MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 3/15/2016

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 3/15/2016 CULBERSON v. CULBERSON, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contempt - Back child support - Modification of visitation HON. JOHN S. GRANT III RANKIN COUNTY CHANCERY COURT CHRISTOPHER A. TABB M. JUDITH BARNETT Judge Fair Affirmed. Facts: Analysis: When Scott and Tammi Culberson were divorced in 2005, Tammi received physical custody of their two daughters. In 2013, Tammi filed a contempt petition alleging that Scott was in arrears as to child support and various education expenses he had been required to help pay. The petition also sought to increase those obligations. Scott filed his own petition for contempt and also sought to terminate his child support obligation. The chancellor found Scott in contempt for his failure to pay certain child support obligations in a timely fashion, and he awarded Tammi $2,500 in attorney s fees for that portion of the action. The chancellor otherwise declined to find either party in contempt and denied Scott s request to find Tammi in contempt for her failure to force their daughters to participate in visitation. Next, the chancellor ordered that the visitation schedule be modified so that visitation would be allowed at any time, as long as both Scott and the children agreed. The chancellor also found that because no order was entered modifying the child support obligation, Scott was responsible for paying the child support to Tammi during the time they had agreed it would be voluntary. Scott appeals. Issue 1: Contempt Scott argues that the chancellor erred in finding him in contempt for not paying child support after the February 2014 temporary agreement that it would be voluntary. However, the chancellor expressly declined to find Scott in contempt regarding the support due after the February 2014 agreement. Thus, this issue is without merit. Issue 2: Back child support Scott argues that the chancellor erred in requiring him to pay the monthly child support that came due during the time he and Tammi had agreed paying it would be voluntary. This issue is procedurally barred, because it has been raised for the first time on appeal. In addition, it is clear that under Mississippi law, the chancellor was correct in his determination that, absent an order entered on the minutes, the child support obligation continued. When the Page 1 of 6

2 chancery court does not enter an order implementing an agreement of the parties, it does not err in refusing to enter it later, nunc pro tunc. Issue 3: Modification of visitation Scott argues that the chancellor erred in modifying the visitation schedule. When modifying a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the children. Here, testimony was that visitation had not occurred as scheduled for years, and that during that time Scott had limited contact with the girls. He had essentially given up on visitation for many months at a time, and he never acted to enforce the visitation order until after Tammi sued him for contempt. The chancellor spoke about the relationship between Scott and the children, the problems they had had, and what he believed was a path to reconciliation. The chancellor found that the girls had a sincere desire to reconnect with their father, but because they were nearing adulthood it would be counterproductive to try to force them along faster than they were comfortable doing on their own. Given the facts of this case, the chancellor did not abuse his discretion. Page 2 of 6

3 Topics: Post-conviction relief - Evidentiary hearing - Factual basis for plea - Defective indictment - Section (2)(e) - Competency hearing - Voluntariness of plea - Ineffective assistance of counsel Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: BURNS v. STATE, NO CP COA HON. LAMAR PICKARD COPIAH COUNTY CIRCUIT COURT TIMOTHY BURNS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS Judge Carlton Affirmed. Criminal Facts: Analysis: Timothy Burns pled guilty to two counts of capital murder and was sentenced to life without the possibility of parole. He filed a motion for post-conviction relief which was denied. He appeals. Issue 1: Evidentiary hearing Burns argues that the trial court erred by failing to hold an evidentiary hearing to determine if a factual basis existed for Burns guilty plea. A defendant can establish a factual basis for a guilty plea simply by pleading guilty; however, the guilty plea must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. In his plea petition, Burns provided: I submit the following facts which I state to be true, and[] feel that all of the above elements are proven by the facts: I participated in the kidnapping of Atira Smith and Jaidon Smith in which they each were killed. Therefore, I am guilty.... At the guilty-plea hearing, the State informed the trial court that it was prepared to prove that on November 1, 2013, Burns kidnapped Hill-Smith and Hill by taking them against their will from Hinds County and transporting them to Copiah County. The State stated that Burns then murdered Hill-Smith and Hill by shooting them with a shotgun. The record shows that Burns affirmed to the trial court that the facts presented by the State were indeed correct. Burns assented on the record, and under oath, to the factual basis for each charge of capital murder. Thus, an adequate factual basis exists supporting Burns' guilty plea. Issue 2: Defective indictment Burns argues that his indictment for capital murder was defective because it omits the phrase malice aforethought. The purpose of an indictment is to furnish the defendant with notice and a reasonable description of the charges against him so that he may prepare his defense. Section (2)(e), the capital murder statute, does not require the language malice aforethought. The record shows that the underlying felony that elevates Burns s charge to capital murder kidnapping was identified in the indictment, along with the statute and subsection under which Burns was charged. Furthermore, the indictment tracks the language of the statute and provides Burns with proper notice of the charges against him. Issue 3: Competency hearing Page 3 of 6

