MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 2/13/2018

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 2/13/2018 GIPSON v. JACKSON, NO CA COA Civil Topics: Domestic relations - Medical bills - Contempt - Modification of child support - Findings on record - Section Child support guidelines HON. GLENN ALDERSON TIPPAH COUNTY CHANCERY COURT RANDOLPH WALKER B. SEAN AKINS Judge Westbrooks Affirmed in part, reversed and remanded in part. Lacedric Gipson and Stephanie Jackson entered into an agreement that granted custody of their son to Jackson subject to Gipson s rights of visitation. The agreement also included a provision for child support and a provision regarding payment of the child s medical expenses. When the child no longer qualified for Mississippi Medicaid, Jackson informed Gipson and told him that it would be more cost effective for their son to be placed on Gipson s insurance. However, Gipson testified that he forgot about getting insurance coverage. Gipson also informed Jackson that he would not pay his half of the medical bills. Jackson filed a complaint for contempt and modification of child support. Jackson, who was living with her boyfriend at the time, also requested that the chancery court modify the provision prohibiting overnight romantic guests while in her son s presence if the guests were not related by blood or marriage. Gipson filed a counter-petition for contempt and modification. The chancery court found both Jackson and Gipson in contempt and ordered they both be incarcerated until they purged themselves of contempt. Gipson appeals. Gipson argues that the chancellor erred in ordering him to pay $ to Jackson for their son s medical bills. The chancery court s original order specifically stated that Gipson must pay half of his son s medical bills. Furthermore, Jackson provided receipts and a spreadsheet that itemized and verified each payment she made toward the medical bills. Therefore, the chancery court did not abuse its discretion in finding Gipson in contempt. Gipson also argues that the chancellor failed to make specific findings on the record, as required for a modification of child support. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts for himself and his wife. However, the chancellor made no specific findings as to Gipson s adjusted gross income and gave no specific reasons for deviating from the guidelines. The rebuttable presumption as to the justness or appropriateness of an award or modification of a child-support award in this state, based upon the guidelines established by section , may be overcome by a judicial body Page 1 of 20

2 awarding or modifying the child-support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria. Here, the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Thus, the chancery court s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Presiding Judge Irving Page 2 of 20

3 CLC OF BILOXI, LLC v. MISSISSIPPI DIVISION OF MEDICAID, NO CC COA Topics: State boards and agencies - State Plan - Division of Medicaid - Reimbursement of medical-assistance beneficiaries - Long-term care facilities - Per diem rate - Respiratory-therapist salaries - Large nursing facility - Cost report - Salaried direct care staff - 42 U.S.C. 1396a (e)(9)(c) - Section (1) - Section Freedom of choice - Section (1)(a)-(l) - Due process HON. PATRICIA D. WISE HINDS COUNTY CHANCERY COURT JAMES RAY MOZINGO, LYDIA QUARLES, HORACE HUNTER TWIFORD IV JANET MCMURTRAY, LAURA L. GIBBES Judge Fair Affirmed. Civil CLC Biloxi sought a per diem reimbursement from the Mississippi Division of Medicaid for their respiratory-therapist expenses. The DOM denied CLC Biloxi s request. After an administrative hearing, the DOM executive director affirmed the DOM. CLC Biloxi appealed to circuit court which affirmed. CLC appeals. Attachment 4.19-D of the State Plan, which is promulgated and administered by the DOM, provides guidelines for the reimbursement for medical-assistance beneficiaries of long-term care facilities. It provides that [a] facility s direct care costs, therapy costs, care related costs, administrative and operating costs and property costs related to covered services will be considered in the findings and allocation of costs to the Medical Assistance Program for its eligible recipients. Costs included in the per diem rate will be those necessary to be incurred by efficiently and economically operated nursing facilities that comply with all requirements of participation in the Medicaid program with the exception of services provided that are reimbursed on a fee for service basis or as a direct payment outside of the per diem rate. CLC Biloxi originally filed its cost report by reporting its respiratorytherapist salaries under Section 2 Therapy Expenses on Form 6, Line 2, as provided in Attachment 4.19-D, Section A(18). CLC Biloxi, as a large nursing facility, does not qualify for per diem reimbursement. Rather, Section (A)(18) states that [t]herapy expenses for [s]mall [n]ursing [f]acilities and [l]arge [n]ursing [f]acilities will be reimbursed on a fee for service basis. The DOM says it denied reimbursement because although respiratory therapy in small and large nursing facilities is allowable, it is not coverable because Section of the policy provider manual specifically states that DOM does not enroll respiratory therapist[s] as eligible providers and does not directly reimburse respiratory therapists for services provided to Medicaid beneficiaries. After denial, CLC Biloxi amended its cost report to include its respiratory-therapist salaries under Section 1, Direct Care Expenses, on Form 6, Line 1-01: Salaries - Aides[,] Gross salary of certified nurse aids and nurse aides in training. CLC Biloxi claims this was proper because respiratory therapists are not actually therapists for purposes of the State Plan, but instead are salaried direct care staff under Attachment 4.19-D Chapter 2, Section A(15) of the State Plan. CLC Biloxi disregards that Page 3 of 20

