IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Nov :37: KA COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROBERT W. TRIPLETT a/k/a ROBERT WARREN TRIPLETT, JR. a/k/a a/kla ROBERT TRIPLETT, JR. a/k/a a/kla ROBERT TRIPLETT APPELLANT vs. VS. NO.2014-KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLYL. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 4 TRIPLETT'S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED... 4 CONCLUSION... 5 CERTIFICATE OF SERVICE... 6

3 TABLE OF AUTHORITIES FEDERAL CASES Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)... 4 STATE CASES Killingsworth v. State, 490 So.2d 849 (Miss. 1986)... 4 Lindsey v. State, 939 So.2d 743 (Miss. 2006)... 3, 4 Triplett v. State, 145 So.3d 1256 (Ct. App. Miss. August 19, 2014)... 1, 2 STATE STATUTES Miss. Code Ann ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROBERT W. TRIPLETT a/k/a ROBERT WARREN TRIPLETT, JR. a/k/a ROBERT TRIPLETT, JR. a/k/a ROBERT TRIPLETT APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE Following a bench trial conducted on September 5, 2012, in the Circuit Court of Lowndes County, Lee S. Coleman, circuit judge, presiding, Robert W. Triplett was convicted of a single count of exploitation of a child after images of a child engaged in sexually explicit conduct were found on his home computer. Triplett was sentenced as a habitual offender to forty ( 40) years in the custody of the MDOC. After Triplett filed a direct appeal, the Court of Appeals, on August 19, 2014, affirmed Triplett's conviction but reversed his sentence as a habitual offender and remanded the case for resentencing. See Triplett v. State, 145 So.3d 1256 (Ct.App.Miss. August 19, 2014), appellee's exhibit A, attached. Triplett was not pleased with the decision of the trial judge who found Triplett guilty. On November 12, 2014, Triplett filed a post-conviction pleading styled "Motion to Reconsider Motion for Directed Verdict of Acquittal" where he basically assailed the sufficiency of the State's evidence used to convict him during a bench trial before judge alone. (C.P. at 3-13) In its opinion upholding on direct appeal the integrity oftriplett's conviction the Court of 1

5 Appeals opined: "On appeal, Triplett does not challenge his conviction, but argues, rather, that the circuit court erred in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section (Rev. 2007)." 145 So.3d at On March 25, 2015, the trial court, treating Triplett's post-conviction papers as a motion for post-conviction relief, entered an order that reads, in its entirety, as follows: "This cause came on for hearing on the Defendant's Motion to Reconsider Motion for Directed Verdict of Acquittal and the Court having considered same finds that said motion should be treated as a Post Conviction Relief motion and should be denied." (C.P. at 24) During a motion and indigency hearing conducted a month earlier on February 20, 2015, the following colloquy took place: THE COURT: All right. * * * The issue of whether or not you desire to employ counsel has been answered by your filing the pro se motion, and we'll - - Court finds that you do desire to employ counsel. Now, whether you are indigent or not, I want you to tell the Court what assets you have at this time. BY THE DEFENDANT: Sir, I have nine cents in my inmate account, and as far as I!mow that's all my assets in this world. BY THE COURT: All right. You had considerable assets at one time in your life, did you not. BY THE DEFENDANT: I've had considerable assets at several times, but lawyer's fees and this, that, and the other have eaten them up. And according to my now ex-wife, she cleaned out my IRA to pay legal bills and taxes on the money that she had removed from it. [ A Jt the time I was arrested, I believe my checking account balance was 17 or $18, and I think she took that out. BY THE COURT: All right. You had considerable assets at one time prior to your first trial in this case, though, and that concerned the Court. And you're saying that your wife took all - - and she's now your ex-wife? 2

