source: Caselaw Access Project

author: RANDOLPH, Justice, GRAVES, Justice,

license: Public Domain

text:
    Kimble Peter SMITH v. STATE of Mississippi.
    No. 2003-KA-00550-SCT.
    Supreme Court of Mississippi.
    March 30, 2006.

      Thomas P. Welch, Jr., attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. On May 23, 2002, Defendant-Appellant Kimble Peter Smith was indicted in Pike County, Mississippi on Count I of sexual battery under Miss.Code Ann. Section 97 — 3—95(l)(c) and Count II of touching and handling a child for lustful purposes under Miss.Code Ann. Section 97-5-23. On February 26, 2003, Smith was convicted on all charges by a jury in the Pike County Circuit Court and sentenced to thirty (30) years imprisonment on Count I and twenty (20) years imprisonment on Count II, to run consecutively. Thereafter, Smith filed a motion for a new trial or in the alternative a judgment non obstante veredicto, which was denied. Smith then filed a notice of appeal with this Court on March 11, 2003. On appeal, Smith argues the verdict was against the weight and sufficiency of the evidence; that the trial court erroneously failed to declare a mistrial; and that the trial court erred in its admission of expert witnesses.

FACTS

¶ 2. On December 21, 2001, Kimble Peter Smith, along with his two young daughters, arrived at the home of Joan and Karen Doe. Joan was fifteen (15) years old at the time, while Karen was eleven (11) years old. Joan and Karen’s father was barbecuing, and Smith came and introduced himself as a friend of Joan and Karen’s uncle. After Smith stated he was going to Wal-Mart; Joan and Karen’s father gave them money and allowed them to accompany Smith and his two young daughters. Karen testified that, upon entering the car, Smith told her and Joan that “whatever goes on in this car stays in this car.”

¶ 3. On the way to Wal-Mart, Smith stopped at a gas station, let Joan and Karen out, and drove away. Approximately thirty minutes later he returned without his young daughters, picked Joan and Karen up, and proceeded to Wal-Mart. Karen exited the vehicle upon arriving at the Wal-Mart parking lot, but Smith then quickly locked the doors and drove off with Joan.

¶4. At trial, Joan testified that Smith took her to a secluded gravel road and ordered her out of the vehicle. Joan testified that Smith then kissed her neck, fondled her breasts, and inserted his finger into her vagina. Smith then ordered Joan to get back into the vehicle and take off her clothes, but she refused. Following her refusal, Smith forced Joan to touch his penis, but after she began crying he stopped and drove her back to Wal-Mart.

¶ 5. At Wal-Mart, Smith gave Joan twenty (20) dollars, with which Joan bought a CD player, and shared the remainder with Karen who purchased a jogging suit. After leaving Wal-Mart, Smith stopped at a nearby mall so Joan could buy batteries for the CD player, leaving Karen alone in the vehicle with Smith. Karen testified that Smith then crawled into the back seat with her. He began describing a game of “hide-and-seek” where “you had to listen to [one person] and do whatever he say [to] do.” Thereafter, Smith began touching her on the thigh, and Karen slapped his hand. Smith then warned Karen that if she slapped him again, “it was going to be worser.” At that moment, however, Joan was walking toward the vehicle, and Smith returned to the driver seat. He then asked the girls if they would like to go play “hide-and-seek,” but when they refused he took them home.

¶ 6. At trial, Joan, Karen, and their aunt all testified that following the date of the incident, Smith repeatedly drove through their neighborhood. Beth Doe, the aunt of Joan and Karen, testified that Smith drove through the neighborhood ten or fifteen times over the course of the day “almost every other day.” On the way to school on January 2, 2002, Karen noticed Smith’s vehicle following the vehicle occupied by Joan and Karen. Upon arrival at the school, Karen told her teacher, who then directed her to principal Alonzo Dillon. Karen told Dillon about being followed by Smith and the events of the day when she and Joan went with Smith to Wal-Mart. Dillon then notified the police. Subsequently, Officer Randy Perryman interviewed Joan and Karen and began an investigation.

¶ 7. At trial, Principal Dillon testified that, “I don’t know if they told me everything, but what they told me, I felt they were telling me the truth.” Officer Perry-man testified that during the entire investigation he never came across any information that conflicted with what the girls were telling him. Joan and Karen were also interviewed respectively by Keith Sto-vall and Bente’ Hess of the Children’s Advocacy Center, who were offered as expert witnesses in the field of forensic interviews in child sexual abuse cases. Stovall opined Joan’s statements were “very consistent and credible with a victim of sexual abuse.” Hess opined that Karen “was highly credible ... she didn’t appear to be fabricating, and she was very consistent with her statement each time.”

¶ 8. On February 26, 2003, Smith was convicted on all charges by a jury in the Pike County Circuit Court and sentenced to thirty (30) years on Count I of sexual battery under Miss.Code Ann. Section 97-3-95(l)(c) and twenty (20) years on Count II of touching and handling a child for lustful purposes under Miss.Code Ann. Section 97-5-23, to run consecutively. Thereafter, Smith filed a motion for a new trial or in the alternative a judgment non obstante veredicto, which was denied. Smith appeals.

ANALYSIS

¶ 9. Smith raises three issues on appeal. First, he argues the jury verdict was against the overwhelming weight and sufficiency of the evidence. Second, he asserts the trial court’s failure to declare a mistrial for the improper viewing of a videotape was reversible error. Third, he contends the trial court’s determination that Keith Stovall and Bente’ Hess were expert witnesses in the field of forensic interviewing amounted to reversible error.

I. Whether the jury verdict was against the overwhelming weight and sufficiency of the evidence

1. Sufficiency of the Evidence

¶ 10. The standard of review for a post-trial motion, like a motion for judgment non obstante veredicto, is abuse of discretion. See Brown v. State, 907 So.2d 336, 339 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (Miss.2003)). The key inquiry is whether the evidence shows “ ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Brown, 907 So.2d at 339 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In other words, the question to be answered, viewed in the light most favorable to the prosecution, is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Brown, 907 So.2d at 339 (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original)). Assuming arguendo that this Court may believe the evidence at trial failed to establish guilt beyond a reasonable doubt, this is, nevertheless an insufficient basis for reversal. See Brown, 907 So.2d at 339. As long as “ ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ [then] the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 11. Smith argues that only Joan and Karen could prove that he perpetrated any wrongs, and their testimony was inconsistent. Moreover, he asserts there was no physical evidence supporting their testimony.

¶ 12. In response, the State maintains that both Joan and Karen recounted the events in detail on numerous occasions, including at trial, and those details were uniformly consistent. Principal Dillon and Officer Perryman found the girls statements to be consistent and credible. The trial court found the information which Dillon and Perryman received from the girls, and upon which they based their testimony, was admissible under Miss. R. Ev. 803(25), the “tender years” exception to the hearsay rule. Miss. R. Ev. 803(25) states:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness....

Miss. R. Ev. 803(25). The trial court stated, “[tjhere were no suggestive techniques used. There is nothing about the age or knowledge or the experience to indicate that they fabricated this ... there is sufficient indicia of reliability to qualify them for admission, the statements made to Officer Perryman and the statements made to [PJrincipal Dillon.” The requirements of Miss. R. Ev. 803(25)(b)(1) were satisfied, as both girls testified at the trial.

¶ 13. Moreover, because they testified at trial, the statements of the girls are arguably not hearsay under Miss. R. Ev. 801(d)(1)(B) which provides:

A statement is not hearsay if: ... (1) ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....

Miss. R. Ev. 801(d)(1)(B).

¶ 14. Expert witnesses from the Southwest Mississippi Children’s Advocacy Center also found the girls statements to be consistent and credible. Keith Stovall testified Joan’s statements were “very consistent and credible with a victim of sexual abuse.” Bente’ Hess testified that given the detail, consistency, and clarity of Karen’s statements, “her interview was highly credible.” The only discrepancy which Hess observed in Karen’s statements regarded when the incident occurred. However, Hess further testified that trouble in accurately placing dates is not unusual in children of Karen’s age group.

¶ 15. The question to be answered, viewed in the light most favorable to the prosecution, is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Brown, 907 So.2d at 339 (citing Jackson, 443 U.S. at 315, 99 S.Ct. 2781). Joan’s testimony was that Smith kissed her neck, fondled her breasts, and put his fingers into her vagina. Such conduct clearly constitutes sexual battery under the provisions of Miss.Code Ann. Section 97-3-95(l)(c). Karen’s testimony was that Smith propositioned her to play a deviant game of “hide-and-seek” and began touching her on the thigh. This conduct clearly constitutes touching and handling a child for lustful purposes under the provisions of Miss.Code Ann. Section 97-5-23. Therefore, a rational trier of fact could find the testimony of Joan and Karen, which was corroborated by their prior statements to the elementary school principal, an investigating officer, and experts in the field of child sexual abuse, all of whom interviewed the girls, was sufficient to establish beyond a reasonable doubt that the accused committed the acts charged and that the essential elements of each count were established beyond a reasonable doubt. As the evidence is sufficient to support the conviction, this argument is without merit.