4 42 U.S.C. 1396a (e)(9)(c), the federal statute governing state plans for medical assistance, refers to respiratory therapists as therapists. Further, section (1) refers to persons who practice respiratory care as therapists. Thus, respiratory therapists are therapists for purposes of the State Plan. And Section (A)(18) requires small and large nursing facilities to report respiratory-therapy expenses on Form 6, Line 2. The DOM chooses to provide funding for respiratory services on a per diem basis for three different types of long-term care facilities private nursing facilities for the severely disabled (NFSD); psychiatric residential treatment facilities (PRTF); and intermediate care facilities for the intellectually challenged (ICF/IID). As a large nursing facility, CLC Biloxi does not fall into any of those categories. Nor do respiratory therapists fall into the category of salaried direct-care staff in Attachment 4.19-D Chapter 2, Section A(15). Thus, there is no error. CLC Biloxi argues that the DOM s prohibition of respiratory therapists in small and large nursing facilities, but approval of the same in hospitals and higher acuity nursing facilities, violates the freedom of choice provision in section Section addresses medical assistance for the aged and provides that no regulation shall be promulgated [that] limits or abridges the recipient s free choice of the provider of medical and remedial care or service. Under section (1)(a)- (l), the term [m]edical assistance for the aged is defined to mean payment of part or all of the cost of a specifically defined scope of care and services, as set forth in the statute. And contrary to CLC s contention, section is not so broad to imply that the DOM s decision to limit payment for respiratory therapy limits a recipient s freedom of choice. CLC Biloxi also argues that its due-process rights have been violated because the DOM is allowed to recoup the $82,000 in respiratory-therapist salaries that CLC Biloxi was erroneously paid. The minimum procedural due-process requirements an administrative board must afford parties are notice and an opportunity to be heard. CLC Biloxi has been afforded all the dueprocess protections provided by the DOM s administrative process and has availed itself of the appeals afforded by both the chancery court and appellate court. Thus, no due-process violation has occurred. Page 4 of 20

5 BOOTH v. SOUTHERN HENS, INC., NO CA COA Civil Topics: Personal injury - Course and scope of employment - Doctrine of respondeat superior - Purposes of employment - Failure to supervise HON. DAL WILLIAMSON JONES COUNTY CIRCUIT COURT ORVIS A. SHIYOU JR. MARK EDWARD NORTON Judge Barnes Affirmed. Wayne Booth, working as a truck driver for Whitestone Trucking, went to Southern Hens Inc. to pick up a trailer. Whitestone Trucking was an independent-contract hauler for products made by Southern Hens. While waiting on paperwork, Jerome (A.J.) Caldwell, an employee of Southern Hens, grabbed Booth from behind his midsection in a bear hug. Booth tried to get loose but could not. Then Booth contended that Caldwell slung him against some boxes and pushed him through a doorway onto a stack of pallets. When Booth was able to get up and reenter the shipping area, Booth said a supervisor and other Southern Hens employees were laughing and joking about the incident. Booth claimed that Caldwell s actions caused serious injuries to his back that required medical treatment. Further, Booth claimed he was unable to return to work due to the injuries. Caldwell was terminated as a result of the incident. Booth sued Southern Hens, claiming negligence and failure to supervise; Southern Hens failed to exercise reasonable care and control over its employees resulting in Booth s injuries. Southern Hens filed a motion for summary judgment which the court granted. Booth appeals. Issue 1: Course and scope of employment Booth argues there were genuine issues of material fact as to whether Caldwell was acting within the course and scope of his employment with Southern Hens when he bearhugged Booth and shoved him into the pallets. Under the doctrine of respondeat superior, an employer is liable for an employee s acts done in the course and scope of his employment and in furtherance of the employer s business. An employee s conduct is not considered in the course and scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the employer. Moreover, an employer is not liable for the wrongful deed of his employee if, when the wrongful act was committed, the employee had abandoned his employment and gone about some purpose of his own not incident to his employment. The trial court correctly found Caldwell s conduct in bear-hugging Booth and shoving him into a stack of pallets was outside the course and scope of Caldwell s employment at Southern Hens. Caldwell s actions were not performed as a means to accomplish the purposes of his employment. At the time of the incident, Caldwell was a laborer in the shipping department for Southern Hens, loading and unloading shipments. Bear-hugging and shoving a truck driver is conduct outside of his job. Further, it was unauthorized horseplay or physical assault prohibited by Southern Hens employment rules. Page 5 of 20