6 BY THE DEFENDANT: Yes, sir. (C.P. at 27-28) * * * * * * BY THE COURT: All right. The Court's - - State ofindigent Appeals will be appointed to represent you. And I believe that's all we have pending before the Court at this time. BY THE DEFENDANT: I believe so. I think it's too late to hear that other motion I filed. BY THE COURT: What was the other motion that you filed? BY THE DEFENDANT: I had filed one prior to the resentencing, asking you to reconsider that decision about whether the State had proved their case. BY THE COURT: All right. The Court's going to treat that as a postconviction relief motion, and that motion will be denied. (C.P. at 31) [ emphasis ours] The appellate brief filed by Ms McMillin, counsel for the appellant, states, inter alia, that she "... has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Mr. Triplett's behalf in good faith for appellate review, and upon conclusion, has found none." (Brief of the Appellant at 2) Appellate counsel has followed with great skill and expertise the procedure articulated in Lindsey v. State, 939 So.2d 743 (Miss. 2006), and finds "no arguable issues in the record." (Brief of the Appellant at 2) We wholeheartedly concur. STATEMENT OF FACTS Appellee respectfully defers to Ms McMillin's statement of the facts as well as the facts and procedural history gleaned from the opinion of the Court of Appeals which found no error. 3

7 At the close of the State's case-in-chief, the defendant, apparently via trial defense counsel, moved for a directed verdict on the ground the State had failed to meet its burden of proof. (C.P. at 7-8, 19-20) The trial judge obviously denied the motion. SUMMARY OF THE ARGUMENT We concur with the observations of appellate counsel that the present appeal is devoid of "arguable issues" supporting Triplett's appeal. Lindsey v. State, supra, 939 So.2d 743, (Miss. 2005). Triplett was hopelessly guilty. ARGUMENT TRIPLETT'S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED. In Lindsey v. State, supra, 39 So.2d 749 (Miss. 2006), this Court, citing Smith v. Robbins, 528 U.S. 259, , 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), refined, if not reformed, the procedures for indigent criminal appeals first appearing in Killingsworth v. State, 490 So.2d 849 (Miss. 1986). The Killingsworth procedures were subsequently overruled in Turner v. State, 818 So.2d 1186 (Miss ), which itself was overruled, at least in part, by Lindsey v. State, supra, 939 So.2d at We have examined the record filed in this cause and fully concur with the observations of appellate counsel. Triplett's appeal is devoid of arguable issues. Rather, Triplett is hopelessly guilty. Ms McMillen has certified that she has mailed to Triplett at his Lealcesville, Mississippi, 4

8 address, postage prepaid, a true and correct copy of her brief and correspondence informing Triplett that counsel finds no arguable issues in the record and "[t]here are no issues that counsel can in good faith present to the Court in this appeal." (Brief of the Appellant at 3) Triplett has not, as of November 8, 2015, filed a supplemental brief within the time frame allotted by the recent order issued by the Court of Appeals. In the event Triplett files, pro se, a supplemental brief or other pleading in this cause, appellee, by order of the Court of Appeals, has been granted thirty (30) days to respond. (See appellee's exhibit B, attached. CONCLUSION Appellee concurs with the "trained legal eye" of Triplett's appellate counsel there are no "arguable issues" in the record. We respectfully submit that no plain error or otherwise reversible error took place during the trial of this cause and that Triplett's appeal, for want of"arguable issues," has no appeal on appeal. Accordingly, the judgment of conviction of exploitation of a child and the sentence reimposed by the trial judge in its wake should be forthwith affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: Isl Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

