Tag: Felony

Mississippi Court of Appeals Decisions of May 2, 2023

The Mississippi Court of Appeal handed down eight opinions today. There are five direct criminal appeals, two interesting workers’ comp cases, and a contempt proceeding in a divorce case.

Ehrhardt v. State, 2021-KA-01143-COA (Criminal – Felony)
Affirming conviction of child exploitation, holding that the trial court did not err in denying a motion to suppress items found during the execution of a search warrant of the defendant’s home based on staleness and reliability or in denying a motion for mistrial after a State’s witness testified about the lack of a defense expert and gave curative direction and an instruction to the jury, and holding that the verdict was supported by sufficient evidence and not against the overwhelming evidence of it.
(10-0)

Hawthorne v. Mississippi State Hospital, 2022-WC-00040-COA (Civil – Workers’ Comp)
Affirming on direct appeal and cross-appeal, holding that the Commission’s finding that the claimant sustained a 40% loss of industrial use of his left lower extremity was supported by substantial credible evidence and that the Commission was within its discretion to strike the IME doctor’s amended report and order the Employer/Carrier to pay all costs of the doctor’s deposition after having ex parte contact with the doctor in violation of the IME order and did not err in denying a monetary sanction.
(10-0)

Amos v. State, 2022-KA-00171-COA (Criminal – Felony)
Affirming conviction of statutory rape, holding that the admission of testimony of other was waived and/or harmless because the testimony was necessary to provide the jury with the complete story that led to the charges.
(10-0)

Liddell v. State, 2021-KA-00952-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not abuse its discretion in denying a motion for mistrial after the prosecutor made multiple public comments about the case to the media.
(10-0)

Wells v. State, 2022-KA-00157-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the circuit court did not abuse its discretion by limiting cross-examination of witnesses about whether someone else had a gun on the night in question, excluding evidence the defendant argued developed his theory of the case, or in denying a motion for mistrial on the grounds that one juror was confused through out the trial and hard of hearing.
(9-1-0: Westbrooks concurred in part and in the result without separate written opinion)

Manley v. Manley, 2021-CA-00700-COA (Civil – Domestic Relations)
Affirming the chancery court’s judgment in a contempt proceeding following a divorce, holding that the chancellor did not abuse his discretion in awarding payment of back-owed portions of retirement pay and did not err in finding that the father was not entitled to a credit towards his child support obligations for in-kind contributions and thus awarding back-owed child support.
(7-1-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in part and dissented in part, joined by Barnes.)

Parker v. Canton Manor and Mississippi Healthcare Association, 2022-WC-00206-COA (Civil – Workers’ Comp)
Reversing the MWCC’s decision dismissing the claimant’s two claims based on the two-year statute of limitations, holding that the “substantial evidence” standard did not apply because the Commission did not make any finds of fact based on evidence and that the Commission erred by granting a motion to dismiss because the allegations in the Petition on its face stated a claim and the Employer/Carrier presented no evidence to support its affirmative defense.
(8-2-0: Barnes and Westbrooks concurred in result only without separate written opinion)

Practice Point – The Court of Appeals applied the Miss. R . Civ. P. 12(b)(6) standard to the Employer/Carrier’s motion to dismiss. Here is the crux of the opinion (from paragraph 11):

Applewhite v. State, 2022-KA-00290-COA (Criminal – Felony)
Affirming conviction of capital murder and aggravated assault, both with firearm aggravation, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of it.
(8-2: Westbrooks dissented, joined by McDonald)

Other Orders

Lofton v. Lofton, 2021-CA-00035-COA (granting appellate attorney’s fees and costs)

Boutwell v. Fairchild, 2021-CA-01046-COA (denying rehearing)

Fox v. State, 2022-KA-00988-COA (denying motion for bail pending appeal)

Hand Down Page

Mississippi Court of Appeals Decisions of April 18, 2023

The Court of Appeals handed down six opinions yesterday. There was one direct criminal appeal, a statute of frauds/equitable estoppel case, an equitable distribution case, and three PCR cases.