6 Issue 2: Failure to supervise Booth argues that Southern Hens had a duty to supervise Caldwell, and failed to do so, thereby causing injury to Booth. Specific evidence of an employer s actual or constructive knowledge of its employee s dangerous or violent tendencies is necessary in order to create a genuine issue of material fact on an improper training or supervision theory of liability. Here, there is no evidence that either Southern Hens or the on-duty supervisor in the shipping department had any reason to anticipate Caldwell s violent actions. The incident was without warning and occurred in a matter of seconds. Further, Caldwell had no history of dangerous or violent tendencies at work, nor was there any evidence presented that the atmosphere at Southern Hens was violent. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson Page 6 of 20

7 STATE v. STAFFORD, NO CA COA Civil Topics: Rule violation report - Hearing - Constitutional due process rights - Statutory due process rights HON. CAROL L. WHITE-RICHARD SUNFLOWER COUNTY CIRCUIT COURT ANTHONY L. SCHMIDT JR. ROY STAFFORD (PRO SE) Presiding Judge Griffis Reversed and rendered. Roy Stafford is an inmate in the custody of the Mississippi Department of Corrections. In 1988, Stafford was convicted of murder and aggravated assault and sentenced to life and ten years, respectively. In 2015, a rule violation report was issued against Stafford. The RVR alleged that Stafford made a threatening statement to another inmate. At the disciplinary hearing, Stafford admitted the allegation and rule violation and was found guilty by the hearing officer. Stafford received a thirty-day loss of visitation, phone, and canteen privileges. Stafford appealed the hearing officer s decision through the MDOC s administrative remedy program. The MDOC found Stafford received proper notice and denied his appeal. Stafford subsequently filed a petition for judicial review in circuit court. The circuit court reversed the MDOC s decision and ordered that the RVR be expunged from Stafford s prison record. The MDOC appeals. In his petition for judicial review, Stafford alleged a violation of his constitutional dueprocess rights as a result of the MDOC s failure to provide timely notice of his disciplinary hearing. Additionally, the circuit court found that Stafford s statutory due process rights had been violated due to the MDOC s failure to follow its administrative procedures. For either a procedural or substantive due-process claim, the initial requirement is proving that the plaintiff has been deprived by the government of a liberty or property interest; otherwise, no right to due process can accrue. It is within the discretion of the prison officials to determine whether and when to provide prisoners with privileges that amount to more than reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety. Here, as a result of the rule violation, Stafford lost phone, visitation, and canteen privileges for thirty days. The temporary restriction of phone, visitation, and canteen privileges is not sufficient to trigger any constitutional due-process concerns. Thus, Stafford s constitutional dueprocess claim fails. Pursuant to the MDOC s disciplinary procedures, inmates are to be notified of the time and place of the disciplinary hearing at least twenty-four hours in advance of the hearing. Here, the circuit court found that since the MDOC failed to follow its own procedures and give Stafford at least twenty-four hours notice of the November disciplinary hearing, its decision was arbitrary and capricious. However, Stafford has not presented any evidence to refute the MDOC s finding that he made a threatening statement to another inmate. Instead, he summarily claimed he was denied timely notice of the disciplinary hearing. However, Stafford did not request the presence of witnesses or ask to present evidence prior to his disciplinary hearing. Moreover, Stafford was present at the hearing, acknowledged the allegations set forth in the RVR, and admitted the rule violation. Page 7 of 20