9 1256 Miss. 145 SOUTHERN REPORTER, 3d SERIES I EXHIBIT f\ tains no sworn affidavit by Vernon. And "statements in briefs are not evidence[.]" Limbaugh v. Limbaugh, 749 So.2d 1244, 1248 (~ 19) (Miss.Ct.App.1999). To the extent that Bishop's statement should be considered as an issue on appeal, there is no merit to it. ~ 7. THE JUDGMENT WASHINGTON COUNTY COURT IS AFFIRMED. OF THE CIRCUIT LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. Robert W. TRIPLETT a/k/a Robert Warren Triplett, Jr. a/k/a Robert Triplett, Jr. a/k/a Robert Triplett, Appellant v. STATE of Mississippi, Appellee. No KA COA. Court of Appeals of Mississippi. Aug. 19, Background: Defendant was convicted in the Circuit Court, Lowndes County, Lee Sorrels Coleman, J., of exploitation of a child and was sentenced as a habitual offender. Defendant appealed. Holding: The Court of Appeals, Ishee, J., held that defendant's federal conviction for possession of child pornography could not be used to support defendant's habitual offender status. Affirmed in part, reversed in part, and remanded. Carlton, J., concurred in result only. 1. Criminal Law e,,,255.2 In a bench trial, the trial judge is the jury for all purposes of resolving issues of fact. 2. Criminal Law ea, 1139 Where questions of law are raised the applicable standard of review is de novo. 3. Sentencing and Punishment ea, 1304 Defendant's federal conviction for possession of child pornography coulcl not be used to support defendant's habitual offender status, during prosecution for exploitation of a child; defendant's exploitation conviction was based on the same set of facts as his federal child pornography conviction. West's A.M.C Sl. 4. Sentencing and Punishment ea, 1378 The State has the burden to prove that a defendant qualifies for habitual-offender status. 5. Sentencing and Punishment (';;>1380(1) In proving that a defendant qualifies for habitual offender status, the State must produce sufficient evidence proving beyond a reasonable doubt that the defendant was convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and for which the defendant was sentenced to separate terms of at least one year's imprisonment. Robert Sneed Laher, Tupelo, attorney for appellant.

10 iversed in part, and I in result only the trial judge is the of resolving issues of 1139, of law are raised the of review is de novo. unishment e->1304 ~ral conviction for pos- 10graphy could not be fendant's habitual oftg prosecution for ex ; defendant's exploitabased on the same set ral child pornography I..M.C Punishment e->1378 the burden to prove ialifies for habitual-ofand Punishment t a defendant qualifies for status, the State cient evidence proving e doubt that the defentwice previously of any ime upon charges sepaarising out of separate nt times and for which sentenced to separate 1e year's imprisonment.,aher, Tupelo, attorney Office of the Attorney General by Stephanie Breland Wood, attorney for appellee. Before IRVING, P.J., ISHEE and ROBERTS, JJ. ISHEE, J., for the Court: ~ 1. On September 5, 2012, in the Lowndes County Circuit Court, Robert W. Triplett was found guilty of one count of exploitation of a child and was sentenced, as a habitual offender, to forty years in the custody of the Mississippi Department of Corrections (MDOC). He was also ordered to pay a fine of $50,000. Triplett appeals. STATEMENT OF FACTS AND PROCEDURAL HISTORY ~ 2. On September 18, 2009, Triplett contacted the Lowndes County Sheriff's Department to report that his stepdaughter was missing. After six days of investigation, a search warrant was issued for Triplett's home in an effort to obtain evidence to assist with the search for the stepdaughter. Several computers and other electronics, including a HP Pavillion 9000 computer, were removed from Triplett's home and taken to the local crime lab. ~ 3. Shortly after, Triplett contacted the sheriffs department inquiring about when the computers would be returned, specifically referencing the HP Pavillion 9000 computer. A mirror image of the HP Pavillion 9000 computer was created by the crime lab, and the computer was then returned to Triplett. Subsequently, the crime lab informed the sheriffs department that images of child pornography had been found on the HP Pavillion 9000 computer. The sheriffs department then asked Triplett to return the computer to them. TRIPLETT v. STATE Miss Cite as 145 So.3d 1256 (Miss.App. 2014) ~ 4. Afterwards, Tony Perkins, an investigator with the sheriff's department, and Clay Baines, an investigator with the Mississippi Bureau of Investigation, interviewed Triplett and obtained his statement. Triplett was then arrested and charged with exploitation of a child. A bench trial was held on September 4, 2012, and Triplett was found guilty of exploitation of a child. ~ 5. Prior to the trial, a motion was filed with the circuit court to amend the indictment and charge Triplett as a habitual offender. The motion to amend the indictment provided the following convictions to support habitual-offender statns: 1. That the defendant, ROBERT W. TRIPLETT, was previously convicted in the Circnit Court Court of Jackson County, Mississippi, in Count 1 of Cause Number ,005, for the crime of Attempted Aggravated Assault, and sentenced on April 10, 2010, to serve a term of one (1) year or more in the Mississippi Department of Corrections; 2. That the defendant, ROBERT W.. TRIPLETT, was previously convicted in the United State District Court, Northern District of Mississippi, in Count 1 of Cause Number 1:09CR , for the crime of Possession of Child Pornography, and sentenced on April 14, 2011, to serve a term of one (1) year or more in the United States Bureau of Prisons[.] Following the trial, the circuit court held a hearing on the motion. Triplett's attorney objected to the use of the federal conviction as a basis for Triplett's habitual-offender status. ~ 6. Although Triplett's attorney admitted that he had no legal authority to support his position, he argued that "it would be inequitable... to allow one conviction to stand for two when they all arose from the same exact set of circumstances and

