IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00518-COA KEVIN DARNELL POWELL A/K/A KEVIN POWELL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/10/2015 TRIAL JUDGE: HON. ISADORE W . PATRICK JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: RICHARD EARL SMITH JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/29/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ. ISHEE, J., FOR THE COURT: ¶1. On May 6 , 2014, a W arren County grand jury indicted Kevin Powell f or one count of sexual battery of a child under t he a ge of f ourteen in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). Af ter a j ury trial, Powell was f ound g uilty

. Powell was sentenced to twenty y e ars i n the custody of the Mississippi Departm ent of Corrections ( M D OC), with t welve y ears to s e rve, eight y ears suspended, and f ive y ears of postrelease

s u pervision. Additionally , Powell was ordered to pay f i nes, restitution, a nd ot h e r f e e s totaling $6,784.50.¶2. Following trial, Powell m oved f o r a judgm ent notwithstanding the verdict ( JNOV) or, in the a lternative, a new trial; the trial cou rt denied his m otions. Powell now appeals. Finding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶3. In August 2013, af ter spending a night at Powell’s house, Z .H. 1 told her grandm other, Louise Trueheart, that Powell h ad been bothering her. W hile stay i ng at P owell’s—who is Z.H.’s u ncle—Z.H. f

ell asleep ly ing on the f

loor with her cousins. Powell pick e d up Z.H. and carried her into a bedroom , where he allegedly “touch[ e d] her” and “ [ put] his m outh on her.” At trial, Louise testif ied that when s he asked Z.H. if P owell has put his “thing” in her

m outh, Z.H. said y es. ¶4. Next, Louise called Z.H.’s m other, Katherine Trueheart, to inf orm her of the incident. Katherine testif

i ed that af

ter she asked Z.H. what happened, Z .H. to l d h e r t h a t Powell had “touched h er lady ,” and Powell “had his f ace b etween her legs.” Then o n August 12, 2013, Katherine f

i led a police report with the Vicksburg Police Departm ent. ¶5. Later that af

t ernoon, P owell voluntarily arrived at the Vicksburg Police Departm ent, waived his rights, a nd was interviewed by Lieutenant Troy Kim ble. 2 In the interview, Powell conf irm ed that Z.H. s pent the night. But Powell c l aim ed that it looked as though Z.H. was

m asturbating while she was ly ing on the f l oor. And so, he claim ed t hat he carried her to a

1 T h e n am e o f th e m in o r v ictim is ch an g ed f o r co n f i d e n tiality p u rp o ses. Z .H

. w a s b o rn in 2 0 0 7

.

2 P o w ell’s in terv iew w as p lay ed f o r th e j u ry . 2bedroom , where he sm elled her h ands to see if she had been “ touching herself .” Powell claim ed t hat when he did this, Z.H. m oved, and t hat m ovem ent caused her pajam a bottom s and underwear to s lide down. Powell s tated that he s melled around Z

. H.’s naval. He claim ed that he bum

ped her naval, she woke up, and then p ushed his head toward h er vagina. According to Powell, Z.H. said she would not tell on him

. ¶6. Eventually , on May 6, 2014, Powell w as i ndicted by a W arren County grand jury f or

one count of sexual battery of a child u nder the age of f ourteen i n v iolation of section 97-3- 95(1)(d). ¶7. T h e V i c ksburg Police Departm ent ref erred Z.H. to th e M i s s i s s i p p i C h i l d r e n ’ s Advocacy

Center (MCAC). At MCAC, Z.H. w as interviewed by Erin Gowen—a licensed social worker. 3 During t he interview, Z.H. stated that when s he spent the night at Powell’s house, he “licked [ her] lady ” and “put his t hing in [ her] m outh.” 4 Z .H

. f u r t h e r s tated that [ Powell] told [ her] not to tell any one.” ¶8. At trial, Gowen testif i ed that she had worked as a f orensic i nterviewer f

or t hree y ears and h ad conduct ed over 300 f orensic interviews. Gowen also t estif ied that s he had been trained in three interviewing protocols: the RATAC, 5 Child First, and Conner House. She

3 Z .H .’s in terv iew w a s p lay ed f o r th e j u ry . 4 G o w en u sed an ato m i cal d raw in g s to d eterm in e t h a t Z

. H

. u sed th e w o rd “lad y ” to m ean “v ag in a” an d th e w o rd “th in g ” to m ean “ p en is.”