2. Weight of the Evidence

¶ 16. “A motion for new trial challenges the weight of the evidence. A x*eversal is warranted only if the lower court abused its discretion in denying [the motion].” Howell, 860 So.2d at 764 (quoting Edwards v. State, 800 So.2d 454, 464 (Miss.2001)). “A greater quantum of evidence favoring the [S]tate is necessary for the [S]tate to withstand a motion for a new trial, as distinguished from a motion for j.n.o.v.” Pharr v. State, 465 So.2d 294, 302 (Miss.1984). However, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). In reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court will disturb a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. “Though the standard of review in such cases is high, ‘[t]his Court has not hesitated to invoke its authority to order a new trial and allow a second jury to pass on the evidence where it considers the first jury’s determination of guilt to be based on extremely weak or tenuous evidence [,] even where that evidence is sufficient to withstand a motion for a directed verdict.’ ” Dilworth v. State, 909 So.2d 731, 737 (Miss.2005) (quoting Lambert v. State, 462 So.2d 308, 322 (Miss.1984) (Lee, J., dissenting) (citations omitted)).

¶ 17. In this case, the corroborated testimony of Joan and Karen provided a sound basis for the jury’s determination of guilt. As such, the jury’s verdict was not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844. Therefore, this argument is without merit.

II. Whether the trial court’s failure to declare a mistrial for the improper viewing of the videotape was reversible error?

¶ 18. A videotape of an interview with Karen was shown to the jury. In that videotape, Karen was asked whether she had any knowledge of Smith committing similar offenses with other children. In a discussion outside the jury’s presence, it was agreed among the parties that this portion of the videotape would be edited out before the videotape was viewed by the jury. At trial, however, the videotape was played, and that portion had not been edited out. While the question itself was heard by the jury, the tape was stopped before Karen’s answer was heard. Defense counsel moved for a mistrial, but that motion was overruled by the trial judge. However, the trial judge did admonish the jury to disregard the question and to refrain from drawing any inferences from it one way or the other. The jury affirmatively agreed to do so.

¶ 19. On appeal, Smith argues he was prejudiced by the unsubstantiated prior bad act question and, therefore, his motion for mistrial should have been granted. He alleges that when the question was posed and defense counsel objected, the jury was clearly informed of what the answer to the question was. As a result, he asserts the trial court’s failure to grant the motion for a mistrial was reversible error.

¶ 20. Conversely, the State argues the incident was entirely inadvertent and the tape was stopped before the jury heard the response. Moreover, the State asserts that the trial judge instructed the jury to disregard the objectionable question, in spite of the fact that no answer was heard, and that such an instruction cured any potential prejudice which may have arisen. Finally, the State contends that even if the response had been heard, the trial judge followed the proper remedial steps, such that even then the incident would not have risen to the level of reversible error.

¶ 21. In Mitchell v. State, 539 So.2d 1366, 1372 (Miss.1989), this Court found that under Mississippi Rule of Evidence 404(b) evidence of other sexual relations should be limited to those “between the defendant and the particular victim.” To do otherwise would be “[inconsistent] with the notion that a defendant is on trial for a specific crime and not for generally being a bad person.” Id. In this case, however, the issue is whether any such evidence was actually introduced. The trial judge found it was not since Karen’s answer to the question was not heard by the jury. As a result, the trial judge overruled defense counsel’s motion for a mistrial. Furthermore, the trial judge admonished the jury to disregard the objectionable question, which they affirmatively agreed to do. The trial judge has broad discretion in declaring a mistrial. See Washington v. State, 800 So.2d 1140, 1143 (Miss.2001). “When an objection is sustained and a jury is admonished to disregard, an appellate court will not often overturn a trial court’s discretionary decision to deny a motion for a mistrial.” Lockridge v. State, 768 So.2d 331, 339 (Miss.Ct.App.2000) (citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996); Wright v. State, 540 So.2d 1, 4 (Miss.1989); Marks v. State, 532 So.2d 976, 982 (Miss.1988)). While a claim of prosecutorial misconduct can be a consideration in determining whether an exceptional situation exists as to justify overturning the trial judge’s discretionary decision, this case fails to present such a quandary. The incident at issue amounted to an inadvertent mistake in failing to properly edit the tape, combined with the video equipment malfunctioning. In the end, however, all the jury heard was the question. The trial judge, in exercising his discretion, found that alone was insufficient to justify granting the defendant’s motion for mistrial. This Court finds the trial judge properly exercised his discretion, and such discretion ought to be granted deference. Therefore, this issue is without merit.

III. Whether the trial court’s determination that Keith Stovall and Bente’ Hess qualified as expert witnesses in the field of forensic interviewing was reversible error?

¶ 22. Smith argues that the State improperly used the expert opinions of Sto-vail and Hess as “human polygraphs.” Essentially, Smith asserts that while the court would never permit the defense to enter a polygraph result showing that Smith was telling the truth, see Carr v. State, 655 So.2d 824, 836 (Miss.1995) (“Mississippi law clearly states that polygraph tests and their results are inadmissible .... ”), that is what the State is allowed to do via the expert opinions of Stovall and Hess.

¶ 23. The State counters by asserting that the trial court properly determined that Stovall and Hess were qualified to offer expert testimony in their specialized field and that their testimony would aid the jury in understanding the facts and issues of the case. Moreover, “‘[a] trial judge’s determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion.’ ” Logan v. State, 773 So.2d 338, 346-47 (Miss.2000) (quoting Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss.1999)).

¶ 24. After the State examined him on his qualifications, without objection, Sto-vall, a forensic interviewer for the Southwest Mississippi Children’s Advocacy Center, was tendered as an expert in the field of forensic interviews in child sexual abuse cases without objection. He testified that, “[his] job is not to prove or disprove sexual or physical abuse, but to obtain whether it happened, to obtain the information from the child and to assess that child’s credibility.” In making that determination, he followed a protocol for creating a comfortable environment for children during the interview, “RATAC”, and a separate protocol for judging the truthfulness and accuracy of the child’s statements during the interview, “CCAAC”. After applying that methodology, Stovall opined that Joan’s statements were “very consistent and credible with a victim of sexual abuse.” At trial, Smith did not object to Stovall’s testimony regarding Joan’s consistency and credibility.

¶ 25. Hess, the executive director of the Southwest Mississippi Children’s Advocacy Center at the time of the incident, was also tendered as an expert after presenting her qualifications. The parties stipulated that she was an expert in the field of forensic interviewing. She explained her role as a forensic interviewer was designed “to make sure that the child is accurately telling what they have experienced.” Hess opined, “I felt like her interview was highly credible. I mean, she was able to give details about where they were, who was there, what she was wearing, what took place, and she didn’t appear to be fabricating, and she was very consistent with her statement each time.” The only discrepancy Hess observed in Karen’s interview was when the incident occurred. However, Hess opined, “children just have trouble with times and dates traditionally.” As such, that variance did not alter Hess’s opinion that Karen’s statements were exceedingly credible. Smith did not object to Hess’s testimony regarding Karen’s credibility.

¶ 26. Mississippi Rule of Evidence 103(a)(1) states that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (l)[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. ...” Miss. R. Ev. 103(a)(1) (emphasis added). In this case, Smith neither objected to Stovall or Hess being offered as experts in the field of forensic interviewing in child sexual abuse cases, nor objected to their opinions regarding the consistency and credibility of Joan and Karen’s respective statements. In fact, Smith went so far as to stipulate to Hess being an expert. “Because these arguments are not preserved for appeal, this Court cannot reverse based upon them. The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.” Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994) (citations omitted). See also Jackson, 743 So.2d at 1016.

¶ 27. Notwithstanding the procedural bar, Miss. R. Ev. 104(e) states, “[Rule 104] does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.” Miss. R. Ev. 104(e). Although this Court has never explicitly held that a direct comment on a child sex abuse victim’s veracity is reversible error, it has referenced other jurisdictions that find such comments are inadmissible. See Griffith v. State, 584 So.2d 383, 386-87 (Miss.1991). These courts have found such testimony usurps the traditional role and function of the jury by giving the jury the expert’s opinion on how the case should be decided, see State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986); State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986); Holloway, 347 S.E.2d at 73-74, or does not pass the test for admissibility because it does not assist the jury. See State v. Friedrich, 135 Wis.2d 1, 16, 398 N.W.2d 763, 770 (1987); Holloway, 347 S.E.2d at 73. But see Jones v. State, 606 So.2d 1051, 1057-58 (Miss.1992) (“In Goodson v. State, 566 So.2d [at] 1142 ... we said there is no reason to believe an expert’s opinion as to the truthfulness of a child is any more admissible than the results of a lie detector test, and noted that a majority of courts preclude such testimony.... To the extent that Dr. Hampton’s testimony may have been an opinion of M.J.’s truthfulness, allowing it was error. ... The admission of this testimony was error, but it was harmless error ....”) (emphasis added); Jackson v. State, 743 So.2d 1008, 1016-17 (Miss.Ct.App.1999) (offering an example of testimony which did not constitute a direct opinion on the child’s veracity).

¶ 28. First, this Court must determine whether the statements of the victim recounted by a witness are hearsay vel non, and if hearsay, do they fit within a hearsay exception. An analysis of the Mississippi Rules of Evidence leads us to the conclusion that the statements of the girls are not hearsay. Miss. R. Ev. 801(d)(1)(B) provides:

A statement is not hearsay if: ... (1) ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....

Miss. R. Ev. 801(d)(1)(B). The girls testified at trial, and Smith suggested that their testimony was of recent fabrication and accordingly inconsistent with prior statements. Because the girls testified, the statements are not hearsay by rule. See also Jones, 606 So.2d at 1059.