Beckworth v. Beckworth, 2022-CA-00048-COA (Civil – Other)
Affirming the chancery court’s ruling in a dispute between siblings over the ownership of a home, holding that the brother who had been evicted by the sister failed to prove the elements of equitable estoppel and therefore he could not get past the statute of frauds.
(10-0)

NOTE – I like this statement on credibility calls:

Cleveland v. State, 2021-CA-01130-COA (Civil – PCR)
Affirming summary denial of a motion for PCR, holding that the petitioner’s first claim was meritless and his second claim was time-barred.
(10-0)

Rutledge v. State, 2022-CP-00513-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the claim on appeal was procedurally barred because the petitioner sought to challenge the validity of the conviction but had not presented that issue to the trial court.
(10-0)

Johnson v. Johnson, 2021-CA-01080-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s findings on remand for application of the Ferguson factors to equitable distribution, holding that the chancery court did not abuse its discretion by awarding her lump-sum alimony or 45% of his military pension, but sua sponte addressing an incorrect calculation of the percentage of military survivors benefits awarded and reversing/rendering on that issue.
(10-0)

Jackson v. State, 2022-CP-00325-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that the circuit court properly dismissed the claim for lack of jurisdiction because the petitioner failed to obtain permission from the Supreme Court.
(10-0)

McClusky v. State, 2022-KA-00115-COA (Criminal – Felony)
Affirming conviction of fondling, holding that the trial court did not abuse its discretion in allowing the State to introduce testimony of prior abuse to show lack of mistake or in allowing the state to question the defendant about pornographic material on his cell phone for impeachment purposes.
(10-0)

Other Order

Clark v. Vicksburg Healthcare, LLC, 2021-CA_00173-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of March 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. There was nary a dissent, but a conviction of child exploitation was reversed. The are other felony opinions, two divorce cases, a contract case involving a defunct LLC, and a PCR case.

Nunn v. State, 2021-KA-01371-COA (Criminal – Felony)
Affirming conviction of having meth within 1,500 feet of a church, holding that the trial court did not abuse its discretion in denying the defendant’s motion for mental competency evaluation where the trial court twice held a hearing to determine whether the defendant understood and appreciated the significance of the trial proceedings and had the ability to rationally aid in his defense or in denying the defendant’s entrapment instruction.
(10-0)

Singh v. State, 2022-CP-00273-COA (Civil – PCR)
Affirming denial of PCR motion, holding no error in revoking post-release supervision since the plaintiff absconded from supervision.
(10-0)

Williams v. Williams, 2021-CA-00758-COA (Civil – Domestic Relations)
Affirming judgment of divorce, holding that the chancellor’s valuation of the marital residence was based on evidentiary support in the record.
(10-0)

Wakefield v. State, 2021-KA-00187-COA (Criminal – Felony)
Affirming conviction of accessory after the fact to murder, to kidnapping, and to auto theft, holding:
1. The circuit court had jurisdiction because it sat in one of the counties where the crimes were committed;
2. That the convictions did not violate the Double Jeopardy Clause even though the defendant gave just one car ride because he was an accessory to three distinct felonies so the merger doctrine did not apply;
3. That there was no error based on the weight or sufficiency of the evidence;
4. That the indictment was not defective for failing to include “intent” where it did include “willfully;” and
5. That there was no error in admitting autopsy and crime scene photos.
(8-1-0: McDonald concurred in result only without separate written opinion; Emfinger did not participate)

NOTE – These convictions stemmed from the kidnapping and murder of six-year-old Kingston Frazier in 2017.

Holmes v. Lankford, 2022-CA-00203-COA (Civil – Contract)
Affirming summary judgment for the defendant in a dispute over a sand and gravel operation agreement, holding that the plaintiff did not have standing to enforce the agreement that was between the defendant and the plaintiff’s administratively dissolved LLC and that the plaintiff did not otherwise show he was entitled to relief.
(10-0)

NOTE – Conducting business through an LLC can cut both ways:

Mason v. State, 2021-KA-00964-COA (Criminal – Felony)
Reversing conviction of child exploitation, holding that the trial court erred in denying funds for an independent computer forensics expert because the State’s witness/detective should have been considered an expert and that this error hindered the defendant’s jurisdictional challenge and led to evidentiary errors that contributed to an unfair trial.
(7-3-0: Wilson, Smith, and Emfinger concurred in part and in the result)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Modified opinion on motion for rehearing affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(9-0)

Other Orders

Hornsby v. Hornsby, 2020-CA-01091-COA (dismissing motion for attorney’s fees)

Blount v. State, 2021-KA-00204-COA (denying rehearing)

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (denying rehearing)

Anderson v. State, 2021-KA-01340-COA (granting pro se motion for extension of time to file motion for rehearing and recalling mandate)

Easterling v. State, 2022-CA-00796-COA (vacating circuit court’s order and rendering judgment dismissing motion for PCR)

Hunter v. State, 2022-TS-01269-COA (dismissing appeal as untimely)

Hand Down List

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Court of Appeals Decisions of October 25, 2022

The Mississippi Court of Appeals handed down six opinions today. There are four criminal cases including one with an interesting issue that arose when only eleven jurors were polled about the verdict. There is also a termination of parental rights case and a PCR case.

