IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-01128-SCT AUNDRAY

ISAAC a/k/a AUNDRAY RADELL ISAAC

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/14/2014 TRIAL JUDGE: HON. DAVID H. STRONG, JR. COURT FROM W HICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY GRAHAM PATRICK CARNER ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALISON O’NEAL McMINN MALISSA W INFIELD NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 03/31/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Aundray Isaac f

iled his com

plaint against the S tate of Mississippi on June 27, 2012, in the Circuit Court of Pike County , seeking c om pensation f

or wron g f

u l conviction and imp risonm ent. T he trial court f ound in f avor of the State a n d d ism issed Isaac’s com plaint with prejudice. Aggrieved, Isaac appeals. W e af f irm

. FACTUAL BACKGROUND¶2. During the early m orning hours of March 11, 1991, a towel draped over the f ront door of S hannon Jackson’s apartm e nt caught f ire. The towel had been placed there purposef ully f or privacy , as covering the windows at the top o f the door prevented by passers f rom seeing
up the interior stairwell just bey ond the door. That night, Jackson was at hom e and upstairs with h er and Isaac’s two y oung c hildren. Isaac lived at the apartm ent with Jackson but had spent m ost o f the night at issue a way f rom the apartm ent. H e k n o c k e d on t he door af ter

m idnight, but, though she was hom e, Jackson ref used to let him in. J ackson t estif ied that the

two of them had agreed t hat “he wasn’t going t o be com ing in af ter 12:00. If he was going to continue to live there, he was going to be in bef o re 12:00 or no later than 12:00.” ¶3. I s a a c t e stif

ied at his wrongf

ul conviction trial that he set the towel on f ire, b u t h e

m aintained that i t was an accident. At his crim i nal trial, as well, he testif ied that the f

ire was

an accident. T he a ccounts recounted by Isaac at the two trials dif f e r, as discussed in f

urther deta i l i n f r a , b u t t he f

ire was set b y Isaac either attem p ting to light a cigarette or with an already -lit cigarette that cam e into cont a c t w i t h t he towel. Jackson soon b ecam e aware of the sm oke and f

ire and c alled the authorities, who prom ptly responded. The f

ire already was
out by the tim e the f

i re departm ent arrived; Isaac h ad entered t he apartm ent by the back door and used kitchen’s f

ire extinguisher to put out the f lam e s . ¶4. The f

ire had c harred the f

r ont door but otherwise l ef t the door f

unctional. Jackson and h e r c h i l d r e n were able to stay in the hom e that night. Af ter an interview with Jackson t h e f ollowi n g mo r n i ng, Detective Jam es Carruth Jr. executed an arrest warrant f or Isaac, who

2was arrested a f e w day s later. A grand jury returned a n indictm e nt against Isaac on October 15, 1991, charging him

with f irst degree arson: Aundray Radell I s aac, . . . o n o r about the 11th day of March, 1991,

. . . did wilf ully , unlawf

ully , f eloniously , and m aliciously set f ire t o that c e rtain apartm ent ty

pe dwelling house owned b y the United States D epa r t me n t o f Housing and Urban D evelopm ent and operated by t he City o f McCom b City , McCom b, M ississippi, m ore particularly described as Building 11, Apartm ent #4, Burgland Heights, McCom b, Mississippi, and oc c upied by Shannon Jackson, contrary to a nd in viola t i o n o f Section 97-17-1 of t he Mississippi Code of 1972, and against the peace and dignity of the State of

