Decisions – COA – May 2, 2017

Yoginder Dandass  v. State of Mississippi – sexual battery/various issues – Dandass was convicted of sexual battery involving his forcing his  adoptive daughter Sara to perform oral sex on him from the time she was 11 until she was 17. On appeal he argues that the trial court erred when it allowed Sara’s friend Hannah to testify regarding provocative photos she allegedly took at Dandass’s behest. Hennah testified that  Sara asked her to  take pictures of herself because Dandass believed Sara could be a model.  The COA notes that Sara herself testified to these events and Dandass could have cross-examined her. Dandass argued that it was error to admit Sara’s recorded interview with forensic interviewer Beverly Moorehead.  THe COA finds it was admissible under  Rule 803(4) – a statement made for the purposes of medical treatment.  Dandass also complains of other hearsay statements, prosecutorial misconduct, and improper rebuttal.  The COA affirms.

Charles O’Neal v. Tracy Sykes Blalock and Robert Allen Sykes – adverse possession – O’Neal purchased approximately 255.8 acres of land in Copiah County in 1990.  At that time he bulldozed a road along the southern edge of the property but established the road to the north side of the southern boundary. He also had pins placed marking the boundaries of the property.  In 2006 he used the property for a business that allowed people to camp and use ATVs on the property. In 2003 Tracy Blalock inherited the land south of O’Neal’s. Her husband testified that he and O’Neal walked the southern border and O’Neal admitted encroaching on the Blalock’s property in certain places. In 2013, Blalock had her property surveyed and the surveyer found that several of O’Neal’s pins were in the wrong place. Blalock filed suit to quit title; O’Neal counterclaimed arguing adverse possession.  The chancellor found the element “under claim of ownership” was lacking and found against O’Neal on his adverse possession claim.  The COA affirms.

James Howard Wordlaw  v. State of Mississippi – venue – Wordlaw was convicted  of one count of possession of more than .1 gram but less than 2 grams of crack cocaine  and  sentenced as a habitual offender.  At trial he objected to the state’s main instruction on the elements because it failed to include venue.  His instruction was containing the element of venue was refused.  On appeal he argues that the jury was never instructed on venue. Since venue is an essential element, and the jury never found proper venue, Wordlaw’s conviction is reversed.

Viola Bolton v. Illinois Central Railroad Company and Cliff Bishop – time for appeal –  Bolton was hit by a train on July 6, 2011.  She filed suit against the railroad on   July 3, 2014 and then failed to serve the defendants within 120 days as required by MRCP 4(h). She got two extensions to serve the defendants and managed to do so a few days before the second extension expired. The defendants them moved to dismiss which the trial court granted on October 7, 2015 because Bolton could not show good cause for her delay in service.  Bolton filed a notice of appeal on  November 13, 2015.  The COA dismisses the appeal because the notice of appeal was not filed within 30 days of the order dismissing the case.

Terrance Montreal Jenkins v. State of Mississippi constructive amendment of the indictment – Jenkins was convicted of the 2014 armed robbery of  Henry Hampton who had $3600 from the settlement of a car wreck.  Jenkins and his two friends offered to drive Hampton to the liquor store.  on the way back they asked to stop in the woods and try out Hampton’s new gun.  Instead they robbed Hampton, left him in the woods bleeding, and drove back to town where they contacted a deputy sheriff and told him that Hampton had shot at them.  Hampton was found and taken to the hospital where he told everyone that he had been the victim.  On appeal Jenkins argues weight and sufficiency of the evidence.  He also claims that the indictment was constructively amended. The statute at the time  defined armed robbery as the taking “by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.”   Jenkins’ indictment read ” against his will by putting him in fear of immediate injury by the exhibition of a deadly weapon.”  The jury instruction given at trial instructed on both  simple and armed robbery and the armed robbery portion tracked the statute not the indictment.  The COA affirms. ” In the end, Jenkins could not have been convicted of armed robbery unless the jury found that he robbed Hampton ‘by the exhibition of a deadly weapon.’ While the indictment did not include the phrase “by violence to his person,” it did track the essential elements set forth under the statute,”

John Paul Longest  v. State of Mississippi – DUI –   In January 2015, Longest had stopped his pickup on the shoulder of a road in Florence.  As a police officer approached, he began driving and swerving along the road.  He was stopped and upon exiting the truck was seen stumbling.  Longest stated he had had three beers.  He performed badly on the field tests but a breath test at the police station yielded an insufficient sample.  He pleaded no contest in municipal court and was found guilty in county court.  The circuit court affirmed on appeal and Longest appealed again. On appeal he argues that the verdict was against the overwhelming weight of the evidence. The COA affirms.

Amy Lynette Bolen Butler v. Stephen Bradley Butler – modification of custody – Stephen and Amy married in 2006, had a daughter in 2008, and divorced in 2010.  Amy was given primary custody and Stephen had visitation that had some restrictions because of a DUI.  In 2014 Stephen filed for modification claiming that Amy was interfering with visitation. Amy counterclaimed.  After a trial,  the chancellor finds no material change in circumstances and awards Stephen the same rights he was given in the divorce decree and removed all supervision requirements, allowing Stephen to drive their daughter and have overnight visits with her  at his home. Amy appealed.    The COA affirms. “Because the prior visitation schedule was not working, and given the presumption that a child’s best interest is served by the maintenance of a relationship with both parents, the chancellor did not err in modifying the visitation schedule.”

Dwayne Bryant v. State of Mississippi –  Weathersby – Bryant was convicted of second degree murder after shooting and killing his friend  Adrian Walker after they got drunk and got into an argument.  On appeal he argues sufficiency of the evidence.  He also claims he should have been given a directed verdict under Weathersby  which holds that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide,  their version of events, if reasonable, must be accepted as true, unless  substantially contradicted in material particulars by a credible witness or witnesses for the state, or by physical facts or by the facts of common knowledge.  The COA finds that Weathersby does not apply because there were other witnesses and a disagreement as to where Walker was standing when Bryant shot him.

 

Dennis Tyrell Miller  v. State of Mississippi – enhancement with use of burglary as a prior violent crime – Miller was convicted of manslaughter in the killing of his girlfriend and sentenced to life without parole as an habitual.  On appeal he argues that he did not qualify as an habitual because one of his priors was a burglary and it was not considered a violent crime when he committed it.   Unfortunately Miller committed the manslaughter after the statute was amended to define burglary as a violent crime.  “Miller killed Green after section 97-3-2 was enacted; therefore, he was properly sentenced for his present offense of manslaughter as a violent habitual offender.”

Pro se PCR appeal affirmed:

Willie Wash v. State of Mississippi

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