Decisions – COA – August 9, 2016

Darrell Letease Ford v. State of Mississippi gratification of lust –  Ford was convicted of gratification of lust of his 11-year-old stepgrandaughter and sentenced to fifteen years.  His attorney filed a Lindsey brief. Ford filed a brief claiming that both trial and appellate counsel were ineffective.  The COA affirms.

 James Michael Lee Jenkins v. State of Mississippi  –  burglary – Lee and two others were charged with having  burglarized a home in  Vardaman and stealing a 12-gauge shotgun, a .22-caliber rifle, jewelry, a laptop, an electronic gaming system, and two computer tablets. The two codefendants pleaded and testified against Lee.  Lee was convicted and sentenced to  twenty-five years with twenty  to serve.   On appeal he argues sufficiency of the evidence.   The COA affirms.

Dr. Hosan M. Azomani v. State of Mississippi – medicaid fraud –  Pediatrician Dr. Azomani was convicted of two counts of Medicaid fraud and sentenced to  two concurrent terms of three years.   On two separate days (one in October 2010, and another in January 2011,  he billed for treating 56 children and then 69 children.  He was paid $14,715.66 for the two days.   Experts who reviewed Dr. Azomani’s records for the MFCU unanimously concluded that none of the children Dr. Azomani treated during those two days should have been billed under code 99215. On appeal he argues that (1) he was not tried in the proper venue; (2) the statute of limitations had expired; (3) the jury was improperly instructed; (4) there was insufficient evidence to convict him; (5) he received ineffective assistance of counsel; and (6) cumulative error.  As for venue, Azomani argues that the medicaid fraud statute allows for venue in Hinds or the county where the defendant resides.  Azomani was tried in Washington County – the clinic where the violations occurred and not in Madison where Azomani resides.  Since Azomani is not raising a venue claim pursuant to the Constution, his failure to object at trial waives the issue.  Azomani argies that the SOL is 2 years pursuant to MCA Sect. 99-1-5.  However that statute states that  that “[t]he passage of time shall never bar prosecution against any person for the offense[] of . . . obtaining money or property under false pretenses or by fraud . . . .”  The COA affirms.

Ryne Rankin v. Kenneth Matthews and Heather Matthewspremises liability –  In June of  2012, the Matthews had a party.  They invited some teenage bands to perform.  Rankin was in one of the bands.  After playing with his band, Ryne was struck by another youth at the party,  lost consciousness and sustained serious injuries. Ryne’s assailant was ordered to compensate Ryne’s mother through the Warren County Youth Court.  Rankin sued the Matthews and the trial court granted summary judgment for the Matthews. Rankin argues that there were material factual disputes regarding the following:  (1) alcohol was allowed on the premises; (2) money was collected from the show attendees to pay for the gas of out of town band members; (3) no security was provided; (4) that a benefit was conferred upon the party hosts, and (5) that the actions of Ryne’s assailant were reasonable foreseeable.

The trial court held that Rankin was a licensee and not an invitee. There was no evidence of any active ongoing business concern or active negligence that would implicate the Hoffman exception rarely bestowed on certain licensees. And even if Rankin could somehow be classified as an invitee, there was no competent evidence that the altercation between Rankin and Jeremy Carroll was forseeable and no evidence that the Matthews knew or should have known of any atmosphere of violence.  Lastly, as to Rankin’s suggestion that alcohol may have been consumed by unidentified minors, the court found that there was no proper evidence that alcohol was consumed prior to the incident or that it played in role in the altercation. Rankin appeals and the COA affirms.

Sylvia Davis Rester and L.B. Davis v. Greenleaf Resources, Inc. – adverse possession – In  2004, L.O. Crosby III conveyed 297.61 acres of land located in Pearl River County, Mississippi, to Greenleaf. Greenleaf recorded the deed on Jan. 20, 2004.  In 2012,  siblings Sylvia and L.B. filed a complaint alleging that they, through tacking onto the claim of their father, Robert Davis, acquired  19.6 acres of the property through adverse possession since 1919, when their father  acquired title to five acres of land located adjacent to the disputed property. Greenleaf filed a counter-complaint to remove cloud.  The chancellor found for Greenleaf despite the testimony of people who had known the property as the Robert Davis property.  The COA reversed and remanded because the court  only focused on the period of time Greenleaf held title to the land.  “Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.”  On remand, the trial court again found for Greenleaf.  This time the COA affirms.