Mississippi. Isaac’s crim inal trial took place on March 18, 1992. A jury f ound him guilty a s c h arged and the trial court sentenced h im to twelve y ears i n prison, to run concurrently with an unrelated, suspended sentence. ¶5. Isaac app e a l ed and we reversed. Isaac v. State , 645 So. 2d 903 (Miss. 1994). W e determ ined that the State h ad f ailed to prove the m alice and willf ulness elem e n t s of f

irstdegree arson bey o nd a reasonable doubt and theref ore had produced insuf

f i cient evidence to

s u p p ort I saac’s conviction. Id. at 909-910. The Court reversed and rendered Isaac ’ s conviction and d isc h a rged him f rom the c ustody of the M ississippi Departm ent of Corrections. Id. at 910. T h e State f iled a m otion f

or rehearing, w hich was denied, but Isaac

rem ained in custody until the case m andated. Between March 2 6, 1992, and Decem ber 15, 1994, Isaac spent two y ears and eight m onths, or 995 day s, in prison. ¶6. I n 2009, t he Mississippi Legislature enacted the Mississippi W rongf ul C o n v i c t i o n

A c t (MW CA). See Miss. Code Ann. §§ 1 1

- 4 4

- 1 t o -15 (Rev. 2012). A s Isaac had been “convicted, incarcerated and released f rom custody prior to July 1, 2009,” he was required
3to f

i le his action f

or com pensation “not later than June 30, 2012.” Miss. Code A nn. § 11-44- 9. He tim ely

f iled his com

plaint on June 27, 2012. In his com plaint, Isaac alleged that his

case m e t every requirem e nt of the MW CA and that he was e n t i t l e d to the statutory

com pensation of $50,000 per y ear, prorated f or t h e e i ght m onths of the third y ear of his incarceration. ¶7. The trial court entered an Agreed Scheduling Order o n N o v e mb e r 2 0, 2013. Isaac f iled a m otion to strike t he State’s am e nded expert designation, which t he trial court granted. Trial on Isaac’s MW CA claim t ook place on J une 20, 2 0 1 4

. B ef ore calling witnesses, the State and Isaac s tipu l a t ed that Isaac’s case f ulf illed six of the seven elem e nts of a MW CA

c l a i m. T h e only issue f or trial, theref

ore, w a s “whether Mr. Isaac can prove by a preponderance of the evidence, m ore likely t han n ot, that he did not com m it t he f elony of

arson f or which he was sentenced, or that the acts or om issions which he d id com m it

. . . did

not constitute a f

elony .” See Miss. Code Ann. § 11-44-7(1)(b). Isaac testif ied f or him self

, and also called Jackson and W arren W eekly , a f iref ighter who had responded to Jackson’s 911 call, as his witnesses. ¶8. At the close of

Isaac’s case, the State m o ved f or a directed verdict in its f avor. The

court denied the m otion, stating that Isaac had m ade a p rima facie MW CA claim

. The State then called its witnesses: Joy ce M agee, t he public housing m anager f o r Jackson’s apartm ent unit; W e ekly , recalled by the State; and Carruth. The court then recessed.

4¶9. On July 15, 2014, the trial court r endered its judgm ent in f a v or o f the State and issued

an accom pany ing opinion. The trial court stated that, “ based upon t he testim ony o f num erous witnesses as well as exhibits of f e red and received[ ,] t hat Isaac has f ailed to m eet his burden of proof that he did not intentionally , willf ully and m aliciously

set f ire to the towel outside of Jackson’s apartm ent.” I n particular, the trial court stated that it f ound Isaac’s version of events “incredible.” ¶10. Isaac tim ely perf

ected h i s a p p e a l

. Isaac asserts two errors: that t he t rial court erred by not addressing the elem ent of “m alice,” and that the trial court erred by f inding that Isaac had f ailed to prove that he had set the f ire unintentionally

. ANALYSIS ¶11. The Mississippi Legislature established the elem ents o f a MW CA claim

. In order to succeed, a claim ant m

u st prove by

a preponderance of

the evidence that: (a) He was convicted of o n e of m ore f elonies and subsequent ly sentenced to a term of im prisonm ent, and has served all or any part of the sentence; and (i) He has been p ardoned f or the f elony or f elonies f or which he was sentenced a nd w hich are the grounds f or the com

plaint and the p ardon is based o n the innocence of the claim ant which m ust be af f irm atively

stated in the pardon; or (ii) His judgm ent of

conviction was reversed or vacated; and 1. The accusatory

instrum ent was dism issed or nol prossed; or 2. If a new trial was ordered, he w as f ound not guilty at the new trial; and (b) He did not com m it the f elony or f elonies f o r which he was s entenced and which are the g rounds f

or the com

plaint, or the acts or om issions f or which he was sentenced did not constitute a f elony ; and (c) He did not com m it or s uborn perjury , or f abricate e vidence to bring about his conviction.

