Decisions – COA – June 21, 2016

 

ARD, LLC v. Trulite Glass & Aluminum Solutions, LLC – election of remedies/estoppel – ARD leased a  business premises to  VVP America, Inc. d/b/a Binswanger Glass  on Highway 49 in Richland.   The term of the lease  was from December 1, 2001 through November 30, 2011. After VVP filed for bankruptcy, the assets of VVP  were acquired by Trulite. Without a lease,  Trulite took over possession of the building.   ARD ended up suing Trulite for failure to pay rent and for damages to the property. The County Court granted summary judgment to  Trulite on the basis of the doctrines of election of remedies and judicial estoppel because ARD sought the exact same damages against Binswanger in that company’s bankruptcy case.  ARD appealed to Circuit Court and lost and appeals again. The COA affirms.

James Little v. The Mayor and the Board of Aldermen of the City of Ocean Springs, Mississippi – rezoning – Little and  five of his neighbors asked to rezone part of the Davis Bayou subdivision  from  single family residential to personal and business services and retail business of the community.   The Ocean Springs Planning Commission voted unanimously to recommend denying the application. Little appealed to the Board, which, after a hearing, unanimously denied it. He appealed to the circuit court which affirmed and appealed again.  The COA affirms finding that Little failed to prove by clear and convincing evidence either that (1) there was a mistake in the original zoning, or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that a public need exists for rezoning.

Jason Bozman v. State of Mississippifondling – Bozeman was convicted of fondling. On appeal his attorney filed a Lindsey brief stating that there are no issues.  Bozeman was given an opportunity to file his own brief and did not.  The COA affirms.
Helene Benson v. Mack D. Rather d/b/a The Tint Shop and Vicksburg Printing and Publishing Companypremises liability – Benson was having work done on her car at the Tint Shop when she tripped over a concrete threshold that was serving no purpose but was left over from when that area of the building was used to wash cars.  She sued the Tint Shop and Vicksburg Printing which owned the building arguing negligence and negligence per se because the design violated the International Building Code. The defendants argued that once Benson entered the service bay of the garage she was no longer an invitee but a licensee.

The trial court granted summary judgment for the defendants finding that  Section 101.4.5 of the International Building Code specifically excluded existing structures and that there was no dispute The Tint Shop building was built prior to 1960.  And even if it did apply,  Benson did not show she was in the category of persons the section was designed to protect; that she suffered injuries that the code was designed to avoid; or, that the violation caused her injuries. The COA affirms.

James Keith Cooley and Cooley Drug, Inc. v. J.M. Smith Corporation d/b/a Smith Drug Companyreplevin – J.M. Smith Corporation supplied inventory to Cooley Drug.  At some point,. Cooley stopped  paying and J.M. Smith filed areplevin.   Cooley  Drug responded with a Motion to Dismiss  but never filed an Answer.  At trial,  the trial court found for J.M. Smith holding that Smith had proven its security interest, that the collateral could not be found, and that Smith was owed the value of the missing collateral and attorney fees under the contract papers.  Smith was ordered to credit Cooley Drug in the event that any of the collateral was found.  On appeal, Smith argues that it was error for the Court to issue a replevin and damages.  The COA affirms.

 Joe Gillespie v. State of MississippiGillespie was charged with robbery after he approached a car at a convenience store and asked for a couple of dollars.  When the passenger got his wallet out, Gillespie grabbed it and ran. On appeal he raises only sufficiency of the evidence issues.  Apparently Gillespie’s neck tattoos are incompatible with his chosen profession and the COA affirms.

 James Scott v. State of Mississippi –   rape/kidnapping – Scott was charged with having broken  into the home of Danielle Landry in Hattiesburg, Mississippi.  Landry believed Scott intended to rape her and so she  offered money to Scott in exchange for her release.  Scott took Landry to her car, forced her into the passenger seat, and drove from the house to drive to an ATM but Landry managed to flee.   Scott was convicted of attempted rape, kidnapping, and burglary of a dwelling sentenced to  three consecutive life sentences as a habitual offender.  On appeal Scott argues that he should have been allowed to elicit Landry’s prior marijuana use, that the instructions were incorrect, that the state should have been prohibited from using DNA evidence since it was not disclosed until right before trial,  sufficiency of teh evidence, etc. The COA affirms.

 

 Tracy Tyrone Isaac v. State of Mississippi – ? – In 2012, Tracey Isaac pleaded guilty in 2012 to an unlawful sale of at least one-tenth gram but less than two grams of cocaine within 1,500 feet of a church and  sentenced to thirty years  with fifteen years to serve.  He later filed in the circuit court a  request that the court allow him to change the race listed on his birth certificate to “Moorish American.” He also “requested that the court allow him to issue summonses for a civil suit that he thought he filed against the Mississippi Parole and Probation Office.”  The trial court denied relief.  The COA finds that “[i]t is not clear from which order Isaac purports to appeal.”  But since the Court can’t “discern from the collection of documents any issue cognizable of appellate review”, it affirms.