¶ 29. Recognizing that Miss. R. Ev. 801(d) applies only in limited situations and that the trial court allowed the introduction of evidence on a different basis, we shall also consider the applicability of Miss. R. Ev. 808(25), the “tender years” hearsay exception. Under Miss. R. Ev. 803(25):

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness....

Miss. R. Ev. 803(25). As both Joan and Karen testified at trial, the sole issue is whether the “time, content, and circumstances of the statement provide substantial indicia of reliability....” Miss. R. Ev. 803(25). “If this exception is applied in a criminal case, the rights of the defendant under the Confrontation Clause of Federal and State Constitutions must be respected. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).” Comment to Miss. R. Ev. 803(25). This requires the statements to be accompanied by “ ‘particularized guarantees of trustworthiness’ under the Confrontation Clause.” Wright, 497 U.S. at 822, 110 S.Ct. 3139. Factors to be considered in making that determination include:

(1) whether there is an apparent motive on the declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declar-ant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

Comment to Miss. R. Ev. 803(25). The trial court found, with respect to the statements made by the girls to Principal Dillon and Officer Perryman, that “there is sufficient indicia of reliability to qualify them for admission.... ” Therefore, whether the statements were admitted under Miss. R. Ev. 801(d)(1)(B) or 803(25) is of no consequence, as the statements are admissible.

¶ 30. We would be remiss if we failed to address the valid concerns raised in Justice Graves’ separate opinion. In State v. Lindsey, the Arizona Court stated:

[t]he trial judge has discretion to allow ... expert testimony [on the behavior patterns of child sexual abuse victims] where it may assist the jury in deciding a contested issue, including issues pertaining to accuracy or credibility of a ■witness’ recollection or testimony.... The trial judge may exercise this discretion where there is a reasonable basis to believe that the jury will benefit from the assistance of expert testimony that explains recognized principles of social or behavioral science which the jury may apply to determine issues in the case.... We cannot assume that the average juror is familiar with the behavioral characteristics of victims of child molesting. Knowledge of such characteristics may well aid the jury in weighing the testimony of the alleged child victim. Children who have been the victims of sexual abuse or molestation may exhibit behavioral patterns (e.g. recantation, conflicting versions of events, confusion or inarticulate descriptions) which jurors might attribute to inaccuracy or prevarication, but which may be merely the result of immaturity, psychological stress, societal pressures or similar factors as well as of their interaction. Jurors, most of whom are unfamiliar with the behavioral sciences, may well benefit from expert testimony of the general type offered in the present case....

Lindsey, 720 P.2d at 74-75 (emphasis added).

¶ 31. At the same time, it is incumbent on the trial judge to ensure that certain lines are not crossed by the expert. As the Lindsey Court observed, “[i]t is not the expert’s function ... to substitute himself or herself for the jury and advise them with regard to the ultimate disposition of the case.” Id. at 76. Lindsey is distinguishable, however, because in that case the expert crossed over into inadmissible testimony on two occasions. The expert stated that “most people in the field feel that it’s a very small proportion [of incest victims] that lie.” Id. at 75. Specifically, “in response to whether [the expert] felt ‘that [the alleged victim] is consistent with someone who had been sexually abused by living at home with her father,’ the expert stated ‘... I think the likelihood is very strong.... I feel there’s a preponderance of the evidence here.’ ” Id. (emphasis added). Clearly, the expert should not be permitted to pass judgment on whether the defendant was the specific perpetrator. Nor should the expert be permitted to state, as Dr. Hampton did in Jones, that “it was her opinion that [the victim] was telling the truth.” Jones, 606 So.2d at 1055.

¶ 32. In this case, however, the testimony of Stovall and Hess pertained to the credibility of the interviews with the girls rather than the girls’ veracity. Evidence that the interviews were credible, i.e. capable of being believed, was properly admitted. On the other hand, comments about a witness’ veracity, i.e. truthfulness, will generally be inadmissible, because of its “dubious competency.” See Williams, 539 So.2d at 1051.

¶ 33. The jury had the benefit of examining the videotapes with Joan and Karen’s interviews to compare to their in-court testimony, thereby placing the jury in a position to draw upon their own life experiences as to the veracity of the young girls. They could draw their own conclusions from the verbal statements and nonverbal reactions of the girls in the taped interviews and on the witness stand. As always, the jury has the prerogative to accept or reject, in whole or part, the testimony of any witness, expert or lay. Based upon the aforementioned analysis, and because the standard for reversal on appeal as to this issue is “clear abuse of discretion,” Logan, 773 So.2d at 346-47 (quoting Sheffield, 740 So.2d at 856), this Court concludes that the trial judge’s decision ought to upheld. Nonetheless, this Court cautions trial judges to prudently evaluate witnesses proffered as experts, as not all who claim special expertise are so qualified. Moreover, any opinions as to a witness’s veracity should generally be excluded, unless otherwise admissible. See Comment to Miss. R. Ev. 404(a) (“With regard to character evidence relating to the veracity of witnesses, Rule 404 refers one to Rules 607, 608, and 609.”).

CONCLUSION

¶ 34. The jury found the testimony of Joan and Karen to be credible and, therefore, determined that the essential elements of both sexual battery and touching and handling a child for lustful purposes were established beyond a reasonable doubt, none of which is inconsistent with a rational trier of facts. The trial judge correctly exercised his broad discretion in denying defense counsel’s motion for mistrial and in allowing Stovall and Hess to offer expert opinions in the field of forensic interviewing. Accordingly, this Court affirms the trial court’s judgment.

¶ 35. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS, WITHOUT BENEFIT OF PROBATION, EARLY RELEASE, OR SUSPENSION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDERED TO PAY FINE OF $5,000, AFFIRMED. COUNT II: CONVICTION OF TOUCHING, HANDLING, ETC., CHILD FOR LUSTFUL PURPOSE AND SENTENCE OF TWENTY (20) YEARS, WITHOUT BENEFIT OF PROBATION, EARLY RELEASE, OR SUSPENSION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDERED TO PAY FINE OF $5,000, OTHER FEES AND COURT COSTS, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ„ CONCUR. GRAVES, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

concurring in part and in result.

¶ 36. I agree with the result reached by the Majority, yet I write separately to express some of my deep concerns with the instant case. On the second issue raised by Smith, regarding the admissibility of videotaped evidence, the judge specifically ruled that any “prior bad acts” evidence of sexual impropriety with other victims be edited from the videotape. Despite the judge’s prior ruling, the question was played before the jury. When defense counsel objected, the answer was never played, and the jury was admonished to disregard the question. I find the instant situation far more prejudicial than if the prosecution had asked the same improper question to a live witness because the jury was left with the impression that defense counsel objected to the question because he knew that the videotaped testimony would show the witness .testifying that the defendant had committed similar bad acts with other individuals. While I am want to find reversible error here, I am of the opinion that this incident comes dangerously close to being reversible error.

¶ 37. On whether the trial court erred in admitting of the expert testimony of two forensic interviewers, I reluctantly agree that the lower court should be affirmed as to this issue but only because of defense counsel’s failure to pose any objection to this testimony. This Court does not allow the admittance of polygraph testing for the very reason that such evidence impermissi-bly speaks to the credibility and/or veracity of a witness. By allowing a witness who professes to be an expert in credibility to testify as to the believability or truth of another witness, the court allows a witness to usurp the province of the jury as the finder of fact and allows witness testimony to accomplish the very thing that we seek to prevent by ordering the exclusion of polygraph evidence. See Mattox v. State, 240 Miss. 544, 561, 128 So.2d 368, 373 (1961) (holding that both the taking of and results of polygraph testing were inadmissible because it bolstered the testimony of the witness and prejudiced the defendant); see also State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 76 (1986) (finding expert opinion testimony “on who is telling the truth ... is inadmissible, both because it usurps the jury’s traditional functions and roles, and because when given insight into the behavioral sciences, the jury needs nothing further from the expert.”). I am unconvinced that such an error is harmless and note that the instant situation is distinguishable from that in Jones v. State, 606 So.2d 1051, 1057-58 (Miss.1992), where this Court found that a doctor’s “yes” response to a question regarding the general truthfulness of sexually abused children was harmless error.

      . We use fictitious names to protect the identities of the victims.

      . Despite Joan being the older of the two, the pi'incipal of their elementary school, testified that Karen seemed more like the older sister. This was due in part to the fact that Joan had an IQ of 51.

      . We use a fictitious name in identifying the aunt in order to protect the identities of the victims.

      . Section 97-3-95(l)(c) states: "A person is guilty of sexual battery if he or she engages in sexual penetration with: A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child....”

      . Section 97-5-23(1) states:
      Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
      Because this was Smith's second offense under Section 97-5-23, the provisions of Sec-lion 97-5-23(3) warranting imprisonment of up to twenty (20) years were applicable.

      .In the videotape, Karen answers affirmatively, that she does have knowledge of similar conduct by Smith.

      . The trial judge held that regarding the "portions of any offenses to other kids, the motion to suppress ... is sustained.”

      . The trial judge stated that, "I think all that was in was, 'Do you know if he tried to do that to somebody else?' ”

      . As the trial judge stated, regarding the VCR, "[t]he doggone thing cuts itself off by itself. If it would stay on, then the witness would have been able to hit the stop button immediately, but the doggone thing cuts itself off evidently.” Moreover, the tape was thereafter properly edited for the jury.

