Decisions – COA – April 7, 2015

Robert Anthony Moore v. State – search of cell phoneMoore was convicted of the sexual battery of his fifteen year old cousin Sarah and taking sexually explicit photos of her (exploitation of a child).  When the photos started circulating among fellow students several days later, Sarah told school officials what had happened to her.  Moore had been arrested on an unrelated matter.  LAw enforcement got a search warrant for the phone located in Moore’s property bag at the jail.  A search of the photos revealed the photos. A few months later, law enforcement obtained a second search warrant expressly authorizing law enforcement to search and download any and all electronic data, including photographs, stored on the phone.  On appeal, Moore challenged the sufficiency of the evidence and the search of the cell phone.  Moore “claims the first warrant—the one to search his phone located in the Harrison County Jail—only authorized the investigator to retrieve the phone, not turn it on and search through the pictures. Consequently, he argues, the pictures were inadmissible ‘fruit of the poisonous tree.'”  The Court finds neither issue meritorious. “The affidavit supporting the search warrant for Moore’s phone was clear. The device was being sought because it contained photographic evidence of the sexual battery of Sarah.”

Freda Howell dba Lickity Splitz v. The Board of Supervisors of Jefferson County rescinding bid for public services /improper where not based on bid specs –  In  2008, the Board requested sealed bids to provide prisoner meals for the during 2009.  The Board chose Howell as the “primary” bid, and Bassfield Texaco as the “alternate” bid. Howell began performance under the contract.  She prepared food at her house and then took it to another facility to package it into styrofoam containers.  Four days after awarding Howell the contract, the Board’s attorney mailed her a letter rescinding the contract.  Howell appealed.  The trial court found the Board’s minutes insufficient and remanded the case :to include the dollar amount of Howell’s and Bassfield Texaco’s bids and include either a report or affidavits by the sheriff and Board members who inspected Howell’s facility.”  THe Board amended its minutes.  Howell appealed again.   The Court affirmed.  On appeal to the COA, the Court found that as “the primary bidder, Howell had a vested property interest entitled to due-process protection.” Howell v. Bd. of Sup’rs of Jefferson Davis Cnty. (Howell I), 70 So. 3d 1148, 1152 (¶10) (Miss. Ct. App. 2011).  She was therefore entitled to a hearing.  The Board held Howell’s ¶8. Howell appealed the trial court’s decision, and this Court held that Id. at 1151 4 (¶2). As a result, in Howell I, this Court reversed the judgment of the trial court after determining that the trial court “erroneously relied on provisions in Mississippi Code Annotated section 31-7-13 . . . to justify depriving Howell of this interest without notice and a hearing.” Id. at 1156-57 (¶31). In Howell I, this Court then remanded the case to the trial court.3 Id. at 1157 (¶32). Upon remand, the trial court remanded to the Board and ordered that the Board provide Howell a due-process hearing. Id. at 1156-57 (¶31). The Board then held Howell’s due-process hearing on December 5, 2011, found its earlier decision to rescind Howell’s contract to be justified and awarded Howell $20 in nominal actual damages for the absence of a due-process hearing in January 2009.  Howell appealed again.  The COA again reverses finding that Howell’s bid met the bid specifications and it was arbitrary and capricious to rescind it based on criteria not contained in the specifications.

Accordingly, we reverse and render a finding that the Board’s justification for recission of the contract herein is arbitrary, failed to comply with statute, and was not supported by substantial credible evidence. We also remand the issue of damages for the Jefferson Davis County Circuit Court to determine.

Adella Jones v. Joe Bryant – contempt / military benefits after divorce – Adella and Joe divorced in 2001. The property settlement agreement provided that “[Adella] will receive as property settlement[ ] fifty percent (50%) of [Joe’s] disposable retirement from the United States Marine Corps/Army National Guard and fifty percent [50%] of [Joe’s] disposable retirement from the Veterans Administration which will be paid directly to [Adella] by the United States Marine Corps/Army National Guard and the Veterans Administration.”  Joe retired from the VA in 2008 and the military in 2010 and began receiving 100% of his benefits. Joe claims he executed the  paperwork so that  Adella could receive her one-half of his benefits. Adella claims he never did and that she filled out the paperwork and   began receiving her portion of Joe’s retirement pay from the Marine Corps/Army National Guard in January 2011, and from the Veterans Administration in May 2011.   In 2012, Joe moved to modify  asserting that  Adella remarried and thus no longer possessed entitlement to a survivor annuity from Joe.  Adella moved for contempt because Joe did not get her the retirement benefits when she was entitled to them. The chancellor awarded Adella $46,433 but did not find Joe in contempt.  “After our review of the record, we find substantial evidence exists in the record to support the chancellor’s final judgment determining Joe was not in willful and contumacious contempt of the property-settlement agreement or any other court order.”

In the Matter of the Estate of Ramon Regana will with no beneficiaries is invalid –  Regan neber married and had no children.  He spent his last ten years in a  personal care home maintained by June Swilley and her husband, Elroy. In 2008, Swilley arranged for a local notary public to assist Regan in preparing a will. A preprinted from was filled out as per Regan’s directions.  It was signed and witnessed.   When Regan died, Swilley filed to probate the will.  A search for heirs found an aunt and her son.  The court ended up finding the will to be invalid because it did not specify any beneficiaries. Swilley insisted this was an oversight and filed an affidavit by the notary public to this effect. Nonetheless, the chancellor found the will invalid and declared the aunt Regan’s heir.  Swilley appeals and loses.

