author: MYERS, J.,

text:
    Amy MADDEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01148-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.
    Rehearing Denied March 20, 2012.
    Certiorari Dismissed Sept. 13, 2012.

      Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
   MYERS, J.,

for the Court:

¶ 1. Amy Madden was indicted by a Forrest County grand jury on Count I, sexual battery upon her daughter, Jane Doe, “between on or about December 25, 2007, through April 25, 2008,” by engaging in the act of sexual penetration, “to wit: by placing an unknown object into her anus[,]” and on Count II, child neglect for feloniously permitting Scott Conley, Jane’s father, to physically and sexually abuse Jane, continuously, “between on or about December 25, 2007, through April 25, 2008[.]”

¶ 2. Madden was convicted by a jury sitting before the Forrest County Circuit Court of sexual battery and felony child neglect. On Count I, the trial court sentenced Madden to twenty years in the Mississippi Department of Corrections (MDOC), with eight years to serve, twelve years suspended, and five years of post-release supervision. On Count II, the trial court sentenced Madden to eight years in the custody of the MDOC. The trial court ordered both counts to run concurrently with one another.

¶ 8. Because we find that Conley’s guilty plea to sexual battery upon Jane was used as evidence to indicate Madden’s guilt at trial and because the trial court failed to comply fully with Rule 803(25) of the Mississippi Rules of Evidence, we reverse the judgment of Madden’s convictions and sentences and remand this case to the trial court for a new trial in accordance with this ruling.

FACTS

¶ 4. On April 25, 2008, Madden was involved in a minor traffic accident in Petal, Mississippi. She was subsequently arrested and charged with misdemeanor driving under the influence (DUI). Madden’s two daughters, Jane, age three, and Ashley Doe, twenty-one months, were with Madden in the car at the time. No one was injured as a result of the accident, but both children reportedly had a dirty and unkempt appearance about them. So authorities transported the children to Forrest General Hospital in Hattiesburg, Mississippi, and contacted the Mississippi Department of Human Services (DHS). That evening, DHS had the children placed in the care of licensed foster parents, Sue and John Smith.

¶ 5. Approximately one week later, Jane reportedly began exhibiting inappropriate behavior while at the Smiths’ home. According to Sue, the first incident occurred while she and her eleven-year-old daughter were dressing Jane and Ashley after the children’s bath. Sue’s daughter said: “Momma, [Jane] is sticking this toy up her bootie.” Sue stopped Jane and asked her why she was doing that. Jane replied, “Seottie, my daddy, did this to me.” Sue questioned Jane further, and Jane said, “My daddy, Seottie, sticks his finger in me.” Sue told the jury that when Jane first arrived at their home, Jane’s bottom was “very raw,” a condition which Sue thought odd at the time because Jane was already potty trained and did not wear diapers. Jane had been prescribed medication for her condition, so Sue asked Jane if her daddy had stuck his finger in her to apply medication. Jane replied: “No. You don’t understand. He sticks his finger up me.” Jane then inserted her finger into her vagina.

¶ 6. Sue called Andrea Thornton at DHS. Thornton set up a forensic interview at a child advocacy center, which was conducted on May 7, 2008. Thornton, who testified on behalf of the State at trial, testified that the findings of that interview were inconclusive due to Jane’s inability to sit still during the interview. Thornton thereafter referred Jane for counseling at the Shafer Center for Crisis Intervention in Hattiesburg, Mississippi, a private, nonprofit organization that helps victims of sexual violence and other traumatic experiences. Jane’s first visit to the Shafer Center occurred on June 17, 2008.

¶ 7. On May 21, 2008, Jane underwent a forensic medical examination at the “Children’s Justice Center.” Dr. Kathy Kolar, who has a Ph.D. in nursing research, conducted the examination. Dr. Kolar testified on behalf of the State at trial and stated that Jane’s “genitalia were within normal limits.” Dr. Kolar also stated that in her opinion, the medical exam neither confirmed nor denied that sexual abuse had taken place.