5Miss. Code A nn. § 11-44-7(1). As stated above, the p arties stipulated t hat Isaac f ulf illed all of the subsections save f

or subsection ( b ). Notably , unlike a crim inal trial, the plaintif f in a civil action s eeking dam ages f rom the S tate f

or his w rongf

ul conviction b ears the burden of proof . Miss. Code Ann. § 11-44-7(1).
I. The trial court did not err w hen it failed to ex plicitly discuss the “m alice” elem ent of arson. ¶12. Isaac f

irst a r g u e s , t hat because the trial court f ailed to address the required elem ent

o f “m alice” in the arson statute, t he trial court’s j udgm ent m ust be reversed a nd ju d g me n t rendered in his f

avor. Further, Isaac c laim s that there was never any evidence at all that he acted m aliciously

. As statutory interpretation i s a question of l aw, t he Court reviews the assertion of error de novo. Scott Addison C o n s t r ., Inc. v. Lauderdale Cty. Sch. Sys. , 789 So. 2d 771, 773-74 (¶8) (Miss. 2001). ¶13. In 1992, the language of the statute at issue read 1 a s f ollows: Any p erson who wilf

ully and m aliciously sets f ire to or burns o r c a

uses to be burned or w ho aids, c ounsels or procures the b u r n i n g o f any dwelling house

. . . shall be g uilty of arson in the f irst d egree, and upon conviction thereof , be sentenced in the penitentiary f or not less t han t wo nor m ore than twenty y ears. Miss. Code Ann. § 97-17-1 (as cited i n Isaac , 645 So. 2d at 9 07). I s a a c i n sists that the

statute m ust b e read conjunc t i v e l y , t hat is, that both willf ulness and m a liciousness are

1 T h e M ississip p i L eg islatu r e h as am en d ed th e a rso n statu te sin ce I saac’s 1 9 9 2 co n v ictio n , b u t th e v ersio n u n d er w h ich Isaac w as co n v icted co n tro ls th e an aly sis o f a M WC A claim

. S ee M iss. C o d e A n n . § 1 1

- 4 4 -7 ( 1 )(b ), statin g t h a t t h e claim an t m u st p ro v e t h a t h e “d id n o t co m m it th e f

elo n y o r f elo n i es fo r w h ich h e w a s sen ten ced a n d w h ich a re t h e g ro u n d

s fo r th e co m p la in t . . . .” (E m

p h asis ad d e d .) 6independent, se p a r a te elem ents of f irst-degree a rson. Isaac cites Salinas v. United States , 5 22 U .S. 52, 57 (1997), to s upport his argum ent: “Courts in apply i ng c rim inal la w s mu s t f ollow the plain and unam biguous m eaning of

the statutory

language.” ¶14. T h e S tate responds by s t ating t hat the C ourt addressed this very issue i n Dicke r s o n

v. State , 175 So. 3d 8 (Miss. 2015). I n t h a t c a s e , the Court af f irm ed D avid Dickerson’s convictions f

or c apital m

u r der, arson, and a rm ed robbery

. Discussing the suf f iciency of the evidence, particularly w hether Dickerson’s setting of t he f ire was willf

ul and m alicious, the Court stated that [ a]n arson is willf

ul when t h e f

ire is intentionally set, and m alice i s inf erred f rom wilf u llness. See Isaac v. Sta t e , 6 4 5 S o . 2d 903, 908 (Miss. 1994); Barnes v. State , 721 So. 2d 1130, 1134 (Miss. Ct. App. 1998). Dickerson , 175 So. 3d at 20 (¶35). Theref ore, according to the State, “the statute does not require a separate f

