Decisions – COA – September 15, 2015

Jeffrey Durr v. Statefailure to register as a sex offender –   Durr had been convicted of fondling a child and, thus, is required to register his address with local authorities. When recently released from prison,  he registered claiming he was living with his mother. He was notified that his mother’s home is within 1,500 feet of an elementary school making this residence noncompliant under Mississippi law. Durr  failed to register a different address and was  indicted for failure to register as a sex offender. . At trial, Durr claimed her was “grandfathered in” before the school-proximity prohibition became law on July 1, 2006.  Two witnesses, though,  testified that Durr had claimed a different residence which was not his mother’s before July 1, 2006.  The jury convictd him and the COA affirms.

Michael Haynes v. State –  inmate’s independent lawsuit for record – Michael Haynes was convicted of one count of grand larceny in 1991.  He didn’t appeal.   In 1993,  he was convicted on multiple counts of sexual battery and  was sentenced to serve thirty years’ imprisonment as a habitual offender.  He has filed at least six pcrs  and in 2005, the Mississippi Supreme Court warned him that future frivolous filings would result in sanctions.   In 2013, Haynes filed a motion for records and transcripts in the Lincoln County Circuit Court.  The circuit court dismissed Haynes’s motion with prejudice, finding that Haynes was not entitled to records or transcripts because he failed to state any viable claim for postconviction relief.   The COA affirms.  “Haynes’s brief on appeal raises only a series of direct, substantive challenges to his 1991 guilty plea in the grand larceny case. Indeed, his brief reads as if this were a direct appeal in that case, even though both the circuit court and the Supreme Court previously denied him permission to bring an out-of-time direct appeal. Haynes does not mention, let alone address, the order denying his motion for transcripts and records from which his notice of appeal was filed.”

Joe Johnson v. State –  armed robbery – Johnson was of armed  robbery of an elderly man who had just left the bank. He was  sentenced to twenty-five years  with five years suspended and five years of post-release supervision.  On appeal, the Office of the State Public Defender  filed a Lindsey brief certifying that there are no arguable claims to be raised on appeal. Johnson  filed a pro se brief alleging (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel (for filing the Lindsey brief), and (3) that his cross-examination of one witness was unfairly limited.  The COA affirms.  Some of the ineffective assistance of trial counsel claims aren’t developed enough to be decided.  But others – like the claim that his attorney failed to move to quash the indictment on the ground that it was not stamped “filed” by the circuit clerk – lack merit.  As for his ineffective assistance on appeal claim –  “because the basis of Johnson’s claim is appellate counsel’s failure to pursue the issues that he raises in his pro se brief, and because we have independently determined that those issues lack merit, Johnson cannot possibly establish ineffectiveness or prejudice.”

Larry  Hammonds v. Deirdre Hammons –  custody – The Hanmmonds married in 2004 and had one child.  They separated in 2010 and  Deidre filed a complaint for divorce.   The court ruled that  both parties would have joint legal custody of the minor child. Deidre was awarded sole physical custody, with Larry having visitation.   Larry was ordered to pay $490 per month in child support, and both parties were ordered to maintain health insurance for the minor child. Deidre was awarded a judgment of $6,768.59 for past-due child support. Larrywas awarded use and possession of the marital home, with the provision that he obtain refinancing and satisfy any outstanding indebtedness within two years. If unable to do so, the marital home was to be sold, and the proceeds from the sale divided equitably between the parties. Larry appeals arguing that he should have gotten custody.  The COA finds no error in the court’s granting physical custody to Deidre and affirms.

April Blann Vogt v. Brian Blann modification of custody –  Brian and April divorced in 2007.  They had one daughter and the chancellor awarded physical and legal custody of Adyson to April.   In 2012, Brian filed a petition for modification, alleging that a substantial change in circumstances that negatively affected Adyson had occurred. In September 2010, April married Kenny Vogt, and they have one child together.  It sems that in the five years since the divorce,  Adyson had attended several different schools and had been absent from school several times because she and Adyson had moved to nine different residences.  And April was arrested after she and Kenny got into a fight.  April tried to kick out the windows of the police car.  The chancellor granted the modition to modify and gave Brian primary physical custody.  April appeal. The COA affirms.