11 1258 Miss. 145 SOUTHERN REPORTER, 3d SERIES I constitute the exact same charge, albeit in different forums." In response, the State stated the following: There are two sovereigns. In the more, quite frankly, sensitive area of the law, double jeopardy, the application of the doctrine... that counsel espouses doesn't apply. If a defendant robs a bank, he can not only be charged with armed bank robbery in the federal system, but he can also be prosecuted for armed robbery in the state system, and it is not double jeopardy. That being so, Your Honor, it would seem to me there is no-----if Constitutional protections against double jeopardy do not apply, I do not see why it would apply in the instance of enhanced punishment... Now, I will say this, I will always stipulate to the truth: The facts and circmnstances surrounding the conviction in federal court [are], in fact, substantially the same as the facts and circumstances as this particular case. It is based on the same search warrant, the same production of-of images from several computers owned by Mr. Triplett. I do not, quite frankly, know which image was actually used in the federal system... This Court has learned by now these images float around for-for years, and I don't know if this particular set of images was, in fact, the images that they used in the federal system to base their indictment on. It does not say, and there's no way I can tell. Subsequently, the circuit court granted the motion to amend the indictment. Triplett was then sentenced as a habitual offender to serve forty years for the conviction of exploitation of a child, all in the custody of the MDOC, and ordered to pay a fine of $50,000. Aggrieved, Triplett now appeals. DISCUSSION [1, 2] ~ 7. "The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is 'the jury' for all purposes of resolving issues of fact." Sendelweclc v. State, 101 So.3d 734, (~ 19) (Miss. Ct.App.2012). "The Mississippi Supreme Court has stated that[,] for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong." Id. at 739 (~ 19). "However, where questions of law are raised the applicable standard of review is de novo." Brown v. State, 731 So.2d 595, 598 (~ 6) (Miss.1999) (citations omitted). [3-5] ~ 8. On appeal, Triplett do\)s not challenge his conviction, but argues, rather, that the circuit court erred in sentencing him as a habitual offender pnrsuant to Mississippi Code Annotated section 9~ (Rev. 2007). Section states: Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal ceime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisomnent prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. The State has the burden to prove that a defendant qualifies for habitual-offender status. Short v. State, 929 So.2d 420, 426 (~ 16) (Miss.Ct.App.2006). In doing so, the State must produce sufficient evidence proving beyond a reasonable doubt "that the defendant was 'convicted twice previously of any felony or federal crime upon charges separately brought and arising out

