Decisions – COA – May 10, 2016

 

David Alan Ringer  v. State of Mississippi Ringer was convicted of two counts of  sexual battery and one count of gratification of lust.  He was alleged to have touched the vagina of a nine year old with his fingers and  and rubbed his penis between her buttocks while on a camping trip.   On appeal, the COA reverses the sexual battery count that alleged that he penetrated her anus for insufficient evidence.

Convicted of both counts, Ringer appeals, arguing that the evidence was insufficient to support Count II. After reviewing the victim’s testimony, her accounts as relayed by others, and the medical evidence, we agree that there is insufficient evidence of anal penetration. We therefore reverse Ringer’s second sexual battery conviction and render a judgment on the lesser included offense of gratification of lust. We also reverse the sentence on Count I, as the sentences on the two counts were inextricably linked. We remand for resentencing on both counts.

Karen G. Chance (Richards) v. Rickey L. Chance –  laches in enforcement of property settlement – The Chance’s were divorced and entered into a property settlement agreement.  As part of the agreement Karen was to to pay one-half of the ad valorem taxes and insurance premiums on the parties’  Ocean Springs property.  When Karen could not pay it, Rickey made the full payments from March of 2003 until September 5, 2013.  According to Karen, the parties occasionally discussed the fact that, at some point, Mrs. Richards needed to begin paying her half.  On September 5, 2013, Rickey made a written  request for repayment.  On October 23, 2013, he filed a motion for contempt.  Karen made a payment  for the insurance premium and ad valorem taxes for the year 2013. The court found Karen “in contempt of court, although not wilful contempt, and awarded attorney’s fees to [Rickey].   The judgment was for $34,122.55 judgment  for ad valorem taxes and insurance premiums, and an award of attorney’s fees in the amount of $1,720.00.

Karen appealed. She argues that Rickey was barred by  the doctrines of laches and equitable estopple from seeking repayment. The COA affirms. “The doctrine of laches is simply inapplicable where a claim has not yet been barred by the applicable statute of limitations.”

 

Mark Wetzel v. Richard H. Sears – adequacy of damages –  Wetzel sued Sears after Sears rear-ended him.  A jury found for Wetzel  in the amount of $31,180.45. Wetzel’s complaint asked for damages of $34,195.68; this included damages for his medical expenses, lost wages, a towing bill, and mileage expenses so he asked for an additur which was denied. Wetzel appealed.

In calculating Wetzel’s damages, the jury was instructed to consider Wetzel’s 3 potential acts of negligence. Also, during trial, the defense challenged whether Wetzel’s claimed lost wages were accurate, as he received a salary from O’Reilly Auto Parts. Sears also presented a medical expert who testified that Wetzel’s back pain was caused by a prior injury and subsequent degeneration rather than the car accident.

The COA affirms.

Tony Leroy Hearn, Sr. v. Varena Denton Hearn – division of marital assets – The COA reverses the division of marital assets in this case because the chancellor made a mistake by calculating the equity in the marital home twice -once in the real property category and once in the “checking/savings accounts and other investments” category. “As a result of the chancellor’s miscalculation, the net value of Tony’s assets was overstated. Like the court in Jackson, we must reverse and remand for the chancellor to correct the mathematical error and revise the distribution of marital assets and liabilities.”

 

Jan Dykes v. Everett G. Dykes – assets/debts after separation – Jan and Everett married in  1987 and separated in 2006.  Jan filed for divorce on the fault ground of habitual cruel and inhuman treatment or irreconcilable differences. The chancellor granted Jan separate maintenance.  In 2013, Everitt filed for divorce on the grounds of adultery which the chancellor granted.   Jan appeals arguing that Everett should have been denied a divorce on this ground because he also admitted to having an affair. The COA finds no error; the chancellor’s decision to apply recrimination is discretionary. “Mississippi Code Annotated section 93-5-3 (Rev. 2013) provides: ‘If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or crosscomplainant.’ (Emphasis added).”

The COA reverses, though, on the division of marital assets.  There was a line of credit and Everitt’s retirement account. To the extent that Everitt contributed to the account after the separation and acquired the debt after the separation, teh chancellor would need to classify the debts accordingly. “Assets acquired after an order for separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse . . . or, (2) acquisition of the asset through the use of marital property.”  The COA remands to havethe chancellor classify these two items and divide the marital property acccordingly.

Rubin B. Renfrow, III v. State of Mississippi – prejudicial evidence in child porn case – Renfrew was convicted in 2008 of having child porn on his computer.  In 2013, he filed a pcr arguing that he was denied a fair trial because the court admitted emails and stories to show Renfrow “preferred children,” and that this attorney was ineffective in failing to object or request a limiting instruction. The Miss.S.Ct. granted Renfrow a hearing.  The special master denied relief and he appeals.  The COA affirms.

Luke Reed  v. State of Mississippi –  right to confront accuser with prior convictions – Reed was convicted of aggravated assault and felon in possession.  Reed  was visiting a friend Jimmy Lewis.   Reed is homeless and lives in a tent near Lewis’ house.  Reed and Lewis were sitting on the porch drinking when two guys drove up and offered to trade tools for crack.  Lewis talked to them.  They started arguing.  Lewis then borrowed Reed’s pistol and argued some more with the two men and they drove off.  Later Reed was about to leave and asked for his gun back.  Lewis was acting oddly and appeared to be about to shoot Reed so Reed grabbed for his gun and a tussle ensued in which Lewis was shot.  Lewis maintained Reed shot him.  Reed says Lewis shot himself.  On appeal, he argues he was deprived of a speedy trial.  That issue meets is usual fate: DOA.

Reed, though, filed a pro se brief arguing that the trial court erred in not allowing him to cross examine Lewis about his priors, an issue that had been argued and preserved by trial counsel. Lewis had been convicted or grand larceny and possession of cocaine. The COA reverses finding that Reed should have been allowed to cross-examine Lewis regarding the priors.

 As described above, the present case turned primarily on the conflicting testimony and  credibility of three witnesses: Reed, Lewis, and James. James corroborated Lewis’s claim that Reed shot him, but her version of events also conflicted with Lewis’s in some respects.

At trial, Reed sought to impeach Lewis with two prior felony convictions: a 2008 conviction for grand larceny and a 2011 conviction for possession of cocaine.6 Lewis admitted that at the time he was shot, he was still on probation imposed as a result of the 2011 conviction. Reed’s attorney argued that Lewis’s prior convictions were admissible under Rule 609(a) and the Confrontation Clause. He also argued that the convictions established a strong motive for Lewis to lie: if Lewis had admitted that he was carrying the gun, his probation could have been revoked, and he could have been charged as a felon in possession of a firearm and sentenced as a habitual offender. As noted above, the trial judge precluded Reed from cross-examining Lewis regarding the convictions because he found they were not “particularly probative of honesty” and that their “probative value” was “substantially outweighed by the danger of unfair prejudice to the State.”

 

Pro se PCR  appeals affirmed:

Sammie Lee Johnson  v. State of Mississippi

Anthony Washington v. State of Mississippi

Richard A. Simoneaux  v. State of Mississippi

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