Raymond Branch v. Lauren Branch –  custody/child support/alimony – Curt and Lauren married in 1999 and  had two kids.  Lauren filed for divorce in 2011 after Curt had an affair.  Lauren got full legal and physical custody of the children.  Lauren  received the equity in the marital home and rehabilitative alimony of $1,000 per month for seventy-two months. The chancellor ordered Curt to pay $1,800 per month in child support, pay seventy-five percent of the children’s education costs, and maintain a life-insurance policy of $500,000 with the children and Lauren as beneficiaries, until emancipation of the children. Further, the chancellor held Curt responsible for his student-loan and line-of-credit debts. Curt appeals and the COA affirms.

Howard Industries v. Vince Hardaway –  workers comp. – Hardaway began working for Howard Industries in  2008.  He worked as a “set-up person”  locating various sized coils, cores, pans, and clamps needed to complete a transformer.  In 2009, Hardaway reported that he was experiencing numbness in his fingers and hands.  He was diagnosed with bilateral carpal tunnel syndrome.  He worked on and off until he was fired for insubordination in October, 2010.  His doctor found that he eachedmaximummedical improvement in January 2011 and  assessed Hardaway with a thirteen percent permanent medical impairment to each upper extremity (wrist) and permanent work restrictions against repetitive grasping, gripping, or using knives or scissors and more than occasional lifting of more than two or three pounds.  Hardaway filed a  petition to controvert in January 2011.  The AJ  awarded Hardaway temporary partial disability benefits for the time periods ofJuly 9-10, 2009; July 24 to August 5, 2009; and August 23 to October 6, 2010. The AJ also awarded Hardaway permanent partial disability benefits for sixty weeks at the rate of $414.29 per week due to the “industrial loss of use of [Hardaway’s] left upper extremity,” and he was awarded the same  for his right upper extremity, with the “awards to run consecutively[.]” The Commission affirmed the AJ’s order except it found that  the proper rate of temporary partial disability benefits was “sixty-six and two-thirds percent (66 2/3%) of the difference between [Hardaway’s] stipulated average weekly wage of $721.80 and the wages actually earned” by Hardaway during the relevant periods. Howard appeals and thge COA affrims finding that “conflicts in the evidence are resolved by the Commission, not this Court, provided that substantial evidence supports the Commission’s findings.”

Jeremy Holloway v. State –  evidence rape victim had sex after rape – Holloway  was found guilty of two counts of sexual battery and one count of rape of Catherine Branch after she was accosted while walking with her boyfriend Ellis Wilkerson at  Brandon City Park.   Fortenberry held a gun to Catherine’s  neck and forced her to perform oral sex on him.  Jeremy Holloway, then  pointed a gun at her  and forced her to perform oral sex on him. He then vaginally raped her and forced her to perform oral sex on him once again.  As it turns out, Holloway was Wilkerson’s roommate and Wilkerson knew of the plan.  Fortenberry,  Holloway and Wilkerson  were charged. On appeal he argues that the court erred in excluding evidence that circuit court committed reversible error when it refused to allow evidence that Catherine willingly engaged in oral sex with Wilkerson in the Kroger parking lot shortly after she had been assaulted in the park and sufficiency of the evidence. The COA affirms.

The circuit court found that the evidence of Catherine’s post-assault sexual activities with Wilkerson was not relevant and, therefore, was not constitutionally required to be admitted. We agree. We cannot find that Catherine’s consenting sexual behavior with Wilkerson can be taken to mean that she consented to Holloway’s sexual assault. As stated above, the circuit court ruled that the probative value was outweighed by the prejudicial effect and would “tend to mislead . . . or confuse the jury.” We also agree with the circuit court on this point. Therefore, we find that the circuit court did not abuse its discretion in excluding evidence of Catherine’s post-assault sexual activities with Wilkerson.

The court also finds it irrelevant that Catherine indictaed she wanted to drop the charges.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s