      .Mississippi Rule of Evidence 702, prior to May 29, 2003, stated:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.
      Effective May 29, 2003, the gatekeeping responsibilities of the court in evaluating the admissibility of expert testimony were clarified, such that the rule now states:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

      . "RATAC” is an acronym for: Rapport, Anatomy ID, Touch inquiry, Abuse scenario, and Closure.

      . "CCAAC” is an acronym for: Content, Context, the child’s Affect, Ability, and Consistency.

      . Specifically, Stovall testified:
      I found that she displayed and she provided adequate content information. She told me who, what, when and where.... Her affect or her emotion I found was consistent with someone who would have been sexually abused.Later in the interview sum-
      mary, which you’ll see in this video, there is a point where she begins crying, weeping. I hand her some [tjissue, and she says, 1 just don’t understand why adults would want to do something like this. And that statement indicated a lot of shame and betrayal, and so I found that to be very consistent and credible with a victim of sexual abuse.

      .Hess testified that she considered:
      [consistency of statement, and we check for consistency from the initial disclosure, whatever was given to us until the time when we interview the child. We also look at other factors, what we call idiosyncratic factors such as if they talk about what they were wearing, what it smelled like, where they were, what they observed, who was there, how did the event unfold. We also check for those things as well as consistency or any reasons that we can depict why the child might lie. We know that children lie just like adults lie ... and so we also look to see if they’re telling the truth.

      . Fed. R. Ev. 104(e) uses identical language, and according to Wright and Miller, "Rule 104(e) only applies when the evidence of weight and credibility is the same as that used to determine the preliminary fact; hence, in most cases the court will have heard the evidence on weight and credibility as part of its determination of the preliminary fact.” 21A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Section 5058 (2d ed.2005).

      . Note that "veracity” is distinguishable from “credibility.” According to Webster’s Third New International Dictionary (1986), "veracity” means: "1. devotion to the truth: Truthfulness. 2. power of conveying or perceiving truth: Correctness. 3. conformity with truth or fact: Accuracy. 4. something that is true.” Id. at 2542. By contrast, "credibility” is defined as: "the quality or power of inspiring belief: worthiness of belief: capacity for belief.” Id. at 532. Vouching for the veracity of another embraces a weightier effect than commenting on the credibility of an interview.

      . In Griffith, this Court specifically found that:
      A direct opinion offered by a witness in a child sexual abuse case as to the child's veracity has been held by a majority of courts to be inadmissible. State v. Holloway, 82 N.C.App. 586, 587, 347 S.E.2d 72, 73 (1986); Head v. State, 519 N.E.2d 151, 153 (Ind.1988); State v. Moran, 151 Ariz. 378, 385, 728 P.2d 248, 255 (1986); People v. Oliver, 745 P.2d 222, 225 (Colo.1987); see generally cases cited in Myers, et at, Expert Psychological Testimony About Child Complaints in Sexual Abuse Prosecution, 68 Neb. L.Rev. 1, 121, fn. 528 (1989). We have indicated that such testimony is, at best, "of dubious competency." Williams v. State, 539 So.2d 1049, 1051 (Miss.1989). See also Goodson v. State, 566 So.2d 1142, 1153 (Miss.1990); Hosford v. State, 560 So.2d 163, 166-67 (Miss.1990); House v. State, 445 So.2d 815, 821-23 (Miss.1984). On remand, we caution the court against allowing direct comments as to [the child's] veracity.

      584 So.2d at 386-87 (emphasis added). Note, however, that in Griffith, unlike in this case, the victim's out-of-court statements were not videotaped and available for jury consideration. Moreover, this Court's reversal in Griffith was based upon a State's witness being "allowed to testify as to statements made by ... [Griffith’s victim].” Id. at 386.

      . Comment to Miss. R. Ev. 803(25) states:
      Many jurisdictions limit their analogous exceptions to declarants under the age of fourteen years. However, the exception should not be necessarily limited to a specific chronological age. In appropriate cases, the exception might apply when the declarant is chronologically older than fourteen years, but the declarant has a mental age of less than fourteen years.
      Karen was only eleven (11) years of age at the time her statements were made. While Joan was fifteen (15) years old at the time of her statements, she clearly had a "mental age of less than fourteen years.” See footnote 2.

      . Note that in Jones v. State, which followed adoption of Miss. R. Ev. 803(25), similarly improper questions were asked of, and answered by, Dr. Hampton. Specifically, "[h]ave you formed an opinion over the years concerning whether children that come in with this kind of problem tell the truth about what happened to them?” Jones, 606 So.2d at 1057. To which Dr. Hampton answered, "[c]hildren do not fantasize about experiences that they have not encountered.” Id. And also, ''[f]rom your experience of examining children like [the victim] who have evidence that they have been sexually abused, is your experience that they tell the truth?" Id. To which Dr. Hampton answered, "Yes.” Id. This Court determined that ''[Realistically, Dr. Hampton's opinion implied an opinion of [the victim’s] truthfulness and in this it was error....” Id. at 1058. Simply stated, this Court found that, "[w]hether children generally tell the truth or not about sexual abuse is not relevant as to whether [the victim] told the truth about what happened to her, as it does not make it more probable or less probable that [she] was telling the truth.” Id. However, this Court also found that this error was harmless error. See id.


author: CHANDLER, J.,

text:
    Oliver JOHNS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CA-00716-COA.
    Court of Appeals of Mississippi.
    Jan. 18, 2005.
    Rehearing Denied July 26, 2005.

      Shawna Anne Murrell, Ridgeland, Kathryn N. Nester, Jackson, attorneys for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Oliver Johns, Jr., was convicted of aggravated assault. After Johns lost his direct appeal, the Mississippi Supreme Court granted his application to proceed with post-conviction relief. In this motion, Johns alleged that the presence of alibi witnesses would have changed the outcome of his trial, and he also alleged ineffective assistance of counsel. After an evidentia-ry hearing was held, the Circuit Court of Pike County denied Johns’s motion for post-conviction relief. Johns appeals, raising the following issues:

I. WHETHER THE CIRCUIT JUDGE ARTICULATED THE CORRECT STANDARD WHEN HE DENIED POST-CONVICTION RELIEF

II. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING JOHNS’S MOTION FOR POST-CONVICTION RELIEF

III. WHETHER THE CIRCUIT JUDGE ERRED IN RELYING ON PERSONAL KNOWLEDGE OF THE CHARACTER OF OLIVER JOHNS, JR’S TRIAL ATTORNEY WHEN REACHING HIS FACTUAL FINDINGS

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This case arose from an incident on March 28, 1996. While Kendall Jefferson was driving, he was struck with bullets fired by someone from a car that was allegedly driven by Oliver Johns, Jr. The grand jury indicted Oliver Johns, Jr., for one count of aggravated assault and one count of shooting into a motor vehicle. At trial, Jefferson testified that prior to the shooting he passed a vehicle and saw Johns driving; another man was in the passenger seat. According to Jefferson’s testimony, Johns’s vehicle followed him, and shots were fired from Johns’s car into Jefferson’s car. Jefferson did not know who actually did the shooting, but he knew that the shots were fired from the vehicle driven by Johns.

¶4. Johns denied following Jefferson. According to his testimony, he was at home with his daughter at the time of the shooting. Even though Johns claims that alibi witnesses were able to testify on his behalf, the only witness called by the defense was Oliver Johns, Jr. The jury returned a guilty verdict on aggravated assault and was unable to return a verdict on the charge of shooting into a motor vehicle.

¶ 5. Johns appealed the trial court’s conviction. The Mississippi Court of Appeals affirmed the conviction, and the Mississippi Supreme Court denied certiorari. Johns v. State, 746 So.2d 947 (Miss.Ct.App.1999). After a ruling on his direct appeal, the Mississippi Supreme Court granted his application for leave to proceed with a motion for post-conviction relief.

¶ 6. In Johns’s motion for post-conviction relief, an evidentiary hearing was held in the Pike County Circuit Court. The issues raised in Johns’s motion for post-conviction relief were whether the testimony of alibi witnesses could have changed his conviction, and whether Johns’s attorney provided effective assistance. These two issues were not raised on direct appeal. Three witnesses- testified that they saw Johns walking in the neighborhood with his daughter at the approximate time of the shooting. All three witnesses testified at the evidentiary hearing and were willing to testify at Johns’s trial as to his whereabouts, but none of them were contacted by Johns’s attorney.

¶ 7. The circuit judge denied Johns’s motion for post-conviction relief and found that Johns had received effective assistance of counsel. The judge relied in part upon his personal knowledge of the attorney’s character and veracity. In reaching the conclusion that Johns had not met his burden of proof for post conviction relief and in concluding that Johns received effective assistance of counsel, the judge applied the standard of “reasonable probability that the outcome would be different.”

ANALYSIS

I. WHETHER THE CIRCUIT JUDGE ARTICULATED THE CORRECT STANDARD IN ITS DENIAL OF POST-CONVICTION RELIEF

¶8. Post-conviction relief shall be granted when there is evidence of material facts, not previously presented or heard, that requires vacation of the conviction or sentence. Miss.Code Ann. § 99 — 39—5(l)(e) (Supp.2004). Post-conviction relief should be granted when the petitioner has made this showing by a preponderance of the evidence. Turner v. State, 673 So.2d 382, 384 (Miss.1996). The circuit court judge did not use the preponderance of the evidence standard in denying Johns’s motion for post-conviction relief. As he issued his ruling from the bench, he stated as follows: “I simply cannot say under the testimony that I have heard today that there is a reasonable probability that the outcome would be different. Reasonable probability. Not just a chance, but a reasonable probability that the outcome would be reversed.”

