Decisions – COA – Sept. 29, 2015

Jennifer Simmons Lowry v. Ryan Simmons –  child support where child has no relationship with parent – Jennifer and Ryan divorced in December 2008 and agreed to all issues including that their 13 year old daughter Jillanna would be in the primary care of Jennifer.  Three years later Ryan filed to have the alimony provisions of the settlement agreement declared void and to have alimony payments terminated retroactively from the date of Jennifer’s remarriage in 2010. He also sought to reduce child support because Jilanna refusad to have any contact with him.  The GAL  recommended a modification of college expenses to be paid by Ryan based upon the “complete atrophy” of the father-daughter relationship.   The chancellor gave Jilana a chance to reconcile with Ryan.  When this did not happen,  the chancellor terminated Ryan’s future obligations to pay child support and college expenses.  He did not terminate alimony.   Both parties appealed. The COA affirms the chancellor’s refusal to stop the alimony but reverses on child support.

Although the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship—indeed, that the parent is guilty of “inexcusable parental neglect”—and the child’s essential fault is in failing to respond to a neglectful, absentee parent’s belated efforts at reconciliation.

Jay Foster, PLLC v. Teresa McNairattorneys fees – Jay Foster represented Teresa in a workers comp case.  SHe had a second case wherein he insisted he be paid but relied on the contract for the first  injury.  The Commission denied payment as does the COA.

Enmon Enterprises v. Jerry Snyderworkers comp. – Snyder was a part owner and manager of a Jani-King Franchise.  In November of  2009, he fell and injured his  head, neck, vision and hearing.   In February 2010, Snyder fainted due to his initial head injury, causing a fall, which resulted in a left-ankle injury that required surgery.  The Commission  granted temporary total disability benefits, permanent partial disability benefits, and industrial-loss-of-use awards to Snyder  Enmon appeals.   Snyder cross-appeals seeking an award for loss of earning capacity. Enmon argues that  Commission erred in finding Snyder’s TTD period overlapped his return to employment and, besides, he showed no loss of income. The COA agrees. “In clarifying its  order, the Commission must provide its basis for awarding TTD benefits, if any, during the time that it appears Snyder returned to work and was earning wages. If the Commission did not intend to award TTD benefits during this period of time, it must make a specific finding of the dates that Snyder should be entitled to TTD, if any, or TPD, if any, in compliance with the Mississippi Supreme Court’s decisions in Flowers and Robinson..”  The COA does not agree with Enmon that  because Snyder suffered no loss of wage-earning capacity, the Commission erred by awarding industrial-loss-of-use awards for scheduled members.  The COA affirms the Commission’s finding that Snyder suffered no loss of ability to earn income.

Malcolm Cameron v. State –  DUI – cause to stop –  Cameron was convicted on DUI 1.  On appeal he argues that there was no probable cause to stop him.  The COA notes he did not rauise such a challenge in the trial court.  Furthermore, ” the record shows the officer pulled over Cameron after watching him swerve in his vehicle. So Cameron’s non-asserted argument that the exclusionary rule should bar evidence obtained following the stop fails.”

Tracy Woods v. State –  DUI – probable cause to stop –  In November  2011, Woods turned left off Lake Harbor Drive onto Old Canton Road.  He then made a  sharp right into a gas station without signaling. Ridgeland P.D, stopped Woods,  smelled alcohol and noticed Woods’s eyes were glassy.  Woods said he had consumed two beers that night.  Filed sobriety tests led to a breathalyzer at the station where Woods scored a .18.  On appeal he claims for the first time that there was no probable cause to stop him.  The COA affirms.  “Officer Ainsworth testified he believed Woods had violated section 63-3-707 when he made 5 a right turn—just after going through a major intersection—without signaling he was doing so.”

Cleondra Carter v. Mario Escovedocustody and visitation/restrtriction on overnight visitors – On November 29, 2010, Carter and Escovedo had a daughter out of wedlock, Kylee Sue Escovedo, in Nov. 2010.   Carter appeared on MTV’s show “Sixteen and Pregnant,” while she was pregnant with Kylee.   The couple lived together for a few years and then split up and  Escovedo filed a complaint for child custody. Escovedo was given  sole legal and physical custody.   Carter was awarded visitation every other weekend from Friday night to Sunday night and also received two weeks during the summer.  The order also directed that Carter “shall have such other reasonable visitation . . . as can be mutually agreed upon by the parties.” But the chancellor prohibited “overnight visitors of the opposite sex (or of an intimate nature) unless related by blood or marriage” while Kylee was with Carter or Escovedo.   On appeal, the COA affirms the award of custody but since both parties agree the visitation is insufficient, reverses and remands on visitation but finds nothing wrong with the limitation on overnight visitors.