i nding of m alice, as intent is adequate. Here, because the t rial court f ound that Isaac did not disprove his intent, it is inf erred that he f

ailed to disprove m alice.” ¶15. Isaac at t e mp t s t o d i s t i n g u i s h D i c k e r son f rom his own c ase by h ighlighting the heinousness of Dickerson’s a ctions. Dickerson killed P aula Ham ilton, poured an accelerant

over h e r body a nd the trailer in which she lived, a nd set i t on f i re. Dickerson , 175 So. 3d at 12-13. I saac argues t hat th e “ h o r r i f y ing scenario” i n Dickerson is “m iles away f rom the actions of Aundray Isaac.” ¶16. The State, however, is correct, and it would h ave been correct even bef ore we decided Dickerson

. In the very sam e opinion with which we reversed I saac’s conviction, we quoted

7A Treatise on the Law o f Arson , Section 68: “Under t he com m on law def inition, and under

statutes as usually enacted, m a lice is an elem ent o f the of f ense. If the other elem e nts of the crim e are adequately proved, m alice m ay be inf erred.” I s a a c , 645 So. 2d at 908 (quoting Arthur F

. Curtis, A Treatise on the Law o f Arso n , § 68 (1936)). Additionally , we quoted American Jurisprudence : W here m a lice and willf ulness are ingredients “of the crim e of

arson, a particular i ntent of m alice against a person o r thing is n ot essential; i t is suf f icient

to s how that the accused was actuated by a m alicious m otive and that h e set the f ire wilf ully rather than negligently or accident a l l y . ” Isaac , 645 So. 2d at 907 (quoting 5 Am

. Jur. 2d Arson and Related Offenses § 11 (1962)). O ur citation to Isaac i n D ickerson , s ee supra ¶ 14, reaf f irm ed that, while the State in an arso n p r o s e c u t i o n has t he burden to prove both

m alice and willf

ulness, a f act-f inder m ay

— b u t i s n o t r e q

u i r e d t o—inf

er m alice f

rom evidence of willf ulness. For exam

ple, the State hardly c o uld argue it proved m alice with nothing m ore than evidence of an intent to light a candle or gas stove. ¶17. Additionally , the t rial court cited the MW CA in its opinion a nd stated t hat the burden

was on Isaac t o prove that he did n ot com m it t he f elony f or which he was convicted, or that his actions or om i ssions d i d not constitute a f elony

. See Miss. Code Ann. § 11-44-7. Af ter providing a concise and accurate sum m ary of the f acts to which Isaac testif

i ed, the trial court concluded that i t perce i v e d I s a a c ’ s testim ony that the f ire was set “accidentally ” to be “incredible,” that is , t hat the f ire was willf

ully set. “[ T]he [ c]ourt f inds that if Isaac did unintentionally s et the f

ire in attem

pting to light his cigarette, he could have im m ediately put

8the f

ire out with his hand.” The trial court clearly determ ined that Isaac intentionally set the f ire, and that he f

ailed to p rove that he did not m aliciously set the f ire. “The C ourt f

inds based u pon the testim ony of num erous witnesses as w ell as exhibits of f ered a nd received that
Isaacs has f

ailed to m eet his burden of proof that he did not intenti o n a l l y , w i l lf ully , and

m aliciously

set f ire to the towel outside of Jackson’s apartm ent.”
II. The trial court did not err w h e n i t found that Isaac set the f ire intentionally . ¶18. I s a a c n e x t argues that t he trial court e rred when it f ound that t he f

ire had b e e n s e t intentionally , as “the great v olum e of e v i d e n c e at trial was that the f ire was accidental.”
Isaac argues that h e quickly extinguished the f ire and t hat his testim ony was undisputed by