¶ 9. A party has established a case through preponderance of the evidence when he has demonstrated that there is a greater than fifty percent probability that the facts which support his case are true. State v. Oliver, 856 So.2d 328, 331 (¶ 7) (Miss.2003). Reasonable probability, by contrast, is a much more lenient showing. In order to show reasonable probability, the mover must merely show “a probability sufficient to undermine confidence in the outcome.” Davis v. State, 743 So.2d 326, 334 (¶ 5) (Miss.1999) (quoting Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). While the circuit court judge used the incorrect standard in denying Johns’s motion for post-conviction relief, this incorrect standard resulted in no prejudice to Johns.

II. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING JOHNS’S MOTION FOR POST-CONVICTION RELIEF

¶ 10. To succeed in a petition for post-conviction relief, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). On appeal, the appropriate standard of review for denial of a post-conviction relief after an evidentiary hearing is the clearly erroneous standard. Reynolds v. State, 521 So.2d 914, 918 (Miss.1988).

A) Whether Johns showed by a preponderance of the evidence the existence of facts that required the vacation of sentence

¶ 11. Testimony at trial showed that the aggravated assault for which Johns was convicted happened some time between 8:00 p.m. and 8:30 p.m, according to the victim’s testimony. The police received a call that there had been a shooting at 8:19 p.m. In the time after Johns lost his direct appeal, three of Johns’s neighbors gave affidavits and testified at the evidentiary hearing that they saw Oliver Johns, Jr., in his front yard with his daughter some time between 8:00 p.m. and 8:30 p.m.

¶ 12. Reginald Nunnery, one of Johns’s neighbors, held a cookout on the evening of March 28, 1996. Mr. Nunnery began his cookout at 8:00 p.m. At 8:15 p.m., he saw Johns with his daughter and invited them to the cookout. At that time, Mr. Nunnery was busy making preparations to start grilling and asked Johns to go to the convenience store to buy some refreshments for him. Johns walked to the convenience store and returned fifteen to twenty minutes later, with the refreshments Mr. Nunnery requested. After Johns delivered the refreshments, he returned to his home. Although Johns told Mr. Nunnery he would try to come back to the cookout, he never did. Mr. Nunnery was sure that he saw Johns after 8:00 p.m. on the night of the incident because, when he grills, he always starts the fire at 8:00 p.m.

¶ 13. Mrs. Nunnery also testified at the evidentiary hearing that she saw Johns between 8:15 p.m. and 8:30 p.m.. She was positive that she saw Johns between 8:15 p.m. and 8:30 p.m. because she noted the time on the watch she was wearing. She saw Johns after he had returned from the convenience store. She testified that they were almost finished grilling at this time.

¶ 14. Katie Magee was also a neighbor who had seen Johns that night. She was sitting in her back yard that evening. She saw Johns coming from the direction of the convenience store. Magee noticed nothing unusual about Johns’s behavior or demeanor. She and Johns had a conversation that lasted three or four minutes. After their conversation, Johns walked in the direction of the Nunnerys’ house. All these events happened shortly after 8:00 p.m., according to her testimony.

¶ 15. The trial judge found the testimony of these three alibi witnesses to be suspicious. On April 2, 1996, police officers interviewed Johns regarding the events that led to the shooting. He stated that he was at home with his young child, but he also said there were no witnesses to verify his alibi. Even though all of Johns’s potential alibi witnesses showed a willingness to testify, they made no efforts whatsoever to contact the police to inform them that the State was wrong in indicting Johns. The respective testimonies from Mr. and Mrs. Nunnery contradict each other. While Mr. Nunnery testified that Johns went to the convenience store as he began grilling, Mrs. Nunnery testified that the food was nearly cooked by the time Johns returned from the store. Mrs. Nunnery testified that the chicken was slow-cooked, which suggests that the chicken took much longer to cook than the fifteen minutes it took Johns to go to the convenience store.

¶ 16. At the evidentiary hearing, the memories of all three of the potential alibi witnesses proved to be faulty. Their faulty memories create doubts as to their effectiveness when called upon to testify as to whereabouts on a specific day at a specific time. Even though they claimed to remember the specific date and the specific time they saw Johns, they could not remember the month they signed their affidavits that indicated their willingness to serve as alibi witnesses. Mr. Nunnery testified that he interviewed with the attorney who prepared Johns’s appeal in April, 1996, but that attorney was not involved with the case until November, 1996. Even though Mr. Nunnery testified that he was sure it was 8:00 p.m. when he started grilling because he always starts grilling at 8:00 p.m., the trial judge noted that it is very suspicious that a person would always start cooking at exactly the same time. Mrs. Nunnery admitted at the evidentiary hearing that she has a faulty memory. Magee could remember the day and time she saw Johns, but she could not remember the time her neighbors started setting up for the cookout. She also failed to recall when she learned that Johns had been sentenced. Finally, she could not remember the name of the attorney who discussed the case with her prior to the testimony at the evidentiary hearing.

¶ 17. The three alibi witnesses might have led the jury to acquit Johns. However, at the evidentiary hearing the testimony of all three witnesses was impeached, and their memories proved to be unreliable. The effectiveness of these witnesses depends solely on their credibility as to whether they saw Johns between 8:00 p.m. and 8:30 p.m. on March 28, 1996. The testimony they gave at the evidentiary hearing casts doubt on this credibility. None of the alibi witnesses saw Johns for any longer than a few minutes during that evening. The trial judge would be able to grant Johns’s application for post-conviction relief only if Johns could prove by a preponderance of the evidence that the outcome of his conviction would be different. While the trial judge conceded that the presence of the alibi witnesses might have led to a different jury verdict, he was unable to hold that the presence of these witnesses, by a preponderance of the evidence, would have changed the outcome. Based on our review of the witnesses’ testimony, we are unable to find an abuse of discretion on the part of the trial judge in making this ruling. We are required to affirm.

B) .Whether Johns proved that trial counsel was ineffective

¶ 18. There is a two-part test for claims of ineffective assistance of counsel. First, a convicted defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Second, the defendant must show that these acts or omissions prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Johns, and the alleged deficiency is measured within the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (1995). A presumption exists that the attorney’s representation was competent, with a strong presumption that the attorney’s conduct fell within the wide range of professional assistance. Id. (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988); Gilliard v. State, 462 So.2d 710, 714 (Miss.1985)). Appellate review of counsel’s performance is “highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 19. The record confirms that Jackson failed to request a preliminary hearing, filed no pretrial motions, filed no discovery requests, filed no requests for information regarding character evidence to be used at trial, and filed no notice of an alibi defense. Johns’s attorney admitted in his testimony at the evidentiary hearing that he was unable to remember some of the details pertaining to his representation of Johns. He was unable to locate Johns’s file and could not remember whether he was hired prior to Johns being indicted. He also could not recall whether he allowed Johns to inspect the physical evidence prior to the trial.

¶ 20. In his brief, Johns alleges that his attorney met with him at McDonald’s only three times before trial. He alleges that these meetings were short, and the only topic that was discussed was payment of attorney’s fees. The testimony from Johns’s attorney, however, indicates that Johns and his attorney conferred several times before trial, and also shows that Johns and his attorney talked on the phone frequently. Testimony at the evi-dentiary hearing confirms that Johns’s father, Oliver Johns, Sr., met with Johns’s attorney twice, but there was no testimony regarding the exact frequency of meetings with Oliver Johns, Jr.

¶ 21. Johns claims that Jackson rendered ineffective assistance in failing to call alibi witnesses, in failing to file notice of alibi, and in presenting no evidence of Johns’s alibi. Johns provided his attorney with all the information his attorney needed to contact and interview the witnesses who testified at the evidentiary hearing. Johns claims that he repeatedly asked his attorney to use this information in Johns’s defense and expected his attorney to use this information at trial.

¶ 22. While it is true that Johns’s attorney never interviewed the alibi witnesses Johns requested, at the evi-dentiary hearing Johns’s attorney indicated that he had a very good reason for declining to interview these particular witnesses. The attorney refused to interview these clients because he believed the witnesses’ testimony was perjured testimony, based on the information Johns gave his attorney. For this reason, we are unable to hold that Johns’s attorney failed to render ineffective assistance of counsel for failure to call such alibi -witnesses. Furthermore, Johns’s lawyer personally came to the neighborhood where the shooting took place and talked to a number of people to see if they could recall what happened or could provide any testimony pertaining to the case. After this investigation, he decided that these potential witnesses would not be helpful. It is not a favored practice to claim ineffective assistance of counsel by complaining that the attorney failed to call witnesses, because the presentation of witnesses is a matter of trial strategy. Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir.1981). Complaints that fall within the realm of trial strategy cannot give rise to an ineffective assistance of counsel claim. Howard v. State, 853 So.2d 781, 796 (¶ 47) (Miss.2003) (quoting Jackson v. State, 815 So.2d 1196, 1201 (¶ 12) (Miss.2002)). Johns claims that his counsel rendered ineffective assistance of counsel because Johns was the only witness who testified at trial. We are unable to hold that the refusal to call alibi witnesses rendered Johns’s counsel ineffective.

