Decisions – COA – 5/15/2018

Hand down list

Khloe Conner v. Mississippi Department of Employment Security –  unemployment benefits –  Conner was fired from  Dollar General after she  engaged in a physical altercation with a customer during which she cut the customer with a box-cutter.  Unsurprisingly, she was denied unemployment benefits.  The testimony was that Conner got into an argument with a customer after the customer asked for an item to be bagged. She agreed to meet the customer outside. Her manager testified that he told Conner to wait for five minutes before going outside. Conner admitted that she got into a verbal altercation with a customer but denied that her manager told her to wait before going outside. She stated that she went outside not knowing the customer was waiting for her and the customer attacked her requiring Conner to defend herself with a box cutter that was laying on the ground.   The COA affirms.

David William Kent, Jr.  v. State of Mississippi –  pcr from guilty plea  –  Kent pleaded guilty in 2013 to filming persons under the age of eighteen, and one of count of violating
MCA Sect. 97-5-31(b) by filming an adult female. Kent argues that there was not a sufficient factual basis for the plea since the court reporter could not provide a transcript.  The trial court found the petition barred by the three year statute of limitations.  The COA affirms.

Marcia Lopez Robles v. Jose Francisco Gonzalez custody –  The parties divorced and the trial court awarded the parties joint physical custody of the children. The COA remands the case to have the chancellor make specific findings pursuant to Albright.

Quendarious Berjuan Robinson v. State of Mississippi –  catchall hearsay exception –  Robinson was convicted of first degree murder and felon in possession after shooting   his girlfriend and her grandmother.  After the shooting, his four-year-old son Quendarious Jr. ran next door to report that his father had shot his mother and great grandmother.  Before trial, the now five-year-old Junior was voir dired and found competent to testify.  He testified and the court also allowed the state to show the jury a tape of an interview of Junior done by a forensic interviewer. In the tape, Junior stated that his father had a gun that he kept in his pants. On appeal, Robinson argues that it was error to admit the hearsay on the videotape.  The COA finds that the court erred in its analysis by which it admitted the videotape. The trial court found that it was more probative than prejudicial. But under MRE 803(24) the question is whether  it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.  At any rate, any error was harmless since there was so much evidence of Robinson’s guilt. The COA affirms.

ENSCOR, LLC, Jeffrey C. Smith and Cynthia H. Smith, Individually v. Ed Morgan, in his Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue –  tax appeal –   September 2014, MDOR assessed ENSCOR $51,099 in withholding taxes. A month later, ENSCOR appealed the assessment to the Review Board and authorized its attorney to act on ENSCOR’s behalf.  MDOR sent a letter to ENSCOR’s attorney that the  Review Board hearing was scheduled for March 19, 2015 at 1:30 p.m.  No one appeared at the hearing and the Review Board determined that ENSCOR  had involuntarily withdrawn the appeal.  ENSCO   timely appealed this decision to the Board of Tax Appeals. ENSCOR maintained that its attorney never received notice of the hearing. After a hearing, the Board of Tax Appeals sustained MDOR’s motion to dismiss based on ENSCOR’s failure to appear at the previous hearing. ENSCOR filed a complaint in the  Hinds County Chancery Court jurisdiction of Miss. Code Ann. § 11-13-11 to obtain relief from an unlawful tax assessment.  The chancellor granted MDOR’s motion to dismiss based on the fact that ENSCOR had a remedy at law, the administrative appeal, and failed to avail itself if same. ENSCOR appealed. The COA affirms.

Sylvester Garner on behalf of Tracey Lynn Garner, Deceased v. State of Mississippi –  expert testimony that silicone injections caused death  – Tracey Lynn Garner was convicted  of depraved-heart murder and conspiracy to commit wire fraud after she injected veterinary grade silicone into the buttocks of a woman inexplicably seeking an outrageously oversized backside and the woman died.  Garner died pending her appeal but her brother was substituted in her place. On appeal  he alleges that it was error to allow the state’s three medical experts who testified that the victim’s death was due to the silicone injections. The COA finds no error. It dos reverse the conviction for conspiracy to commit wire fraud because there was no evidence that the co-conspirator, who took a $200 commission, was aware that Garner, who was last employed as a cook at a nursing home, was not a nurse.

Terry Lee Ing v. Song Adamsoption to purchase – Terry Ing leased a basement and parking lot of a building in Holly Springs from Song Adams for $2,500 a month.  The lease was for five years and contained an option to purchase.   Four days before the lease was set to expire,  Ing  hand delivered a letter that stated his intent to exercise his right to purchase the property.  Song refused and on the day the lease was to  expire sent Ing a letter from an attorney stating that Ing was  in material breach of the contract.  Ing then withheld rent and maintained his presence at the property.  In March 2015, Song filed suit for  unpaid rent and taxes and to have Mr. Ing ordered to vacate. Ing counterclaimed.  The trial court found in favor of Song and ordered Ing to pay back rent and taxes and to vacate the property.  Ing appealed claiming that the trial court’s findings were not supported by substantial evidence. The COA reverses.  “Once Adams
expressly refused to sell the property, Ing was not required to tender funds or obtain an
appraisal. We also hold that Ing is not liable for rent for the period following Adams’s
wrongful refusal to convey the property. During that period, Ing was the equitable owner of the property, not a “holdover tenant.” Therefore, no “holdover rent” is owed. We reverse and remand for further proceedings consistent with this opinion.”

