Decisions – COA – Nov. 1, 2016

Anthony Davon Jefferson  v. State of Mississippi –  confession/hearsay –  Jefferson was convicted  of  possession with intent to sell one kilogram  and conspiracy to do the same after a package containing marijuana was delivered to his home. His wife accepted delivery of the package but signed for it using a different last name.  When she spotted people in a car observing her, she threw the package to the ground and ran inside.  Law enforcement  followed her into the house, handcuffed Jefferson and his father whereupon Jefferson admitted the marijuana belonged to him.  The next day  Jefferson told police that  he knew the package was coming, that he arranged for an individual in California to send the package, and that he intended to sell the marijuana. He also made a written statement in which he reiterated that he knew the package was coming, but recanted that he knew what was in the package.  Jefferson argues  on appeal that  it was error to admit the verbal confession since it contradicted with Jefferson’s  written statement.  He also argues it was error for the state to  tell the jury during opening that  it intended to prove Paulette said the package was not hers, that the package was Jefferson’s, and that Jefferson told her to sign for it. (Paulette did not testify – she was also charged  – and the evidence was not introduced). Jefferson also argues that it was error  for law enforcement to testify  that based on statements Paulette made to her at the scene, she came to learn that individuals at the residence were supposed to contact Jefferson to let him know the package had arrived, that he was expected to come to the residence to retrieve the package, and that he was already en route to the location with his father.  He also argues insufficient evidence. The COA finds no error and affirms.

Main Street Holding Inc. v. Omsiv Inc. trespass/attorneys fees –  Main Street owned a 5.4-acre tract of land on I-55 in Byram. It sold  the rear 1.8 acres to Omsiv Inc., which intended to build a Holiday Inn Express.   Main Street also agreed to establish a thirty-foot-wide mutual easement for a shared driveway. The easement bisected Main Street’s remaining 3.6 acres and provided access to the frontage road from Omsiv’s property.  The parties agreed to share the construction cost of the driveway on a pro rata basis.  Omsiv’s owner, Minal Patel, subsequently realized that the easement was not wide enough. One of Main Street’s owners told Patel that Omsiv could run utility lines down either side of the easement and place a sign just outside of the easement, although Haik’s approvals were never reduced to writing.  Omsiv contracted for construction of the driveway at a cost of approximately $45,000 and then requested that Main Street pay its share. Main Street refused to pay, claiming that the driveway was defective and that Omsiv had failed to consult with Main Street regarding its construction. Main Street filed suit and Omsiv counterclaimed.  The chancellor found that the parties’ agreement required Main Street to pay two-thirds of the cost of constructing the driveway, so he entered judgment for that amount in favor of Omsiv. He also found that although Omsiv had trespassed on Main Street’s property by exceeding the boundaries of the easement, Main Street had suffered no harm as a result and awarded  Main Street no damages. The chancellor awarded Omsiv attorney’s fees in the amount of $23,520 for Main Street’s “frivolous,” “egregious,” and harassing actions during the pendency of the lawsuit. On appeal Main Street argues that the chancellor erred by not awarding at least nominal damages for Omsiv’s trespass and by awarding attorney’s fees to Omsiv. We conclude that the chancellor should have awarded nominal damages for Omsiv’s trespass and therefore reverse and render judgment for Main Street in the amount of $10 on that claim. The COA affirms the attorneys fees.

Rachel D. Thomas v. Michael J. Crews child support – Thomas and Crews divorced in  2007. They agreed that Crews would have visitation and pay $560 in child support.  They  agreed to equally split the costs of any of Lunden’s extracurricular activities. A few months later,  Thomas and Lunden moved from Jackson to Olive Branch.  Later, Lunden  was diagnosed with ADD.   In 2014,  Thomas filed a petition to modify visitation and child support.   The chancellor found three material changes of circumstance: (1) Thomas’s move to north Mississippi; (2) Lunden’s enrollment in competitive volleyball; and (3) Thomas’s and Crews’s substantial increases in income over the years.  He  ordered Crews to pay $1,000 per month. The chancellor specifically found “that this amount i[s] within the guidelines considering all the other matters that the Father is required to pay for.” The chancellor noted that the term “extracurricular expenses” meant those expenses that are incurred through Lunden’s school activities. The chancellor also denied Thomas’s request for the modification of the child support award to apply retroactively. The court denied either party attorney’s fees. Thomas appeals.  The COA affirms.

Sean McDowell and Julia McDowell v. Zion Baptist Church  – easement – In 2009, the McDowells inherited property adjacent to a church.  They   believed that part of Zion’s church buildings extended onto their property but they told Zion it could continue  to use the land as long as the church’s use remained unchanged. Four years later,  Zion sent a letter to the McDowells asking that the McDowells cease construction of a physical barrier between the parties’ properties because  much of the barrier was situated on land owned by Zion.  Zion filed to quiet and confirm title.   The parties ended up settling and  a “Memorandum of Settlement.” The settlement memorandum provided, among other things, that  the McDowells would grant an easement to Zion “for ingress and egress over the east/west driveway and for parking during church functions and related church activities.” The parties further agreed in the settlement memorandum “that the northern boundary of the east/west driveway shall be marked via landscaping timbers and that gravel may be placed on the surface of the driveway.” The latter provision was not in the court’s order however.  When the McDowells later objected to Zion placing gravel,  Zion filed a motion to enforce the provisions of the parties’ settlement memorandum to allow Zion to place gravel on the driveway easement and to plant landscaping timbers to mark the driveway’s boundary.  The chancellor ended up  ordering  the parties’ settlement memorandum  be incorporated into the prior judgment.  The chancellor further concluded that, as the dominant estate owner of the driveway easement, Zion possessed the continued duty to reasonably repair and maintain the driveway at its own expense. The chancellor found that such maintenance duties included replacing gravel and timber markers as needed. In addition, the chancellor found that the McDowells had improperly, but in good faith, impeded and prohibited Zion from repairing and maintaining the driveway easement and  denied  Zion’s request for attorney’s fees and damages. The McDowells appealed. The COA affirms.