Ryan O’Donnell v. State – Law enforcement served an arrest warrant on O’Donnell at a motel where he was staying with two other people.  The police asked  O’Donnell for some Id. he replied that it was in the room somewhere.  Police found a white pouch containing O’Donnell’s Id and .79 grams of meth. On appeal, O’Donnell argues that the meth should have been suppressed.  He argues that the arrest warrant was invalid.  The COA finds this was not preserved for appeal.  He also argues he did not consent to the search of the room. The COA finds no reason to reverse the trial court’s finding that consent was voluntary.  O’Donnell raises a Batson objection but the COA finds, like the trial court, that he had not made out a prima facie case.  The COA also rejects O’Donnell’s sufficiency of the evidence argument.

James Pritchett v. Amanda Pritchett –  termination of parental rights –  The Pritchetts were divorced in 2011 after James was sentenced to serve five years for fondling his niece.  Thereafter, Amanda filed to terminate James’ parental rights. The motion was granted.  On appeal, James argues that because he was indigent, he should have been appointed an attorney and he should have also been transported from the prison and allowed to be present at the hearing. The COA reverses and remands.  FOr one thing, the chancellor never addressed Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. The first prerequisite is that  the child has been removed from the home of [his] natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child.  That was not the case here. On remand, the chancellor should determine whether James is indigent and entitled to counsel.

In re Termination of Parental Rights and for adoption of Jennifer Wrightcustody between parent and nonparent – When teenaged  Audrey Wright  gave birth to her second child, she allowed the Smith  to have custody.  Eventually, though, the Smiths refused to allow Wright to visit her daughter and they filed to adopt her.  When they realized there was no way that they could terminate Audrey’s parental rights in order to adopt the child, they moved for custody. The chancellor, faced with the Smiths repeated refusals to allow Audrey visitation, awarded custody to Audrey.  On appeal, the COA reverses and remands for the chancellor to make full Allbright findings on the record.

Sylvia Rester and L.B Davis v. Greenleaf Resourcesadverse possession –  In  2004, L.O. Crosby III conveyed 297.61 acres of land located in Pearl River County, Mississippi, to Greenleaf. Greenleaf recorded the deed on Jan. 20, 2004.  In 2012,  siblings Sylvia and L.B. filed a complaint alleging that they, through tacking onto the claim of their father, Robert Davis, acquired  19.6 acres of the property through adverse possession since 1919, when their father  acquired title to five acres of land located adjacent to the disputed property. Greenleaf filed a counter-complaint to remove cloud.  The chancellor found for Greenleaf despite the testimony of people who had known the property as the Robert Davis property.  The COA reverses and remands.

  After reviewing the record, we find that the trial court correctly considered the elements of adverse possession; however, it erred because it only focused on the period of time Greenleaf held title to the land. Specifically, the trial court erred when it held that “Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out that Greenleaf did not hold title to the land until 2004, when it purchased the land from the Crosbys. Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.

Bradley Nurkin v. Eva Nurkin – modification of custody stuff – The Burkins divorced in 2011 and Caroline was granted custody of their then eight year old son Jake.  A year later, Eva moved to modify visitation and asked that Brad be found in contempt for failing to reimburse her for Jake’s medical expenses.  She also wanted child support reconsidered. The chancellor changed the visitation schedule because Jake was diagnosed with autism spectrum disorder and the prior schedule, where visitation was just for a number of days and not for fixed days, was not workable given Jake’s need for stability. The COA affirms this ruling. The chancellor also ruled that Brad could not fly Jake on his private plane.  The COA reverses this ruling on the grounds that the non custodial parent typically is allowed to decide thechild’s activities during visitation.  The chancellor dismissed Caroline’s request to modify child support apparently because the original judgment was in Tennessee (both parents moved to Mississippi after the divorce) and Caroline needed to register the Tennessee judgment if she wanted it modified. 

L.A. Barksdale v. State –  trial in absentia/ right to funds to hire expert – Barksdale was sentenced to 30 years for statutory rape of a child under 14.  The thirteen year old girl testified that this happened when she staying at her father’s home and Barksdale was spending the night.   The next day, the girl told her god mother.   DNA was found during the collection of a rape kit and it matched Barksdale. On appeal, Barksdale argues that it was error to hold the trial without him present.  This happened when Barksdale failed to show up for trial. The COA finds no error. “Because Barksdale was released on bond pending trial and was in default for 6 nonappearance, it was not plain error to conduct his trial in absentia. He was well aware of his trial date, understood he had to be at trial, and offers no proof that his absence was not willful, voluntary, and deliberate. This issue is without merit.” He next argues that he should have been granted funds to hire a DNA expert.   The COA finds that the Court erred in finding that Barksdale was not indigent inasmuch as he was appointed counsel.  Nevertheless, it was not error to deny him funds for his own DNA expert.

Barksdale concedes he had access to the State’s expert. Barksdale had the opportunity to cross-examine the State’s expert, and a review of the record indicates that Barksdale’s attorney’s cross-examination was effective. There is nothing to indicate, and Barksdale does not argue, that the State’s expert was prejudiced or incompetent. Barksdale does argue, however, that the State’s case depended almost entirely on the DNA expert’s testimony. This argument is without merit. Jane’s testimony was credible and uncontradicted. “[T]he unsubstantiated and uncorroborated testimony of a victim is sufficient to support a guilty verdict if that testimony is not discredited or contradicted by other credible evidence[.]”

Pro se PCRS affirmed

Victor Jones v. State

Camille Seago v. State

Dennis Howard v. State

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