¶ 23. One of the omissions Johns charged his attorney with was a failure to conduct a preliminary hearing. The purpose of a preliminary hearing is to assess whether the State has a strong enough case to warrant an indictment. Once a defendant has been indicted, that question becomes moot. Sanders v. State, 847 So.2d 903, 907 (¶ 22) (Miss.Ct.App.2003). Mississippi law does not guarantee a preliminary hearing after the defendant is released on bond, under Uniform Rule of Circuit and County Court Practice 6.05. Johns was already released on bond when his attorney was hired. Therefore, there was no error in the attorney’s failure to conduct a preliminary hearing.

¶24. The State intended to use character evidence against Johns at trial. Johns claimed that his attorney was ineffective for not inquiring about the specifics of this character evidence. However, there was a good reason for not evaluating this character evidence before trial. The procedures in place in the Pike County Circuit Court make moot an inquiry into the specifics of the character evidence before the trial is held. The Pike County Circuit Court does not address character evidence until the time a party seeks to present it into evidence, at the trial. Thus, motions to suppress character evidence are futile because the judge will not evaluate this evidence until trial, outside the presence of a jury.

¶ 25. The trial judge signed an omnibus order requiring the prosecution and defense to meet and discuss issues such as discovery, witnesses who will testify, and setting a trial date. Johns was present at this meeting. Johns’s attorney reviewed all of the State’s evidence. The State’s evidence gave no indication of any potential alibi witnesses. At this meeting, which was held on October 10, 1996, the date of the trial was set for November 9, 1996. Although Johns claims not to have known about the date of the trial until 9:00 p.m. the night before the trial, Johns was in the room when the trial date was set.

¶ 26. Johns charged his attorney with ineffective assistance of counsel for failing to file discovery requests from the State. There was no reason to file such a request because Johns’s attorney requested and obtained the State’s file. He had all the information the State had and was aware of all discovery evidence favorable to Johns from the omnibus meeting. Johns alleges that his attorney did not review the State’s discovery file with him, but Johns’s attorney specifically remembers reviewing the State’s file with Johns.

¶ 27. Johns alleges that his attorney rendered faulty advice regarding the acceptance of the State’s plea bargain. He says that his attorney did not discuss the State’s plea bargain with him until the morning of the trial. According to Johns, his attorney told Johns that they were certain to win at trial because the State had no evidence against Johns. As a result of this advice, Johns refused the offer. Johns’s attorney denies having told Johns that the State lacked credible evidence, and asserts that he informed Johns of the State’s plea bargain long before the trial took place.

¶ 28. Johns’s attorney testified that he follows a standard procedure with each of his clients whenever the State submits a plea bargain. He always submits the plea bargain to his client and prefaces any advice with an advisement that the decision to accept or reject a guilty plea rests solely with the client. He then explains the possible maximum sentences if his client decides not to plead guilty, and explains the procedures that' follow if his client decides to accept the guilty plea. He remembers specifically speaking with Johns about the State’s offer. During the conversation, Johns responded that he was innocent, and was very insistent in his refusal to plead guilty to a crime he claimed he did not commit.

¶ 29. Johns claims his attorney failed to prepare him to testify for trial, but Johns’s attorney says he has a procedure for preparing his clients to testify. First, he goes over the entire case with his clients. Then, he interrogates his clients as though he is the prosecution and asks his clients questions that the prosecution is likely to ask. He specifically remembers preparing Johns for trial in this way, although he did admit that he could not remember where these preparations took place or who else was present.

¶ 30. The testimony of Johns’s attorney at the evidentiary hearing contradicted many of the assignments of error Johns alleges in his motion for ineffective assistance of counsel. Johns alleges that his attorney met with him only three times for short periods of time; that Johns never had the opportunity to review the discovery materials received from the State; that his attorney never discussed whether Johns would testify at trial; that his attorney gave him faulty advice which caused him to reject the State’s offer to plead guilty; that Johns did not know when the trial would be held until the evening of the trial; that his attorney failed to inform Johns that no alibi witnesses would be called; and that his attorney failed to discuss trial strategy with Johns. Johns’s attorney refuted each of these allegations, although he was unable to remember many of the details concerning his representation of Johns. The circuit court judge’s decision to hold Johns’s counsel to be effective was therefore based largely on credibility. Issues of credibility are for the trial court, not this Court, to resolve. Jackson v. State, 778 So.2d 786, 789 (¶ 16) (Miss.Ct.App.2001). The judge weighed the evidence and concluded that the testimony of Johns’s attorney was credible. We are unable to find an abuse of discretion in the circuit court judge’s holding that Johns’s attorney rendered effective assistance of counsel.

¶ 31. There is no need to discuss whether Johns’s attorney’s performance as counsel prejudiced the defense. If the post-conviction application fails on either of the Strickland, prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss. 1987).

III. WHETHER THE CIRCUIT JUDGE ERRED IN RELYING ON PERSONAL KNOWLEDGE OF THE CHARACTER OF OLIVER JOHNS, JR’S TRIAL ATTORNEY WHEN REACHING HIS FACTUAL FINDINGS

¶ 32. When the circuit court judge held that John’s attorney provided competent assistance of counsel, he relied in large part upon his personal knowledge of the attorney’s character and veracity. He stated:

I have seen [Oliver Johns, Jr.’s attorney] try enough cases in the Court that if he knew of an alibi witness, he would go and talk to them. The trials that he’s tried in my Court, there’s absolutely no doubt about [Oliver Johns, Jr.’s attorney’s] truth and veracity. I have yet to find John tell me anything that didn’t add up or didn’t, you know, wasn’t so. And I’ve seen him, his win-loss ratio is as good as any attorney in this county as far as the number of cases that he wins. I can’t believe that he would know of an alibi witness and would not go talk to the alibi witness and put the alibi witness on the stand.

¶ 33. Johns argues that these comments make it clear that the judge had already formed an opinion about the quality of legal services Johns’s attorney rendered. Johns believes these strong opinions about Johns’s attorney should have required the judge to recuse himself. The test for recusal is as follows: “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” McGee v. State, 820 So.2d 700, 711 (¶ 33) (Miss.Ct.App.2000) (quoting Mississippi Code of Judicial Conduct Canon 3 (1995)). We are unable to find evidence that the circuit court judge showed any signs of bias in favor of Johns’s attorney. The judge apparently knew about the attorney’s reputation solely through the attorney’s trying cases within the judge’s court. This is not a justifiable reason for recusal.

¶ 34. The hearing judge at the evidentiary hearing was the same judge who presided over Johns’s trial. The claim for ineffective assistance was in regards to a trial that happened nearly seven years prior to the evidentiary hearing. Johns’s attorney understandably remembered only a few details pertaining to this case, and the prior experiences Johns’s attorney had with the trial judge necessarily came into play. There is no error for the judge to rely in part upon his prior experiences with Johns’s attorney. “Some of the time the unspoken intangible may be the judge’s perception of the [attorney] arising from past experience. The fact that the judge spoke about this on the record does not by itself cause us to find error.” Collins v. State, 817 So.2d 644, 656 (¶ 32) (Miss.Ct.App.2002). Likewise, we are unable to find error in relying on the past experiences the trial judge had with Johns’s attorney in deciding whether Johns’s attorney rendered effective assistance of counsel. Defense counsel’s general reputation and experience can be a relevant consideration- that a judge may consider. Leatherwood v. State, 473 So.2d 964, 971 (Miss.1985). We are unable to reverse the circuit court judge for basing his opinions in part upon the reputation of Johns’s attorney. Therefore, this assignment of error is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING J., CONCURS IN RESULT ONLY.

      . The trial judge actually used a “reasonable probability" standard, which, as we explained, is a lower standard than preponder-anee of the evidence.

      . Johns also claims that his attorney was ineffective for failing to make an opening statement at trial. An attorney's decision not to deliver an opening statement is considered a strategic decision. Cabello v. State, 524 So.2d 313, 318 (Miss.1988) (quoting Gilliard v. State, 462 So.2d 710, 714 (Miss.1985)).

      . Johns's attorney actually could not remember for sure whether Johns was present, but he assumes Johns was present, because circuit court judges highly recommend that the defendant be present at the omnibus meeting.

      . Oliver Johns, Jr. did not testify at the evi-dentiary hearing. All of his allegations came from an affidavit.


author: LEE, P.J.,

text:
    James EVANS, Jr., Appellant, v. CITY OF ABERDEEN, Mississippi, Appellee.
    No. 2003-CA-01638-COA.
    Court of Appeals of Mississippi.
    April 26, 2005.
    Rehearing Denied Aug. 2, 2005.

      J. Dudley Williams, Monroe, attorneys for appellant.
    Robert H. Faulks, attorneys for appel-lee.
   LEE, P.J.,

for the Court.

¶ 1. The City of Aberdeen Police Department received a tip from a confidential informant that drug trafficking was taking place at the Evans’s house in Aberdeen, Mississippi, and a search warrant was subsequently authorized by a city judge. While executing the warrant, the police officers seized a brass container attached to a Brillo pad, a piece of tin foil with holes in it, plastic bags, and a cigarette pack with some residue. The officers also discovered $7,600 in cash which was hidden beneath a large console television. The cash was placed in a brown paper bag, which the officers retrieved from the basement of the police department. At the station, the officers hid the money behind the station and walked a canine unit through the area. The dog alerted on the bag, indicating the presence of drugs.