Joel Dudley Jones  v. State of Mississippi  –  indicted as a principal, jury instructed on accomplice liability –  Jones was convicted of two counts of aggravated assault.  In July 2012,  Jones was seen looking for  Alvin Johnson because he owed Jones money. Later that day,  Jones was with  Deandre Tillman and Taylor Conner. When they spotted Alvin, a fistfight broke out. After it was over, Jones was seen driving around and pointing a gun out the window of his car. And that evening, Alvin and some friends encountered  Jones, Conner, and Tillman.   Jones drove toward Alvin’s group in his car.  Someone in Jones’ car got out and shot a shotgun hitting two of Alvin’s friends.  One was permanently blinded.  On appeal, he “argues that the State’s instruction on accomplice liability constructively amended the indictment because it expanded the scope under which he could be found guilty. He argues that the jury instruction ‘gutted’ his theory of defense that he was not the shooter and deprived him of his constitutional rights of notice and due process.”  The COA finds that he failed to object to the instruction. Furthermoe,

This Court found no merit to Johnson’s claim, since under the statutory language of Mississippi Code Annotated section 97-1-3 (Rev. 2006), “an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such[.]” Johnson, 956 So. 2d at 363 (¶12) (quoting Miss. Code Ann. § 97-1-3). We held that “[t]he clear language of section 97-1-3, as well as the holdings of both this Court and the Mississippi Supreme Court interpreting and applying that provision, provide[s] sufficient notice to felony defendants that although they may be indicted as a principal, a jury instruction based on accomplice liability is proper, provided that ‘the evidence presented supports the instruction given.’” Johnson, 956 So. 2d at 363 (¶12) (quoting Pratt v. State, 870 So. 2d 1241, 1250 (¶28) (Miss. Ct. App. 2004)).

 

 Billy James Bergeron v. State of Mississippimolestation –  Bergeron was convicted of molestation.  The OIA filed a Lindsey brief. The COA affirms.

Nathan King  v. Rick McCarty and Marshall Fisher inmate reclassification –  In 2001, King was convicted of sexual battery, conspiracy to commit sexual battery, and contributing to the delinquency of a minor.  During his intake, the MDOC mistakenly classified him as trusty status.  Subsequently, MDOC realized his convictions made him ineligible.  MDOC reclassified him and revoked nearly all of his accrued trusty-time credit. Ten years later,  King filed a complaint through MDOC’s Administrative Remedy Program.  After MDOC found that his complaint was untimely, King filed a motion for judicial review in the Greene CountyCircuit Court. The circuit court dismissed it because King did not seek judicial review within thirty days of MDOC’s decision. The COA affirms.  “We find that MDOC did not err when it found that King’s underlying complaint was untimely. What is more, King was not eligible to receive earned-time or trusty-time credit because he had been convicted of three sex offenses.”

Arthur Randallson and April Randallson v. Randall Green and Laura Green custody awarded to grandparents – Arthur and April were married in 2004. That same year,  April gave birth to their daughter, Aeva.  In 2012, Arthur moved out claiming that  April was  physically and verbally abusive and that  April’s house was straight out of hoarders with animal.  It was also alleged that  April was  addicted to painkillers and administered ZzzQuil or NyQuil to Aeva to induce sleep. Randall later moved back in with April.  Randall’s father and mother then filed for custody of Aeva.  A year later,  the chancellor entered an emergency order due to Arthur and April’s failure to cooperate with the guardian ad litem (GAL). After the initial visit, the GAL removed Aeva from the house on an emergency temporary basis because the house was unsuitable.  Aeva was allowed to return and Randall and Laura were given visitation dates. Eventually   Randall and Laura Green were awarded full legal and physical custody of  Aeva  because the testimony showed that April and Arthur’s house was a disgusting mess, April was abusive and taking drugs that would incapacitate a normal person, etc.  Aeva’s  parents appealed arguing that the chancellor erred in (1) relying on requests for admissions to determine custody, (2) awarding custody to Randall and Laura, and (3) awarding supervised discretionary visitation.  The COA affirms finding that the chancellor did not solely rely on the failure to respond to admissions and that the chancellor did not abuse his discretion in making the award he did.

 Mario Terrell Rucker v. State of Mississippi lesser included instruction –  In September  2012, Rucker  stabbed William Nuby several times with a pair of scissors at a Waffle  House in Jackson. Nuby died two days later.  Rucker was charged with murder but  was convicted of aggravated assault and sentence as a habitual offender to life without parole.  Rucker argues that it was error for the court to instruct on aggravated assault claiming the judge did so sua sponte.  The COA, however, points out that Rucker submitted an instruction that included aggravated assault as a lesser felony.  “Rucker cites to Hye v. State, 162 So. 3d 750, 751 (¶2) (Miss. 2015), for the proposition that ‘a criminal defendant no longer has the unilateral right under Mississippi law to insist upon an instruction for lesser-related offenses which are not necessarily included 4 in the charged offenses.’ However, Rucker’s trial occurred in 2014, well before Hye became law; thus, we find Hye inapplicable to this case.”

 

Pro se PCR appeals affirmed

Clyde Campbell v. State of Mississippi

Christopher Conyers v. State of Mississippi 

James Funches v. State of Mississippi

Amos Hicks v. State of Mississippi

 

 

 

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