Tavaris Collins v. State of Mississippi –  murder/ineffective assistance – Collins was convicted of the murder of 16 year old Devin Mitchell.  He shot him in the head because he was paranoid.  Collins was examined by a psychologist who found him both competent and sane. On appeal he argues insufficent evidence and ineffective counsel.  The COA affirms.

Morgan David Ewing, Sr. v. Melanie Shae Ewing –  division of marital estate –  Morgan and Melanie married in  2000, had four children, and  separated in 2012. The chancellor issued a temporary order granting Melanie custody of the children, $950 per month in child support, and sole use of the marital home.  After the temporary order but before the final divorce decree, Morgan lost his job and failed to make several child-support payments, which caused him to go into arrears.  Morgan ended up  cashing  out his 401(k), valued at around $48,000.  He later filed for bankruptcy.  After a hearing, the chancellor ordered Morgan to pay $950 per month in child support, $500 per month in permanent alimony, $38,000 in lump-sum alimony to be paid at monthly $1,000 increments until satisfied, $10,000 in Melanie’s attorney’s fees to be paid monthly in $500 increments until satisfied, and two-thirds of all unpaid medical expenses for the children.  Morgan filed a motion for reconsideration and the chancellor reduced the child support to $708.36 per month and gave him  credit for $3,050 in paid child support.   Morgan appeals.  The COA reverses on the chancellor’s failure to specify the time he used in valuing the parties’ assets.” Though the chancellor implicitly held the date of demarcation as the date of the divorce, the chancellor erred when he failed to explicitly declare either date as the line of demarcation.”  The COA also finds that the chancellor failed to make sufficient findings under Ferguson to divide the marital assets. “The chancellor likewise failed to make a finding regarding the distribution of the marital debt. This failure constitutes reversible error.”

Jered L. Gibbs v. Porterville Water Association Board of Directors – termination of public employee – Gibbs filed suit alleging wrongful termination. In January 2014, employee  James Johnigan, was going to jail and t he Board asked him to find a replacement. Johnigan recommended Jered Gibbs and  Gibbs was officially hired on January 29, 2014.  However,  Gibbs was not certified by the state of Mississippi as a class-D water operator. And he had not heard from the  United States Coast Guard Reserve regarding his request to cancel his retirement. The circuit court granted summary judgment to the Board. On appeal, the COA affirms.

Brice Brandon Heisser v. State of Mississippiburglary instruction –  Heisser was convicted of aggravated assault and burglary arising out of a home invasion in Florence.  On appeal, Heisser argues that the jury should have been  given an instruction defining larceny (the felony underlying the burglary charge). The COA affirms.

Casey Berkley   v. State of Mississippi404(b)/hearsay – Berkley  was convicted of  armed robbery and sentenced to life as an habitual.   On appeal he argues that it was error for the court to allow the jury to hear that Berkley  had been convicted of two armed robberies already.  The trial court let it in because they were similar to the instant robbery.   The COA agrees that the trial court erred in admitting this evidence and reverses. They also reverse on the trial court’s allowing two police officers to testify that a third officer identified  Birkley from a photo.

Public Employees’ Retirement System v. Kristie James – disability – James had been  a teacher in Lowndes County for 14 years when, in 2008, she  applied for disability benefits due to chronic back pain.  The Disability Appeals Committee  recommended to deny James disability benefits, and the Board adopted the DAC’s recommendation. The circuit court reversed the Board’s decision and awarded James disability benefits. The COA affirms finding that the Board’s  decision was not supported by substantial evidence inasmuch as James produced sufficient evidence of her disability  in order to rebut the presumption that the Board’s ruling was correct.

Kenneth D. McDuff, Jr. v. Teresa B. McDuff – The McDuffs were divorced in 2014.  They signed a settlement agreement that was incorporated into the divorce decree. Kenneth later moved to set aside the   decree and agreement on the grounds that he was fraudulently induced into signing the agreement (whereby he would give Teresa $1,000,000)  by Teresa’s promise that she had an offer from a third party, Wayne Brown, to purchase certain property known as the Hill property for $2,000,000.00.   Pursuant to his motion for new trial, he attempted to do discovery with regard to the offer but the chancellor denied him this opportunity. The COA affirms.

Marvin Rerockus Demond Carver  v. State of Mississippi – Carver was  convicted of possessing  more than thirty grams of marijuana and sentenced as an habitual offender  and subsequent drug offender to six years. Carver and his half brother  were driving from North Miss. to the coast when they were stopped for speeding in Madison.  The officer claimed he could smell marijuana and asked to search the vehicle. One of them consented and marijuana was found in the trunk.  On appeal he argues the evidence was insufficient and that the court erred in allowing in his prior convictions.  The COA affirms but 5 justices dissent and would reverse on sufficiency of the evidence.  (in a tie, teh Court affirms).

 

Po se PCR appeals affirmed:

James Allen Swaim v. State of Mississippi

James Kenard Parish  v. State of Mississippi

 

 

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