The Estate of Betty Jean Kiihnl v. Family Dollar Stores of Mississippi, Inc.premises liability – Kiihnil sued the Dollar Store in Charleston.  She  broke a hip after she  collided with a young boy who was engaging in horseplay with his friends on the sidewalk in front of the store. The trial court granted summary judgment for the store.  The COA affirms.

There was no proof that Family Dollar had actual knowledge of the boys’ presence outside of the store. The store manager stated she did not notice the boys outside and had not received any complaints. And another shopper stated she had the same view as the store manager and did not notice the boys either. Furthermore, the boys did not remain outside long enough to provide Family Dollar with constructive knowledge of their presence.

In the Matter of the Last Will and Testament of Merlin Joseph Wagner, Deceased: Brenda Smith v. The Estate of Merlin Joseph Wagner, Merlin Joseph Wagner, Jr. and Wayne A. Cook – estates/effectiveness of undocketed bankruptcy orders – Brenda and Merlin Wagner owned Wagner Heating and Air.  They divorced in 1983.  In dividing their property,  Benda and Martin were given joint use of 36 acres in Colorado and Brenda got 1/2 of the business.  The next year, Brenda filed for bankruptcy.   Merlin agreed to pay the trustee $35,00  a deed to the commercial property in Pascagoula and the Colorado property. This transaction was completed.  In May 1989, Wagner Heating was administratively dissolved.   In 2014, Merlin died.   Brenda filed a petition to exert an ownership interest in the business assets.   The trial court granted summary judgment against Brenda finding that Merlin had purchased her interest in the business and that the claim was barred by the SOL.  On appeal, Brenda argues that “there was a genuine issue of material fact as to whether Merlin purchased Brenda’s one-half interest in Wagner Heating. Brenda claims the only evidence that she sold her interest in the business is the February 21 order, which was not entered into the docket as required by Federal Rules of Bankruptcy Procedure 5003 and 9021.”  The COA notes that “There does not appear to be a case that squarely addresses the issue in the present action. For every case that states an order must be officially docketed to be effective, there is a case that says otherwise.”  It affirms the trial court finding that “Brenda had knowledge of the signed bankruptcy-court order with a date stamp of February 21.”

Andre Doss  v. State of Mississippi –  burglary – Georgia Ford awoke at her home in Natchez in July 2014, and found Andre Doss (a person she knew)  standing over her—naked and rubbing her hips. He fled.  Doss was convicted of burglary of a dwelling and sentenced to twelve years.  On appeal he raises sufficiency of the evidence issues.  The COA affirms.

Charles Webber v. StateDUI – Dr. Charles Webber was convicted of DUI in Madison County Court.  He appealed to the Circuit Court which affirmed.  He appealed again and the COA reverses because the City of Ridgeland failed to file a brief.

John Mark Riley v. Betty Merandy Russell Rileycontempt – John and Betty married in 1996, had 4 children, and divorced in  2006.  In 2014, Betty petitioned for contempt on the grounds that John  failed to provide health insurance and  failed to pay his portion of the children’s private-school tuition to Prentiss Christian School.  John claimed that a condition precedent was not fulfilled that would have required him to pay private school tuition.  John remarried to a woman with two children.  The trial court found John in contempt and ordered him to pay half the tuition – $15,150.20.  It also awarded Betty $2000 in attorneys fees. “By its nature, a contempt action does not require [a showing of  financial need . . . .”  The COA also awards $1000 for attorneys fees for the appeal.

Pro se postconviction appeals affirmed: 

Joe Martin Howard v. State of Mississippi

Royce A. Berryhill  v. State of Mississippi

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