 

pro se PCR appeal affirmed:

Gary Dewayne Allen  v. State of Mississippi 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Marcia Lopez Robles v. Jose Francisco Gonzalez – custody – 

 

Quendarius Berjuan Robinson  v. State of Mississippi –  catchall hearsay exception – Robinson was convicted of murdering his girlfriend,  Cearea Jackson and Ceara’s grandmother. He was also convicted of felon in possession.  After the shootings, a hysterical four-year-old Quendarious Jr. ran next door to tell the neighbors that his dad had shot his mother and great grandmother.  Five-year-old Quendarious testified at trial that his father shot them.  On appeal Quendarious Sr. argues that the trial court erred in allowing in the state to put on the stand a forensic interviewer who interviewed Quendarious Jr. and play for the jury a tape of the interview with Quendarious Jr.  In the video, Junior mentioned his daddy had a “black” gun; he kept it in his pants. The COA holds that the key to whether the tape was admissible was the catch all hearsay exception 803(24). The judge found that it was more probative than prejudicial but this is not the test.  It has to be ” more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”  Even though the trial curt did not properly evaluate the evidence under MRE 803(24), that failure was harmless given the overwhelming evidence of Robinson’s guilt. The COA affirms.

ENSCOR, LLC, Jeffrey C. Smith and Cynthia H. Smith, Individually v. Ed Morgan, in his Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue –  tax appeal – In September 2014, MDOR assessed ENSCOR $51,099 in withholding taxes. A month later, ENSCOR appealed the assessment to the Review Board and authorized its attorney to act on ENSCOR’s behalf.  MDOR sent a letter to ENSCOR’s attorney that the  Review Board hearing was scheduled for March 19, 2015 at 1:30 p.m.  No one appeared at the hearing and the Review Board determined that ENSCOR  had involuntarily withdrawn the appeal.  ENSCO   timely appealed this decision to the Board of Tax Appeals. ENSCOR maintained that its attorney never received notice of the hearing. After a hearing, the Board of Tax Appeals sustained MDOR’s motion to dismiss based on ENSCOR’s failure to appear at the previous hearing. ENSCOR filed a complaint in the  Hinds County Chancery Court jurisdiction of Miss. Code Ann. § 11-13-11 to obtain relief from an unlawful tax assessment.  The chancellor granted MDOR’s motion to dismiss based on the fact that ENSCOR had a remedy at law, the administrative appeal, and failed to avail itself of same. ENSCOR appealed.   The COA affirms.

Sylvester Garner on behalf of Tracey Lynn Garner, Deceased v. State of Mississippimanslaughter by buttock injections – Tracey Lynn Garner was convicted of  depraved-heart murder and conspiracy to commit wire fraud in the death of Karima Gordon who paid  Garner, a former cooking a nursing home,  to inject her in the butt so she could have an outrageously outsized and deformed-looking rear end.   Gordon died after Garner used veterinary grade silicone. Garner died pending the appeal and her brother was substituted.  The appeal argues that the State’s three medical experts should not have been allowed to testify.  The COA finds no error in the trial court’s allowing them to testify.  The COA reverses the conviction for conspiracy to commit wire fraud.  “The prosecution essentially alleged that Stewart and Garner had an agreement to induce Gordon to wire Stewart a $200 referral fee by fraudulently representing that Garner
was a nurse. The problem is the complete lack of evidence, direct or circumstantial, that
Stewart knew Garner was not a nurse. Stewart was not called as a witness during Garner’s trial. No evidence even suggested that Stewart knew Garner was not a nurse. ‘An individual acting alone and without a partner may not conspire . . . .’”

Terry Lee Ing v. Song Adams –  option to purchase – Terry Ing leased a basement and parking lot of a building in Holly Springs from Song Adams for $2,500 a month.  The lease was for five years and contained an option to purchase.   Four days before the lease was set to expire,  Ing  hand delivered a letter that stated his intent to exercise his right to purchase the property.  Song refused and on the day the lease was to  expire sent Ing a letter from an attorney stating that Ing was  in material breach of the contract.  Ing then withheld rent and maintained his presence at the property.  In March 2015, Song filed suit for  unpaid rent and taxes and to have Mr. Ing ordered to vacate. Ing counterclaimed.  The trial court found in favor of Song and ordered Ing to pay back rent and taxes and to vacate the property.  Ing appealed claiming that the trial court’s findings were not supported by substantial evidence. The COA reverses. “We hold that Ing took sufficient steps to exercise the purchase option. Once Adams expressly refused to sell the property, Ing was not required to tender funds or obtain an appraisal. We also hold that Ing is not liable for rent for the period following Adams’s wrongful refusal to convey the property. During that period, Ing was the equitable owner of the property, not a ‘holdover tenant.’ Therefore, no “holdover rent” is owed. We reverse and remand for further proceedings consistent with this opinion.”

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