Decisions – COA – July 19, 2016

State of Mississippi v. Brandon Rawlings – affirming JNOV for defendant –   In 2010, Rawlings was a caregiver at a nursing-home facility in south Mississippi. He was charged with  sexual battery and fondling a vulnerable person, J.P. who was a resident of the home.  The jury  found him not guilty of sexual battery, but guilty of fondling a vulnerable person.  The trial court ended up granting a JNOV on the fondling charge and the State appealed.  The COA affirms.  

Janet K. Sanford v. Walter Dudley and Tracy Dudleyrequests for admissions – Janet Sanford sued her neighbors Walter and Tracy Dudley alleging that they had caused damage to her property.  Shortly before their answer was due, the Dudleys obtained  a thirty-day extension of time to respond to the complaint. The Dudleys then served their answer, discovery requests, and requests for admissions all on the same day. Sanford failed to respond to the requests for admissions within thirty days due to her attorney’s mistaken belief that counsel opposite had consented to an extension.  The trial court deemed the requests admitted.   Eight days after Sanford’s responses were due, the Dudleys moved for summary judgment based onSanford’s deemed admissions. Eight days later, Sanford served answers to the requests and also moved to withdraw her admissions.  The trial court denied Sanford’s motion and granted summary judgment.  The COA reverses.  “We agree with Sanford. Withdrawal of her deemed admissions would promote a resolution of the case on its merits and would not prejudice the Dudleys’ ability to defend the case on its merits. Furthermore, Sanford promptly took action to correct her mistake, while the litigation was still at an early stage—indeed, she moved to withdraw her admissions only forty-six days after the Dudleys filed their answer.”

Charles Gregory Davis  v. State of Mississippi change of venue – Southaven mayor Charles Greg Davis was  was found guilty of  one count of false representation to defraud government and  one count of embezzlement.  He was sentenced to ten years with two and a half to serve. On appeal he argued that the court should have directed a verdict of acquittal, that venue should have been changed, that the court should have granted a mistrial after the state committed a discovery violation, and the failure to grant a circumstantial evidence instruction. The COA reverses finding  “that the trial court erred in denying the motion for a change of venue in light of the fact that the State failed to rebut the presumption that arose upon Davis’s application for a change of venue.”

Greg A. Fortenberry v. State of Mississippimurder – Fortenberry was convicted of first-degree murder and various other charges in the death of fourteen-year-old Blake Thompson. On appeal he argues that it was error to introduce photos of the victim and the crime scene and sufficiency of the evidence.  The COA affirms.

Aundrea Robinson v. Martin Food Stores, Inc. d/b/a Sunflower Food Stores of Magnolia – slip and fall –  Robinson was injured when he slipped and fell in a puddle at a grocery store.  The court granted summary judgment for the store.  The puddle had apparently been created when the beer man (a non-employee) was stocking  the beer cooler.  An employee testified that the puddle had not been there five or ten minutes previously and, thus, the store did not have constructive knowledge of it.  Robinson argues that the store’s loss of the video and incident report should have created a presumption in her favor.   The COA affirms finding that the spoilation argument had not really been preserved and, further, “summary judgment would have been properly granted even if Robinson had received the spoliation inference he requests on appeal.”

Jesse L. Walker v. State of Mississippi – sexual battery – Walker was convicted of molesting his 13-year-old daughter.  On appeal he argues that the trial court erred in (1) refusing to suppress his confession, (2) finding the victim was of tender years, (3) failing to exclude alleged prior bad acts concerning the living conditions of his home, (4) refusing his proposed jury instruction D-2, and (5) denying his motions for a new trial and a judgment notwithstanding the verdict.  The COA affirms.

Bill Lauderdale d/b/a Bumps & Ruts Motorcross Track v. DeSoto County, Mississippi, by and through Its Board of Supervisors –   zoning –  Lauderdale has a  motocross  race track and he sued Desoto County for wrongfully enjoining him from conducting three races in the summer of 2012.   Lauderdale was granted a conditional use permit for what Lauderdale called a private club on June 13, 2011, allowing him to operate  9:00 a.m. – 6:00 p.m. Monday through Saturday and 11 :00 a.m. – 5:00 p.m. on Sunday. Plans for organized, group events were to be submitted to the Planning Commission and Sheriffs Department 30 days prior to the event date.