8 Consequently, Stafford s statutory due-process rights were not violated. Page 8 of 20

9 Topics: Post-conviction relief - Voluntariness of plea - Validity of search warrant - Plea hearing BROWN v. STATE, NO CP COA HON. EDDIE H. BOWEN SIMPSON COUNTY CIRCUIT COURT NICHOLAS D. BROWN (PRO SE) OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Judge Westbrooks Affirmed. Criminal Nicholas Brown pled guilty to Count I, possession of 12.1 milliliters of a Schedule II controlled substance, codeine, and Count II, possession of 1.2 grams of a Schedule II controlled substance, cocaine. The trial court withheld acceptance of Brown s guilty plea and placed Brown on nonadjudicated probation. The court also accepted Brown s request to enter a drug-court program. Brown was later found to have violated the terms and conditions of the drug-court program. The trial court found that Brown s nonadjudicated status should be revoked and accepted his guilty plea. Brown was sentenced to twenty-four years. He filed a motion for post-conviction relief in cause number A year later, he filed another PCR motion in cause number A couple of months later, he filed two more PCR motions in cause number The court denied all motions in cause number Brown appeals. Issue 1: Voluntariness of plea Brown argues that his guilty plea was involuntary because he received ineffective assistance of counsel. A guilty plea is deemed voluntary and intelligent only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Here, the record clearly indicates that Brown was informed of the nature of the charges against him and the consequences of his plea. Brown represented to the court that he understood the nature of the charges against him and the consequences of his plea. Thus, this issue is without merit. Brown also argues that his lawyer s failure to challenge the search warrant in his case constituted ineffective assistance of counsel. Brown s statements on appeal contradict the statements he made before the circuit court. Moreover, Brown failed to submit any evidence to the trial court to suggest that his lawyer s representation was deficient. Brown also failed to attach any affidavits, other than his own, to substantiate his claim for ineffectiveness of counsel. Where a party offers only his affidavit, then his ineffective-assistance-of-counsel claim is without merit. Issue 2: Validity of search warrant Brown argues that the circuit court erred in accepting his guilty plea, because a search warrant was illegally obtained. A valid guilty plea waives the right to challenge the sufficiency of the State s evidence. Therefore, Brown is procedurally barred from challenging the sufficiency of the search warrant. Page 9 of 20

10 Issue 3: Plea hearing Brown asserts that some aspect of his plea hearing was inadequate. However, he was informed of his constitutional rights before and during his guilty plea, and he informed the circuit court that he was satisfied with his attorney and that he was not under the influence of alcohol or drugs during the plea. Thus, this issue is without merit. Page 10 of 20

11 Topics: Post-conviction relief - Time bar - Successive writ - Illegal sentence - Constitutional rights violations - Ineffective assistance of counsel - Lack of signature on sentencing order EVANS v. STATE, NO CP COA HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT CURTIS C. EVANS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KATY TAYLOR GERBER Judge Westbrooks Affirmed. Criminal Curtis Evans pled guilty to armed robbery and burglary. He was sentenced to sixteen years for armed robbery, with eight years suspended and eight years to serve, followed by three years of post-release supervision. For burglary, he was sentenced to seven years. Evans was arrested for robbery and indecent exposure while on PRS. After a revocation hearing, his PRS was revoked, and he was sentenced to serve his original sentence. He filed a motion for post-conviction relief. Three years later, he filed another PCR motion which was denied. He appeals. The circuit court held that Evans s PCR motion was time-barred, successive, and without merit. A PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Evans filed his second PCR motion on November 22, 2016, approximately fourteen years and three months after he pleaded guilty in Thus, it is time barred. It is also barred as a successive writ. A trial court s denial of a PCR motion is a final judgment and bars a second or successive motion unless an exception applies. Evans argues that his second PCR motion is exempt from the procedural bar, because he received an illegal sentence; because he waived his constitutional rights; because he received ineffective assistance of counsel; and because his sentencing order lacked his signature. Mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Evans merely asserts certain constitutional-rights violations without having sufficient evidence to support them. Evans asserts that he received an illegal sentence and maintains that he is eligible for earned parole. Not only did he fail to raise this in his first and second PCR motions, but Evans s sentence, falling within the statutory guidelines, was legally imposed. Evans asserts that he was not advised that his guilty plea waived his right to a trial by jury, the right to confront witnesses, and the protection against self-incrimination. However, he confirmed that he signed a document waiving his right to a preliminary probation-revocation hearing. Evans asserts that his counsel s representation was ineffective, because his counsel failed to inform Evans that he would be waiving certain rights by pleading guilty. Evans s claim is not supported by affidavits or any evidence other than his own assertion that he received ineffective assistance of counsel. A defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own. Evans asserts that his constitutional right to notice was violated because the sentencing and probation order did not contain his signature or the signature of a field officer. A simple oversight, such as the petitioner s omitted Page 11 of 20