12 a bench trial, the trial 'or all purposes of refact." Sendelweck v.!, (~ 19) (Miss., Mississippi Supreme at[,] for review of the udge sitting without a,ourt will reverse only of the trial judge are 1s or clearly wrong." However, where quesed the applicable stande novo." Brown v. i, 598 (~ 6) (Miss.1999),peal, Triplett does not :tion, but argues, rath,ourt eited in sentencal offender pursuant to motated section ,ction states: victed in this state of a have been convicted,f any felony or federal res separately brought f separate incidents at id who shall have been arate terms of one (1) ny state and/or federal whether in this state or be sentenced to the of imprisonment prefelony, and such sen ' reduced or suspended,erson be eligible for m. burden to prove that a for habitual-offender ate, 929 So.2d 420, ). In doing so, the ce sufficient evidence reasonable doubt "that 'convicted twice previor federal crime upon brought and arising out of separate incidents at different times' and for which the defendant was sentenced to separate terms of at least one year's imprisonment." Id. ~ 9. Triplett asserts that the federal conviction used in support of his habitualoffender status resulted from the exact same set of facts and circumstances as the conviction at issue in this appeal, and, therefore, is not a charge "arising out of separate incidents at different times." The State contends that since numerous images of child pornography were retrieved from three computers in Triplett's home, there were multiple separate incidents of possession of child pornography. Further, the State argues that the images could have been obtained at different times since the computers spanned multiple years and Triplett's son indicated that he had seen the images two months prior. ~ 10. The State also contends that since both charges could be brought without violating Triplett's protections against double jeopardy, then there would not be a violation in the application of the enhancement. In support of this argument, the State cites to Brown, 731 So.2d at 600 (~ 12), which states that "[t]he Dual Sovereiguty doctrine recognizes that more than one offense results where a single criminal act violates the laws of more than one State or a State and the Federal Government." Id. (citing Heath v. Alabama, 474 U.S. 82, 86, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985)). While it is true that Triplett's offenses can be prosecuted separately, "[s]ection achieves a juridical union the Double Jeopardy' Clause does not." Pittman v. State, 570 So.2d 1205, 1206 (Miss.1990); see also Pharr v. State, 465 So.2d 294, (Miss.1984). ~ 11. The Mississippi Supreme Court has provided guidance on determining whether charges arise out of separate incidents at different times nnder section 99- TRIPLETT v. STATE Miss Cite as 145 So,3d 1256 (Miss.App. 2014} 19-81, in the following cases: Pittman, 570 So.2d 1205, Nicolaou v. State, 534 So.2d 168 (Miss.1988), and Riddle v. State, 413 So.2d 737 (Miss.1982). In Riddle, a jury found Riddle guilty of three charges-kidnapping, rape, and burglary-all of which had been committed on the same day and involved the same victim. Riddle, 413 So.2d at 738. Upon agreement, the cases were consolidated and tried together. Id,. On appeal, Riddle argued, and the State acknowledged, that the habitual-offender statute had been inappropriately applied. Id. The supreme court agreed and found that the only previous crimes committed by Riddle were those that arose out of a single incident. Id. The case was remanded for resentencing. 1 Id. ~ 12. In N icolaou, the defendant was convicted of capital murder and later sentenced as a habitual offender. Nicolaou, 534 So.2d at 170. The underlying offenses relied upon to support the habitual-offender sentence were two murders, armed robbery, and two kidnappings, which had all been committed on the same day. Id. The State conceded that the two murders were not separate incidents for purposes of habitual-offender status. Id,. However, the State argued that the robbery and two kidnappings took place separate from the murders. Id. at 173. Subsequently, the supreme court held that "[a]ll crimes took place on the same day, but the two murders and tlie kidnappings occuited at different times and different places, and clearly were two separate 'incidents.'" Id. ~ 13. In Pittman, two prior burglaries of separate schools on the same day were used to sentence Pittman as a habitual offender for a conviction of burglary. Pittman, 570 So.2d at Pittman argued, based on Riddle, that the State had failed to prove that his two prior convictions arose out of separate incidents at different times. Id. at In its review of Rid-

