Decisions – COA – 6/18/2019

Hand down list

Irvin A. Payne v. State of Mississippi –  possession of ethylone  – Payne was convicted of  unlawful possession of a firearm by a convicted felon  and possession of a controlled substance.  The items were found after a traffic stop.   The court reverses and renders the conviction for possession of a controlled substance because he was indicted for possession of “ethylone”  and that is not listed in Schedule I of the Controlled Substances Act.

Donald Hayden Phillips v. State of Mississippi –  confrontation/crime lab tests – Phillips was convicted of assault, kidnapping, and sexual battery. He had forced himself into a woman’s house and raped and stabbed her. She endured hours of this before help arrived, She was freed and Phillips was trapped in the bathroom.  On appeal he argues that it violated his right to confrontation when the person testifying regarding the results of the DNA tests was not the person who ran the tests. The COA finds no error.   “Here, the testifying witness, Schiro, was the director of the laboratory where the test was performed.  Schiro actively participated in the report’s production and possessed intimate knowledge of the analyses rendered, making his testimony admissible.  Schiro helped draft the report, calculated the statistics, and checked the data to make sure it supported the report.  Schiro finalized the report and had the final say as to what was approved.  Most importantly, Schiro independently evaluated the data and arrived as his own, independent expert opinion based upon a reasonable degree of scientific certainty.  The dangers of a defendant being deprived of the ability to confront the evidence arrayed against him are not present under the specific facts of this case.”  He also argued that he should have been allowed to introduce photos of the victim off of FB from after  the attack to show that she was not as injured as she claimed to be.  The photos, the COA, finds were irrelevant. It was uncontested that she was severely injured and lost a lot of blood.  The COA affirms.

Estate of Amelia Butler, by and through the Administrator, Jonathan Butler; James Butler, Perry Butler, Angela Johnson, Jennifer Butler, Jeremiah Butler and Jakesha Butler, Individually v. PHC-Cleveland Inc. d/b/a Bolivar Medical CenterSOL/medial malpractice –  Amelia Butler at 70 years old was a long term care patient who had suffered a stroke.  She died January 7, 2013, after being moved several times between Bolivar and a specialty hospital in Greenwood, Mississippi.  Her son sued Bolivar alleging that it had breached the standard of care. The complaint was filed December 15, 2015. Bolivar sought dismissal based on the statute of limitations.   At the hearing, the court found that Amelia’s wounds (including decubitus ulcers)  were not latent injuries, and so the statute of limitations began to run on the date of her death. The COA affirms. 

Steve Strausbaugh v. Brenda Lumpkin and Diane Mars –  sufficiency of the record on appeal – Strausbaugh filed suit against Brenda Lumpkin and Diane Mars claiming they sold him property with undisclosed termite damage.  The Defendants’ motion for summary judgment was granted.  On appeal, Strausbaugh designated very few documents leaving the court only two copies of the circuit clerk’s docket entries, the circuit court’s summary judgment order, and Strausbaugh’s notice of appeal in the record. The COA finds insufficient information to determine that the trial court did anything other than the correct thing in granting summary judgment.

Micah Bostic  v. State of Mississippi –  invocation of right to counsel – Bostic was one of two people who robbed a  Mapco service station in Corinth in February 2016.  When the clerk reached for the panic alarm one suspect shot her multiple times.  Surveillance video showed that Bostic’s codefendant,  Brooklyn Traylor, the co-defendant, was the shooter.  Eventually Traylor admitted to the crime and identified Bostic as his accomplice.  Before trial, Bostic moved to suppress his statements to investigators because he invoked his right to counsel.  The court finds that Bostic invoked his right to counsel but that the trial court’s refusal to suppress was harmless error in light of the overwhelming evidence against Bostic. 

Rodney Kimble Sr. v. Stepidy McGhee Kimblevaluation of marital assets – The parties married in  2003, had two children and  separated in January  2016. The  chancellor entered a decree granting Stepidy a divorce on the ground of adultery and awarded her sole legal and physical custody of the children.  The chancellor concluded the total value of the marital estate amounted to $154,996.47 and  determined that each party was entitled to fifty percent (or $77,498.24) of the marital assets.  The chancellor awarded Stepidy the following marital assets:  (1) her PERS account; (2) the marital home and all equity in the marital home; (3) the household items; (4) the 2005 Suzuki; and (5) the 2002 Corvette.  The chancellor awarded Rodney all other marital assets.  This distribution amounted to an award of $68,996.47 in marital assets to Stepidy and $86,000 in marital assets to Rodney.  To achieve an even split of the marital assets, the chancellor ordered Rodney to pay Stepidy $8,501.76.  Rodney appealed arguing that the chancellor valued three of the parties’ marital assets. The COA affirms.

