IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00838-COA RODERICK TAYLOR A/K/A RODRICK TAYLOR A/K/A RODERICK KENYATTA TAYLOR SR. A/K/A GEORGE WILSON A/K/A RODERICK FLINSTONE TAYLOR A/K/A RODERICK K. TAYLOR A/K/A RODERICK KENYATTA TAYLOR A/K/A RODRICK K. TAYLOR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/18/2017 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/22/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, C.J., WILSON AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Roderick Keny atta Tay lor w as charged with aggravated dom estic violence, which is

a charge f or assault under Mississippi Code Annotated section 97-3-7(4) ( Rev. 2 014), in the Circuit C ourt of Hinds C ount y . Tay lor’s f irst jury trial resulted i n a m istrial; however, Tay lor’s second trial resulted in a conviction. Tay l or was sentenced to lif e without eligibilityf

or p arole as a h a

bitual o f f ender in the custody o f the Mississippi Departm ent of Corrections (MDOC). Tay lor f

i led a m otion f

or a judgm ent notwithstanding the verdict (JNOV), or in the alternative, f

o r a new trial, which the trial court d enied. Tay lor appeals. Af ter our review of the record, we af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Af ter attending to a m otor-vehicle accident on Bailey Avenue, o n Janua r y 8 , 2 0 1 6 , Jackson Police Of

f icer Sam D ukes noticed Melanie W a ddell nearby

. Of f i cer Dukes testif

ied that dispatch notif

ied him of a white f

em ale i n distress i n that particular area. Of f icer Dukes approached W addell and noticed that she w as in disarray , sweating prof usely , and b a dly bruised. W addell inf

orm ed Of

f icer Dukes t h a t s h e had been i nvolved in a phy sical altercation with her husband, Tay lor. ¶3. An am

bulance arrived t o transport W addell to the hospital f or treatm ent. W hile there,
W a ddell was questioned by D etective E llas Thom as. Detective Thom as testif ied that
W a ddell inf

orm ed her that Tay lor had beaten her because she was leaving h im and f iling f or

a divorce. W addell also inf o rm ed Stepha n i e H o r n, a crim e-scene investigator with the Jackson Police Departm ent, that Tay lor had beaten h er with a pole or wall l evel, kicked her, and h it her in the f

ace. W addell also m aintained that several o f her injuries were sustained while Tay lor was beating her in a car. ¶4. W h ile being questioned by the police, T a y lor a d m itted to being involved in a phy s ical altercation w ith W addel l

. T ay lor was arrested a nd charged w ith aggravated dom estic

2violence. At the f irst trial, W a ddell m ain t a i n e d t h a t s he was assaulted by two wom en in a park a nd not by Tay lor. Although Tay lor’s f irst trial r esulted in a m istrial, Tay l or’s second trial resulted in a conviction. Subsequently , Tay l o r f iled a JNOV m otion, or in the alternative, f

or a new trial, which the trial court denied. Tay lor appeals.

DISCUSSION I. Adm issibility of Prior Bad-Acts Evidence ¶5. Tay lor asserts that the trial court e r r e d i n a d m i tting evidence of his p rior bad acts under Mississippi Rule of Evidence 404(b) through the t estim o ny of L ona Clay , h is f orm er p a ram our, and through the State’s closing argum ent. “Our w ell-established s tandard o f review f or the trial court’s adm ission or suppression of evidence, i ncluding expert testim ony , is abuse of d iscretion.” Tunica County v. Matthews , 926 So. 2d 209, 2 12 (¶5) (Miss. 2006) (citing Miss. Transp. Comm’n v. McLemore , 863 So. 2d 31, 34 (¶4) (Miss. 2003)). ¶6. Rule 404(b) provides that: [ e]vidence of other crim es, wrongs, or acts is not adm issible to prove the character of a person in order to show that he acted in conf orm ity therewith. It m ay , h o w e v e r, be adm issible f or other p urposes such as proof of m otive, opportunity , intent, preparation, plan, knowledge, identity , or a b s ence of m istake or accident. M.R.E. 404(b).

