IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01567-COA RUBIN RENFROW A/K/A RUBIN B. RENFROW III APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/17/2014 TRIAL JUDGE: HON. MICHAEL H. W ARD COURT FROM W HICH APPEALED: SIMPSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JULIE ANN EPPS CYNTHIA ANN STEW ART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED PETITION FOR POSTCONVICTION COLLATERAL RELIEF DISPOSITION: AFFIRMED: 05/10/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. This appeal arises f rom Rubin Renf

row’s p etition f

or post-conviction collateral relief (PCCR) as to his conviction of possessing photogr a p hs o f an actual c h ild e ngaging in sexually explicit conduct, in violation of Mississippi Co d e A n n otated section 97-5-33(5) (Rev. 2014). The special circuit court judge denied h is petition. W e f ind no error a nd af

f irm

. FACTS ¶2. In 2006, child-pornography im ages were f o und on Renf

row’s com

p uter. A y ear later in 2007, Renf

row told of

f i cers that he knew of the pictures depicting child pornography onhis com

p uter. He was indicted f

or the willf

ul possession of

child pornography

. Af

ter trial in 2008, Renf

row was convicted. ¶3. Renf

row f irst appealed to this Court in 2009. His conviction was af f irm ed. Renfrow

v
. S t ate , 3 4 So. 3d 617, 636 ( ¶62) (Miss. C t. App. 2009). I n 2013, Renf ow f ile d a n application f

or l eave to f

ile a PCCR pe t i t i o n w ith the suprem e court. T he suprem e court

rem anded to the circuit court f or an evidentiary hearing o n two specif ic issues: (1) whether Renf row w as d e nied due p r o c ess of law and a f air trial when evidence of legal em ails and

s t o r i e s w as adm itted to show Renf row “pref erred children,” and (2) whether counsel wa s inef f ective in f ailing t o properly object and request lim iting instructions and/or to appeal the adm ission of

unf a irly prejudicial evidence. ¶4. At the hearing, the special circuit c ourt judge heard testim ony f r om J o s e ph K. Speetjens, an exper t in com p uter science, com

puter program m ing, com p uter sof tware,

com puter security , a nd f

orensic analy sis of com

puters. Terrell S tubbs, Renf row’s previous counsel, also testif

i ed about his trial strategy . The special circuit c ourt judge f ound, based

on this testim ony and the record, that Renf row d id not receive inef f ective assistance of counsel and that he was not denied due process. STANDARD OF REVIEW ¶5. “W hen reviewing a trial court' s d enial o r dism i ssal of a PCCR petition, w e will only disturb the trial court’s f

actual f indings if they a re clearly erroneous; however, we r eview the trial court’s legal conclusions under a d e novo standard of review.” Martin v
. State , 138 So. 3 d 2 6 7, 268 (¶3) (Miss. Ct. App. 2014) (citing H ughes v. State , 1 06 So. 3d 836, 838 ( ¶ 4 )

2(Miss. Ct. App. 2012)). ANALYSIS

I. Whether Renfrow’s counsel w as ineffective in not understanding a nd presenting his defense to the jury . ¶6. Renf

row claim s th a t h i s t

r i a l c o u nsel did not properly understand the com puter science involved in the case and that he chose an inadequate def ense. ¶7. In assessing an inef f ective-assistance-of

- counsel claim , this Court f ollows the test established in Strickland v. W a shington , 466 U .S. 668, 686 (1984). W iley v. S tate , 517 So. 2d 1373, 1378 (Miss. 1987). To succeed on an inef f ective-assistance-of

-counsel claim ,

a d ef endant m ust show that: (1) his counsel’s p erf o rm a nce was def

icient, and (2) this def

iciency p rejudiced his def ense. The b urden o f proof rests with the def endant to prov e both prongs. Under Strickland , there is a s trong presum ption that counsel’s perf

o r ma n ce f

alls within the range of r easonable prof essional assistance. To overcom e this presum ption, the d ef

enda n t mu s t show that t h e r e i s a reasonable probability that, but f or the counsel’s unprof essional errors, the result of the proceeding would have been dif f erent. Maggitt v. State , 26 So. 3d 363, 3 65 (¶12) (Miss. Ct. App. 2009) ( citing Strickland , 466 U.S.
at 687) (internal citations and q uotations om i tted). “W hen determ ining if b oth prongs of the Strickland test h ave been m et,

