IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-01814-COA DARRELL LETEASE FORD A/K/A DARRELL LATEASE FORD A/K/A DARRELL L. FORD A/K/A DARRELL FORD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/29/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN ELIZABETH PRIDGEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF GRATIFICATION OF LUST AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO REGISTER AS A SEX OFFENDER DISPOSITION: AFFIRMED - 08/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. Darrell Latease Ford was indicted a nd convicted of gratif ication of lust i n violation of Mississippi Code A nnotated s e ction 97-5-23(1) ( Supp. 2015). The trial court sentenced Ford to f i f teen y ears in the custody of the Mississippi Departm e nt of Corrections (MDOC).¶2. Ford’s appellate counsel f iled a brief in com

p liance with Lindsey v. S

tate , 939 So. 2d 743 (Miss. 2 0 0 5 ) , c e r t i f

y ing to this Court that the record presented no arguable issues f or appeal. F ord f

iled a pro se brief

, raising various assignm ents of error. A f ter a review of Ford’s pro se brief and the record, this Court f inds that Ford presents n o arguable i ssues, and

no supplem e nt a l b r i e f

ing is necessary . Finding no error, we af f irm Ford’s conviction and
sentence. FACTS AND PROCEDURAL HISTORY ¶3. Eleven-y ear-old Z.L. 1 had lived w i t h h e r m a t e r

n a l g r a ndm other, Thalia Ford, and stepgrand f a t h e r , F o r d , since she w as in the f irst grade. Thaila and Ford, who had been i n a relationship f

or over twenty y ears, were m arried six m onths prior to trial. ¶4. Shanta Lacey , Ford’s biological daughter a n d Z.L.’s aunt, testif ied that she had a close relationship with Z .L. 2 L a c e y went to Thalia and Ford’s apartm ent to pick up Z.L. Lacey
went inside, and Z.L. was watching a television show on the c o m puter. Z.L. told L acey that she was glad Ford was not there because he would m ake her get of f the com p uter so he could watch “nasty stuf

f .” Z.L. also s aid that F o rd would m ake her watch “nasty stuf f

. ” Lacey brought Z .L. to a nearby f urniture store. Inside the store, Z.L. again told Lace y t h a t F o r d would “alway s m ake [ m e] get of f the com puter to watch nasty stuf

f .” ¶5. Lacey tes t i f

ied what Z.L. h ad described a b out the videos: “One video [ Z.L.] said it

was a m an and a wom an in the bed, and the wom an was on top of t he m an jum p ing up and

1 T o p ro tect th e id en tif

y o f th e m i n o r v i ctim , w e w ill u se in itials, r ath er th an h er n am e, th ro u g h o u t th is o p i n io n .

2 L acey is cu rren tly

th e leg al g u ard ian o f

Z .L

. 2down and scream i ng. And o n the second [ video], [ Z .L.] said it was a m an a nd a wom an in

a shower, and [ Ford] said, ‘I would let y ou do that but y o u’ll tell.’” Lacey asked Z.L. if that

was all t hat had happened. Z.L. responded, “[ Ford] touch[ e s] m e s om etim es, too.” Lacey and Z.L. lef

t the store and returned to t he vehicle. Lacey a sked her what e lse had happened. Z.L. told her that Ford m ade her get on top of him , and he touched her breasts. ¶6. Lacey

called Thalia to tell her what Z .L. had said, but Thalia did n ot r eturn her call. The next day , Lacey r eported what Z.L. had disclosed to her to the P earl Police Departm ent. The Pearl Police Departm ent r ef erred Z.L. t o the Madison/Rankin Child Advocacy Center (CA C ) f o r a f orensic interview. Brandy Ray , a f o rensic interviewer and licensed prof essional counselor, interviewed Z.L. A video of the interview was adm itted into evidence and was shown to the jury

at trial. ¶7. During the interview, Z.L. told Ray that on two separate occasions, F o r d ma de her touch his penis and buttocks. Z.L. said that the latest incident had occurred som etim e within the last two m onths. Z.L. also s aid that F o r d m a de her watch pornography

. Af ter the f orensic i nterview was conducted, Ford w as arrested. F ord w aived his Miranda 3 rights and

was interviewed by Investigator Jonathan Rose of the Pearl Police Departm ent. A video of the interview was adm itted into evidence and shown to the jury at trial. ¶8. Z

. L

. testif

ied a t trial. 4 Z.L. described the two separate incidents of s exual abuse by Ford. Z.L. testif

ied that she was eleven y ears old and in the f o u r t h g r ade when these

3 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ).

