of a physical nature?) Yes. Could tell there was an issue. (They trying to provoke Tharp?) Yes, by all means.
8:07 – CALL KIRK THARP
THARP – Tells about himself. Attorney, married, two sons. (Know Yarbrough?) Know him now. Not before incident. … saw him on TV about a drug arrest. OBJECTION – (Went to One Stop?) Went to get diesel fuel. Had just dropped boys off at school. Headed to office and had ot be in Booneville at 9. Concerned about getting there on time. (First interaction recall with Yarbrough?) Realize it was first time ever saw him. Set coffee on truck. He drove up with others, real close … and as I looked. He looked at me and said What the F are you looking at? I really thought, I don’t know he said that. He said, you heard me MF, what the MF are you looking at. I thought, this is somebody I’ve had in court. I’m prosecutor in Sherman.People get mad at you. Went to car to see if I knew him. Saw three. He opens the door. I asked, do I know you? He said, you don’t know who I am, you don’t know what I will do to you, he cursed me, they all yelled what they were going to do to me. Kind of smug head thrown-back look. I asked, do I know you. I kind of started nodding. He said, MF I’ll F you up. You can see on video, I ask him if I’d done something. He siad he was going to show me something. You see he comes toward me. I’m trying to keep him off me. I get the door closed before they get out. He’s throwing his arms at me. He never hit me and I never hit him. I kept him away from me, like that. It seemed like … like it was 5-10 minutes. Moore spent 20 minutes going over video, shows it was just seconds… kind of made me surprised that it wasn’t worse than it was. He said that much and did that much for so short a time. But it wasn’t.
(Fleitas – At his car door, what was your purpose?) To make sure that I knew who he was or if I kenw him. He was threatning me, cursing. I wasnted to make sure he wasn’t somebody I was going to see again. I thought he knew me. I didn’t know him. (When you were at the door, did you make any gestures or strike him?) No, I never hit him. I never struck him, never made a fist, never swung at him. Closest thing … on video,me asking Do I know you? I guess I kind of talk with my hands. Never hit him, never made a fist. (When he came up out of the car, what were you thinking?) That he’s fixing to do what he told me what he was going to do. Can’t believe it was that quick because of all the stuff he said. Surprised that in here, he’s been kind of quiet. But there, you could hear all voer the parking lot what he was saying. I don’t know…
(After you separted, what did you do?) I got away from him.I started asking if people knew them. People said they did … OBJECTION – HEARSAY. (What did you do then?) He started back, threatening me again. Pulling his coat off. Buddies started then. Man came out of the store, said he worked there and if you don’t get your Axx back into your truck, I’m going to beat you. He was yelling and threatning. At that point, I tried to get into my truck and leave. I saw Monica Woolven. Can’t see all the people there. Saw mr Hicks. They were asking what was happening. Could hear him and his buddies threatning, cursing. Til today, I thought eerybody was white. I never used the N word, surprised about that complaint. Now today… it just gets bigger and bigger.
(After got in the truck, then waht?) I was trying to leave. Guy said he was going to pull me out. Yarbrough, buddies started screaming. They were staying back. Cussing. I had to be at work t 9 in Booneville, I tried to leave. I drove away. Then Hicks asked me what was going on. I told him to be careful here. Monica asked me. I told her to stay in her car and get away. Never seen him and his friends before. (Called?) I called the sheriff. Iheard him say, he’s a lawyer, I’m going to get some money. I don’t know. We’re going to get him. I called Jim Johnson, said who I was… told him about incident. ried to attack me. OBJECTION – HEARSAY.
(LATER in day, did what?) Sheriff and I talked, made arrangements to meet and make a report. I went to Booneville. Sheriff or somebody called, said papers were made out on me. I said I was coming in this afternoon. Stayed in Booneville, it was late. When I got in, told I could come in next day. I was processed on the charges. Arrested. bonded out. Think Judge Carr did that. Yarbrough and Jamie Franks tried to make this a big problem. OBJECTION – (Lwsuit?) Franks drafted lawsuit. OBJECTION
(Hvave you been told if you pay, these charges will go away?) OBJECTION – (Attorney is an agent of a client.) I can answer it. I said if I paid him $20,000 he wouldn’t sue me. OBJECTION – WE CAN CALL MR. FRANKS
(FLEITAS – Prior to day never seen this young man. Initiate any aggression to this young man?) No, if he had not spoken to me, did what he did. I had never seen him before. (When you came to his car, anything preventing him from shutting his door?) No, He was threatening me. He repeatedly told me what he would do to me, my family, my parents. He was a tough guy, he fought all the time. What I can’t believe – seemed like it went on for 10 minutes. He’s a fast talker. He said a lot to me.