. . . this Court m u st look to the totality of the circum stances.” Hibbler v. State , 1 15 So. 3d 832, 842 (¶32) (Miss. Ct. App. 2012) (quoting Payton v. State , 708 So. 2d 559, 563 (¶12) (Miss. 1998)). ¶8. Regarding tria l s t r a t e g y , “[ t]his Court has held that the conduct of trial counsel is

m easured toward the view that he has wide latitudinal discretion in ef f ectuating r easonable representa t i o n o n b ehalf of his client and that the decisions m ade at trial are strategic.” N i chols v. S

tate , 27 So. 3d 4 33, 443 (¶36) (Miss. Ct. App. 2009) (internal quotations

3om itted). “This Court rarely second guesses trial counsel regarding m atters of trial strategy .”

Id. Furtherm ore, “[ h]aving a trial s trategy negates an inef f e ctive a s sistance o f counsel claim , regardless of

counsel’s insuf

f iciencies.” Hall v. State , 735 So. 2d 1124, 1 127 (¶10) (Miss. Ct. App. 1999). ¶9. The special circuit court judge f ound that Stubbs understood the def ense and that he took steps to ef

f ectively present t h a t d e f

ense to the j ury during trial. Renf row argues on appeal that the issue is not whether Stubbs understood his trial strategy but whether his trial strategy w as reasonable. T h is a rgum ent i gnores th e p r e s u mp tion that “perf orm ance f

alls within the range of

reasonably

prof essional assistance.” Maggitt , 26 So. 3d at 365 (¶12). ¶10. At the evidentiary

hearing, Stubbs testif

ied that the child-pornography im ages were located in m ore than one location o n the com puter, a nd he prepared his trial strategy in order
to explain this to the j ury . S tubbs argued at trial that a com puter virus placed the im ages on Ref row’s com

puter without his knowledge. R e n f r o w c ontends that this w as not the best available d ef

ense. Rather, he would argue that the im a ges were placed on his com puter when he clicked on pop-up windows. Renf row’s pref

erred def e nse w ould supposedly explain the ten im ages that were presented by the prosecution at trial. However, Stubbs knew through discovery that the ten im ages were in m ore than one location on the com puter and that m ore im a ges w ere also f

ound d e l e t e d o n the com puter. It is n ot evident in the record whether Renf row’s pref

erred def ense would explain the presence of the photographs i n o ther areas of the com puter. ¶11. The def

ense p r esented by Stubbs does not f all outside the “wide l atitudinal discretion

4in ef

f ectuating reasonable representation on b ehalf of his client.” Nichols , 27 So. 3d at 443 (¶36). R enf

r ow has not shown that Stubbs’s perf orm ance was def

icient. Renf

row theref

ore f ails to m eet the f

irst prong of

the Strickland

test. This issue is without m erit. II. Whether Renfrow was denied due process of law and a fair t rial when e v i d ence of l egal em ails and stories was adm itted t o show Renfrow “preferred children.” ¶12. Renf

row next argues that certain evidence a nd t e s t i mo ny was im properly allowed bef ore the jury

. W ith regard to the adm ission or exclusion of evidence, the Court applies an abuse-of

- discretion standard. Stone v. State , 94 So. 3d 1078, 1081 (¶9) (Miss. 2012). ¶13. The evidence at issue consisted of em ails and pornographic stories f ound on Renf row’s com

puter as well a s h i s b r o w s e r history

. The testim ony revealed that Renf row entered i nf

orm ation into websites seeking a “ com panion,” that Renf

row purchased “he-she” videos, that Renf

r ow’s hard drive contained 170 other r elated pictures and over 500 deleted pictures. Also, during Renf row’s cross-exam ination, t h e p r o s e cution asked him about his past work as a principal and teacher. ¶14. Renf

row argues that all of these i nstances of legal conduct were elicited t o show that he “pref e rred children.” However, the State a rgues that the s e i n s t ances were not only

r e l evant but adm issible as each spoke to R e nf row’s m o tive, i ntent, plan, knowledge, a n d absence of

m istake or accident. M.R.E. 404(b). ¶15. The Court f

inds that the trial judg e d i d n o t a buse his discretion in perm itting the above evidence and testim ony . Under Mississippi Rul e s of Evidence 404(b), evidence of other c r i m e s , wrongs, or acts m ay be adm issible “as proof of m otive, o pportunity , intent,