¶ 2. The circuit court judge found that the items seized from the bedroom qualified as drug distributing paraphernalia, and that the money was found in close proximity to the drug distributing paraphernalia, thereby creating an evidentiary presumption that the cash was forfeitable. The judge further found that Evans’s explanation as to the sources of the funds did not rebut the presumption that the funds were forfeitable. Evans now appeals, raising the following issues:

I. WHETHER THE OBJECTS SEIZED FROM EVANS’S ROOM WERE PROPERLY CLASSIFIED AS DRUG PARAPHERNALIA.
II. WHETHER THE COURT CORRECTLY HELD THAT THE SEIZED CASH WAS IN CLOSE PROXIMITY TO PARAPHERNALIA, AS TO APPLY AN EVIDENTIARY PRESUMPTION IN FAVOR OF THE CITY THAT THE CASE WAS SUBJECT TO FORFEITURE

¶ 3. Finding that the City failed to establish the presence of drugs or drug distributing paraphernalia and failed to show that the money was used to facilitate a violation of the Uniform Controlled Substance Laws, we reverse and render.

FACTS

¶ 4. Officer Randy Perkins of the Aberdeen Police Department was approached by a confidential informant who told him that Coreno Blanchard and James Evans, Jr. were storing crack cocaine at Evans’s house, and that the drugs were “broke up and sorted out in bags and then delivered out to the dealers on the streets.” A city court judge issued a search warrant, enabling the Aberdeen Police Department to search the premises of the Evans house, together with all vehicles parked at the residence.

¶ 5. Officer Perkins testified that their search was limited to Evans’s bedroom. The officers found no drugs but they did find a “brass container ... that had ashes with a Brillo pad and residue on it.” Officer Perkins testified that such a contraption is typically used to make a crack pipe. The officers also found “a piece of tin foil ... with holes on it” on a dresser. Officer Perkins stated that someone “had been using that to smoke crack cocaine.” The officers found “plastic bags” for the “transport or storage of drugs” and a cigarette pack with residue.

¶ 6. The officers pulled a big console television away and found rolls of money underneath the television. The money amounted to $7,600 in cash and was rolled in black hair bands in thousand dollar brackets. Officer Perkins testified that such a large sum of money concealed in this manner indicates that the money was used to purchase drugs.

¶ 7. After Officer Perkins and the other officers finished searching the house, the confidential informant called Officer Perkins and told him that the officers had overlooked the drugs, which were believed to be stored in the deep freeze in the kitchen. Evans’s mother allowed Officer Perkins to check the deep freeze for drugs, but no drugs were discovered.

¶ 8. The $7,600 cash was placed in a brown paper bag that was found in the basement of the police department. None of the objects seized from Evans’s room were tested for drugs. The next day, the Amory Police Department brought their drug detection dog to the Aberdeen Police Department. The dog never walked by the money itself prior to its placement in the bag, and there was no dog “walk by” at the test location before the bag containing the money was placed there. The money was hidden at random behind the police station, and the dog alerted that the money was positive for drugs. However, Officer Perkins admitted that the location in which the bag was placed or the bag itself may have been contaminated. He also admitted that the money in general circulation is tainted with drugs. Officer Perkins testified that he was unsure whether the dog “hit” on the money or the bag that contained it.

¶ 9. Evans testified that the $7,600 cash that was seized was money he saved for the purpose of buying a car. Evans produced copies of the savings bonds he had redeemed in March of 2000. These bonds totaled $3,150. Evans testified that the rest of the money came from earnings, birthday, Christmas, and graduation gifts, and allowance. Evans was living with his parents and claimed that he tricked them into believing he had no money.

¶ 10. At the conclusion of the trial, the circuit court judge found in favor of the City of Aberdeen and ordered that the $7,600 in cash be forfeited to the City of Aberdeen, finding that the cash was used to facilitate a violation of the Uniform Controlled Substance Law. The judge held that the City had met its burden of proof, a preponderance of the evidence, and the cash was forfeitable. City of Meridian v. Hodge, 632 So.2d 1309, 1311 (Miss.1994); Saik v. State ex rel. Miss. Bureau of Narcotics, 473 So.2d 188, 191 (Miss.1985). See also Miss.Code Ann. § 41-29-179(2) (Rev. 2001). It found that the objects seized from Evans’s room were drug distributing paraphernalia. Miss.Code Ann. § 41-29-105(v) (Rev.2001). It further found that the $7,600 cash was found in close proximity to the distributing paraphernalia, thereby providing the City with the evidentiary presumption that the cash was forfeitable. Miss.Code Ann. § 41-29-153(a)(7) (Rev. 2001). The court found Evans’s explanation as to the source of the funds failed to rebut this presumption.

ANALYSIS

¶ 11. Forfeiture statutes are penal in nature and must be strictly construed. Parcel Real Property Located at 335 West Ash Street, Jackson, Miss. v. City of Jackson, 664 So.2d 194, 199 (Miss.1995); Jackson v. State ex rel. Miss. Bureau of Narcotics, 591 So.2d 820, 822 (Miss.1991). In a civil forfeiture ease, the question is whether, given all of the evidence taken together, a rational trier of fact could have found that the funds were the product of or the instrumentalities of violations of the State’s Uniform Controlled Substances Laws. Hickman v. State ex. rel. Miss. Dep’t of Public Safety, 592 So.2d 44, 48 (Miss.1991). The trier of fact may act on circumstantial evidence and inferences as well as direct evidence. Id. at 46.

I. WHETHER THE OBJECTS SEIZED FROM EVANS’S ROOM WERE PROPERLY IDENTIFIED AS DRUG DISTRIBUTING PARAPHERNALIA.

¶ 12. Officer Perkins indicated that a brass container attached to a Brillo pad “usually indicates that in a bedroom like that with ashes around it that its been used to smoke a crack pipe,” that the tin foil would “indicate somebody had been using that to smoke crack cocaine with,” and that the plastic bags “indicate the transport or storage of drugs.”

¶ 13. The City believed that the cash was used for drug trafficking, arguing that the cash was found in close proximity to the objects in Evans’s room which the City believed were used for the purposes of consuming, transporting, or storing drugs. Mississippi Code Annotated Section 41-29-153(a)(7) provides, in relevant part:

(a) The following are subject to forfeiture:
(7) Everything of value, including real estate, furnished, or intended to be furnished, in exchange for a controlled substance in violation of this article, all proceeds traceable to such an exchange, and all monies, negotiable instruments, businesses or business investments, securities, and other things of value used, or intended to be used, to facilitate any violation of this article. All monies, coin and currency found in close proximity to forfeitable controlled substances, to for-feitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption.

¶ 14. The City attempted to establish that the objects seized from Evans’s room were classified as drug manufacturing or distributing paraphernalia. However, there was no testimony that anything in James’s room was used to manufacture or distribute drugs. Although there was testimony that plastic baggies could indicate the storage of drugs, the statute clearly requires a finding that the money was found in close proximity of “manufacturing or distributing paraphernalia.” Id. On appeal the State argues that it “all moneys found in close proximity to paraphernalia are presumed to be forfeitable.” We disagree. The statute clearly requires that the money must be found in close proximity to manufacturing or distributing paraphernalia.

¶ 15. The City argues that it established the fact that the objects found in Evans’s bedroom were drug distributing and manufacturing paraphernalia through expert testimony. It asserts that Officer Perkins is clearly an experienced narcotics agent because Officer Perkins attended five drug schools, and in the three years prior to the search sub judice Perkins.had been assigned the specific task of detecting and identifying illegal drug trafficking in Aberdeen. However, there was no testimony linking the items seized from the bedroom with drug manufacturing or drug distribution. Additionally, Officer Perkins’s testimony cannot be considered expert testimony because the City did not qualify Officer Perkins as an expert witness at trial. See M.R.E. 702.

¶ 16. Under Mississippi Code Annotated Section 41 — 29—153(a)(7), the money could be forfeited if it were in close proximity to drug distributing paraphernalia or drug manufacturing paraphernalia. We reverse and render the circuit court’s finding that the objects seized from Evans’s bedroom qualified as distributing paraphernalia, because there was no such evidence supporting this finding.

II. WHETHER THE COURT CORRECTLY HELD THAT THE SEIZED CASH WAS IN CLOSE PROXIMITY TO PARAPHERNALIA, AS TO APPLY AN EVIDENTIARY PRESUMPTION IN FAVOR OF THE CITY THAT THE CASH WAS SUBJECT TO FORFEITURE

¶ 17. Money found to be within close proximity to drug distributing or manufacturing paraphernalia is presumed to be forfeitable. Miss.Code Ann. § 41-29 — 153(a)(7) (Rev.2001). In the present case, the circuit court found that the objects seized from Evans’s room were drug distributing paraphernalia, and that the cash found behind the television was in close proximity to the distributing paraphernalia. Thus, the circuit court found that the City had shown that the $7,600 cash was presumed to be forfeitable. Since we have reversed and rendered the circuit court’s finding that the objects seized from Evans’s room were classified as drug distributing paraphernalia, we must also reverse and render the circuit court’s finding that the $7,600 cash was presumed to be forfeitable. Nevertheless, there is a possibility that the $7,600 in cash is forfeitable, even if the evidentiary presumption in favor of the City does not apply.