4 Z .L . w as tw elv e y ears o ld at th e tim e o f trial. 3incidents occurred. The f irst incident occurred when Z.L. w alked into Ford’s bedroom while he was ly ing on the bed watching pornography

. Ford’s penis was e xposed. F ord m ade Z.L. touch h is penis and m oved her hands u p and down on it. Ford ejaculated. Ford then told
Z.L. to get on top of hi m. F o r d m ade Z.L. take of f her c lothes. Z.L. testif ied that her “private [ par t w a s ] touching his private [ part].” Ford grabbed Z.L.’s hips and m oved her back and f

orth on top of

him until he ejaculated. ¶9. The second incident occurred when Ford m ade Z.L. get o f f the com puter in the living

room so h e could w atch pornography

. Z.L. lef t the living room , but Ford c a lled her to com e back. Z.L. testif

ied that Ford wanted her to do what t he individuals were doing on the pornographic v ideo. Ford told her that he would let her do t hose things, but that she would

t e ll. Ford m ade Z.L. t ouch his penis. A f ter this second incident, Z.L. w r ote a note to h e r grandm other, Thalia, telling her what happened. Thalia did not believe Z.L. A f ew weeks later, Z .L. told L acey about the sexual abuse when they w e n t t o t h e f u rniture store. Z.L.
tes t i f i ed that she did not tell Ray every thing during t he CAC interview that had happened because she was scared and asham ed. ¶10. F o r d t o o k the stand in his def ense. Ford testif

i ed that he n e v e r s h o w e d Z

. L

. porno g raphy

. He denied ever t ouching Z.L. inappropriately

. However, he testif ied to a dif f erent account of the f

irst incident tha t Z

. L

. had described. Ford explained that he was watching t elevision in his bedroom , and Z.L. cam e in the bedroom

. Ford testif ied that Z.L. told him that she was “hearing voices” that were t elling her “to kiss [ Ford].” Ford testif ied that he told her to get out of the b edroom

. F o rd testif ied that Z.L. cam e back in t he bedroom

4and told Ford t hat “ [ the v oices] were t elling h er to take her clothes of f

. ” Ford also claim ed

t h a t he f ell asleep watching television and woke up with Z.L. straddling him comp l e t e l y nude. He testi f

i e d t h a t h e pushed her of f of him s e lf and sent her to her room . Ford told Thalia this version of the incident. Ford testif ied that h e a n d Thalia spoke to Z.L. about the incident, and Z.L. apologized. ¶11. Af ter a three-day trial o n S e p t e mb e r 2 2

- 2 4 , 2 0 14, the jury f ound F ord guilty

f or gratif ication of lust. On S e p t e mb e r 2 4 , 2014, a judgm ent of conviction was entered. On Septem ber 30, 2014, Ford w as sentenced to f if teen y ears in the custody of the MDOC. Ford

was ordered to pay court costs, f ees, and a ssessme n t s i n the am ount of $2,431.50 within ninety d ay s of his release f rom c ustody

. Ford was a lso ordered to register as a s e x of f ender under the Mississippi Sex Of f enders Registration Law. ¶12. Ford f

iled a m otion f

or a judgm ent notwiths t a n d i n g t h e v e r d i ct (JNOV) or, in the alternative, a new trial. The trial court denied the m o tion, and Ford f iled a tim ely notice of appeal. DISCUSSION I. Lindsey Brief ¶13. The Mississippi Suprem e Court h as sum m arized the f o llowing procedure established in Lindsey : W h en a ppellate counsel believes there to b e no m eritorious issues upon which to m ount an a

ppeal, the procedure o utli n ed in Lindsey v. State m ust be f ollowed. Appell a te counsel m ust f ile and s erve a brief in c om pliance with Mississippi Rule o f Appellate Procedure 28 and certif y to the court a diligent review of the procedural and f a ctual h istory of the crim inal action h as taken place and that there are n o arguable issues supporting the client' s appeal.