5 T h e R A T A C i n terv iew in g p ro to co l is n o t d ef in e d w ith in th e reco rd , b u t R A T A C is an acro n y

m f o r th e f o r e n sic-in terv iew p ro to co l o f rap p o rt, an ato m y , to u c h in q u iry , ab u se scen ario , a n d clo su re. S

ee M a so n v. S ta t e , 2 0 3 S o . 3 d 7 3 2 , 7 3 5 n .3 (M iss. C t. A p p . 2 0 1 6 ).

3f

urther e xplained that there w a s not m uch dif f e rence between these three interviewing protocols. Gowen testif

ied that her r eport in this case w as based on her use of t he RATAC protocol— w h i c h was r eviewed by her supervisor. Gowen a lso testif ied that she had been previously accepted a s an exper t w i t n e s s in Hinds C ounty Youth C ourt. The State then tendered, and the circuit court a c c e p t e d , Gowen as an expert in the f ield of f orensic interviewing. Gowen testif ied that in her opinion, Z.H.’s disclosure during the interview was consistent with a child who had been sexually abused. ¶9. Prior to the t rial, t he circuit court w as inf orm ed that Powell was not com m unicating with def ense counsel. Powell’s counsel claim ed that d ue to Powell’s l ack of c ooperation, he did n ot f eel that he was going to be properly prepared to g o t o trial. A nd so, his counsel asked to withdraw f

rom Powell’s c ase. Powell also inf orm ed the circuit court that he did not f eel as though he would have a dequate representation a t t rial. Accordi n g t o P o w e l l , his counsel told him that he was not allowed to have any w itnesses. B u t when the c ircuit court asked Powell what potential w itnesses he had, Powell ref e r enced a b r o ther-in-law in Calif o rnia—but he could not recall his nam e . W hen the circuit court asked Powell’s counsel about P owell’s c laim t hat he was advised that he could not have any witnesses, counsel stated that “[ Powell] wanted to call character witnesses . . . .” ¶10. The trial court then asked Powell what the potential witness would say ; Powell stated

t h a t Z.H.’s grandm other, Louise, also accused this potential witness of sexual battery o f a child. And Powell stated t hat there was no attem pt by his counsel to c o n t a c t t h i s witness.

4Yet when the circuit court asked Powell the potential witness’s nam e, Powell could not recall

h is nam e. And when the circuit court asked a bout any other p otential w itnesses, P o w e l l adm itted that the others were character witnesses. ¶11. The next d a y , the circuit c ourt asked Powell if he h ad o btained t he nam e of the witness in Calif ornia. Powell stated that he had not, but h e knew his last nam e was “Dillon.” Later that day , it was d iscovered that Louise had the contact i nf o r ma t i o n f

or her son-in-law, Marcus Dillard, who lived in Calif ornia. ¶12. As the c ircuit c o u

r t instructed, counsel f

or b oth parties c ontacted Dillard and inf orm ed the circuit court of what Dillard said. Dillard stated that Louise o nce t old Dillard’s wif e that she was n ot com f

ortable w ith him being alone with his children, and that she did not trust him

. W hen a sked if he had specif i cally ever b een accused of any inappropriate sexual action toward his children, Dillard said no. ¶13. T h e c i r c u i t c o u r t t h e n i nstructed counsel f or both parties t o draf

t the f ollowing

statem ent, which the circuit court read to the jury at trial:
Mem bers o f the jury , the nam e of Marcus Dillard has been m entioned during trial. Marcus Dillard is m arried t o Jessica, the daughter of Louise Trueheart. If called to t estif

y he would say he w as a ware that L ouise T rueheart told his wif e, Jessica, t hat Lou i s e w a s n o t conf ortable with him being a lone w ith his children if

som ething should happen to Jessica. The [ c]ourt is allowing this out o f c o u r t s t a tem ent, not f or the truth of the m atter asserted[ ,] but only f or the purpose that the s tatem ent was i n f act m ade. ¶14. Also, during the pretrial hearing, Powell argued that counsel did not have a def ense strategy

. Af

ter being a sked by the cir c u i t c o u rt when he lost f aith in his attorney , Powell
5answered “about f our m onths ago.” Powell’s counsel s a id that he would “ abide by whatever the [ circuit] [ c ]ourt r u l e[ d] to the best of [ h is] ability .” S everal day s later, Powell and his def ense counsel proceeded to trial. ¶15. Af ter Powell’s trial, the jury returned a v erdict of guilty

. The judgm ent of conviction

was entered on N ovem

ber 12, 2015. Powell then retained new c ounsel to r epresent him in his p osttrial proceedings. Af ter posttrial proceedings, P owell was sentenced to serve twenty
y ears i n t he custody of the M DOC, with twelve y e ars to s e r v e , e i ght suspended, and f ive
y ears of p o strelease supervision. The sentencing order af ter t he guilty verdict and af ter the presentence investigation was entered by the circuit court on Decem b er 10, 2 0 1 5. On
Decem ber 17, 2015, Powell m oved f or a JNOV or, in the alternative, a new trial challenging,

am ong other t hings: (1) the ef f e ctive assistance o f t r i al counsel, (2) the suf f i ciency of the evidence, and ( 3) the w eight of the evidence. A f ter a h earing, the trial court denied Powell’s

m otion. Powell now appeals. DISCUSSION
I. Ineffective Assistance of Counsel ¶16. On appeal, Powell argues that h is right to a f air trial and to call witnesses on his behalf

was d enied w hen his c ounsel m ischaracterized his f a c t witnesses as character witnesses, and erroneously inf

o rm ed him that he could n ot c all character witnesses or any o ther witnesses. Af ter a revie w o f t h e record and the parties’ brief s, we characterize, and thus address, Powell’s argum ent as an inef f ective-assistance-of

-counsel claim

raised on direct appeal.

6¶17. Rule 22(b) of the Mississippi Rules of A ppellate Procedure provides:
Issues which m ay be raised in post-conviction proceedings m ay also be raised on direct appeal if such issues are based on f acts f ully appare nt f

r om the record. W h ere the a

ppellant is represented by counsel who did not represent the appellant at trial, t he f ailure to raise such issues on direct appeal shall con s titute a waiver barring consideration of the issues in post-conviction proceedings. And the Mississippi Suprem e Court has held:
It is unus u a l f

o r [ an appellate c]ourt to consider a claim of inef f ective assistance of counsel when the claim is m ade on direct appeal. This is because we are lim i ted to t he trial c ourt record in our review of the claim [ ,] and there is usually insuf

f icient evidence within the r ecord to evaluate the claim

. . . . [ W ]here the record cannot support an inef f ective a ssistance of c o unsel claim on direct appeal, t he a

ppropriate conclusion is to deny r elief , p r e s e r ving the def endant’s right to argue the sam e issue through a petition f or post-conviction relief

. [ An appellate c]ourt will rule on the m erits on the r are occasions where (1) the record af

f irm at i v ely shows inef

f ectiveness of constitutional dim ensions, or (2) t he p arties s tipulate that the record is adequate to allow the appellate court to m ake t he f inding w i thout consideration o f the f indings of f act of the trial judge.
W ilcher v. State , 863 So. 2d 776, 8 25 (¶171) (Miss. 2 003) (internal c itations and quotations

om itted). ¶18. The record does not af f i rm atively indicate that Powell received inef f ective assistance of c onstitutional dim ensions

. N o r have both parties explicitly stipulated that the record is adequate t o allow us to m ake f i n d i n g s without considering a trial judge’s f indings of f

act. Gordon v. State , 977 So. 2d 420, 425 (¶9) (Miss. C t

. App. 2008). As a r esult, w e d ecline to address the m erits of t his issue. T hus, we dism iss Powell’s claim s under this heading without prejudice to his ability

to raise it in postconviction proceedings, if he chooses to do so.

7II. Designation of the Ex pert Witness

¶19. Next, P owell claim s that the trial c o urt abuse d its d iscretion i n a c cepting Gowen as an expert witness. ¶20. For expert testi mo n y t o b e a d mi t t e d a t t r i a l , the testim ony m ust conf orm to the requirem ents of

Mississippi Rule of

Evidence 702, which provides:
A witness who is qualif ied as a n e xpert by knowledge, skill, e xperience, training, or education m ay testif y in the f orm of an opinion or otherwise if : ( a) the expert’s s cientif

ic, technical, or other specialized knowledge will help the trier of f act to understand the e vidence or t o determ ine a f act in issue; ( b) the testim ony is based on suf f icient f acts or data; (c) the t estim ony is the product of reliable p r inciples and m ethods; and (d) the expert has reliably applied the principles and m ethods to the f acts of the case.
M

. R

. E

. 7 0 2

. E xpert testim ony , under Rule 702, m ust be both relevant and reliabl e . Corrothers v. State , 1 48 So. 3d 278 , 294 (¶24) (Miss. 2014). “Testim ony is reliable when it is ‘based upon on scientif ic f acts or data,’ is ‘the product of reliable principles and

m ethods,’ and when ‘ the witness has applied the principles and m ethods reliably to the f acts of the case.’” I

d

. at 295 (¶25). “[ T]he adm ission of expert testim ony is withi n t h e s o u nd discretion o f t h e t r i al judge.” Pickett v. State , 143 So. 3d 596, 604 (¶23) (Miss. Ct. App. 2013). Unless the d ecision was arbitrary and clearly e rroneous—am ounting to an abuse of discretion—the t rial judge’s decision will stand. Roberts v. G rafe Auto Co. , 701 So. 2d 1093, 1098 (Miss. 1997) (citing Seal v. Miller , 605 So. 2d 240, 243 (Miss. 1992)). ¶21. Here, Powell argues t hat G owen was not qualif i ed to testif

y as an expert, and because she was not qualif

ied, her testim o ny was unreliable. A s f o r h er q ualif ications, we f

ind that

8the circuit court did not err in f inding that Gowen was qualif ied to testif

y as an expert in the f ield o f f orensic interviewing. F irst, Gowen testif ied that she earned a b achelor’s degree in social work, a n d s h e w a s licensed as a social worker by the S tate of M ississippi. Second, Gowen testif

ied that s he h ad three y ears of experience working a s a f orensic interviewer, and had conducted over 300 interviews. Third, Gowen t estif ied that she had received training in the f orensic-interviewing protocols. And lastly , Gowen f urther testif

ied that she had been previously

accepted as an expert witness in Hinds County Youth Court. ¶22. Yet P owell takes i s s u e w ith the f act that Gowen was unable t o d istinguish between the various i nterviewing p rotocols: Child First, Corner House, and RATAC. Gowen testif ied that at t he tim e of Z.H.’s intervie w , t h e MCAC was u sing the RATAC—which was developing into Child First. And Gowen explained that the protocols h ad a l ot of sim ilarities, with very little dif

f erence between them

. W hat is m o re, Gowen testif ied that not only did she adhere to the RATAC protocol w hen she conducted Z.H.’s interview, b ut the i nterview was reviewed by

her supervisor. The record shows that Gowen testif ied—in detail—as to how she conduct e d the interview with Z.H., and she testif ied in detail as to what Z.H. told her. Af ter reviewing t he record, we f ind no indication that Gowen f ailed to r eliably apply the principles and m e thods of f orensic interviewing to the f acts of the case. Thus we f ind that the circuit court judge did not abuse his discretion in adm itting Gowen’s expert testim ony . This claim

is without m erit.
III. Denial of Motion for JNOV or New T r ial

9¶23. Lastly , Powell claim s t hat the circuit court e rred in deny i n g h i s m otion f or a JNOV or, in the alternative, a new trial. A m otion f or a JNOV challenges the legal suf f iciency of the evidence. Bush v. State , 8 95 S o . 2 d 8 3 6 , 8 4 3 (¶16) ( Miss. 2005). W hile on the other hand, a m otion f

or a new trial challenges the weight of the evidence. Id . at 844 (¶18). ¶24. In a rguing that the circuit court erred in deny ing his m otion f or a J NOV o r new trial, Powell relies not o n argum ents that challenge the legal suf f ici e n c y o f t h e evidence or the weight of the evidence. Instead, Powell’s argum ents u nd e r t h is i ssue a re related to his inef f ective-assistance-of

-counsel claim s. ¶25. W h ile t he circuit c ourt denied Powell’s m otion, we decline to delve into the m erits of this issue o n appeal, as we f ind that Powell’s m o tion was untim ely

. Unif orm Rule of Circuit and C ounty Court Practice 10.05 required t hat “a m otion f o r a n ew trial must be m ade within

ten day s of the entry of j udgm ent.” 6 (Em phasis added). As f

or a m otio n f

o r a JNOV, our suprem e court has held “that a m otion f or a J NOV, as it relates to a crim inal case, i s untim ely where f iled bey o nd the ten-day l im it f or a m otion f

or a n ew trial and bey ond the term of the court.” W

ell v. State , 73 So. 3d 1203, 1206 (¶5) ( Miss. Ct. A pp. 2011) (quoting McGraw v. State , 688 So. 2d 764, 770 (Miss. 1997)). ¶26. In this case, the record sh o w s t h a t P o w e l l’s judgm e nt o f conviction, though not

6 We n o t e th at th e U n if

o rm R u les o f C ircu i t an d C o u n ty C o u rt P r actic e n o lo n g er g o v ern crim in a l p ractice in M ississip p i, an d h av e b een r ep l aced b y t h e R u les o f C rim i n al P ro ced u re, ef

f ectiv e Ju ly 1 , 2 0 1 7

. B ecau se P o w ell’s m o t io n p r eced e d th is ch an g e, w e ap p ly R u le 1 0 .0 5 a n d th e acco m p an y in g p reced en t in th is c ase. T h e ru l e cu rren tly in f o rce, R u le 2 5 .1 (c), also in clu d es a ten -d a y d ead lin e. M R C rP 2 5 .1 ( c).

1 0explicitly titled a s such, was entered on Novem ber 12, 2 015. 7 Under th e U n i f o r m Rule of Circuit and County Court Practice 10.05, the ten-day tim e lim itation w as m easured f rom the date of convict ion. See Allen v. State , 200 So. 3 d 1100, 1101 (¶2) (Miss. Ct. App. 2016). And so, to be tim ely , Powell’s m otion f or a new trial would have needed to be f iled within

ten day s o f Novem

ber 12, 2015. I n s t e a d, however, Powell’s m otion was not f iled until
Decem ber 17, 2015—well past the ten-day r equirem e nt, and also outside of the term of the

court. 8 W arren C ounty ’s f irst Novem

ber 2015 term began o n Monday , Novem ber 2, 2015. The term lasted two weeks—ending on Novem ber 16, 2015. And so, the term of the court expired bef

ore t he t en-day lim it f

or f iling a m otion f

or a JNOV or, in the alternative, a new trial. This Court has held that the circuit court does not have any discretion to extend tim e lim its f or f iling a m otion f

o r a JNOV or new t rial. Ross v. State , 16 S o. 3d 47, 5 3 (¶7) (Miss. Ct. App. 2009). ¶27. Though the circuit court denied Powell’s m otion on the m erits, on appeal, we f ind that Powell’s m otion was untim e ly , a nd thus, should have b een d ism issed. A s such, we decline

to address the m e rits o f the circuit court’s denial of Powell’s m otion f or a JNOV or new trial. This issue is without m erit. CONCLUSION ¶28. U p o n r e v i e w o f t h e record, we f ind no m erit t o any of the issues r aised o n appeal

.

7 P o w ell’s j u d g m en t o f co n v ictio n w as titled “ O rd er J u ry V erd ict a n d P re-S en ten ce In v estig atio n .”

8 S ee S tate o f

M ississip p i Ju d icial D i recto ry an d C o u rt C alen d er (2 0 1 5 ). 1 1Theref

ore, we af f irm the judgm ent of

the circuit court. ¶29. AFFIRMED. LEE, C .J., IRVING AND GRIFFIS, P.JJ., C ARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

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