¶ 18. The City claims that the money should be forfeitable because Evans had no means of saving $7,600 in cash. Evans earned approximately $500 in 1999, approximately $507 in the year 2000, and $345 in the year 2001. Most of his income of $2,067 in the year 2002 was earned after the search warrant was executed. Social security and medicare taxes were withheld from these pay checks. Most of the $3,100 in savings bonds that Evans cashed in were redeemed more than two years before the search warrant. Evans had no records or documents establishing that he received approximately $4,000 in the form of weekly allowances, and gifts for birthdays, Christmas, and graduation, because he did not use a bank account.

¶ 19. In United States v. $38,600 in U.S. Currency, 784 F.2d 694 (5th Cir.1986), the Fifth Circuit decided the issue of whether the district court properly ordered forfeiture of $38,600 in United States currency, all in cash, taped under the claimant’s car seat. The claimant, Alvaro Freitas, was stopped at a border patrol checkpoint, where the border patrol agents performed a thorough inspection on his car and its contents after an agent smelled marijuana on Freitas’s breath. Id. at 696. The district court determined that the money found in Freitas’ vehicle was forfeitable due to the following factors: (1) the border patrol agents’ discovery of a pipe bearing marijuana residue and cigarette rolling papers, and (2) the claimant’s persistent evasiveness when responding to the agent’s questions concerning his destination and the identity of the owner of the money. Id. at 697. The Fifth Circuit disagreed, stating:

There seems little question that the evidence, when considered collectively, gives rise to a strong suspicion, perhaps even probable cause, of some illegal activity. It is not quite so apparent, however, that these facts give rise to a reasonable belief, supported by more than mere suspicion, that Alvaro Freitas furnished, intended to furnish, or had received the money in exchange for drugs.

Id. at 698. The court reversed and rendered.

¶ 20. The City relies on the fact that a drug dog had alerted to the presence of drugs. “[T]here is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation.” United States v. $5,000.00 in U.S. Currency, 40 F.3d 846, 849 (6th Cir.1994) (quoting United States v. $80,760.00 in U.S. Currency, 781 F.Supp. 462, 475 & n. 32 (N.D.Tex.1991)). See also Jones v. U.S. Drug Enforcement Admin., 819 F.Supp. 698, 719-21 (M.D.Tenn.1993) (concluding, given growing evidence of widespread currency contamination, that “the continued reliance of courts and law enforcement officers on dog sniffs to separate ‘legitimate’ currency from ‘drug-connected’ currency is logically indefensible”). Thus, a court should “seriously question the value of a dog’s alert without other persuasive evidence.” $80,760.00, 781 F.Supp. at 476 (citations omitted).

¶ 21. The City also argues that the large amount of money that was found in Evans’s bedroom proves that the money was used for illegal drug trafficking. In Jackson v. State ex rel. Miss. Bureau of Narcotics, 591 So.2d 820, 822-23 (Miss.1991), the Mississippi Supreme Court upheld a forfeiture of $1,087, finding that the large amount of money justified its forfeiture. However, Jackson is distinguishable from the present case because the money was seized after the claimant was actually caught in a narcotics sting operation. There is no direct evidence of drug activity in the present case. Moreover, federal courts have held that “fifteen to twenty thousand dollars is hardly enough cash, standing alone, to justify more than a suspicion of illegal activity.” $5,000.00, 40 F.3d at 850 (quoting United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir.1994) (overruled by statute on other grounds)).

¶ 22. Before forfeitures will be decreed or adjudged, they must come within the terms of a statute imposing liability. Neely v. State ex rel. Tate County, 628 So.2d 1376, 1381 (Miss.1993) (citing Reed v. State ex rel. Miss. Bureau of Narcotics, 460 So.2d 115, 118 (Miss.1984)). In the case sub judice, the City’s basis for claiming the $7,600 in cash was forfeitable was that the cash was found in close proximity to items it claimed were drug paraphernalia. There were no drugs or drug paraphernalia present, and the remaining evidence the City uses to assert that the cash was used for the purpose of facilitating a violation of the Uniform Controlled Substance Law demonstrates only a suspicion of illegal activity. We order the City of Aberdeen to return the $7,600 in cash to Evans.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.


text:
    Jonathan HALL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00431-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied April 6, 2006.
    Richard Earl Smith, Greenwood, attorney for appellant.
    Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 13, 2003, a jury in the Circuit Court of Sharkey County found Jonathan Hall guilty of vehicle burglary. Hall was subsequently sentenced to serve seven years in the custody of the Mississippi Department of Corrections, the sentence to run consecutively to a prior sentence for the crime of vehicle burglary. Aggrieved, Hall now appeals to this Court asserting that the trial court erred in refusing to allow Hall’s alibi witness to testify and that the trial court erred in allowing the prosecution to impeach the defendant with evidence of a prior conviction.

FACTS

¶ 2. On July 19, 2002, at approximately one o’clock in the morning, Jody Perkins heard noises in his carport. Upon looking out his kitchen window, Jody saw two people in his wife’s car. Jody informed his wife, Natalie, who called 911. Jody shouted at the two men, who jumped into another car and drove away. Jody got into Natalie’s car, followed the two men and secured their license tag number. After returning home, Jody gave the tag number to Natalie, who was still on the phone with the police. Within fifteen minutes the two men were apprehended and returned to the home of the Perkins. Jody then identified the two men as the men in his wife’s car. The two men were identified as Jonathan Hall and Stephen Johnson. Any other pertinent facts will be stated in the discussion of the issues.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO ALLOW HALL’S ALIBI WITNESS TO TESTIFY?

¶ 3. In his first issue, Hall argues that the trial court erred in failing to allow his alibi witness to testify. After the jury was empaneled, Hall’s trial counsel, Richard Smith, notified the court that there was a witness, Shirley Powell, who would state that she was with Hall until about one o’clock in the morning on the date of the burglary. Smith further stated that, although he had spoken with Hall on numerous occasions about the upcoming trial, Hall only told Smith about the potential alibi witness on the first day of the trial. The State objected and the trial court sustained the objection, not allowing Powell to testify.

¶ 4. According to Mississippi Uniform Rule of Circuit and County Court Practice 9.05:

Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of the intention to offer a defense of alibi .... (emphasis added).

The rule clearly states that the requirement to disclose an alibi witness is triggered by the prosecution. “Only after the prosecuting attorney makes a written demand is the defendant then required to provide a written notice of his intent to offer a defense of alibi.” Ford v. State, 862 So.2d 664(¶ 11) (Miss.Ct.App.2003). We see nothing in the record to indicate such a written demand by the prosecution.

¶ 5. We do note that once Smith notified the trial court of the alibi witness, the trial court asked if discovery was sought by the State, to which the State responded, ‘Tes, sir.” However, as previously stated, the record contains no written demand by the prosecution and we are not inclined to assume one exists. We find that the trial court erred in denying Hall the opportunity to present his alibi witness; thus, we reverse and remand for a new trial.

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO IMPEACH HALL WITH EVIDENCE OF A PRIOR CONVICTION?

¶ 6. Although we found reversible error in regards to Hall’s first issue, we nevertheless will discuss Hall’s remaining issue on appeal. In his other issue, Hall argues that the trial court erred in allowing the prosecution to impeach him with evidence of a prior conviction. The admission of evidence is within the discretion of the trial judge. Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

¶ 7. During direct examination of Hall, the following exchange occurred between Hall and his attorney, Mr. Richard Smith:

Mr. Smith: Now, you heard today that he [Stephen Johnson] has now told them [the jury] that you were involved with him in the breaking in of the Perkins’ [sic] automobile.
Hall: Yes, sir.
Smith: You heard that. If that’s not the case, why would he be saying that about you?
Hall: Well, this ain’t the first time when I say allegations like that been brought against me. I have — you know what I’m saying? I have been charged with the same thing, and he knows me from school. You know what I’m saying? Because of the people I associate with at school, you know, he feels like that — you know what I’m saying — I’m capable of doing things, that he know what I did. You know what I’m saying? He knows my background or whatever. You know what I’m saying?
Smith: He thought the police would believe him if he told them it was you? Hall: Yes, sir.

¶ 8. Once the direct examination of Hall ended, the State asked the trial court, outside the presence of the jury, to allow into evidence Hall’s two prior vehicle burglary convictions for the purposes of impeachment under Mississippi Rule of Evidence 609(a)(1). Rule 609(a)(1) states the following:

(a) General Rule. For the purpose of attacking the credibility of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party....

¶ 9. According to the record, the trial court then performed a balancing test pursuant to Peterson v. State, 518 So.2d 632 (Miss.1987), to determine if the probative value overcame the presumed prejudicial effect to Hall. The trial court found as follows:

The Court would be inclined not to admit this conviction but for the fact the defendant has already testified to it, the fact that he’s got priors. That’s his justification for why he was identified, that he’s got prior convictions. He’s already opened the door to this testimony, and I’m going to allow him to be impeached upon it. I’m going to say that the impeachment — it’s not outweighed by the prejudicial effect of it. Have I gone over — made—I find crucial to this issue the fact that defendant has opened the door.
If he had not opened the door and brought this issue up, I would have been inclined not to have allowed this testimony, but he brought it up. He’s opened the door to it, admitted it. That reduces the prejudicial effect because he’s already brought it up in his own testimony.

¶ 10. As the admission of evidence is within the trial court’s discretion, we find no reversible error in the trial court’s ruling regarding testimony of Hall’s prior convictions.

¶11. THE JUDGMENT OF THE SHARKEY COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SHARKEY COUNTY.

KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR.