Decisions – COA – 6/19/2018

Hand down list

Ramona Baker v. Nakia Baker –  division of marital assets –  Ramona and Nakia agreed to an irreconcilable differences divorce in 2016.  The chancellor awarded Ramona marital assets worth  $110,600 and Nakia assets worth $10,660.  Ramona appeals the divosion of marital assets and the denial of her request for periodic alimony. The COA affirms.

Mark Edward Campbell v. Misty McDaniel Campbellmodification of child support/attorneys fees – Mark and Misty married in  1992, had four children, and separated in 2008. The divorce decree gave them  joint legal custody of their children with Misty having physical custody. Mark was to pay child support of  $1,250 per month per child.   In March 2016, Mark filed a petition for contempt and for modification of the divorce decree and Misty counterclaimed.    The chancellor found  Mark in contempt and ordered him to pay $42,485 for unpaid child support and alimony; $27,057.38 for unpaid medical and other support; and $10,745 for attorney’s fees.  Thereafter Misty filed a motion for contempt alleging that Mark failed to pay what he owed under the contempt order. This time the chancellor found that the second oldest son was emancipated since he enlisted in the Army, that Mark willfully failed to pay the GAL fees,  increased child support to  $8,050 a month, and awarded Misty $4,141.97 in attorney’s fees incurred defending against Mark’s allegations of abuse and neglect. Mark appealed. On appeal the COA reverses the upward modification of child support because the parties had contemplated a situation such as the son’s enlistment in the original agreement. The attorneys fees award was also error because Misty never separated the fees incurred defending Mark’s unfounded allegations of abuse from other fees. On remand the chancellor should calculate the fees incurred for defending against the child abuse allegations.

Eddie Dwayne Hollingsworth  v. State of Mississippi –  confrontation/lab analyst  – Hollingsworth was charged with two counts of selling methamphetamine, one count of possession of methamphetamine with intent to sell, and one count of selling a substance falsely represented to be a controlled substance.  Hollingsworth was found guilty. On appeal he argues that his right to confrontation was violated when the state was allowed to have two lab analysts testify who were not the primary analysts determining what it was he was selling. The COA affirms  stating that “In Armstead v. State, 196 So. 3d 913, 921 (¶20) (Miss. 2016), the Mississippi Supreme Court held that allowing testimony from a forensic-science expert who was ‘actively involved in the production of [a drug analysis] report and had intimate knowledge of the analysis even though she did not perform the tests first hand’ did not violate the Confrontation Clause.”

Timothy McCoy v. Direct Express, Anthony McCoy and Kim Havard –  failure to serve process within 120 days –  In September 2016,  McCoy filed a pro se complaint against the Defendants alleging that  Anthony and Havard fraudulently used his Direct Express debit card to steal over $6,000 from his bank account and that Direct Express allowed Anthony and Havard to commit the unauthorized withdrawals.  In February  2017, the circuit court entered an order finding that McCoy had failed to serve a summons and copy of the complaint on any of the Defendants within 120 days of filing his complaint and giving him 30 days to show good cause for his failure.  McCoy replied that he mailed the summonses and complaints to  each Defendant at the Defendant’s last known address.  The circuit court dismissed his complaint and he appealed. The COA affirms.

Here, McCoy mailed each Defendant a copy of the notice, the summons, and the
complaint. However, Rule 4(c)(3) required McCoy to mail two copies of the notice to each Defendant. The rule further required McCoy to mail two copies of an acknowledgment to each Defendant. See M.R.C.P. 4(c)(3). The record contains no proof, though, that McCoy ever mailed the Defendants an acknowledgment, and McCoy never asserts that he did so. As a result, McCoy never received the acknowledgment back from any of the Defendants “within 20 days after the date of mailing,” which is the final required step for perfection of service by mail. M.R.C.P. 4(c)(3)(B).

John Phinizee  v. State of Mississippi –  ineffective assistance of counsel – In 2006,  Phinizee was convicted of one count of the sale of cocaine and two counts of possession of cocaine with intent to distribute. His conviction was affirmed on direct appeal. In 2011,  he filed a pcr alleging that his trial counsel was ineffective for failing to raise  his lack of intelligence, related brain disorders, and other mitigating circumstances
which he claims hindered him from assisting with his defense. The Supreme Court remanded the case for an evidentiary hearing.  At the hearing he had one expert testify he had not been competent to stand trial. The state had an expert testify that he was.  The trial court denied the motion. The COA affirms.

Jerry Page  v. State of Mississippi –  murder/various –  Jerry Page was convicted of first-degree murder, arson, possession of a firearm by a convicted felon, and simple assault on a law enforcement officer.  On appeal he argues that his convictions should be reversed because : (1) the trial judge erred by admitting an unredacted copy of Page’s New Jersey Superior Court criminal case file, which the State used to establish that Page was a convicted felon; (2) Page’s trial counsel provided ineffective assistance by refusing to stipulate that Page was a convicted felon;  (3) the trial judge erred by allowing the jury to hear the audio of a witness’s prior statement and by allowing the jurors to have a transcript of the statement while it was played; (4) the trial judge erred by limiting Page’s cross-examination of a prosecution witness regarding the witness’s criminal history; and (5) cumulative error.  The COA affirms.

Kenneth Nixon v. Howard Industries, Inc. –  workers compensation –  Nixon worked as an assembler at Howard Industries when he injured his back in August of 2011.  At the hearing, both parties stipulated that Nixon’s average weekly wage was $645.40 – this included regular overtime. Nixon kept working and and his wages increased by 70 cents an hour.  By 2016, he was limited to lifting 20 pounds making him unable to do most of
his former work. The AJ  found that Nixon had suffered a loss of wage-earning capacity but instead of  using Nixon’s stipulated pre-injury weekly wage of $645.40, the AJ used d $490.40 – a 40-hour work week at Nixon’s  pre-injury hourly rate of $12.26.  The AJ ordered  Howard Industries to pay permanent partial disability benefits in the amount of $88.27 per week for  450 weeks. Nixon appealed and the COA reverses on the grounds that the Commission failed to use Nixon’s stipulated pre-injury weekly wage in its calculation.

Michael Donaldson  v. State of Mississippichild pornography – Michael Donaldson was convicted of possession of child pornography and filming a person in violation of expectation of privacy.  On appeal he argues that the trial court erred in not allowing him to  testify as an expert in computer forensics or in any computer field.  The trial court excluded him because his lawyer failed to comply with discovery requirements. He was also excluded because he was not qualified to testify as an expert.  He also argues sufficiency of the evidence and that the state failed to prove that the two-year staute of limitations had not run. The COA affirms.

Douglas Walker  v. State of Mississippi merger of sexual battery and fondling – Douglas Walker was convicted of one count of sexual battery and one count of fondling involving the  eight-year-old daughter of his girlfriend.  On appeal he argues sufficiency of the evidence and that the fondling conviction should be merged with the sexual battery since it is a lesser included of sexual battery.  The COA affirms.



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