Decisions – COA – 3/27/18

Sean Harden v. Danielle Dawn Scarborough –  child custody – Harden, a high school teacher and Scarborough, a nurse,  began dating around in 2013 and had a son, Rhett,   in 2014.  They never married.  In 2015 Scarborough moved out of Harden’s house and filed a petition for paternity.  The chancellor awarded Scarborough physical custody of Rhett with joint legal custody and visitation for Harden. Child support was set at  $541.50.  The order also  prohibited both Harden and Scarborough and advised the parties not to  “routinely visit any daycare or school, for lunch or otherwise,” or without “a specific
purpose for such visit.” Harden appealed.  The COA affirms the child support and custody but reverses the judge’s order with regard to social media and visits to the school since there was no evidence that there was an issue with either.

 Lonnie Jones  v. State of Mississippi Lonnie Jones  v. State of Mississippisearch warrant/constructive possession – Jones was convicted of possession of synthetic cannabinoids with intent to distribute. He was also convicted of child endangerment based on the presence of his four year-old daughter in the home with the drugs.  Jones’ home was searched based on a warrant that alleged that a woman named Jessica Cochran had stolen guns from a home in which she had been living and taken them to Jones’ home.   When the warrant was executed,  Jones was seen tossing  a camera bag behind a couch he had been sitting on. A search of the camera bag revealed two small bags of synthetic marijuana, other small plastic bags, and a digital scale.  On appeal, Jones contends that the warrant was not supported by probable cause because it was based on information provided by confidential informants.  The COA holds that “While it certainly would have been preferable for the affidavit to have explicitly recited that the informant had ‘furnished [the authorities] with information in the past that has proven to be true and correct,’ or some similar formulation, given the context it is difficult to take any other meaning from the use of the words ‘proven confidential source.'”  The COA also finds that the  evidence was sufficient to show that Jones constructively possessed the drugs.

Brenda Thornton v. Andy Freeman –  service of process pursuant to  4(d)(1)(B) –  Thornton sued Freeman but failed to properly serve process correctly. Service was  made under Rule 4(d)(1)(B) by serving Freeman’s father at Freeman’s usual place of abode. The process server executed an affidavit stating that he effected “personal service” on Freeman’s father.  The affidavit did not state that the process server had mailed the summons and complaint to the address afterwards as required by the  rule.  Freeman moved for summary judgment based on insufficient process.  The trial court granted it on this basis and a finding that the statute of limitations had passed.  Thornton appealed.  The COA affirms but notes that sufficiency of process is usually heard under 12(b)(5) and the court can hold a hearing and make findings of fact unlike on summary judgment.  Moreover, dismissal for failure to serve process is without prejudice but where, as here, the statute of limitations had run, it was not error to dismiss the case with prejudice.

Tawana Terrell Johnson  v. State of Mississippi –  introduction of prior drug convictions –  Johnson was convicted for possession of less than one kilogram but more than thirty grams of marijuana with the intent to sell.  The drugs were found during a traffic stop.  The state introduced a prior conviction for selling drugs in 2008. On appeal she argues that this was error. The COA affirms.  “We find that Johnson’s prior drug convictions were properly admitted into evidence to show Johnson’s intent to sell. And it was within the trial court’s discretion to find that evidence was not overly prejudicial compared to its probative value.”