12 signature, did not equate to an illegal revocation of a sentence. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Barnes Page 12 of 20

13 GILL v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Double jeopardy - Section (1) - Amendment of indictment - Prior convictions - Ineffective assistance of counsel - Right to speedy trial HON. CHRISTOPHER LOUIS SCHMIDT HANCOCK COUNTY CIRCUIT COURT GREGORY L. GILL (PRO SE) OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Judge Carlton Affirmed. Gregory Gill pled guilty to two counts of touching a child for a lustful purpose and was sentenced to fifteen years for each count, with fifteen years suspended and five years of postrelease supervision. He filed a motion for post-conviction relief which was denied. He appeals. Issue 1: Double jeopardy Gill argues that he was subjected to double jeopardy because he was charged twice for the same crime. The Double Jeopardy Clause prevents a second prosecution for the same offense after acquittal, protects against a second prosecution for the same offense after conviction, and protects against multiple punishments for the same offense. Here, the factual predicate for the pleas provided by the State reflects that Gill touched the victim inappropriately multiples times when she was between the ages of six and eleven years old, in violation of section (1), and Gill pleaded guilty to charges for two of those occasions. Each of the charges against Gill required proof of a fact not found in the other charge. Thus, there is no double jeopardy violation. Issue 2: Amendment of indictment Gill argues that the State failed to amend his indictment to reflect that he was pleading guilty to two counts of touching a child for lustful purposes and as a result, he pleaded guilty to an untrue indictment. In order to provide a defendant fair notice of the crime charged, an indictment must contain the essential elements of the offense charged, sufficient facts to fairly inform the defendant of the charge against which he must defend, and sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Here, the record shows that t Gill was sufficiently aware of the charges against him and that Gill knowingly, voluntarily, and freely entered his guilty pleas. The plea-hearing transcript shows that the trial court read aloud each charge of touching a child for a lustful purpose. After reading each charge, the trial court asked Gill, Did you do that? Gill responded, Yes, sir. Thus, there is no error. Issue 3: Prior convictions Page 13 of 20

14 Gill argues that the State induced the trial court to render the maximum sentence allowable, even though Gill was not charged as a habitual offender, by offering evidence of Gill s prior convictions. The plea-hearing transcript shows that after Gill admitted to having three prior convictions, the trial court advised Gill how these prior convictions would affect his decision to plead guilty in the context of any future crimes. The record contains no indication of any misconduct on the part of the prosecutor or any prejudice on the part of the judge. Thus, there is no error. Issue 4: Ineffective assistance of counsel Gill argues that his counsel was ineffective for failing to disclose to the trial court that Gill s prior conviction was committed in North Carolina, not in Mississippi, and for telling him that if Gill did not take the plea deal and instead went to trial, he would receive a life sentence plus fifteen years if found guilty by a jury. Gill s allegations of ineffective assistance of counsel are not supported by any proof except his own affidavit. A PCR movant may not rely solely on his own affidavit and unsupported allegations in his brief. And the plea-hearing transcript shows that Gill confirmed that he was satisfied with his attorney s service and also satisfied that his attorney familiarized himself with the facts of Gill s case. Issue 5: Right to speedy trial Gill argues that since he was incarcerated for 479 days prior to his court appearance, his right to a speedy trial was violated. Where a defendant voluntarily pleads guilty to an offense, he waives nonjurisdictional rights incident to trial, including the constitutional right to a speedy trial. Page 14 of 20

15 BIBBS v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Ineffective assistance of counsel - Voluntariness of plea - Mental instability HON. ANTHONY ALAN MOZINGO PEARL RIVER COUNTY CIRCUIT COURT DOUGLAS BIBBS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH Presiding Judge Griffis Affirmed. Douglas Bibbs pled guilty to armed robbery and was sentenced to twenty years, with five years suspended and five years of post-release supervision. He filed a motion for postconviction relief which was dismissed. He appeals. Bibbs argues his counsel was ineffective for failing to adequately advise him of a lesser charge of simple robbery, for failing to investigate his mental history, and for failing to bring Bibbs s mental status to the attention of the court. The record shows that the voluntariness of the plea is not in dispute. Bibbs was advised and understood the nature of the charge against him, and what his options and consequences were as far as signing the petition or going to trial. A voluntary guilty plea waives a claim of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. Bibbs does not adequately raise any issue regarding the voluntariness of his guilty plea. And in direct contradiction to his claims, Bibbs s signed plea deal states that his lawyer counseled and advised [him] on the nature of each charge [and] on any and all lesserincluded charges[.] He later confirmed this statement to the trial judge. Further, Bibbs failed to illustrate that the lesser charge not being included was prejudicial in any way. Also, his statements from his plea hearing concerning his physical and emotional fitness, as well as his acknowledgments to the judge of the choice he was making, are in direct contrast with his present claim of mental instability. Thus, there is no error. Page 15 of 20

16 CHISM v. STATE, NO KA COA Criminal Topics: Burglary of dwelling - Prior burglary convictions - M.R.E. 404(b) - M.R.E Sufficiency of evidence - Circumstantial evidence instruction HON. JEFF WEILL SR. HINDS COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: PHILLIP BROADHEAD OFFICE OF THE ATTORNEY GENERAL: JOSEPH SCOTT HEMLEBEN Presiding Judge Griffis Affirmed. Adam Chism was convicted of burglary of a dwelling and sentenced as a habitual offender to life without the possibility of parole. He appeals. Issue 1: Prior burglary convictions Chism argues that evidence of his prior felony convictions in 2009 and 2013 for house burglary and auto burglary was improperly admitted. At the end of trial, after the defense had rested, the State sought to admit Chism s prior burglary convictions under M.R.E. 404(b) as self-authenticating judgments of conviction for substantive proof of intent to commit the crime. The court overruled Chism s objection and allowed the house-burglary and auto-burglary convictions into evidence in order to show Chism s intent. Intent is a vital element of burglary. Usually, evidence of another crime or prior bad act is not admissible. However, evidence or proof of a prior crime or bad act is admissible where it is necessary to show identity, knowledge, intent, or motive, or to prove scienter. Here, evidence of Chism s prior convictions was offered to prove that Chism s intent was to burglarize the house, not to offer aid to someone. The trial court determined, under M.R.E. 403, that the evidence of the prior convictions was not overly prejudicial compared to its probative value. Intent in burglary cases is a central element to the charge. As a result, the evidence of intent was allowed in by Rule 404(b). Issue 2: Sufficiency of evidence Chism challenges the sufficiency of the evidence. When considering the evidence in the light most favorable to the prosecution, there was sufficient evidence to convict Chism of burglary of a dwelling. The alarm system on the house had been triggered by a break-in, and the alarm company and police were notified. An officer was able to arrive on the scene quickly and see Chism exiting the house through the broken basement door with stolen goods in his possession. The bag contained property later identified as belonging to the resident of the home. The basement door that Chism admittedly entered and exited was severely damaged, and the inside of the home showed signs consistent with forced entry and burglary. Issue 3: Circumstantial evidence instruction Page 16 of 20

17 Chism argues that the court erred by denying his proposed circumstantial evidence instruction. If there is any direct evidence presented in the case, then the State s proof is not wholly circumstantial, and this instruction would be irrelevant. Examples of direct evidence include an admission or confession by the defendant to a significant element of the offense, or eyewitness testimony to the gravamen of the offense charged. Here, there is eyewitness testimony to the gravamen of the offense of burglary of a dwelling. The police officer s testimony puts Chism inside and exiting the broken-into house while intentionally in the possession of stolen property. Thus, Chism was not entitled to a circumstantial evidence instruction. Page 17 of 20

18 Topics: Murder - Manslaughter instruction - Lesser included offense instruction - Instruction on use of deadly force - Victim's prior convictions - M.R.E. 405(b) - Ineffective assistance of counsel JENKINS v. STATE, NO KA COA HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Presiding Judge Griffis Affirmed. Criminal Rodise Jenkins was convicted of murder and sentenced to life. He appeals. Issue 1: Manslaughter instruction Jenkins argues he was entitled to have the jury instructed on manslaughter. A lesserincluded-offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesserincluded offense. Therefore, only in cases where the evidence could only justify a verdict of murder, should a requested manslaughter instruction be refused. A heat-of-passion jury instruction is not warranted where a cooling-off period exists between the provocation and the killing. Here, a significant amount of time passed between Jenkins and the victim s interaction and when Jenkins shot the victim. Thus, no reasonable jury could find the defendant guilty of the lesser-included offense of manslaughter. Issue 2: Instruction on use of deadly force Jenkins argues that jury instruction S-9 contained an incorrect statement of the law and subsequently diluted Jenkins s evidence that he acted in self-defense. The instruction was one of deadly force, which stated that when a person defends himself from an assault with a deadly weapon, he acts at his peril. Courts have condemned the phrase acts at his own peril from future jury instructions as a confusing, incorrect statement of the law. However, no Supreme Court decision holds that use of the he acts at his own peril language in a selfdefense jury instruction is per se reversible error. And the trial court in this case instructed the jury numerous times on Jenkins s right to self-defense through instructions other than S- 9. When considering the numerous and detailed instructions on self-defense given the jury, the jurors could not have been in hopeless conflict over the instructions. Issue 3: Victim s prior convictions Jenkins argues that evidence of the victim s prior convictions should have been allowed into evidence in order to show the victim s violent nature. Under M.R.E. 405(b), specific instances of conduct may be used on both direct and cross-examination when the pertinent trait of character being examined is an essential element of a charge, claim, or defense. Page 18 of 20

19 The victim s violent nature would be relevant to Jenkins s charge of murder and claim of self-defense. However, Jenkins failed to introduce these specific instances during direct or cross-examination. And the victim s prior convictions did not have any impact on Jenkins s defense. The record does not support Jenkins s allegations of previous violent encounters with the victim, nor is there any evidence that Jenkins had personal knowledge of previous violent encounters between the victim and anyone else. Thus, there is no error. Issue 4: Ineffective assistance of counsel Jenkins argues that he received ineffective assistance of counsel due to his trial counsel s failure to request and procure a manslaughter instruction on the theory of imperfect selfdefense. The Court will rule on the merits of an ineffective assistance of counsel claim on the rare occasions where the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Since neither situation is present here, this issue is dismissed without prejudice to Jenkins right to raise the issue in a motion for post-conviction relief. Page 19 of 20

20 JOINER v. STATE, NO KA COA Criminal Topics: Armed robbery - Request for mental evaluation HON. DALE HARKEY JACKSON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE Presiding Judge Griffis Affirmed. Christopher Joiner was convicted of three counts of armed robbery. He appeals. Joiner argues that the trial court improperly denied his request for a mental evaluation to determine whether he was fit to stand trial. In order to warrant a psychiatric examination, there must be evidence indicating a reasonable probability that the defendant is incapable of making a rational decision. Joiner showed no evidence of a reasonable ground. Joiner s own testimony and the testimony of his attorney showed that he was competent to stand trial and therefore not in need of a mental evaluation. Additionally, prior to this case, Joiner had appeared in front of the trial judge numerous times regarding other felony charges and entered guilty pleas. The trial judge noted when deciding whether to deny the motion for a psychological evaluation that, during those prior occasions, there had never been any mention of the need for a competency evaluation. The record indicates that Joiner was alert and understood the nature of the proceedings and the circumstances and consequences surrounding his actions. Joiner showed no signs of mental defect. Thus, this issue is without merit. Page 20 of 20