5preparation, p l a n , knowledge, identity , or absense of m istake or accident.” Renf row’s def ense was that he accidentally a nd u nknowingly downloaded the child pornography to his hard drive. The inf

orm a tion regarding his com puter u sage and em ails w as used t o negate this def ense and to show that he did not download the im ages by accident. The e v idence and testim o ny showed Renf

row’s intent to s earch o ut these ty pes of im ages, and the f

a ct that all of these things existed on Renf row’s com

puter s howed that he knew m ore a bout the operation of

the com puter than he was willing to tell. ¶16. The C ourt f

inds that the evidence and testim ony at issue were relevant and probative f or a purpose other than to prove Renf row’s character. Theref

ore, this issue is without m erit. III. Whether Renfrow’s couns e l w a s i neffective in failing to properly o b j e c t and request lim iting instructions and/or to appeal the adm ission of unfairly prejudicial e v i d e n c e suggesting that Renfrow w a s a bad person who should be convicted because he “pre f e r r e d children.” ¶17. Finally , R enf

row c ontends that his counsel was inef f ective because the evidence and testim o ny discussed a

bove warranted objection and a lim iting i nstruction. He a l s o a rgues that trial counsel should have raised these issues on appeal. Again the Court considers the test articulated in Strickland, 4 66 U.S. at 686. ¶18. “[ C]ounsel’s c hoice of whether or not to

. . . call certain witnesses, a sk certain
q u e stions, or m ake certain objections f alls within the am

b it o f trial strategy

. This Cou r t rarely second guesses trial c ounsel r egarding m atters of trial strategy .” Nichols , 27 So. 3d

at 4 43 (¶36). “Decisions to m ake particular objections

. . . cannot give rise to an inef f ective

a s s i s t a n ce of counsel claim .” Moss v. S tate , 977 So. 2d 1201, 1214 ( ¶31) (Miss. Ct. A pp.

62007).

¶19. Much of the evidence and testim o ny was adm itted over objections by Renf row’s trial

c ounsel. And certain questions asked of R enf r ow him self c ould have been a v o i d e d i f Renf row f ollowed his counsel’s a d v i c e t o n ot take the s tand. R enf r ow argues that his attorney s hould h ave o bjected in each of these instances, but “decisions such as the decision
not to object are considered tactical, and do not rise to the level of inef f e ctive assistance of counsel.” Golden v. S

tate , 968 So. 2d 378, 390 (¶50) (Miss. 2007). “[ C]ounsel m ight have

reasons f or deciding not t o object to a question which is technically o b j e c t i onable. For instance, counsel m ight conclude that an objection would draw attention to the question and answer.” Id. For these reasons, Renf row has not shown that trial counsel was def icient. ¶20. F u r t h e r m o r e , R e n fr o w ’ s i n e ffe c t i v e - a s s i s t a n c e - o f- c o u

n s e l c l a i m s fa i l the secon d p r o n g of the Strickland test, which requires a showing of a reasonable p robability that the result of the proceeding w ould h a ve b e e n d i f f e rent. Maggitt , 26 So. 3d at 3 65 (¶12). Bey ond the evidence and testim ony presented against him , Renf row took the s t and in his o wn def ense. During his test i mo n y , R e n f row said that he saw the child-pornography i m ages and that he

was aware that the im ages w ere on his com puter. On cross-exam ination, he tried to explain his previous statem ents, say ing, “But now, there is two kinds o f visions, sir. There is direct f ocusing of the ey e on an im age, and then there is s om ething c alled peripheral vision. You

can be aware that som et h i n g i s there and not necessarily be looking directly at it.” Due to Renf row’s own testim ony at trial, the result of the proceeding w ould have bee n the sam e regardless of t h e alleged errors. Thus, Renf row f ails to prove inef

f e ctive assistance of

7counsel.

¶21. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUI T C O URT DENYING THE PETITION FOR POST-CONVICTION COLLATERAL R ELIEF IS AFF I R MED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING, P.J., BARNES, ISHEE, C ARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR. W I L S ON, J., CONCURS IN P A RT AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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