5Counsel m ust specif ically exam ine: (a) the reason f

or the arrest and circum s tances surrounding the arrest; (b) any possible violations of the client' s right to counsel; (c) t he entire trial transcript; ( d) a l l rulings of the t rial court; ( e) possible p r osecutorial m isconduct; (f ) all jury instructions; (g) all e xhibits, whether adm itted into evidence or not; and (h) possible m isapplication of the law in sentencing. Counsel m

u st then transm it a copy of the a p pellant' s brief to the client, i nf orm him or h er of the f

indings, a nd explain his or her right to f i le an appellate brief pro se. A t this point once all of the brief s a re f i l e d a n a ppellate c ourt shall evaluate the case on its m erits and render its opinion. Havard v. State , 94 So. 3d 229, 234-35 (¶10) (Miss. 2012) (internal citations and quotations

om itted). ¶14. F o r d ’ s a p p e l l a t e c o u n s el f iled a brief in com

pliance with the court’s directive i n Lindsey

. Ford f

iled a pro s e brief raisi n g v arious issues on appeal. W e have reviewed the record a n d f

ind t here are no arguable issues f o r appeal. W e also f

ind that Ford’s pro se brief raises no arguable i ssues and that no supplem ental brie f i n g is warranted. W e will brief ly address the issues raised in Ford’s pro se brief , which have been restated f or clarity

. II. Whether Ford received ineffective assistance of counsel

a. Appellate Counsel ¶15. Ford argues that he was denied ef f ective a ssistance of appellate counsel because his appellate counsel f

iled a Lindsey brief stating that there were no arguable issues to present to this Court. ¶16. T o p r o v e i n e f

f e c t i v e a s sistance of counsel, a def e ndant m ust show that: (1) his counsel' s perf

orm ance was def

icient , and (2) this def

iciency prejudiced his def ense.

6Strickland v. W ashington , 466 U.S. 668, 6 87 ( 1984). “The standard f or co n s i d e ring inef f ective assistance o f c ou n s e l i s t h e sam e f or appellate p erf

orm ance a s it is f

or trial perf orm ance.” Johnson v. State , 191 So. 3d 732, 736 (¶ 1 7 ) ( M i s s . Ct. App. 2015) (citing Foster v. State , 687 So. 2d 1124, 1138 (Miss. 1996)). ¶17. As an i ndigent, F ord was appointed a p pellate counsel to re p r e s e n t h i m o n appeal.
W h en appellate counsel believes there to be n o m eritorious issues u pon which to m ount an appeal, the procedure outlined in Lindsey m ust be f ollowed. Havard , 94 So. 3d at 234 (¶10). Ford’s appellate counsel properly com plied with this established p roc e d ure. Accordingly ,

we f ind that Ford has f

ailed to show that his appellate c ounsel’s perf orm ance was def

icient. Lewis v. State, 997 So. 2d 1001, 1006-07 (¶¶25-26) (Miss. Ct. App. 2009).

b. Trial Counsel ¶18. Ford argues that he was denied ef f e c t i v e a s s i s t a n c e o f c o unsel at trial. Ford’s inef f ective- a s s i s t ance-of

-counsel claim appears to be criticism of his attorney ’s closing
argum ent, and general disagreem ents with his attorney ’s trial strategy

. ¶19. “ G e n e r a l l y , i n ef

f e ctive assistance claim s a re m o re appropriately bro u g h t d u r i n g post[ ] conviction-relief [ (PCR)] proceedings.” Havard , 94 So. 3d at 2 40 (quoting Archer v. State , 986 So. 2d 9 51, 955 (¶15) (Miss. 2008)). “It is well settled that the m erits of a claim of i nef f ective assistance o f counsel brought on direct appeal should be addressed o nly when ( 1 ) t h e record af

f i rm atively shows inef

f ectiveness of constitutional dim ensions, or (2) t h e parties stipulate that t he record is adequate to allow t he appellate court to m ake the f inding without consideration of the f i ndings of f

a ct o f the trial [ c ourt].” McSwain v. State , 163 So.

73d 966, 969 (¶10) (Miss. Ct. A pp. 2014) (quoting Jackson v
. State , 73 So. 3d 1176, 11 81

(¶20) (Miss. Ct. App. 2011)). ¶20. The record does not af f irm atively

show inef

f ective assistance of

counsel. Also, the parties have not stipulated that the record i s a d equate to allow this Court to m ake a f inding without consideration of the f i ndings o f f

a c t of the trial court. As a result, we deny relief on this issue without p rejudice so that Ford m ay raise his inef f ective-assistance-of

-trial-counsel claim in PCR proceedings, if

he so desires.
III. Whether the trial court abused its discretion

a. Directed Verdict ¶21. Ford argues that the trial court e rred by f ailing to grant a directed verdict. Ford attacks the credibility

of Z.L.’s testim ony

in support of

this assignm ent of

error. ¶22. “W hen reviewing the trial court’s denial of a m otion f or a directed verdict, this Court

m ust c onsi d e r a ll of the evidence in the light m ost f avorable to the State a nd a ccept the evidence consistent with gu i l t a s true.” M iller v. S tate , 17 So. 3d 1 109, 1113 (¶20) (Miss. Ct. App. 2009). “This Court will not disturb the trial court’s ruling unless, w ith respect to

one o r m ore of the elem ents of the of f ense c h arged, the evidence so considered is such that reasonable and f

air-m inded jurors could only f ind the accused not guilty .” Id. ¶23. At trial, Z .L. testif i ed t hat Ford m ade h e r r u b h i s p e n is on two dif f erent occasions.
Z.L. also testif

ied that Ford told Z.L. t o get on top of h i m . F o rd m ade Z .L. take of f her clothes. Z.L. testif

ied that her “private [ part was] touching his private [ part].” Z.L. also

t e s t i f i e d that Ford g rabbed her hips and m oved her back and f orth o n top o f him unt i l h e

8ejaculated. Z.L.’s testim ony showed gratif ication of lust in violation of section 97-5-23. The jury f ound Z.L. to be credible and returned a verdict of guilty

. The j ury is the s ole judge of

a witness’s cre d i b i l i t y . Id. at (¶21). Considering all of t he e v idence in the l ight m ost f avorable to the State and accepting the evidence consistent with guilt as true, we f ind that the trial court did not err in deny ing the m otion f or a directed verdict.
b. Alleged Com m ents by the Trial Court ¶24. Ford argues that the trial court “stated several tim es that [ it] believed [ Z.L.], bef ore hearing any oral testim ony f r om t he stand.” Ford does not c ite to any portion of t he record in support of this allegation, a nd of f ers no authority t hat such com m ents would result in reversible error. Regardless, af ter reviewin g the record, we do not f ind any support f

or Ford’s allegation.

c. Ray ’s Testim ony ¶25. Ford argues that the trial court e rred by not allowing the def ense to “im

p each witness f or the State Brand[ y ] R [ ay ]

. ” However, t his claim is contradicted by the record. T he State did not call Ray as a w itness in its case-in-chief

. The def ense c a lled Ray t o the s tand during its c a s e - i n-chief

. Also, the record does not show that t he trial court denied Ford the opportunity

to “im peach” his own witness, Ray . This argum e nt is without m erit. ¶26. Ford also argues t hat Ray gave im p roper expert testim ony . T he f ollowing exchange occurred during the State’s exam ination of Ray at trial: Q. And is i t com m on or not f or children to wait to disclose [ sexual abuse]? Mr. Baldridge: Y o u r H o n o r , I o b j e c t

. S o me o f t h i s appears to be g etting into expert testim o ny ,
9- - The Court: Sustained. Mr. Baldridge: - - and she’s not been prof f ered as an expert. ¶27. F o r d ’ s a t t o r n e y t i m ely objected to this testim ony t hat he perceived to b e e x p e r t testim o ny . The trial court sustained the objection, a n d the State h eeded the trial court’s ruling. This argum e nt is also without m erit.

d. Mistrial ¶28. Ford argues that the trial court erred by deny ing his m otion f or a m istrial based on an

a l l e g e d d i s covery v iolation. S pecif ically , Ford argues that Unif orm Circuit and County Court Rule 9.04 was violated because h e claim s that the S tate w ithheld an audio statem ent that his wif e, Thalia, gave to law enf orcem ent. 5 ¶29. “A trial court' s rulings o n discovery m a tters, inc l u d i n g w hether o r not a discovery violation has o ccurred, are r eviewed f or a buse o f discretion.” Jenkins v. State , 131 So. 3d 544, 547 (¶10) (Miss. 2013). “W hether to grant a m o tion f or a m istrial is w ithin the sound discretion of

the trial court. The standard of review f or denial of a m otion f

or a m istrial is abuse of d i scretion.” Johnson v. State , 89 So. 3d 630, 639 (¶29) (Miss. Ct. App. 2011) (citing Caston v. State , 823 So. 2d 473, 492 (¶54) (Miss. 2002)). ¶30. “The proc e d u r e a t r ial [ court] m ust f ollow when a discovery violation i s alleged at trial is s et f

orth in R ule 9.04(I)[

. ]” Jenkins , 131 So. 3d at 548 (¶11). Rule 9.04(I) provides in pertinent part:

5 In F o rd ’s p ro se b rief

, h e e rro n eo u sly claim s th at T h alia’s reco rd ed au d i o statem en t w a s ad m itted in to ev id en c e. T h e statem en t w as n o t ad m itted in to ev id en ce. 1 0I f d uring the course o f trial, the prosecution attem pts t o introduce ev i d e n c e which has not been tim e ly disclosed to the def ense as required by these r ules, and the def

ense objects to the introduction f or that reason, the court shall act as f ollows: 1. Grant t h e d e f

e n se a reasonable opportunity to interview t he n ewly discovered witness, to exam ine the newly produ c e d d o c u m e n t s , p h o t o graphs[ ,] or other evidence; and 2. If , af ter such opportunity , the def ense claim s unf

a i r surprise or undue prejudice and seeks a continuance or m istrial, the c ourt shall, in the interest of justice and absent unusual circum stances, exclude the evidence or grant a continuance f

o r a period of tim e reasonably necessary f or the d ef ense to m eet the non-disclosed evidence or grant a m istrial. 3. The court shall not b e required to grant either a c ontinuance or m istrial f or such a discovery violation if the prosecution withdraws its ef f orts to introduce such evidence. ¶31. At trial, the def

e nse c alled Thalia to the stand to testif y . On cross-exam ination, the State began asking her about a recorded statem ent that she h ad given to law e n f o r c e me n t relating to the investigation o f Ford sexually abusing Z.L. The def ense o bjected because it claim ed that he was not aware of the statem ent and m oved f or a m istrial. ¶32. The t rial court heard argum e n t s f rom counsel outside the presence of the j ury . The State expl a i n e d it did not receive the audio recording until that m o rning. A lso, the State argued that i t was not obligated under Rule 9.04 to disclose the recording because it was f or im p eachm ent purposes. However, the def ense a r gued that its m otion f o r discovery had requested all recorded statem ents m ade to law enf orcem ent. The recorded audio statem ent

was play ed f

or the trial court. The trial court d eterm ined that “every thing she’s said on the [ audio recording], she’s already testif ied to live.” The t rial court excluded the statem ent f rom being adm itted i nto evidence and prohibited the State f rom questioning Thalia regarding the

1 1statem ent. The trial court denied Ford’s m otion f or a m istrial. ¶33. W e f

ind that t he t rial court properly adhered to the procedure outlined b y Rule 9.04(I). The def ense was g iven an opportunity to hear the recorded interview. The def e n se claim ed unf air surprise a nd m oved f

or a m istrial. The trial court rem edied the perceived discovery violation by excluding the statem ent and instructed t he State not to question Thalia about the
statem ent. Because the trial court properly f ollowed the procedure outlined in Rule 9.04, the trial court did not abuse its discretion in deny ing Ford’s m otion f or a m istrial.

e. Lesser-Nonincluded-Offense Jury Instruction ¶34. Ford argues that the trial c ourt erred by r e f u s i n g h i s jury instruction f or the lessernonincluded of

f e nse of contributing to the delinquency of a m inor. Although F ord denied showing Z.L. pornography , Ford r equested t he contributing-to-the-delinquency -of -a-m inor jury instruction based o n the evidence presented by t he State that Ford had exposed Z.L. to pornography

. ¶35. In Hye v. State , 162 So. 3d 750, 751 (¶2) ( Miss. 2015), the court held that a crim inal def endant no l onger has the unilateral right u nder Mississippi law t o insist upon an instruction f

or a lesser-nonincluded of f ense, also known as a lesser-related of f ense, whose elem ents are not necessarily included in the charged of f ense. Th e parties a greed that contributing to the d elinquency o f a m inor is n ot a lesser-included of f ense of gratif

ication of lust. Thus, the trial court did not err by ref using t he jury instruction f or contributing to the delinquency

of a m i nor. IV. Whether there is new ly discovered evidence

1 2¶36. Ford argues that he has n ewly discovere d e v i d e n c e t h a t r e q u i r e s reversal of his conviction. Ford ref

ers t o a l l e g e d events t hat occurred in October 2 014 af ter he was convicted. Ford contends these alleged events are “exam ple[ s] of the r eliability and the lies [ Z.L.] is capable of telling.” ¶37. The trial court w as not presented with a n y n ewly discovered e v i d e n c e t o consider, because Ford did not raise this issue in his m otion f o r a new trial or, in the alternative, a JNOV. Also, there is no evidence in support of F ord’s allegations in the record. W e f ind that Ford’s c laim of newly discovered evidence is b etter suited f or P CR proceedings. See Branch v. State , 118 So. 3d 646, 655-56 (¶43) (Miss. Ct. App. 2013). ¶38. THE JUDGM E N T O F T H E R A N K I N C O U N T Y C I R C U I T C O URT OF CONVICTION OF GRATIFIC A T I ON OF LUST A ND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO REGISTER A S A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY. LEE, C .J., GRIFFIS, P .J., B A R N E S , I S H E E , C A R

L T O N , F A I R, WILSON AND GR E E N L E E, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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