Decisions – Miss.Ct.App. – Nov. 18, 2014 – part 3

Robert Fitzgerald Smith v. State – Smith was convicted of the statutory rape of nine-year-old B.G.  The rape was said to have occurred one weekend in late May 2008.  Seven months later, B;G. was taken to a nurse practitioner and tested positive for trichomoniasis.  B.G. told the NP that Smith had messed with her the last time she had visited her grandmother’s house.   She later told an investigator that Smith had raped her.  B.G. testified at trial. Smith challenges the sufficiency of the evidence.  The Court of Appeals affirms.

D’Andre Terrell v. State DUI 1st – Terrell was charged with DUI after he was  stopped at a license checkpoint set up by the MHP in November 2012.  The officers testified that Terrell’s pupils were dilated, that his eyes were red, and that he was somewhat argumentative.Trooper Morgan also smelled alcohol on Terrell’s breath. A  portable breath test yielded positive results. At the station, though, two attempts to get a bac with an intoxilyzer failed. “Trooper Morgan testified that the

factors that he considered in charging Terrell with DUI were the odor of alcohol on Terrell’s breath, the positive PBTs [there were two], and Terrell’s red eyes and dilated pupils.”  Terrell was found guilty and he appeals arguing insufficient evidence. “After reviewing the record and considering the evidence in the light most favorable to the prosecution and accepting all evidence supporting the conviction as true, we conclude that the evidence was sufficient to support Terrell’s conviction. Accordingly, we affirm.”

Regina Weathers v. Scotty Guin – custody modification– Regina and Scott were divorced in 2008. Regina was awarded primary  custody of two of the minor children, Jacob and Brittany, to Regina, and awarded Scott primary custody of the third minor child.  In 2013,  Scott filed a complaint to modify based on   (1) Regina’s consumption of alcohol in the children’s presence, (2) Regina’s disparaging statements about Scott to the children, and (3) Regina’s threats to move the children to another state.. The court,  on July 8, 2013,  modified  custody order to  award permanent physical and legal custody of Jacob to Scott.  The court also ordered Regina to pay child support for Jacob. Pursuant to the modification order, neither Scott nor Regina could move the children out of state, make disparaging remarks about each other in the children’s presence, consume alcohol in the children’s presence, or operate a motorized vehicle with either of the children while under the influence of alcohol. The transcript of this hearing was not provided to the court on appeal.  That same day, Scott filed a second complaint  alleging that Regina had refused to return Jacob to Scott’s custody on Friday, July 5, 2013, and that Regina had made disparaging remarks about Scott in Jacob’s presence. He also claimed that  Regina had failed to meet her child-support obligation and had refused to allow the children to speak with Scott when he called. On July 22, 2013, Regina filed a motion to set aside the July 8 order.  It was never ruled upon.

The Court of Appeals reverses.

Here, the record reveals that in the modification order, the chancery court completely failed to identify a material change in circumstances warranting modification before finding that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical
and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set out[.]” The remaining provisions of the order concern child support, financial obligations of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the chancery court failed to identify a material change in circumstances warranting custody modification, the modification order is insufficient for us to determine the chancery court’s basis for the custody modification. Moreover, the chancery court failed to make specific findings as to each individual Albright factor. Accordingly, we reverse the modification order as to the custody modification and remand for further proceedings.

KN as the mother and natural friend of MN v. Moss Point School District – premises liability/school grounds – “M.N. was injured on the campus of Moss Point High School (MPHS) when a vertically placed, metal divider fell from the door of the MPHS band hall and hit her on the head.”  The trial court granted summary judgment for the school district under discretionary immunity. The Court of Appeals reverses.

 As indicated in Little, once a ministerial duty has been prescribed by statute, the manner in which that duty is performed cannot be said to be discretionary. Little, 129 So. 3d at 136 (¶18). A plain meaning of the word repair is “to restore by replacing a part or putting together what is torn or broken.” Webster’s Third New International Dictionary of the English Language Unabridged 1923 (2002). Section 37-7-301(d) clearly prescribed a ministerial duty on behalf of the school district to repair its school facilities and to make necessary school improvements, which encompassed a duty to ensure that the divider at issue was properly replaced and secured. Therefore, the circuit court erred when it found that the school district was entitled to immunity under section 11-46-9(1)(d).

* * * * *

However, in this case, there was evidence presented to show that the
school district created the dangerous condition by leaving the metal divider unsecured,
thereby preventing summary judgment under section 11-46-9(1)(v).

James Wilson v. Pearleen Davis – natural parent presumption – Concetter Davis had two kids: Ka’Nyla born in 2001 and Sha’Nyla born in 2003.   James was determined to be the natural father of Sha’Nyla and custody was granted to Concetter.  Concetter died in 2011.  When Concetter’s relatives would not give Sha’Nyla to James, he filed a petition for modification seeking sole physical and legal custody. After a trial, the chancellor awarded Sha’Nyla to Pearlean Davis, Concetter’s mother. “In the decision, the chancellor did not treat the issue as an initial custody dispute between a natural parent and grandparent. Instead, the chancellor considered the motion as a modification of child custody based on the prior custody determination between Concetter and James.”  The Court of Appeals reversed for the chancellor to determine whether the natural parent presumption had been rebutted. Wilson v. Davis, 111 So.3d 1280 (Miss.App. 2013).  On remand, the chancellor found that the natural parent presumption was overcome, applied Albright, and awarded custody to Pearleen.   James appeals. The Court of Appeals affirms. The chancellor found abandonment and immoral conduct – the latter consisting of James’ penchant for finding younger women to cook and clean for him and overlapping said women. “Although we have determined that the evidence did not support the finding that James had abandoned Sha, we find that there was sufficient evidence to support the chancellor’s
finding that James’s conduct is so immoral that he is unfit to have custody. See Smith, 97 So. 3d at 46 (¶9). Accordingly, we find that the chancellor was correct to hold that the natural-parent presumption was rebutted.”  The chancellor did not err in finding that the Albright factors favored Pearleen and, thus, the Court of Appeals affirms the trial court.

James Rodgers v. State – murder/at peril instruction – Rodgers was convicted of murder in the death of his girlfriend’s former boyfriend. The ex and Rodger’s son were involved in a physical fight. Rodgers exited the house and shot the ex.  On appeal he argues that the trial court erred in giving an instruction that stated in part: “The Court instructs the Jury that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm. Where a person repels an assault with a deadly weapon, he acts at his own peril and the question of whether he was justified in using the weapon is for determination by the jury.” He did not object to this instruction at trial. The Miss.S.Ct. had reversed for a similar instruction in  Flowers v. State, 473 So. 2d 164 (Miss. 1985).  Because there was no objection, the court employs a plain error analysis.

In this case, there were six jury instructions covering self-defense. Clearly there was  an error in allowing the “at peril” phrase to infect one of the self-defense instructions. The issue thus narrows to this: reading the instructions as a whole, where self-defense is correctly defined in other instructions, does the presence of the “at peril” phrase in one instruction create the manifest risk that the jury convicted applying an incorrect legal standard? Based on the following examination of the instructions given and the record in this case, we think not.

Post conviction appeals affirmed

Tyler Graham v. State

Monica Carson v. State

Freddrick Stamps v. State

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