Mark Gibson, HL&C – Laura Villa LLC and C&C Sales LLC v. Randy R. Shoemake and Georgia M. Shoemake –  accord and satisfaction – Gibson, Villa,  et al. entered into a contract with Shoemake whereby Shoemake was purchasing  land and a mobile home.  Six years later, Laura Villa and Shoemake executed a second contract without Georgia Shoemake’s signature extending the time period and interest rate for the loan. In 2014 Randy Shoemake presented a check to Gibson meant to pay off the loan.  The receipt prepared by Shoemake indicated that it was the last payment.  Gibson, Villa and C&C Sales, relying on the first contract, insisted that Randy still owed $29,063.50. When Randy refused to pay, they began foreclosure proceedings.   The Shoemakes then filed suit.  The chancellor held that the 2010 contract was not a reformation of the 2004 contract but rather a new one,  That because Georgia had homestead interest in the property, her lack of signature on the 2010 Deed of Trust voided the deed. That the Appellants’ acceptance of Randy’s final check satisfied his indebtedness pursuant to the doctrine of accord and satisfaction.  Gibson et al appealed.   The COA affirmed.

Eleanor E. Ellison v. Stephen D. Williams –  marital fault should be considered in dividing the marital estate – Ellison and Williams married in 2007 and lived in a house deeded to Ellison by her parents (Ingomar Property).  Eight years later they purchased a home in a different school district and took out an equity loan on the Ingomar property and an additional loan to purchase the new house.  They separated in 2016 and Williams left leaving Ellison to make the payments on both homes. He also began an extramarital affair.  They filed for divorce.  The chancellor granted the divorce and awarded Ellison 60 percent of the marital estate and Ellison 40 percent.    Prior to the divorce, Ellison borrowed $35,000 from her son. The chancellor found this was not marital debt.  He also did not award either party attorneys fees. Ellison appealed arguing that it was error for the chancellor to not consider Williams’ affair. The COA reverses and remands on this issue finding that the chancellor awarded a fault-based divorce but did not consider how Williams’ conduct affected the stability and harmony of the home in dividing the estate.

Dontrey Lamark Craig v. State of Mississippisufficiency of the evidence –  Dontrey Craig was convicted of the  kidnaping and sexual battery of his ex-girlfriend. On appeal he argues that the conviction was against the weight and sufficiency of the evidence. The COA affirms.

David W. Martin v. Wendy E. Borriesdownward modification in child support – Martin and Borries were divorced in 2007 and Borries was granted physical custody of their 6 and 10-year-old children.  Martin was ordered to pay child support of $1000 a month, half of extracurricular activities and to provide medical insurance.  In 2009, Borries filed a motion for contempt claiming Martin was $5000 in arrears.  Martin was ordered to pay the arrears and an additional $300 for the children’s extracurriculars.  In 2015, Martin ended up taking a job for less money due to global economic conditions.  He moved to modify child support.  The chancellor found that Martin’s decrease in salary was voluntary, the court denied the modification and ordered Martin to pay one half of the eldest child’s college expenses.  Martin appealed. The COA affirms.  

Jenifer Bailey v. Wells Fargo Bank, N.A., Jeremiah E. Schroeder, II, Marie Schroeder, Remax Choice Properties and Remax, LLC –  alleged misrepresentation in sale of house – Jenifer Bailey bought a house from Jay and Marie Schroeder.  Bailey later sued the Schroeders, alleging that they failed to disclose that there had once been a meth lab in the house.  The Schroeders filed a motion for summary judgment arguing that there was no proof there had ever been a meth lab in the house. The circuit court granted it.  The COIA affirms inasmuch as  Bailey failed to produce any affidavits or other competent evidence to show that there was a genuine issue of material fact. 

Terrie Lynn Singleton v. Orlando R. Buford –  failure to appear at hearing –  Terrie Singleton and her attorney failed to appear at the hearing to determine custody of Singleton’s three-year-old son, Marion because Singleton’s attorney had miscalendared the hearing. As a result, the court awarded physical custody and sole legal custody of to Buford.  At some point on the day of the hearing, an employee of the attorney realized the mistake.  Counsel then sought a continuance, but it was too late.  The hearing was over, and the chancellor had ruled from the bench.  Singleton filed a motion for reconsideration even before entry of the judgment awarding custody, and seven days after the judgment was entered she filed a motion for a new trial or reconsideration.  However, the chancery court denied Singleton’s requests for relief.  On appeal, the COA reverses and remands. “The interest in finality is not nearly as strong a consideration when, as in this case, relief is sought within the ten-day time limit of Mississippi Rule of Civil Procedure 59.  On the other side of the balance, the paramount concern in a child custody case is the best interest of the child, and the chancellor will be better equipped to assess the child’s best interest if he receives evidence from both parents rather than just one.  On the facts of this case, we conclude that there was no sound reason for the chancery court not to allow Singleton to present evidence.  Therefore, the denial of her motion was an abuse of discretion.

Pro se PCR appeal affirmed:

Thomas Roby v. State of Mississippi

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