FLEITAS – TENDER THE WITNESS 8:26
THARP – He sounded all hyped up and on drugs that morning. I told the sheriff that. He was arrested on drugs a week later. (MOORE – YOU’RE trying to assassinate his character?) You know me and that’s not true. (Moore – you talked bout ring around his head, about his tattoos, trying to assassinate his character.) I didn’t say that, my attorney said that. You heard what he said. I didn’t say that. (Now you wanted to say something about what you heard on the news?) FLEITAS – Surprising that county prosecutor would be blind about that.
MOORE – Let’s look at the video. When did they start yelling at you?)
THARP – Rolled up and asked me what the F I was looking at. I’m looking at cup of coffee on tool box. My ears are toward them so I probably should hear them as they rolled in. (Shouting through closed windows so you could hear them?) First thing I heard him yell was, what the F are you looking at? (How did he have all the time to tellyou all that during that short amount of time?) No, When I’m standing here … can you back up the tape … right here, that’s when I heard him say, what are you looking at. I’m telling you what I heard. Under oath, he rolled up that quickly and asked me what the F I’m looking at. Thought he had the window cracked a little bit. (Moore – I don’t see a crack, Kirk. Let’s back it up to where they are rolling in.)
THARP – I was there, I believe it was cracked. (You’re saying as soon as you see the door open, you’re walking toward him?) No, I can tell you what I saw. (His hand comes out between door and …. his hand never comes out.) What was your question. (Did he have time to tell you all that in 2 seconds before you went there?) He asked me what the F I was looking at, you heard me MF, he said all that befoer I left there and went here. Of course, I am not under the influence or anything. (Did you ever see him lay a hand on you?) Yeh, back it up and I’ll show you. Right there, he hit me with the door. (Won’t he have to push the door to get out? Did you expect him to sit there listening to you? When were you going to leave?) Let’s play it again. (How long are you standing at his window and time it until he gets out?) He’s doing most of the talking, James. (You were at his window for 15 seconds? How long did you want him to sit there?) I was trying to …let me answer … why I didn’t leave? He’s telling me what he was going to do to me. These other guys … he jumped out. If he hadn’t gotten out. I wasn’t going to turn my back on him and these other guys. I wish you’d been there with me.
THARP – (Moore – you stayed at the car for 15 seconds, what did you want him to do?) He was talking and I was trying to figure out who he was so I could call the sheriff, and to quit threatning me so I could get in my vbehicle and leave. (Was he sitting there with a gun? You were intimidated by some little guy?) I’m 6’1”. Weight 223 this morning. (Show me where you tell Monica to stay put and don’t go into the store, be careful.) This is where Monica is, this is where Hicks is. (Right here, you’ve already walked from truck to woman to where Kurtis was, where they remain until you leave the scene.) I’m trying to get into my truck. (Did they come toward you?) This is where he’s yelling. (No, I don’t.) Here, I’m trying to get out of there. My truck wasn’t cranked. Honest, I was pretty scared, pretty shaken up. It was five threatening at some point. At pump, getting my cell phone to call sheriff. (Like to hear what sheriff has to say about the video?) No, I’d like to hear what Miss Sadie says.
THARP – (Moore – were you looking at him the hateful way you’re looking at me now?) No.
MOORE – That’s all 8:47
FLEITAS – Nothing else.
JUDGE HOLLAND – Tharp asks if he should leave. She says joking, he wants to stay close to me. Can I sleep on this?
FLEITAS – When need us to return?
JUDGE – MONDAY. I’m tired right now.
MOORE – I’ll make every effort to be wherever you want us to be.
FLEITAS – Does your honor want to keep the video?
JUDGE – I don’t need the video. Think we should sleep on this. 8:50
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