Decisions – COA – 5/28/2019

Hand down list

Darius Earl Jones v. State of Mississippisufficiency of the evidence possession of drugs –  Jones was a trusty in prison and assisting at the Scott County Coliseum.  The manager noticed that Jones had disappeared for about 45 minutes and when he returned he seemed nervous. She checked the men’s bathroom and smelled marijuana.  She then searched Jones’s jacket which he had left on a bench.  When she searched the jacket, a large block of what appeared to be drugs fell onto the ground.  Jones denied the drugs were his but the next day stated that he had found them while working.  Jones was found guilty of possessing at  least 250 grams but less than 500 grams of Fubinaca, a Schedule I controlled substance. On appeal he argues that  the evidence was insufficient.  He also argues that it was error to admit evidence of a prior conviction for possession of hydrocodone to explain why he was in prison.  The COA finds that there was no objection and the issue is barred. Finally, he argues that his trial counsel was ineffective in various ways. The COA passes on this issue finding it better suited for post conviction.

Duane E. Roberts v. State of Mississippisex offender registration –  Roberts was convicted in 1985 of sexual battery of a child under twelve years old and sentenced to 12 years.  In March 2006, as a result of new legislation, the State notified Roberts that he had to register as a sex offender for his 1985 sexual battery conviction.  Since that time, Roberts has maintained his registration as a sex offender.  In July 2017, Roberts filed a petition for relief from the duty to register as a sex offender.  Following a hearing, the circuit court denied Roberts’s petition for relief.   Roberts  argues that the State had a duty to notify him of his obligation to register as a sex offender and that the doctrine of laches estops the State  from applying section 45-33-47(2)(f) against him because the State failed to notify him of the duty to register as a sex offender in a timely manner.  The COA finds both issues barred because they were not raised in the lower court.

Charlie D. Jackson v. Baldwin Sand & Gravel, A Division of W.G. Yates & Sons, and Jerry Steen Jrland dispute/post trial motions – Baldwin Sand & Gravel and Jerry Steen Jr. filed actions against the heirs of Queen M Jackson Lewis  (the Jacksons) to quiet and confirm title to certain land located in Carroll County,    The chancery court ruled in favor of Baldwin, partly in favor of Steen, and partly in favor of the Jacksons.  The final judgment was entered on February 3, 2014. On February 18, 2014, the Jacksons filed a motion to amend the judgment under Mississippi Rule of Civil Procedure 59(e).  The chancery court ruled that the Rule 59(e) motion was untimely and without merit.  The Jacksons  appealed.   Baldwin filed a motion to dismiss alleging that the appeal was untimely.  The Supreme Court granted Baldwin’s motion to dismiss, stating that the Rule 59(e) motion “was untimely and did not toll the time for filing a notice of appeal.” On January 14, 2016, the Jacksons filed a notice of appeal in a separate contempt action between Charlie Jackson and Steen.  Although the appeal primarily concerned the contempt action, the notice also indicated that the parties intended to challenge the chancery court’s 2014 judgment regarding the land dispute.  The appeal was ultimately dismissed for the failure of the Jacksons to file a brief.   On March 15, 2017, the Jacksons filed a motion for clarification in the chancery court claiming that the 2014 order denying their Rule 59(e) motion was not clear.  Charlie Jackson filed a pro se appeal.  The COA affirms.

James Walter Schimpf Jr. v. Karin L. Schimpf Hardycontempt/custody – Walt and Karin married in 1994, had two daughters, and were divorced in 2006.  They were awarded joint legal custody of their minor daughters.  Karin received primary physical custody subject to Walt’s visitation and Walt was to pay $3,000 a month in child support and to pay one-half of the children’s medical and extracurricular-activity expenses. In 2015,  Walt filed a petition to modify custody and for contempt.   Karin counterclaimed seeking modification of child support and the visitation schedule.  Karin subsequently filed additional contempt motions and a request for emergency relief.   Walt was given temporary custody of the children and the  chancellor had Walt put his $3,000 a month support payments into a trust account until the matter was finally decided.   The chancellor ended up determining that Walt would have custody but that the $27,000 in support payments that Walt had set aside would go to Karin. The chancellor also found Walt in contempt for failing to pay some $6,000 in medical expenses.   On appeal the COA finds that the chancellor erred in failing to give Walt credit for the $27,000 in child support payments he had placed in a trust account while the children were residing with him due to a court order.  Walt is entitled to the $27,000.

Rashad J. Smith v. State of Mississippijail contraband –  In August  2017, Smith was tried for possession of marijuana (count 1) and possession of an unauthorized cell phone (count 2).  After the jury deadlocked on Count I, the State was granted a nol pros order  on that count. The original indictment did not allege that Smith was a habitual offender.  Prior to trial, the State moved to amend the indictment to allege Smith’s habitual-offender status.   At the hearing, the trial court ruled on the record that the State met its burden for the indictment to be amended to include a habitual-offender sentencing enhancement, but the record reflects that no order  was entered.  On appeal Smith asserts that the State failed to prove two statutory elements under section 47-5-193, namely, that the Lincoln County jail was “property belonging” to Lincoln County and that the property was “occupied or used by offenders.” He also challenges the sufficiency of the evidence and argues that trial counsel was ineffective for failing to object to the fact that no order was entered granting the amendment to charge him as an habitual. The COA affirms but holds that the ineffective issue is better suited for post conviction.   

Jerry Kyle Smith and Debbie Smith v. Patrick J. Sims –  public road –  In Jasper County  there is a strip known as “Old Pickens Road” located between property owned on one side by the Smityhs and on the other by Sims.  In June 2016, the Smiths sued Sims and the Jasper County Board of Supervisors, seeking to quiet title in  Old Pickens Road.  The chancellor held that Old Pickens Road was a public road and that it had not been abandoned by Jasper County.   In October 2017, the Smiths sued Sims again, seeking to quiet title to Old Pickens Road based upon a June 2017 quitclaim deed to them from the purported owner of the property, Joseph Waites.  The chancellor dismissed the case based on collateral estoppel, res judicata,  and judicial estoppel. The COA affirms.

Rodney Dewayne Johnson v. State of Mississippi Batson – Rodney Johnson was convicted of one count of forcible rape and two counts of statutory rape against Amy, his girlfriend’s daughter. Amy testified that Johnson started touching her when she was 13.  On appeal he argues that the state wrongfully used all six of its peremptories on African American jurors.  The judge required the state to provide reasons. One reason for striking several was their young ages – early 20s. The prosecutor stated he had had a 21 year old juror vote not guilty in a murder case where the evidence was overwhelming.  The defense did not try to rebut any of the reasons and the COA finds no error in the trial court’s allowing the strikes to stand. He also argues it violated his right to remain silent to allow into evidence his Miranda waiver form.  Since Johnson did give a statement, there was no comment on his right to remain silent.  As for Johnson’s ineffective assistance claim, that is preserved for post conviction. The COA affirms.

Pro se PCR appeals affirmed:

Larry Wooten v. State of Mississippi

Jason Holloway v. State of Mississippi

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