Lauderdale submitted plans to hold four special, AMT  Series-sanctioned events on May 27, June 10, August 12, and September 09, 2012.   100 racers and 200-300 spectators were anticipated for each event.   The Board of Adjustments denied Mr. Lauderdale’s request to hold the  races as requested. On appeal, the Board of Supervisors upheld the  decision. Lauderdale told the newspaper that the races would occur anyway.  The county got a restraining order but Lauderdale held one of the events anyway on June 23-24, 2012.  In early  July, the Chancellor entered a preliminary injunction prohibiting  Lauderdale from hosting the August and September events.

In Lauderdale’s civil suit for damages, the court held that, while the temporary restraining order and preliminary injunction were justified due to  Lauderdale’s violation of a direct order of the Board of Supervisors,  Lauderdale had not otherwise violated the terms of his conditional use permit. The permanent injunction requested by the County  was denied and the Court awarded Lauderdale attorney’s fees and expenses incurred in defense of the County’s application for permanent injunction were awarded. Lauderdale appeals the denial of damages.  The County cross appealed the award of attorneys fees.

The COA affirms the grant of the TRO and the preliminary injunction but reverses the award of  attorney’s fees and expenses Lauderdale  incurred in defending against the County’s unsuccessful amended application for a permanent injunction since neither Lauderdale nor the track was ever wrongfully enjoined.
Gregory A. Thinnes  v. State of Mississippi –  voluntariness of plea –  On January 17, 2012 Gregory Thinnes pleaded guilty in  Webster County to Manufacture of Marijuana, Over 1 Kilogram in Jan. 2012.  He was sentenced to 15 years with 3 suspended and 12 to  serve.   For the next 30 months he believed that he was eligible for parole consideration after serving 1/4 of his 12 year sentence. The MDOC believed likewise because the MDOC sent Mr. Thinnes several Inmate Time Sheets that projected his parole eligibility date to be January, 2015. In June, 2014  Thinnes filed a PCR petition alleging that his attorneys  failed to present the sentencing court with evidence of material facts concerning his medical condition that should have been considered.  A hearing was conducted and the court ruled against him but did not enter a written order.  After that MDOC informed Thinnes that he was not eligible for parole.  Thinnes amended his petition to claim that he pleaded guilty based on erroneous parole advice given his attorneys.  The trial judge, without a hearing, denied relief.  Thinnes appealed.  The COA reverses and remands finding that Thinnes was entitled to a hearing on his claim that he was given erroneous advice.

Cynthia Johnson v. City of Jackson, Mississippi workers comp. – Cynthia Johnson was employed by the City of Jackson  as a deputy court clerk from April 2003, until January 2011. On January 20, 2011, Johnson reported to the City that she was suffering from carpal tunnel syndrome as a result of her work.  It turned out that she had been diagnosed with carpal tunnel in June of 23008 and the Commission ended up dismissing her claims as being outside the two-year statute of limitation.  The COA affirms.

Paul V. Lacoste v. Laura R. Lacoste – valuation of business in divorce – Laura was granted a divorce from Paul Lacoste based on habitual cruel and inhuman treatment. She was granted sole custody of the couple’s two children and Paul was ordered to pay rehabilitative alimony and child support. On appeal Paul challenges the custody decision, the award of child support and alimony and also argues that the chancellor erred in valuing his business and, consequently, erred in dividing the marital property.  THe COA affirms except on the business valuation and reverses and remands for further proceedings as to the valuation of Paul’s fitness training business  Next Level Sports LLC (also known as Paul Lacoste Sports).”Because we remand on this issue, we likewise remand for the chancellor to revisit the equitable distribution of property, since it hinged on the business’s valuation.”

Marion O’Bryan Strickland  v. State of Mississippi enticement of a child – Marion Strickland was a high school teacher in the South Panola School District. In October 2012, Strickland was arrested for allegedly enticing a fourteen year old child, K.W., to send Strickland a picture of K.W.’s penis. He was convicted and sentenced to 40 years with 20 suspended (a completely ridiculous sentence). Strickland admitted to having poised as a female to get K.W. to send him photos. On appeal he argues it was error to allow evidence that he had attempted to solicit sexually explicit photos from other students; that it was error to allow testimony about text messages and photos without admitting the “best evidence” of same; that he should have been able to fire his hired attorney and get an appointed one 19 days before trial; and sufficiency of the evidence. The COA affirms.

 

Juan Gray v. Town of Terry, Mississippi, Mayor Roderick Nicholson, Aldermen Virginia Bailey, Bonnie Holly, Joseph Kendrick Jr., Elzena Johnson, and Doris Youngwrongful discharge – Gray was appointed the police chief of Terry in 2005. In 2012, the Board of Aldermen voted to terminate Gray unless he resigned and accepted a severance package.  He signed it but sued anyway.  The trial court granted summary judgment for the Town and Gray appealed.  The COA affirms.