4 Burns argues that the trial court erred by failing to make Burns submit to a competency hearing. Burns bears the burden of proof to show by substantial evidence that his competency to stand trial is in question. Burns asserted in his plea petition that at both the time of the crime and the time of his guilty plea, he was not under the influence of drugs or alcohol, and he did not suffer from any untreated mental illness. Additionally, at the plea hearing, when the trial judge asked Burns if he was undergoing mental treatment, Burns responded, No, sir. Then trial judge also asked Burns if possessed full awareness of what he was doing by pleading guilty, and he replied, Yes, sir. Thus, Burns failed to meet his burden to show by substantial evidence that his competency to stand trial is in question. Issue 4: Voluntariness of plea Burns argues that the trial court failed to advise him of the minimum and maximum penalties he could receive for the charges against him. A plea is voluntary if the defendant is advised concerning the nature of the charge against him and the consequences of the plea. The record shows that in both the plea petition and plea hearing, Burns was made aware, repeatedly, of the maximum and minimum penalties to which he may have been subjected upon a plea of guilty. Thus, he has failed to provide sufficient evidence to show that his guilty plea was involuntarily entered. Issue 5: Ineffective assistance of counsel Burns argues that he was denied effective assistance from his counsel. In PCR motions, where a party offers only his affidavit, then his ineffective-assistance-of-counsel claim is without merit. Here, Burn s PCR claim for ineffective assistance of counsel rests entirely on his own bare assertions. Burns provided no additional proof or affidavit to support his claim that his trial counsel s performance was deficient. During the plea hearing, the trial court provided Burns the opportunity to disagree with the factual basis of his plea. Burns failed to argue or state any disagreement; instead, he responded that the facts surrounding his guilty plea were correct. Burns also signed a plea petition stating that he wished to plead guilty and confirming that he understood what he was doing. Burns informed the trial court that he was satisfied with the advice and representation and assistance provided by his attorneys. Thus, there is no error. Page 4 of 6

5 GRANT v. STATE, NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Sexual battery - Medical examination - M.R.E. 804(3) - Hearsay - Crossexamination - M.R.E M.R.E Sufficiency of evidence HON. JOHN HUEY EMFINGER RANKIN COUNTY CIRCUIT COURT S. MALCOLM O. HARRISON OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND Judge James Affirmed. Facts: Analysis: Charlie Grant was convicted of two counts of sexual battery. He appeals. Issue 1: Medical examination Grant argues that the circuit court committed reversible error when it allowed a nurse practitioner to present inadmissible hearsay testimony. Under M.R.E. 803(4), [s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness.... And, the Supreme Court has allowed a nurse to testify regarding hearsay statements where the defendant would have access to the child in the future that would allow the sexual abuse to continue. Here, there was evidence that Grant frequently took the victim and his nieces on outings. Therefore, Grant s identity was pertinent to the nurse s treatment of the victim, based on Carter s concern regarding the potential for further inappropriate contact. Issue 2: Cross-examination Grant argues that the prosecution s line of questioning during cross-examination regarding his dating history was irrelevant and prejudicial. Under M.R.E. 401, [i]f the evidence has any probative value at all, the rule favors its admission. However, under M.R.E. 403, [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... It is possible that some degree of prejudice could have existed in the jurors minds regarding interracial dating or having children out of wedlock. But it was in the circuit court s discretion to find that whatever prejudice resulted was outweighed by Grant s omission of Manning s name while listing his girlfriends during the September 2011 interview. Manning s alibi testimony contradicted the victim s testimony. Grant s omission of Manning s name tended to make it more probable that Manning s testimony was not credible. Issue 3: Sufficiency of evidence Page 5 of 6

6 Grant argues that there was insufficient evidence to support the jury s verdicts. The victim testified that she was fourteen years old when she performed oral sex on Grant twice and he performed oral sex on her once. The unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence. Grant disputed the victim s version of events, but the jury believed the victim. The jury was responsible for resolving conflicts in the evidence and the credibility of witnesses. Thus, there is no error. Page 6 of 6

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