Decisions – Miss.Ct. App. – Nov. 18, 2014 – part 1

Robert Faeber v. April Faeber –  division of marital property – The Faebers were married for ten years before they sought a divorce.  The chancellor granted them a divorce on the ground of Bobby’s uncondoned adultery, distributed the marital property, awarded April lump-sum alimony, and set child support. . April appealed, and this Court reversed the judgment and remanded the case.  Faeber v.  Faerber, 13 So. 3d 853 (Miss. App. 2009).  Another trial was had and now Bobby appeals on the issues of  (1) whether the chancellor erred in his equitable division of CPA and the marital home; and (2) whether the chancellor erred when he set the payment schedule for equitable distribution and amended child support. April cross-appeals the chancellor’s  failure to award her attorney’s fees. The Court affirms.

In the Matter of the Removal of Azalean Rogers Removal of elected official with felonies – “The Attorney General filed a petition to remove Azalean Rogers from the Board of Aldermen of the City of Boyle, Mississippi, alleging that she had pled guilty to two felony counts of forgery in 1979. The trial court adjudicated Rogers to be a convicted felon, but it denied the petition to remove her from office and instead entered an order finding that Rogers was not a qualified elector and could not have her name placed on the ballot in future elections. Rogers appeals, pro se, from that judgment. She also appeals the denial of her own motion to expunge the convictions, which was a separate cause heard by a different judge in the same circuit. We affirm both judgments because Rogers has not shown reversible error in either case.”

Christy Harper v. Norman Edwards –  car wreck/damages – “Norman Edwards was driving on a two-lane county road when he rounded a curve and encountered Christy Harper’s vehicle parked on the wrong side of the road at her mailbox. Edwards was unable to avoid a collision because, at that moment, another vehicle was approaching in the correct lane. He brought suit against Harper to recover for injuries and property damage suffered in the accident. The jury found that Edwards had suffered $25,000 in damages, for which Harper was ninety-five percent at fault. Harper appeals, and we affirm.”

Clarence Jefferson v. State –  Felony DUI/ sufficiency of evidence of prior duis – Jefferson was convicted of felony DUI which requires proof that he had two prior DUI convictions within the last five years. Jefferson finds fault with the sufficiency of evidence to prove the third DUI as well as proof  of the previous DUIs.  The 3rd DUI arose after Jefferson was stopped at a safety checkpoint in Columbia. The officer smelled alcohol and Jefferson was pacing back and forth.  Jefferson flunked several field tests but back at the station, the officer could not get the Intoxilyzer 8000 to work. The court found this sufficient to buttress Jefferson’s conviction.  As for the two prior DUIs, the state called the deputy court clerk of Pearl City Court who testified regarding an abstract of a conviction of  “Clarence D Jefferson” for a DUI committed on January 17, 2010. “The abstract contained various identifying information such as an address in Columbia, Mississippi, Jefferson’s race and sex, the tag number and make of his vehicle, and his social security number and date of birth.”  The state also called someone from the  Marion County Justice Court clerk’s office who authenticated a certified abstract of conviction for “Jefferson Clarence Dwayne” for DUI on January 18, 2010. Jefferson takes issue with some minor variations in the information –  a 1969 dob on the Petal abstract and a dob of 1964 on the Marion County abstract. “A different address was shown, but both were in Columbia. The Marion County abstract had no box for a social security number, but it gave a driver’s license number that was the same as Jefferson’s social security number on the Petal abstract.”  The Court affirms on this issue as well noting that all “of the documents bear the same social security or driver’s license number, and Officer McKenzie testified that it was both Jefferson’s social security number and driver’s license number.”

April Serrano v. Laurel Housing Authority – premises liability – “April Serrano claimed she was injured when the fluorescent light box attached to the kitchen ceiling of her apartment partially fell, causing patches of drywall to land on her.”  Laurel Housing Authority defended itself on the grounds it did not have actual or constructive knowledge that the light box posed a danger of falling. Serrano argued Laurel Housing knew the light boxes were too heavy for the spot in the kitchen ceiling where they had been hung. After a bench trial, the court concluded otherwise.  The Court of Appeals affirms.

Vadell Johnson v. Statedouble jeopardy /felon in possession – Johnson was out on bond facing murder charges when  he was arrested on two counts of stalking.  Two women claimed that Johnson had pulled a gun on them and threatened to kill him.   He was tried and convicted in justice court of two counts of “threatening with a weapon.”  He appealed to county court.  Pending the trial on those charges, he was charged with felon in possession.  He ended up pleading to two counts of stalking – threatening without a weapon –  on the county court charges.  Stuck in jail pending trial on the felon in possession charge, Johnson filed a writ of habeas corpus arguing that he had been found guilty of threatening with no weapon involved and, thus, the state could not charge him as a felon in possession.  The Circuit Court denied relief and Johnson appeals.  The Court of Appeals affirms finding that Johnson was not entitled to a hearing on his writ.  As for the substantive issue, the felon in possession charge was not barred by double jeopardy because  “[t]he two crimes of aggravated stalking and possession of a weapon clearly each have elements that the other does not.”  As for collateral estoppel,  “Johnson was not acquitted based on the jury’s finding he had no weapon in his possession. Instead, Johnson was merely permitted by the circuit court to plead guilty to the lesser-included charge of simple stalking.”

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