Monte Knight v. Monica Knight – division of marital assets –  Monte and Monica Knight married in 2000 and separated in 2011. Monica filed for divorce.   After a trial, the chancellor granted a divorce, awarded custody of the minor child to  Monica, divided the marital assets, and awarded $7,500 in attorney’s fees to Monica. The chancellor found both parties to be in contempt, ordered Monte to pay Monica an additional $2,000 in attorney’s fees, and ordered Monica to payMonte $1,500 in attorney’s fees.  The COA affirms the division of marital assets but reverses and remands the award of attorneys fees since the chancellor did not make an on-the-record analysis of the McKee factors and the record does not contain any testimony or evidence regarding Monica’s inability to pay her attorney’s fees.  “On remand, any award of attorney’s fees must be supported with findings concerning Monica’s inability to pay and the reasonableness of the award under the McKee factors.”

Gloria Leake v. Anthony Leake – contempt – Anthony and Gloria Leake were married in  December  1990, and had their first child four months later.  Their second child, Taylor, was born in 1998. Anthony and Gloria filed for divorce in 2008 and litigated it until  2013. The chancellor awarded sole physical and legal custody of Taylor to Anthony, and ordered Gloria to pay child support, among other things.   Gloria filed to set aside the chancellor’s order and also requesting a finding of contempt and  a modification of custody.  Anthony filed a counterclaim for contempt alleging Gloria failed to pay $15,363.632 in child support, $3,708 from a savings account, and a $225 appraisal fee. He also alleged Gloria did not provide proof of a life-insurance policy naming Taylor as a beneficiary or proof that Anthony was named as a beneficiary on Gloria’s retirement account. The chancellor found there was no evidence that Anthony was in contempt, nor had there been a material change in circumstances.  The chancellor also found that Gloria had unclean hands and entered a judgment of contempt in favor of Anthony. Gloria appealed and the COA affirms.

Bennie Beal v. State of Mississippi castle doctrine –  Sixteen-year-old Bennie Beal was convicted of deliberate-design murder in the shooting of a convenience store operator who demanded that Beal pay for all of the gas he pumped.   On appeal, Beal argues that the evidence was insufficient to support the verdict and that his trial counsel was ineffective for failing to request a castle-doctrine jury instruction.

Beal was sixteen years old at the time of the shooting, and he admitted he took the gun from his grandmother’s house. He then concealed the gun in the waistband of his pants and used the gun in the commission of the murder. In Beal’s motion for a directed verdict, Beal’s counsel recognized the violation. The trial judge asked, “is the defendant entitled at [sixteen] to have a gun in his possession at all?” Counsel responded, “No, Your Honor, he is not authorized to do so.” Also, Beal was in violation of Mississippi Code Annotated section 97-32-9 (Rev. 2014), purchase of tobacco by a minor, as he was under eighteen when he purchased cigarettes at Patel’s store. Further, Beal was arguably in the process ofstealing gas from Patel’s store, which led to the shooting. The fact that Beal was not charged with these crimes is irrelevant. As it is clear Beal was engaged in unlawful activities, the castle doctrine was inapplicable, and Beal was not entitled to a jury instruction on the presumption of fear set out in prong two. For this reason, we cannot find his counsel was ineffective for 11 failing to request a castle-doctrine instruction.

 

City of Meridian, Mississippi d/b/a East Mississippi Drug Task Force v. $104,960.00 U.S. Currency, and a 2003 Ford F-150 Supercab Truck, VIN #1FTRX17213NB65899 and Maria I. Valle Catalan – forfeiture – In June  2012, Catalan was pulled over for “tired” driving. A consensual search revealed $104,690 hidden in one of the truck’s compartments.  No contraband or drugs were found in the truck and  Catalan was not  charged with any criminal offense or even a traffic ticket. The City filed a petition for forfeiture requesting the forfeiture of Catalan’s truck and the $104,690. Catalan filed an answer and a request for production. She eventually filed a  motion to dismiss under Rule 12(b)(6) which the trial court granted. The City appeals.  The COA affirms.

Here, the City’s petition named the currency and truck as items for forfeiture but failed to state any reason for their forfeiture. Specifically, the City presented no facts or circumstances to show how the use or intended use of the money and truck violated the Mississippi Uniform Controlled Substances Law. So, applying the same principles from Cannon, the City failed to meet Rule 8’s threshold requirements, and its petition was properly dismissed under Rule 12(b)(6).

 

Pro se PCR appeal affirmed:

Lonnie G. Massey v. State of Mississippi 

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