Braziel v. State, 2021-KA-00603-COA (Criminal – Felony)
Affirming conviction of burglary upon receipt of a Lindsey brief and in the absence of a pro se brief, holding that there were no arguable issues on appeal.
(9-0: Judge Smith did not participate.)

C.P. v. Lowndes County Dept. of Child Protection Services, 2019-CA-01739-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision terminating parental rights of both natural parents, holding that there was clear and convincing evidence supporting the termination and that reunification efforts were not required, that the GAL’s efforts were “suboptimal” but harmless because there was other sufficient evidence, that it was error to not inform the parents of their rights at the outset of the bearing but it was harmless since the parents were represented and exercised their rights, and that the court did not commit reversible error adopting CPS’s proposed order verbatim without specific findings of fact.
(6-4-0: Judge Wilson and Judge McCarty concurred in part and in the result without separate written opinion; Judge Westbrooks and Judge Lawrence concurred in the result only without separate written opinion.)

Maye v. State, 2020-KA-00100-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by refusing a heat-of-passion manslaughter instruction where the defendant denied killing the victim and there was no evidence to support the instruction and holding that there was no error in admitting a gruesome photo that had probative value.
(6-3: Judge McDonald and Judge Lawrence concurred in part and in the result only without separate written opinion; Judge Westbrooks concurred in result only without separate written opinion.)

O’Quinn v. State, 2021-KA-00534-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that there was no merit to the defendant’s argument that his trial counsel was ineffective for failing to object to multiple instance of hearsay.
(9-1-0: Judge Westbrooks concurred in the result only without separate written opinion.)

ASIDE – The opinion provides a colorful description of events that unfolded in the parking lot immediately after the robbery. It reads like a scene from Raising Arizona, complete with a two-year-old in the getaway car. Here is a portion:

Price v. State, 2019-KA-01890-COA (Criminal – Felony)
Affirming conviction of first-degree murder, two counts of attempted first-degree murder, and possession of a firearm by a felony, holding that the conviction was supported by sufficient evidence and not against the overwhelming evidence, that the defendant could not complaint on appeal about the denial of a motion he opposed at trial, that ineffective assistance claims were denied without prejudice, that the defendant waived arguments that the trial judge should have recused, that there was no error in several jury-related issues including the trial court’s failure to poll all 12 jurors that was cured by retroactively polling the juror at an evidentiary hearing order by the Court of Appeals.
(7-3: Judge McDonald dissented, joined by Judge Westbrooks and joined as to Parts I and II by Judge McCarty. The dissent took issue with the notion that the trial court’s failure to poll all 12 jurors could be cured on remand by a supplemental hearing.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Denying motion for rehearing, withdrawing original opinion, and substituting this modified opinion affirming the denial of a PCR motion, holding that the plaintiff was procedurally barred by res judicata and without merit and that the trial court did not abuse its discretion in refusing to consider evidence of a potential defense for the plaintiff’s 1994 conviction in sentencing him for his 2011 felony evasion.
(5-4: Judge McCarty concurred in part dissented in part; Judge McDonald dissented, joined by Chief Judge Barnes, and Judge Westbrooks, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

Other Orders

Ford v. State, 2020-KA-00278-COA (dismissing untimely pro se motion for rehearing)
Garlington v. State, 2020-KA-00392-COA (denying rehearing)
Towns v. Panola County Board of Supervisors, 2020-CA-01364-COA (denying rehearing)
Skinner v. State, 2021-CA-00080-COA (denying rehearing)
Robinson v. State, 2021-CP-01215-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of October 11, 2022

I did not post summaries last week because was out of town all week. I plan to do a post summarizing last week’s decisions at some point, but today is not that day because the Court of Appeals just handed down nine more opinions.

Today was a big day for Rule 4 and for workers’ comp, with two decisions for each of those subject areas. One of the workers’ comp decisions has a significant amount of analysis of the issue of whether the claimant overcame the presumption of no loss of wage-earning capacity. The other workers’ comp decision provides some clarity (and teeth) to the affirmative defense of intoxication. Additionally, we learned today that you should not white-out the defendant’s name on a summons after it is issued, write the name of the defendant to be served over the white-out, and then serve that altered summons on your defendant. There is also a divorce case dealing with child support, several criminal cases, and a lone PCR case.