James Hilliard v. State –   challenge to guilty plea –  Hilliard was charged with conspiracy to sell cocaine after his car was searched in December  2009.  In March  2012, Hilliard filed an unsuccessful motion to suppress the evidence.  In July  2012, the State moved to amend Hilliard’s indictment to reflect his status as a habitual offender.   Four days later  Hilliard pled guilty pursuant to an agreement whereby the  court would dismiss the possession charge, fine Hilliard $3,000, and sentence Hilliard, as a habitual offender, to seventeen years with thirteen years to serve and two years of postrelease supervision.  At Hilliard’s request, he was given time before reporting to prison.   Hilliard was ordered  to the Lafayette County Detention Center no later  than noon on September 17, 2012.  When he failed to do so, the court amended the  sentencing order so that Hilliard was to serve  fifteen years. Hilliard filed a pcr petition alleging ineffective assistance which the court dismissed withgout a hearing.  The COA affirms.  Hilliard claims  he would not have pled guilty to the conspiracy charge or waived his right to a speedy trial if his attorney had properly advised him.  He also argues that he never pleaded guilty to the habitual enhancement.  Apparently Hilliard is getting some really bad legal advice in prison.

Ulyenda Moore v. Miss. Dept. of Employment Security unemployment benefits –  Moore worked as a nurse assistant for NMMC for 12 years.  She was fired for leaving work on February 14, 2014, without authorization. The MDES  found that Moore failed to show good cause for voluntarily leaving her employment. As a result of its findings, the MDES concluded that Moore was disqualified from receiving unemployment benefits until she became reemployed and earned eight times her weekly benefit amount.   Moore appeals admitting she did not get authorization but claiming she was sick.  The COA affirms.

Demetrious Lawan Averett v. State –  In July 2012, A deputy sheriff spotted someone running across the highway.  He then heard an alarm coming from a package store.  The glass door to the store was broken.  Surveillance video showed a man and woman. The next day a juvenile was arrested and he told law enforcement that Jennifer Henderson told him that she and Averett had broken into the store.  Henderson confessed.  She ahd Averett were charged with burglary and Henderson testified against Averett.  On appeal he argues that the judge should have granted a mistrial when a police officer told the jury on cross, when asked whether there was any physical evidence linking Averett to the burglary, stated “No, sir, he wouldn’t provide a statement or wouldn’t give any kind of cooperation.”    During closing argument, the prosecutor commented on Averett’s failure to give cops his alibi.   There was no objection at trial.     The COA finds this does not rise to plain error.

Shelida McKinney v. Harold McKinney and Kim McKinney grandparent visitation – WHen their son Jason died in an automobile accident in August 2012, his parents sought visitation with his three children,  Kaylee, born on June 24, 2003; Zachary, born on April 10, 2005; and Kara, born on July 23, 2009.  The kids’ mother Shelida agreed that “it was a good idea for the kids to have a relationship with the [grandparents]” but testified that the grandparents disrespected her authority as a parent.”  After the hearing, the chancery court granted visitation to the grandparents every Monday afternoon from 3:30 p.m. until 7:00 p.m.; the third weekend of every month from Saturday at 8:00 a.m. until Sunday 4:00 p.m.; and one week during the summer, beginning on Monday at 8:00 a.m. of the second week of July until the following Saturday at 8:00 p.m. The judgment also prohibited all parties from smoking in the presence of the children.  Shelida appealed and the COA affirms.

Stewart Chase Vaughn v. State –  hearsay/confrontation – Chase sold  three grams of methamphetamine to a confidential informant working with the Rankin County Sheriff’s Department.  He was found guilty and sentenced to 60 years as an habitual.  Vaughn was arrested while he was in a vehicle with Tammy Brewer. Brewer told law enforcement that Vaughn had thrown cash out the window of their car.  The next day, law enforcement found teh cash and it included the money used to but the drugs.  Prior to trial, Vaughn moved to suppress Brewer’s statements.  The court suppressed her recorded statement but reserved ruling on the admissibility of the remaining evidence.   During the trial, the state adduced evidence of Brewer’s initial statement but the defense did not object.  On appeal, he argues that the introduction of this evidence violates his right to confront witnesses since Brewer did not testify.  The COA finds no error because the statement was not admitted to prove that Vaughn threw the money out of the window but to explain why officers searched the area. Vaughn also argues that it was error to amend the indictment to charge him as an habitual after the plea date had passed. The COA disagrees since the indictment was amended two months before trial.

pro se PCR appeal affirmed:

Barron Border v. State

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