Decisions – Aug. 22, 2017

Belynthia Ross v. State of Mississippi –  scrivener’s errors in indictment – Belynthia Ross was convicted of simple assault of a vulnerable adult. On appeal she argues that the indictment was defective because two headings that originally read “Madison” County were stricken and overwritten with “Rankin,  and it erroneously lists the grand-jury foreman as that of the “Madison” County Grand Jury, not “Rankin.”   The court finds that “Although it was slipshod to use a form indictment listing Madison County for a proceeding in Rankin County, the circuit court under these facts was correct that listing the incorrect county is nothing more than a harmless scrivener’s error.”  The same holds true with regard to the description of the grand jury foreman.  Finally, she argues that simple assault of a vulnerable adult is not a felony.  “But it is,” the COA writes.  “. See State v. Hawkins, 145 So. 3d 636, 641 (¶11) (Miss. 2014) (“[S]imple assault of a vulnerable person . . . is in fact a felony.”). The issue is without merit.”

Clyde Eugene Williams  v. State of Mississippi –  fondling as lesser included of sexual battery – Clyde Williams was indicted  for one count of sexual battery and two counts of attempted sexual battery of his stepdaughter, S.M, when she was 14.  The jury acquitted Williams of one count of attempted sexual battery, but found him guilty of the lesser-included offense of fondling on the remaining two counts.  On appeal he argues that fondling is not a lesser included of sexual battery.  It is true that fondling includes an element that is not included in sexual battery –  “for the purpose of gratifying his . . . lust, or indulging his . . . depraved licentious sexual desires[.]” But as the Miss.S.Ct. has found, the  specific intent to gratify lust is  the only reasonable inference that could be drawn from the actions charged. He also argues that he should have been granted a mistrial when the state asked S.M.’s mother  whether it was true that Williams had previously been accused of improperly touching another child.  She answered that it was not true. The trial court gave a limiting instruction and, thus, did not err in denying a mistrial.  He also argues that it was error to not allow him to question S.M. about an alleged 51-year-old boyfriend.  This was inadmissible under RE 412, the rape shield rule.   He claims it was error for the court to disallow his expert, Dr. Steven Hayne, from testifying.  The ds the trial court held that Dr. Hayne was not designated at least 6 days before trial as per URCCC 4.04(A) and was not an expert in DNA evidence.  The COA  holds that URCCC does not apply in criminal cases but Dr. Hayne was excludable for the reason that Williams failed to prove he was an expert in DNA.  “Lastly, Williams argues that his constitutional right to confront witnesses against him was violated because Leslia Davis, the State’s DNA expert, testified about a serology report performed by Amy Malone, who did not testify at trial.”  Since the witness reviewed the report, this was not error. The COA affirms.

Ferlisi Bray, Ruby Janell Moore, Cassandra Fay Berry, Kimberly Autman-Sevranek, Helen Autman, Marilyn Autman-Wallace, Helen Cherie Autman-Aultman, Shelly Cherie Autman-Smith, Brenda Autman-Darden, Linda Autman-McDonald, Sharon Autman-Brooks, Catherine Autman, Dorothy Ann Autman Ward, Ertha Wooten Watson and Johnny Lee Harris v. Rufus Wooten, Dorothy Wooten, Shedrick Wooten, Flora Wooten and Mississippi Power Companyproperty dispute –  Ferlisi Bray and several heirs-at-law of Frank Wooten Jr.  challenged the title of land owned by the heirs of Rufus
Wooten Sr.  and Mississippi Power Company. (Mississippi Power is a party because the land in issue would be used by Mississippi Power’s Kemper County coal plant due to the large lignite coal deposits contained in the land). The Chancery Court of Kemper County granted summary judgment.  The COA affirms.

James Clarence McGlothin  v. State of Mississippi felon in possession/constructive possession – McGlothin was under surveillance by the Coastal Narcotics Enforcement Team.  He  met with a criminal informant.  Later, a search warrant was issued for the home where the meeting took place. Law enforcement found a handgun inside a jacket pocket in the closet of one room.  In that same room  there was a wallet  containing McGlothin’s identification card, social-security card, bank card, and several casino player’s cards. During the search a woman arrived.   She identified herself as the homeowner and McGlothin’s grandmother and told agents that her granddaughter, McGlothin’s sister, lived in the home. No fingerprints were found on the gun.  On appeal he argues that there was insufficient evidence. The COA agrees and reverses and renders.

 

William W. Williams v. Ursel Williamsseparate maintenance/untimely responses to requests for admissions  – Ursel and Wayne married in  1983. Wayne left the marital home twenty years later.  Ursel filed a complaint for separate maintenance and  Wayne counterclaimed for divorce alleging habitual cruel and inhuman treatment.  After a trial, the chancellor denied Wayne’s claim for divorce, and granted separate maintenance to Ursel. Wayne appeals. During discover, Ursel failed to respond to Wayne’s requests for admissions. He argues that this bars her from proving her claim for separate maintenance. The admissions, though, produced contradictory results.  “As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts.”  The COA affirms.

 

Pro se PCR appeals affirmed:

Patrick L. King v. State of Mississippi

Herman Barnes v. State of Mississippi 

Craytonia Latroy Badger v. State of Mississippi

Jeffery E. Arnold v. State of Mississippi

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