a ny of the witnesses or evidence and theref o re m ust be taken as true. See R eeves Royal t y Co., L td. v. ANB Pum

p Truck Serv. , 513 So. 2d 595, 5 99 (Miss. 1987) (“Un disputed testim o ny , which is not so unreasonable as to be unbelievable, m ust be taken as truth.”) ¶19. The trial court’s determ ination that Isaac had f ailed t o prove f

a cts t o show he did not

com m it arson was a f

inding of f

act, s o the Court af

f ords it great def

e r ence on appeal. “‘A circuit c ourt judge sitting without a jury is a c c o r d e d t he sam e def e rence w ith regard to his f indings as a chancellor,’ a nd his f indings a re saf

e on appeal where t hey are s u pported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry , 764 So. 2d 373, 376 (¶ 9 ) (Miss. 2000) (quoting Puckett v. Stuckey , 633 So. 2d 978, 982 (Miss. 1993)); see also H y m es v. State , 1 21 So. 3 d 938, 943-44 (¶18) (Miss. Ct. App. 2013) (apply ing the above-quoted standard o f review to an appeal of a M W C A claim ). The Court will not disturb
9the f

indings of a trial judge unless the Court determ ines the f indings “are m anif

estly wrong, clearly erroneous or an erroneous legal standard was applied.” P e r r y , 764 So. 2d at 376 (citing Bell v. City of Bay St. Louis , 467 So. 2d 657, 661 (Miss. 1985)). ¶20. At the civil t rial, Isaac t estif ied that he accidently started the f ir e w h e n h e stepped between the screen door and the f ront door to light a c i garette. He said t hat he tried to put it out with his hand, and t hen he got the f ire extinguisher. He testif ied that he im m ediately worked to extinguish the f ire b ecause his children were in t he apartm ent and he didn’t want

a n y t h i n g t o happen to them

. The State then conf ronted him with h is testim ony f rom hi s crim inal trial. There, Isaac had testif ied that he already had been holding a lit cigarette in his right hand when he l if

ted the m ailbox f

lap with his lef

t hand and began c alling to J ackson to let him in. According to his crim inal t rial testim ony , he didn’t notice the towel was on f ire. Instead, he went around t o the back of the apartm ent and “ knocked o n the back door f or f ive

or ten m inutes” until Jackson opened the back door and s a i d t h e d o o r was on f i re. At that point, he entered the apartm e nt, took the f ire extinguisher, and put o ut the f ire. He stated at his c r im inal trial that he did not know bef ore he entered the apartm ent f rom the back that the towel o n the f

ront door had c aught f

ire. O n c r oss-exam ination, w hen asked by the prosecutor, “y ou never lit a m a tch? ”, Isaac r esponded that his “[ c]igarette w as lit when [ he] walked up there.” ¶21. A d d i t i o n a l l y , Jackson’s t estim ony at Isaac’s MW CA hearing dif f e r e d f r o m t h e testim o ny that she gave at Is a a c ’ s crim inal trial. At Isaac’s crim inal trial, the couple had

1 0welcom ed a third child and still lived together. Jackson testif ied in 1992 that she believed that the f ire had been a n a ccident. As of 2013, Isaac and Jackson are n o longer rom antically involved, t h e i r c h i l d r en are grown, a nd the f orm er partners do n ot rem ain in close

com m unication. W ith r egard t o the night of t he f ire, Jackson testif

ied that she and Isaac had agreed that if he cam e hom e af t er m idnight, she w ould not l et h im in. Isaac had arrived at the apartm ent a f

ter m idnight, and Jackson testif i ed that because of that, s he t old h im to leave and went back upstairs. In contrast to Isaac’s crim inal trial, Jackson testif ied at Isaac’s civil trial that, in f

act, she a nd Isaac had been arguing in the weeks leading up to the f ire, and she had called the police several tim es. S h e s t a t e d t h a t , at one tim e, she had discovered Isaac hiding under her bed a f

ter she had kicked him out; a nother t im e, Isaac had g ained reentry to the apartm ent by using a coat hanger t hrough t he m a il slot. At the t im e of the MW CA trial, Jackson af

f irm atively testif

ied: “ I know he intentionally set it b ecause he w as abusive in, y ou know, in our r e lationship.” In 1991, she had given a sim ilar s tatem ent to police the night of the f ire and to Detective C arruth w hen he cam e to interview her the next day