Carnley v. State, 2021-KA-00438-COA (Criminal – Felony)
Affirming conviction of rape, declining to reverse based on the exclusion of the victim’s prior inconsistent statement because no proffer was made and holding there was no error in the admission of expert testimony, that the defendant’s trial counsel was not ineffective, that the jury was properly instructed to continue its deliberation in lieu of a Sharplin instruction, and that the trial court did not commit cumulative error.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Wharton v. State, 2021-CA-00136-COA (Civil – Other/Civil Procedure)
Reversing a default judgment on a civil asset forfeiture petition, holding that the State failed to “strictly” comply with the Rule 4 requirements for service by publication, that the respondent did not waive the defense of insufficiency of service of process by failing to plead it in his answer because the answer was filed after the entry of default, and that the case should be remanded to give the State an opportunity to show good cause for failing to serve process before the statute of limitations expired.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion and Judge Emfinger did not participate.)

NOTE 1– There is a lot of civil and appellate procedure in this opinion (Miss. R. Civ. P. 4, 55; Miss. R. App. P. 2, 31). The appellate procedure ruling was interesting because the appellant missed his briefing deadline, but the Court of Appeals held that he should have been afforded 14 days to correct this “deficiency” and since he filed two days late he was within that window. This is interesting, but not a maneuver I plan to attempt.

Note 2 – I also want to point out this holding that although it is a fact-bound holding, these are facts one could find oneself bound up in.

Howard Industries v. Hayes, 2021-WC-00694-COA (Civil – Workers’ Comp)
Affirming the MWCC on direct appeal and cross appeal, holding that there was substantial evidence to support the Commission’s award of sanctions against the Employer’s counsel for attempting to mislead the Commission, the Commission’s finding that the claimant had overcome the presumption of no loss of wage-earning capacity and awarding permanent disability benefits for her 2007 injury, and the Commission’s award of 38% industrial loss of use of her right upper extremity for her 2015 injury.
(5-4: Judge Wilson concurred in part and dissented in part (on the sanction issue), joined by Judge Greenlee, Judge McCarty, and Judge Smith. Judge Emfinger did not participate.)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that the claimant was not entitled to benefits based upon the affirmative defense of intoxication, holding that the Employer’s payment of benefits did not estop the Employer from asserting the intoxication defense that was pleaded in the answer and that the very presence of marijuana in the claimant’s system raised the presumption of intoxication.
(10-0)

PRACTICE POINT – This case seems to answer a question that has lingered since the MWCA was amended to add the intoxication defense about what the effect of a positive drug test that does not give any indication of the degree of intoxication. In this case, the Court of Appeals decisively that any amount of intoxication triggers the presumption. A claimant can still seek to overcome that presumption, but based on the Meek decision a claimant cannot overcome the presumption by pointing to a lack of proof of the level of marijuana in the claimant’s system.

Ponder v. Ponder, 2020-CA-01196-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor did not err or abuse his discretion in awarding child support retroactive to a date prior to the filing of the petition for modification but holding that there was no legal basis for an award of attorney’s fees against the father for failing to comply with an agreed order.
(9-1-0: Judge McDonald concurred in part and in the result without separate written opinion.)

Villareal v. State, 2021-CP-00440-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the defendant’s sentence was not illegal.
(9-0: Judge Lawrence did not participate.)

Carruthers v. State, 2021-KA-00654-COA (Criminal – Felony)
Affirming conviction of meth trafficking as subsequent offender in possession of a firearm near a church and possession of firearm by felon, holding that the defendant did not receive ineffective assistance of counsel for alleged failures to object at various points in the trial or for alleged failure to investigate or for alleged failure to stipulate to a prior felony to keep evidence of the prior felony.
(7-2-0: Judge McCarty concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion.)

Arrington v. Anderson, 2021-CA-00233-COA (Civil – Personal Injury)
Affirming dismissal of two identical negligence lawsuits, holding that a summons that was altered after issuance to change the name of the party to be summonsed to the defendant’s name and then served on the defendant was not valid service of process, that since process was not served the statute of limitations had expired the first lawsuit, and that the second lawsuit was not a “refiling” of the first since it was filed while the first suit was still pending.
(8-2-0: Judge Wilson and Judge McDonald concurred in result only without separate written opinion.)