In the Matter of the Estate of Lisa Holly Sojourner, Deceased: Barbara Y. Sojourner, Karen Sojourner, Katherine Claire Sojourner, and The Madison Ark v. Susan S. Campbellundue influence – After Lisa Sojourner died at the age of 53 in 2015, her sister Susan filed to determine her heirs and her sister Karen filed to probate Lisa’s will.  Lisa, Karen, and Susan had inherited a valuable piece of land from their father and each owned one-third.   Lisa had a low IQ and in her last years suffered from colon and liver cancer and in 2014 moved in with Karen.  Lisa had done a will in 1999 leaving her property to her nieces and mother.  A codicil in 2013 included Karen.    Several months after moving in with Karen, Lisa made a new will prepared by attorney Elise Munn. She left $1000 each to her nephew and nieces, a grandniece and Madison Ark.  The rest was left to Karen and Karen;s daughter  Claire.  At trial, Karen’s best friend Renee Roberts testified that Karen hated Susan and wanted Lisa to leave her interest in the land to Karen and Karen’s daughter Claire.    Lisa told Renee that she loved both of her sisters and wanted to split her land between them. Karen told Renee that she was going to tell Lisa that her 1999 will had been stolen by someone sent by Susan and that way Lisa would make a new will.  The chancellor found that the will  was the product of undue influence on the part of Karen and that Karen had not presented evidence to overcome the presumption.  The chancellor denied Karen’s petition to probate Lisa’s will.  Karen appealed arguing that the testimony by attorney Munn was sufficient to overcome the presumption.  The COA affirms.

Although Munn testified regarding Lisa’s knowledge and understanding of the will,  such testimony does not negate Renee’s testimony regarding Karen’s involvement and influence in the procurement of the will. Indeed, Munn had no knowledge or reason to believe that Lisa was being unduly influenced. Munn stated Lisa always drove herself to the appointments, was always alone during the appointments, and was the only person with whom she discussed the will. While this is true, Munn was unaware that Lisa lived with Karen, that Karen dictated the terms of the will, and that Karen actually practiced driving to Munn’s office with Lisa. In short, the record shows Munn had no knowledge of Karen’s “behind the scenes” orchestration of the procurement of Lisa’s will.

John Bartholomew Lowe  v. State of Mississippi child pornography – Lowe was convicted of five counts of exploitation of a child for possession of child pornography.  Lowe lived in a trailer next to that of his girlfriend who had two daughters, eight and fifteen years old.  Law enforcement received reports that Lowe had been touching children inappropriately.  One child reported that Lowe had shown her a movie with naked people in it.  A background check showed that Lowe had pleaded guilty to exploitation of a minor and voyeurism and was still on probation.  Warrants were obtained to search for the laptop and then to search the laptop. Five child porn videos were found.  On appeal he argues that the jury was not properly instructed on circumstantial evidence, that he received ineffective assistance because his attorney failed to submit a suitable instruction on constructive possession, sufficiency of the evidence, and the introduction of his prior conviction for child porn. The COA affirms.

Wade H. Hardy Jr. and Norma F. Hardy v. Gene William Hardy, Hilda M. Hardy, Frank Lee Conway Jr., Karen H. Conway and Julie Livilleeasement of necessity – In 1958, W.H. Hardy acquired title to an eighty-acre parcel of land in Marshall County.  In 1977, his sons Hamp and Gene, along with their wives, purchased the eighty acres which they divided equally in  1992.  They used a road designated as “Hardy Lane” as the access point to the properties. The county never adopted Hardy Lane as a county road or maintained it.  Eventually Hamp and his wife moved to Aberdeen and his land became overgrown.  When Hamp expressed his desire to sell his land,  Gene parked his tractor at the end of his driveway in the middle of Hardy Lane. Gene never denied Hamp or Norma access down Hardy Lane but he told them that he would not grant an easement to any potential buyers.   Hamp and Norma filed suit in chancery court seeking an order declaring them the owners of an implied easement or easement by necessity. The chancellor held a bench trial and ruled that there is  an alternative route and, this, is not an easement by necessity.  Hanp and Norma appealed arguing that the alternative route stops short of his homestead and it would be cost prohibitive to build a road from the route to the homestead. But “Where one seeks to obtain a ‘way of access’ easement by necessity but submits no evidence as to the allegedly higher costs of an alternative route, a trial court will not err in declining to award an easement.” Hamp and Norma produced no evidence on the cost to finish their alternative route. The COA affirms.

 

Pro se PCR appeals affirmed:

Meika DeSean Britton  v. State of Mississippi 

Edmond Denton Reeves  v. State of Mississippi

 

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