A. Lona Clay’s Testimony ¶7. Af ter Clay ’ s testim ony was prof f ered, Clay stated that she and Tay lor were involved in a relationship until she discovered that Tay lo r w as m arried. Af t er she broke of

f their

3relationship, Clay testif i ed that Tay lor broke a window, e ntered her ho m e , a nd violently attacked her. T ay lor was lat e r c o n victed o f aggravated dom estic violence. The State

m aintained that Clay ’s testim ony w ould only be of f ered to prove m otive, preparation, or plan under Rule 404(b). T he trial court agreed and r e l i e d o n our suprem e court’s decision in Johnson v. State , 204 So. 3d 763 (Miss. 2016). In Johnson , the suprem e court reversed this Court’s ruling and h e ld the def e n d a n t’s prior bad acts were adm issible under Rule 404(b) because they “ showed ‘intent, m otive, and plan’ because the prior assaults all were against

wom en, where he was the aggressor and he had initiated the contact.” Id

. at 769 (¶17). ¶8. Tay lor a rgues that the trial court’s application of Johnson is incorrect because he did
not claim self

-def e nse like the def

endant in Johnson

. How e v e r , t h e trial court h ere and in Johnson f o und that other noncharacter purposes had been g iven to support the adm ission of prior bad-acts evidence under Rule 404(b). ¶9. Clay testif

i ed that once she r e

j e c t e d T a y l o r, he becam e violent. Clay ’s testim ony evinced a m otive, intent, and a plan. Detective Thom a s testif ied that W addell s tated that she

was f iling f or a divorce f

r om Tay lor. As a res u l t , T ay l or becam e upset and violent with
W a ddell. Accordingly , we f ind that the record r ef

lects that the State introduced the prior bad acts f or noncharacter purposes to show m otive, intent, and a com m on schem e or plan. ¶10. But, Tay lor m a intains that Clay ’s testim ony w as of f ered to show hi s p r o p e n s i t y to

com m it the a ct versus noncharacter purposes. Our suprem e court h as ruled that the f act that evidence was of

f ered f o r noncharacter purposes but b ore som e ref lection on the def

endant’s

4character did not bar its a dm issibility u nder Rule 404(b). See Green v. State , 89 So. 3d 543,

550-51 (¶17) (Miss. 2012); see also Gore v. State , 37 So. 3d 1178, 1187 (¶21) (Miss. 2010) (f i nding no abuse of discretion in adm itting evidence of prior bad acts u nder the Rule 404(b) exceptions where the evidence presented f acts that were substantially sim ilar to the case at hand). ¶11. Additional l y , T a y l o r contends that even i f the prior bad acts were a dm issible under Rule 404(b), their probative value was outweighed by their prejudicial ef f ect u nder Rule 403. “Mississippi Rule of Evidence 4 03 g i v e s t h e trial court the discretion to prevent the adm ission of otherwise relevant evidence ‘if its probative value is substantially outweighed by the danger of unf

a ir prejudice, conf

usion of t h e i s s u e s , o r m isleading the jury , or by

c o n siderations of undue delay , w aste of t im e, or needless presentation of cum ulativ e evidence.’” Johnson , 204 So. 3d at 769 (¶18). ¶12. Here, we f

ind that the trial court correctly applied Rule 403 to the prior-acts evidence. The trial court f

ound that Clay ’s testim ony was very a kin to what happened in this case and that the p robative value of Clay ’s testim ony was not substantially outweighed by the danger of unf air pre j u d i c e , n o r was it conf

using o r m isleading to the jury

. The trial judge also instructed the jury that Clay ’ s testim ony was adm itted to show a m o tive, intent, o r a plan. Accordingly , we f

ind no error.
B. State’s Closing Argument ¶13. Tay lor m aintains that he was denied a f air trial b ecause of p rosecutorial m isconduct