. However, as she did not actually see him set the f ire, the t ria l c o u r t c l a r i f

ied that the statem ents were “speculation, f

or the record.” ¶22. “Conf

l icting t estim o n y i n t h e r e c o r d i s t o b e resolved by t he trier of f a ct.” Scott Addison Constr. , 789 S o. 2d at 773 (¶8). In its opinion and order, t he trial court noted that “there is signif

icant ground between the State’s inability t o p rove bey ond a reasonable doubt that Isaac intended to set t he f ire and Isaac’s a b i l i t y to prove by a preponderance of the

1 1evidence that he did n ot i ntend to set the f ire.” As n oted above, the trial court stated that he f ound Isaac’s account of how the f ire started “incredible” and that, if t h e f i r e h a d been set accidentally , Isaac “im m ediately could have put the f ire out w ith his hand. In that event it would have been unnecessary to call em ergency p ersonnel or f o r Jackson and the couple’s children t o f

lee the apartm ent.” Though Isaac argues that his testim ony was indeed credible, the c redibility of witnesses, and the “weight and worth” of the conf licting t estim ony , lies with the trial judge when he sits without a jury in a bench trial. Scott Addison Constr. , 789 So. 2d at 773, 776 (¶8); see also Rice Researchers, Inc. v. Hiter , 512 So. 2d 1 259, 1265 (Miss. 1987). Given our def

erential review, w e cannot say t he tr ial judge erred by f inding that Isaac’s s tory w as not believable, especially when Isaac’s narrative varied between the civil and c rim inal trials, and J ackson t estif ied to esta blish his i ntent. W e also note t hat, while
I saac e ventually extinguished the f ire, that does not n ecessarily m ean that h e d i d n o t intentionally

set it and then regretted his decision or changed his m ind. ¶23. A question of

f act was bef

ore the trial court: whether Isaac intentionally set the f ire

to Jackson’s door on the night of M arch 11, 1991. Because of the nature of the action, Isaac bore the burden of p roving he did not by a preponderance of t he evidence. See Miss. Code Ann. § 11-44-7(1). The trial judge heard testim ony and rev i e w e d e v i d e nce, a s outlined in its three-page opinion. T he evidence conf l ic t s i n p l aces, as does the testim ony , but substantial, credible, a n d r easonable evidence exists within the record to support the trial judge’s f inding t hat Isaac f

ailed t o “prove by a preponderance of the evidence that he did not

1 2com m it the cr i me ” of arson as required by the M ississippi W rongf ul Conviction Act. W e theref ore hold that the assignm ent of error is without m erit. CONCLUSION ¶24. Isaac and the State stipulated to six of the seven elem ents of a M W CA claim , leaving f or trial only the i ssue o f whether Isaac did not com m it the f e lony of arson, or that his acts

or o m issions did not c onstitute t he f elony of arson. See Miss. Code Ann. § 11-44-7(1). For the civil action, Isaac carried the burden of proof , a nd the trial court determ ined that he f ailed

to m eet his burden. Because substantial e vidence supported both the trial c ourt’s f inding that
Isaac intentionally set t he f ire which led to his incarceration and its f inding that Isaac f

ailed

to prove t he absence o f m a lice, w e hold that the trial court com m itted no error in f inding in f avor of the State. ¶25. AFFIRMED. WALLER, C.J., DICKINS O N A N D R A N D O L P H , P . J J . , L AMAR, KITCHENS, KING, MAX WELL AND BEAM, JJ., CONCUR.

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