Decisions – Miss.Ct. of App. – Oct. 28, 2014

McMinn v. McMinnpost divorce modification – the parties filed for divorce.  In 2011, the chancellor gave custody of the son to Sharon. Keith was ordered to pay her 100,000, $543 a month in child support, and $1000 a month in alimony.  Keith filed a motion to reconsider and the chancellor lowered the alimony to $750 per month. Afterwards, Keith filed another motion to modify alleging that Sharon was practically living with another man.  The chancellor then awarded custody of their son to Keith, ordered Sharon to pay child support of $332 per month and denied the request to terminate alimony.  Keith appealed arguing that the court erred in not ordering back child support to Keith because Caleb came to live with him in June 2011.  The Court of Appeals affirms finding that  the court gave Keith credit for the arrearage from June 2011 to the date of the judgment in December 2012.   But there was no order for Sharon to pay child support for the eighteen months that Caleb was living with Keith so he was not entitled to back child support from her.  Nor did the court err in its division of the assets based on the fact that Sharon may inherit from her mother given that it is not known how much she will inherit.  And the court did not err in refusing to terminate alimony.  As the trial court found, a relationship accompanied by sexual activity, alone, does not rise to the level to forfeit alimony.

Sammie Smith v. State of Mississippi –  burglary – entitlement to lesser included – Smith was convicted of the burglary of the house of Jeremy Williams.   Later that day, Smith showed up at Williams’ neighbor’s house and offered to sell him a computer.  Smith testified he purchased the computer from his cousin.  On appeal, he argues that the court erred in not giving the jury the lesser included instruction of receipt of stolen goods. The court finds no error because a conviction for receipt of stolen goods requires proof of the monetary value of the goods while burglary does not and there was no proof of the computer’s value here. Smith’s arguments that the conviction w\as against the weight of the evidence also fails.  Smith filed his own brief challenging the sufficiency of the indictment.  The Court finds no error there.

Benjamin Shelton v. Statesexual battery by person in authority – Shelton was indicted for two counts of sexual battery and one count of solicitation.  When the state moved to amend the date of the solicitation, the court granted it and severed the case.  At trial, a seventeen year old testified that while he was at a church youth retreat, he awoke to find Shelton’s hands in his underwear and Shelton’s penis in his mouth. A few months later he asked Shelton for a ride and Shelton forced him to perform oral sex on him.  On appeal, he challenges the sufficiency of the evidence.  The Court finds no error  He also argues that the jury instructions failed to adequately define sexual penetration or position of trust or authority.  However, Shelton’s attorney did not object to the instruction given at trial and, thus, he is barred from raising it on appeal.

Gyrone McSwain v. State –  McSwain was convicted of possession of a controlled substance after police conducted a controlled buy.  On appeal his attorneys filed an Lindsey  brief claiming they could find no issues.  McSwain filed a pro se supplemental brief, alleging that: (1) the search of his house was illegal; (2) he received ineffective assistance of counsel; and (3) various instances of misconduct occurred during the trial. The Court of Appeals affirms. McSwain complains that his brother Tyrone’s name was listed in the search warrant,and not his. The warrant specified a search of 405 East Fifth Street and recited that the premises were controlled and occupied by Tyrone and unknown occupants. “Given that McSwain admitted that he resided at the same residence as Tyrone, we find any argument regarding an illegal search and illegally seized evidence as a result of the search, unpersuasive.”  The Court finds the record insufficient to decide any ineffective assistance claims and passes on them for McSwain to raise in a pcr petition. Nor was it error for the DA to ask the prospective jurors whether  “I need to there was “anyone here who believes or thinks that in a drug case if the State cannot7
show that Mr. McSwain was holding the drugs, then he wasn’t in possession of [them]?”

Virginia Case v. Board of Supervisors of Lauderdale Countyslip and fall – Case was an animal control officer who sued the County when she slipped and fell on a ramp leading to her office.  The trial court granted summary judgment.  The Court of Appeals affirms.

The record indicates that the county knew the ramp could be slippery, and potentially  dangerous, when it was wet. Several employees at the building stated that they had fallen on the ramp when weather conditions were damp and water from outside was tracked onto the ramp, thereby making it slippery. Nonetheless, there is no evidence in the record that
conditions existed that would have made the ramp dangerous when Case fell on it. Rather, the weather conditions were sunny and dry with no prior rainfall that would have had a bearing on the day in question. The record is also void of any indication that the ramp was wet from another source other than weather conditions. Likewise, Case admits that she does not know what caused her to fall, but relies on her bare assertions that the ramp itself was, for unknown reasons, “slick.” However, she has no evidence to support her contention that the ramp was dangerously slippery other than the fall itself.

Norman Neyland as admin. of the estate of Mary Gallagher v. Timberland Management ServicesSOL/fraudulent concealment – Mary  Gallagher owned land in Amite County.  Veronica F. Carber was her caretaker and was given a power of attorney.   On May 14, 2002, Carber executed a contract with Timberland Management Services, Inc., to harvest pine and hardwood timber on a portion of her property. When Gallagher died, Neyland was appointed the adminstrator of her estate and in April 1, 2010,  he  filed a complaint against Timberland alleging that it  harvested timber outside of the approximately seventy-two acres designated by the contract in Amite County, made unauthorized expenditures for work outside of the contract, and failed to account for or pay all sums due under the contract. Timberland moved for summary judgment based on the SOL. The Court of Appeals reverses finding that there was a material issue concerning fraudulent concealment.  Carber had allowed Timberland to place the proceeds from the contract into an escrow account for the benefit of the Gallagher Estate.  But Timberland deplected the account in  2004.  Neyland  argued that the depleted escrow account was not discovered until this litigation was filed, as Timberland misrepresented to the IRS the amount in the account in 2005. “We find that Neyland has presented sufficient evidence to establish the presence of a genuine issue of material fact as to whether the fraudulent concealment of the escrow funds and Neyland’s due diligence to discover that fraud tolled the six-year statute of limitations in this matter. As a result, we hold that the circuit court erred in finding that the six-year statute of limitations had expired.”

Elsa Perez v. Howard Industries workers comp. – In July 2009, “Elsa Perez slipped and fell while at work for Howard Industries Incorporated. She filed her petition to controvert on June 9, 2010, claiming injury to her  right leg, right ankle, and lower back; however, over a year later, Perez filed an amended petition to controvert adding that she injured her right shoulder when she fell. The administrative judge (AJ) found that Perez failed to show a causal connection between her shoulder injury and her work-related fall; thus, Howard Industries was not responsible for any medical treatment or disability relating to Perez’s shoulder. The Mississippi Workers’ Compensation Commission (Commission) affirmed the AJ’s decision and adopted the AJ’s
order. Perez appeals and asks this Court to review the Commission’s decision that Perez failed to show a causal connection between her work-related fall and her shoulder injury. Finding no error, we affirm.”

pro se PCR appeals affirmed by the court:

Mosley v. State

Owens v. State  

Riley v. State

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