13 1260 Miss. 145 SOUTHERN REPORTER, 3d SERIES I dle, the supreme court found: "Though subject to separate prosecution, the Riddle offenses arose out of a common temporal nucleus of operative fact and did not qualify as 'separate incidents at different times.' " Id. Although the Pittman burglaries occurred in rapid succession, they took place at separate schools, and the supreme court was obliged to find that the acts were separate incidents that occurred at different times. Id. at ~ 14. The indictment in this case charges Triplett with possessing, on or about September 24, 2009, a visual depiction of an actual child engaging in sexually explicit conduct. The judgment from the district court stated that Triplett was guilty of possession of child pornography and that the offense ended on September 24, The State admits that the state and federal charges arose from evidence obtained during the search of Triplett's home. Nearly 300 images were tagged as unlawful images and sent to the National Center for Exploited and Abused Children for further investigation. Of those 300 images, five were used to prosecute the state charge. However, the State failed to prove that the images used in this case were different from the images used to prosecute the federal charge. ~ 15. After a review of the record, we caunot fiµd that the State proved beyond a reasonable doubt that the charges arose from separate incidents. The supreme court has held that "a prior offense may be considered under [section ] even if it occurred on the same day as the instant offense as long as the two charges arose from 'separate incidents.'".bergeron v. State, 60 So.3d 212, 215 (~ 8) (Miss. Ct.App.2011) (quoting Buckley v. State, 511 So.2d 1354, 1359 (Miss.1987)). It is clear that the instant offense arose from the same evidence and on the same day as the federal offense. This Court has reasoned: It is understandable why two crimes originating out of the same nucleus of operative facts should be counted as one crime for evaluating whether one should receive an enhanced penalty for his continual involvement in criminal activity. If the purpose of the statute is to deter subsequent criminal activity, it would be patently unfair to count multiple crimes-arising out of a common nucleus of operative facts and committed at the same time by an individual during one foray into criminal activity-as separate crimes because neither of the multiple crimes constitutes subsequ'ent involvement in criminal activity. Such an interpretation is consistent with the laudable purpose of the statute: to stiffen the penalty for repeat offenders, not for current offenders who commit several crimes during their one foray into criminal activity. Id. at 216 (~ 10) (citing Otis v. State, 853 So.2d 856, 862 (~ 16) (Miss.Ct.App.2003)). ~ 16. Since both convictions derive from the same materials, the same investigation, and the same officers, we agree with Triplett that it would be inequitable to allow the federal conviction to be used to support his habitual-offender status, even though the charges were brought in different forums.' As such, the judgment of the circuit court is reversed in part as to the habitual-offender sentence only, and the case is remanded for resentencing. In all other respects, the judgment is affirmed. ~ 17. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF EXPLOITATION OF A CHILD IS AFFIRMED. THE SENTENCE, AS A HABITUAL OF FENDER, IS REVERSED, AND THIS CASE IS REMANDED FOR RESEN TENCING CONSISTENT WITH THIS

