Decisions – COA – 12/12/17

Christopher N. Cratin  v. Commissioner Marshall Fisher –  prison grievance/earned time – In July 2008, Cratin was convicted of fondling and  sexual battery.   In 2016 he filed a  grievance through MDOC’s Administrative Remedy Program.  When his claim was rejected, he appealed to the Hinds Circuit Court.  The circuit court entered an order of dismissal stating that it was unsure whether it could exercise jurisdiction over Cratin’s
complaint and, if it could,  MDOC’s policy prohibiting MET credit to sex offenders was not
violative of state law. Cratin appealed. The COA vacates and remands for a dismissal for want of jurisdiction since Cratin failed to serve MDOC via the AG’s office and his appeal was untimely.

Joshua Demien Magee  v. State of Mississippi –  impeachment with prior felony/tender years – Magee was convicted of two counts of sexual battery involving his 7-year-old cousin. On appeal he argues that it was error for the court to allow him to be impeached with the fact that he had a prior felony. The court finds the error waived. He argues that it was error for the court to allow hearsay statements made by the victim to come in under the tender years doctrine.  The COA finds that the trial court made a thorough analysis of this issue and its decision to allow the statements was not an abuse of discretion. And, finally, he argues weight and sufficiency of the evidence.  The COA affirms.

Maged Muthanna Saleh Qasoon  v. State of Mississippi – sale of AB-FUBINACA – Maged Qasoon  sold  eight grams of synthetic marijuana or “spice” to a confidential informant.  He was indicted and convicted for selling AB-FUBINACA.  On appeal he argues that   Mississippi’s schedule of controlled substances is unconstitutionally vague.  The COA finds that Qasoon fails to cite any relevant authority.   He next argues that the indictment was insufficient  because it fails to sufficiently charge the defendant with notice of what substance he is charged with possessing.  The indictment used the name AB-FUBINACA rather than the description used in the statute.  The COA finds that “An indictment that uses a code or trade name for a controlled substance rather than a chemical description does not fail to allege a essential element.”  He also raises sufficiency of the evidence.  The COA affirms.

Allen L. Cronier and Wife, Janice Stork Cronier, and Victoria Lynn Cronier, a Minor By and Through Her Parent and Next Friend, Derrick Cronier v. ALR Partners L.P., an Alabama Limited Partnership, and MKAZ Partnership L.P., an Alabama Limited Partnershipadverse possession/attorneys fees –  In 2012, Allen and his wife Janice Cronier purchased eighty acres of rural property in Jackson County from Herbert Bang and  Earlene Dobbs.  No attorneys were involved and the property was not surveyed.  Everyone just used things like fence posts to delineate the boundaries.  The property description in the warranty deed states the parcel is “approximately 80 acres, more or less.”  The land was surrounded by land owned by the Rainwaters.   After the purchase was done and the deed recorded, Allen then had the land surveyed.  The surveyor found that the land was 70 acres and not 80.  The Rainwaters mer with Allen who was determined to get his entire 80 acres. Thereafter certain markers started missing.  The Rainwaters via their partnerships MKAZ and ALR filed suit to confirm title. The chancellor ruled in favor of the Rainwaterses on their claim of adverse possession on the
west and north boundary of the Croniers’ parcel, but against the Rainwaterses on its adverse possession claim to a sliver of property along the southern boundary of the Croniers’ parcel.  The Croniers were also ordered to pay attorney fees of $10,790.05.  The Croniers appealed. The COA affirms the chancellor’s rulings with regard to adverse possession but reverses and remands  the award of attorneys fees. “Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.”

Persephany Allen, as the Natural Daughter and Next Friend of Catina Allen Staffney, Deceased, and on Behalf of All the Heirs at Law and Wrongful Death Beneficiaries of Catina Allen Staffney, Deceased, and as Next Friend of Minors, T.S. and T.S. v. Jackson Square Apartment Homes, LLC d/b/a Melrose Place Apartments and Justin Davis –  premises liability – Catina Allen died in a fire at the Melrose Apartments. The Allens were tenants but were being evicted for non payment of rent.  Cantina’s mother sued the complex for premises liability. Allen failed to respond to Jackson Square’s Request for Admissions. But when Jackson Square moved for summary judgment based in part on the admissions, the judge allowed Allen to withdraw the admissions. On appeal, Jackson Square argues that this was error. The COA finds that it was not an abuse of discretion to allow the admissions to be withdrawn. The trial court nonetheless granted summary judgment for Jackson Square on the grounds that Allen had provided no proof of negligence.  Allen appealed and the COA affirms.

Latrice Jackson  v. State of Mississippi –  abuse of a vulnerable person/failure to grant a continuance – Jackson was employed as an assistant at Millcreek Behavioral Health Facility in Magee, Mississippi.  When one of the disabled teenage residents refused to be bathed, Jackson grabbed her by the hair and dragged her to the bathroom.  Another assistant reported Jackson who was fired and indicted. She was convicted and sentenced to 20 years with 15 to serve.  On appeal she argues that the trial court erred in not granting her a continuance when she moved for and was given Mill Creek’s records – some 1000 pages – was delivered three weeks before trial.  The COA affirms.

Hunter Lane Sarrett  v. State of Mississippi –  404b evidence/timeliness of post trial motions  – Hunter was convicted of several counts related to the sale of cathinone  and alprezolam within 1,500 feet of a school.  He was caught selling to a confidential informant. On appeal he argues that the court erred in denying his motion in limine to preclude evidence of other acts, crimes, or wrongs: namely that during the recording of the transaction, Sarrett stated he had been to “ten people’s houses” and had “eight more” to go, followed by the statement “business is picking up.”  The circuit court found the statements were part of the same transaction as the drug sale and therefore denied the motion in limine to exclude the statements.  The COA finds no error.  He next argues that it was improper for the prosecutor to refer to “drops” in his closing argument.  The COA finds that the prosecutor only mentions “drops” once when reciting what Sarraett said on tape. He argues that his attorney was ineffective for not objecting to the authenticity of certain exhibits. The COA finds the record insufficiently developed to reach that issue. Sarrett claims the verdict was against the weight and sufficiency and the court was wrong to refuse to consider his post trial motion because it was not filed within ten days of Sarrett’s conviction.  The COA finds no error.

Ronald Benjamin Clements v. State of Mississippimust file post-trial motion to preserve weight and sufficiency issues – Ronald Clements was convicted of child fondling and sentenced to serve fifteen years with seven years suspended.  He did not file any post-trial motions.  On appeal he argues weight and sufficiency of the evidence. The COA affirms finding that the issues are waived and meritless.

Absent a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict (JNOV), an appellant has waived the sufficiency error on appeal. Darnell v. State, 202 So. 3d 281, 285 (¶13) (Miss. Ct. App. 2016). Additionally, “[t]he matter of evidentiary weight is waived by the failure to move for a new trial.” Stewart v. State, 879 So. 2d 1089, 1095 (¶24) (Miss. Ct. App. 2004)

 

Pro se PCR appeals affirmed:

David Ward v. State of Mississippi 

Anthony Green v. State of Mississippi

 

 

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