Daniels v. State, 2021-KA-01067-COA (Criminal – Felony)
Affirming conviction of two counts of armed robbery, two counts and aggravated assault, one count of house burglary, and one count of grand larceny, holding that the circuit court did not err in telling the jury panel that the defendant was charged as a habitual offender or in denying the defendant’s motion for a mistrial and holding that there was no abuse of discretion in admitting evidence about the defendant’s apprehension, arrest, and felony charges that immediately followed the activities for which he was convicted in this trial.
(8-2-0: Judge Wilson and Judge Emfinger concurred in the result without separate written opinion.)

Other Orders

Short v. State, 2021-KA-00499-COA (denying rehearing)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (denying rehearing)
Watkins v. State, 2021-CP-01301-COA (granting appellant’s pro se motion for leave to file an out-of-time brief)
Young v. State, 2022-CP-00141-COA (denying State’s motion to dismiss appeal)

Hand Down List

Mississippi Court of Appeals Decisions of May 31, 2022

The Mississippi Court of Appeals handed down five opinions today. Topics include the fate of a living trust that included a languishing cattle farm, unemployment benefits, alleged bolstering of the testimony of a minor who was the victim of sexual battery, alleged MDEQ violations by a lessee, and a PCR motion.

Stapp v. Stapp, 2020-CA-01282-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s rulings in an action asking the court to divide the corpus of a living trust or, in the alternative, to make a distribution to the beneficiaries, holding that the chancellor did not err in (1) requiring that all the farm equipment be auctioned because the beneficiaries were not able to run the farm at issue and the farm had not been profitable since their father’s death, (2) requiring $50,000 to be maintained in an account for unforeseen expenses since real property remained in the trust, (3) not requiring one beneficiary to reimburse the trust for rent and utilities during her occupancy of the farmhouse in the trust and allowing her to live there indefinitely, or (4) not requiring one beneficiary to reimburse the trust for funds she received from cattle sales and not requiring the trust to reimburse the other beneficiary for expenses allegedly incurred for management of the cattle.
(Judge McCarty dissented, arguing that since the documents creating the trusts were not in the record, the trial court modified two trusts without having the terms of the trust or knowing the settlor’s intent.)

Mitchell v. Mississippi Department of Employment Security, 2021-CC-00794-COA (Civil – State Boards and Agencies/MDES)
Affirming the denial of unemployment benefits, holding that there was substantial evidence to support the ALJ’s determination that the claimant’s work-search requirement was not satisfied and declining to review other arguments that were not supported by citations to any authority.
(Judge Westbrooks concurred in part and in the result without separate written opinion.)

Note – I understand why appellate courts often handle arguments not supported by citations to authority by stating that they are waived, but then analyzing them anyway and explaining that they are meritless. In this case, it was refreshing to see the Court of Appeals simply hold that the arguments were waived and leave it at that.

Trotter v. State, 2020-CA-00094-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the circuit court did not err in finding that the plaintiff failed to prove his ineffective assistance of counsel claim and that the circuit court did not abuse its discretion in denying the plaintiff’s request to be resentenced to life without the possibility of parole.
(Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty concurred in result only without separate written opinion.)

Blocton v. State, 2021-KA-00197-COA (Criminal – Felony/Sexual Battery)
Affirming a conviction of sexual battery of a small child, holding (1) the circuit court did not abuse its discretion in allowing the victim’s foster mother, the forensic interviewer, and an investigator to testify about what the victim disclosed to them over the defendant’s argument that this testimony improperly bolstered the victim’s testimony and (2) the circuit court did not commit plain error in allowing the investigator to testify and that there was no merit to the defendant’s claim that his lawyer rendered constitutionally ineffective assistance.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Smith did not participate.)

Biloxi Dock & Ice, LLC v. Back Bay Fuel and Ice, LLC,  2021-CA-00701-COA (Civil – Contract/Lease)
Affirming the circuit court’s decision upholding the county court’s findings in a case arising out of a lease dispute, holding that the county court, as fact-finder, had sufficient evidence to conclude that the purchaser/landowner failed to establish that the lessee had violated MDEQ regulations that would render the lessee in default of the lease.
(All participating judges concurred.)

NOTE – A lessor in this case was named Lesso. Lesso was sometimes referred to as Lessor in the opinion. Had Lesso been the lessee we could have met calamity.

Other Orders

Lambes v. Lambes, 2020-CA-00095-COA (denying rehearing)

Hand Down List