5during closing argum ent. Tay lor alleges that the prosecutor’s statem ent during her closing

argum ent adm itted im

proper character evidence. ¶14. The f

ollowing is an excerpt f

rom the State’s closing argum ent: Detective Thom as testif

ied that the m otive f

or this assault was that Mr. Tay l or had f ound out that Ms. W addell h ad b een seen in a car on New Years Day with her ex-boy f

riend. That Ms. W addell was try i ng to leave Mr. Tay l or. W h ether she was f

i ling f or divo rce, or already f

iled f or divorce, that is what Ms. W addell told the detective.
He f ound out a

bout that, and he v i o l e n t l y attacked her. H e beat her because o f t h a t

. And in that m o m ent when she was cry ing and f rantic, a nd it just happened, she didn’t have tim e t o com e up with this story about these wom en. She didn’t have tim e t o think about all of that. She needed help. All she had tim e to do was get help, tell the police what she needed to d o to get help; t o get away f rom her abuser.
A n d we a lso know that he reacts l ike this of ten or has bef

ore. Becau s e y o u heard the testim ony

of Ms. Lona Clay

. ¶15. Tay lor then objected and stated that the State’s l ast com m e n t was im proper character evidence. The State m aintained that the statem ent r egarding Tay lor’s reactions went toward his plan was to attack W addell and the def ense interrupted bef

ore that point could be m ade. The trial court overruled the objection and f ound that the S tate’s argum ent was a ppropriate. ¶16. The Suprem e Court has long held that “the prosecutor[ ’ ]s rem arks a re viewed in light of the entire trial.” H

a v a r d v
. S tate , 928 S o. 2d 771, 791 (¶35) (Miss. 2006). Af ter reviewing the record, we cannot f ind that the actions of th e State constituted prosecutorial

m isconduct. The trial court f ound that Clay ’ s testim ony was adm issible under Rule 404(b).

6As a result, the r ecord ref lects that the State sim

ply reiterated the point that Clay ’s evidence was adm itted to show “intent, m otive, and plan” t o attack W a ddell f o r threatening to leave him . Theref

ore, this issue is m eritless.
II. Leslie Pay ne’s Ex pert Testim ony ¶17. Tay lor also m aintains that the trial court erroneously adm itted the testim ony of Leslie Pay ne as an expert in d om estic violence. Tay lor a sserts that Pay ne was n ot properly qualif ied

as an expert under Dauber t 1 a n d M cLemore and that her testim ony was irrelevant because it was not connected f

actually to the case. W e have p reviously held that “the adm ission of expert t estim ony is governed by R u le 702 of the M ississippi R u les of E vidence and [ caselaw], specif

ically M ississippi Transportation Commission v. McLemore , 863 So. 2d 31 (Miss. 2 003).” Carter v. State , 996 So. 2d 112, 1 16 ( ¶13) (Miss. Ct. App. 2008). Rule 702
states: If s ci e n t i f

i c, technical, or other specialized k nowledge will a s sist the trier of f act to understand the evidence or to determ ine a f act in issue, a wi t n ess qualif ied as an expert by knowledge, skill, experience, training, o r education, m ay testif y thereto i n the f

orm of an opinion or otherwise, if (1) the testim ony is b ased upon s u f

f i cient f acts or data, (2) the testim ony is the product of reliable principles and m ethods, and (3) the witness h as applied the principles and m ethods reliably

to the f acts of the case. M.R.E. 702. ¶18. M o reover, “the adm ission of expert testim ony is within the sound d iscretion of th e trial judge.” Ca r t e r , 9 9 6 So. 2d at 116 (¶13) (citing McLemore , 863 So. 2d at 34 (¶4)).

1 D a u b ert v. M

errell D o w P h a rm a ceu tica ls In c. , 5 0 9 U

. S . 5 7 9 (1 9 9 3 )

.