14 SUMMERLIN v. ELDRIDGE Cite as 145 So.3d 1261 (Miss.App. 2014) Miss This Court has reatb!e why two crimes the same nucleus of mid be counted as one 1g whether one should id penalty for his cont in criminal activity. the statute is to deter al activity, it would be to count multiple 1t of a common nucleds and committed at an individual during tinal activity-as sepa,e neither of the multiitutes subsequent ininal activity. Such an consistent with the 1f the statute: to stiff, repeat offenders, not ~rs who commit severtheir one foray into ;ing Otis v. State, 853 i) (Miss. Ct.App.2003) ). :onvictions derive from ~he same investigation, cs, we agree with Tri- 1e inequitable to allow m to be used to sup- 1ffender status, even 11ere brought in differ,, the judgment of the rsed in part as to the ntence only, and the r resentencing. In all judgment is affirmed. )GMENT OF THE ry CIRCUIT COURT OF EXPLOITATION AFFIRMED. THE A HABITUAL OF 'ERSED, AND THIS DED FOR RESEN- 3TENT WITH THIS OPINION. ALL COSTS OF THIS AP PEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND THE APPEL LEE. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. Tamara K. (Eldridge) SUMMERLIN, Appellant v. George Michael ELDRIDGE, Appellee. No CA COA. Court of Appeals of Mississippi. Aug. 19, Background: After the parties divorced, mother filed a motion to modify child custody. The Chancery Court, Union County, Jacqueline Estes Mask, J., awarded primary physical custody of the three children to father. Mother appealed. Holdings: The Conrt of Appeals, Lee, C.J., held that: (1) the chancellor's consideration of evidence of things that occurred prior to the child custody decree being considered for modification was not an abuse of discretion, and (2) evidence established a material change in circumstances, a factor required to be established before modifying child. custody. Affirmed. 1. Divorce =>184(1) The Court of Appeals has a limited standard of review in domestic-relations cases. 2. Child Custody =>922(5) The Conrt of Appeals will not reverse a chancellor's findings on a modification of child custody unless the chancellor was manifestly wrong or clearly erroneous, or applied an improper legal standard. 3. Child Custody =>916 In appeals from child-custody decisions, the appellate conrt's polestar consideration, like the chancellor's, mnst be the best interest of the child. I 4. Child Custody =>922(1) So long as there is substantial evidence in the record that, if fonnd credible by the chancellor, would provide support for the chancellor's child custody decision, the Court of Appeals may not intercede simply to substitute its collective opinion for that of the chancellor. 5: Child Custody =>557(1) The chancellor's consideration of evidence of things that occurred prior to the child custody decree being considered for modification was not an abuse of discretion, in post-divorce custody modification proceeding; the chancellor noted that the only evidence of events predating the divorce decree was considered as impeachment evidence to mother and father's testimony. 6. Child Custody =>566, 567, 568 Evidence established a material change in circumstances, a factor required to be established before modifying child custody; mother had remarried, mother had moved out of state with her new husband, mother's husband yelled a lot, and the children were afraid of mother's husband and did not waut to live with him.

15 / ROBERT W. TRIPLETT Al.KIA ROBERT WARREN TRIPLETT, JR. A/KIA ROBERT TRIPLETT, JR. A/KIA ROBERT TRIPLETT v. STATE OF MISSISSIPPI FILED NOVO OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS Appellant Appellee ~ ORDER J Thishiatter comes on the Court's own motion to allow Appellant Robert W. Triplett to file a pro se appellant's brief. On October 26, 2015, Triplett's attorney filed a brief consistent with Lindsey v. State, 939 So. 2d 743 (Miss. 2005), stating that there were no arguable issues for appeal. The Court finds Triplett shall have forty days to file a pro se appellant's brief, ifhe desires to do so. 'IT IS THEREFORE ORDERED that Triplett shall have forty days from the entry of this order to file a prose appellant's brief, ifhe so chooses. Upon the filing of his brief, the State shall have thirty days to file a response. The clerk is directed to send a copy of this order to Triplett at his most recent address on file. /. n J. ~Peso ORDERED, this the~ay o~, EXHIBIT i \$., 3 T. KENNETH GRIF S, PRESIDING JUDGE

16 CERTIFICATE OF SERVICE I, BILLY L. GORE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Mollie M. McMillin, Esq. Indigent Appeals Division Office of State Public Defender P. 0. Box 3510 Jackson, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 10th day ofnovember, Honorable Lee S. Coleman Circuit Court Judge P.O. Drawer 1033 West Point, MS Honorable Forrest Allgood District Attorney P.O. Box 1044 Columbus, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO Isl Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 6