7“Theref

ore, the decision of a trial judge will stand unless we conclude that the decision was arbitrary and clearly erroneous, a m ounting to an abuse of d iscretion.” Id. (internal quotation

m arks om itted). ¶19. “[ T]he trial court m u s t [ a lso] engage i n a two-pronged inquiry , determ i ning whether the expert testim o ny rests on a reliable f oundation and is relevant to the m a tter.” W orthy v. McNair , 37 So. 3d 609, 6 15 ( ¶16) (Miss. 2010) (em phasis o m i t t e d ). Furtherm ore, “[ r]egarding the ‘reliability ’ prong

. . . the testim ony m ust be grounded in the m ethods and procedures of science, not m erely a subjective b elief or unsupported s peculation.” Id

. (citing
McLemore , 863 So. 2d at 36 (¶11)); see also Daubert v. M errell Dow Pharm. Inc. , 509 U.S. 579, 590 (1993). ¶20. During th e D a u b e rt 2 hearing, Tay lor objected to Pay ne’s q ualif ication a s an expert witness because she h ad insuf f icient c ontact with W addell and Tay l or to render an opinion.
But it also appears f

rom the record that Tay lor did not think that Pay ne had enough experience and training to be accepted as an expert witness in the trial court. ¶21. Pay

ne is the executive director o f the Care Lodge Violence Shelter and h as worked with dom estic-violence v i ctim s f or 24 y ears. Pay

ne testif i ed that sh e h as w orked with between 8,000 a nd 10,000 dom estic-violence victim s and that she was t r a i n e d i n using a nationally recognized educational m odel f or m e n w h o b a t t e r wom en. Pay ne has an

2 T h e trial co u rt n o ted th at a f u ll D a u b ert h earin g w as n o t co n d u c ted an d n o ted th at “a f u ll-scale D a u b ert h earin g is n o t req u ired w h en an e x p er t w i tn ess p ro f f ers an ‘o f f -th e-cu f f ’ o p in io n . . . .” E d

m o n d s v. S ta te , 9 5 5 S o . 2 d 7 8 7 , 7 9 2 (¶1 0 ) (M iss. 2 0 0 7 )

. 8undergraduate d e g r e e i n c r i m i n a l j u s t ice and a Master’s degree in counseling and p sy chology

.

Pay ne was al s o q u a l if

ied to testif

y once bef

ore as a dom estic-violence expert in the Tribal Court of Neshoba County

. ¶22. T h e trial court a ccepted P ay ne as an expert witness. But, Pay ne’s test i m o n y w a s lim ited to theories regarding dom est i c abuse, wom en com m o nly r ecanting, and the relationship between victim s and their abusers. 3 The trial c ourt f ound that Pay

ne’s testim ony

was relevant and was based on W addell’s recantation o f her story that Tay lor was her

a t t a c k e r . F urther, Pay

ne r eviewed the transcripts and police reports f rom the trials. The Mississippi Suprem e Court has held that “[ a]n opinion is based on ‘scientif ic, t echnical, or other specialized knowledge’ if ‘the witness m ust possess som e experience or expe r t ise bey ond that of the average random ly selected adult’ to express the opinion.” C haupette v. State , 136 So. 3d 1041, 1046 (¶8) (Miss. 2014). Theref o re, Tay lor’s argum ent that Pay ne’s expert o pinion should not be accepted because she did not m e e t with W a ddell or Tay lor is incorrect. “Like the Federal Rules, our rules g rant wide latitude f or experts to give opinions

even when the opinions are n ot b ased on the expert’s f i rsthand knowledge or observations.”
McLemore , 863 So. 2d at 39 (¶23). ¶23. Accordingly , w e f

ind that the trial court properly accepted Pay ne as an expert witness and l im ited her t estim ony to whether victim s later recant their stories. Theref o re, we f ind no

3 T h e trial co u rt also d e term in ed th at P ay n e c o u l d n o t testif

y th at Wad d ell su f

f ered f ro m “B attered Wo m an ’s S y

n d ro m e” b ecau s e sh e h ad n o t sp o k en w ith Wad d e ll an d th ere w a s n o t en o u g h o f

a f o u n d atio n to ap p l y

th at th eo ry t o Wad d ell. 9abuse of

discretion. ¶24. As a result, w e a f

f irm the denial of Tay lor’s JNOV m otion or m otion f or a new trial. ¶25. AFFIRMED. G R I FFIS, C.J., BARNES AND CARLTON, P.JJ., WILSON, GREENLEE A N D TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND M cCARTY, J J., NOT PARTICIPATING.

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