¶ 8. Jane reportedly continued to exhibit inappropriate behavior while at the Smiths’ home, and she began to tell Sue more things. According to Sue, Jane told her a number of times that her mother had stuck a purple stick in her and that she would do the same to her mother. Jane said the object hurt her and made her bleed. Jane indicated the length of the object with her hands and said it made a “buzz, buzz noise, and that it moved back and forth.” Jane also reportedly said that her daddy has a tail and that he would “pee-pee way down in her mouth.” Jane then demonstrated the act with the use of her finger.

¶ 9. Sue said they had to keep a constant eye on Jane because she “was acting out sexually on herself on a daily basis,” and she would try to do so on Ashley and others.

¶ 10. Sue recalled one incident where Jane was playing with a child’s “light-up spoon.” Jane inserted the spoon into her mouth in a sexual motion and began making herself “gag.”

¶ 11. On June 17, Sue took Jane to the Shafer Center. There they met Shan Tér-rica Barnes, who would become Jane’s therapist. Barnes testified that she had been informed by Thornton prior to Jane’s first visit to the Shafer Center that there had been an allegation of possible sexual abuse, but no sexual abuse had been disclosed at a forensic interview previously conducted with Jane. Because no sexual abuse had been disclosed, Barnes said DHS only wanted the Shafer Center to conduct what the center calls, “psycho-education” with Jane, which involves educating “the caregiver and the children about sexual abuse, their body, good touch, [and] bad touch.”

¶ 12. Barnes said the June 17 meeting was intended as an informal intake-assessment session — the purpose of which was to gather some general background information on Jane. This, according to Barnes, is usually done with the child’s parent(s) or caregiver(s) outside the presence of the child. In this instance, however, Jane stayed with Sue during the meeting.

¶ 13. Barnes had Jane sit on the floor and color, while Barnes and Sue talked.

As Barnes and Sue were talking, Sue made a remark about “bath time,” at which point, Jane looked up and said, “Mommy stuck her finger in my bootie.” Barnes sat Jane on her lap and asked Jane to talk about bath time. Barnes related the following to the jury:

[Jane] told me, “[Ashley] has tits” .... Then she said, “I have tits.” Next she ... pulled down the top portion of her shirt to show me. [Jane] told me she had a belly button and at the same time she was pulling up her shirt showing me. I poked her belly button and she laughed. [Jane] then said she has, “Uh, uh.” And she was trying to pull her pants down, but she was sitting in my lap thus she could not get them down. I told her we are not to show our private parts to everybody. I asked [Jane] who could she show her privates to? She stated, “Mommy, daddy, and C.D.”
[Jane] stated, “Daddy called me bitch head.” [Jane] giggled during this conversation. [Jane] reported that she gets naked while mommy and daddy pull their pants down. I stated, “You get naked and mommy and daddy do, too?” [Jane’s] voice appeared to get loud and she said, “No. Mommy and daddy pull their pants down and I get naked.”
I stated, “Oh, you get naked and mommy and daddy pull their pants down?” She stated, ‘Yeah.”
I asked [Jane], “What does mommy’s private look like?”
She replied, “Like me.”
I asked [Jane], “What does daddy look like?”
[Jane] stated, “Shit, and I don’t like shit.”

Barnes said Jane then hopped from her lap and began jumping on the couch in the room, at which point Sue pulled a spoon from her purse. Jane took the spoon and tried to stick it in her pants. Jane then stuck the spoon in her mouth in an “oral motion,” and she began to “gag continuously.” Jane threw the spoon out and started gyrating and fell back on the couch. She then said, “I don’t like shit.... Daddy put shit in my mouth.”

¶ 14. Barnes testified that she stopped the meeting at that point because Jane had made a disclosure. Barnes told Sue that Jane could not come back to the Shafer Center until Jane had a forensic interview. Afterwards, Barnes contacted both DHS and the district attorney’s office.

¶ 15. Barnes did not see Jane again until July 21, 2008, which was when Jane began her therapy. Jane had seventeen therapy sessions- in total; the last one occurred in September 2009.

¶ 16. Jane reportedly told Barnes at the July 21 session that her mother had “stuck a stick in her bootie and it made her bleed ... [and] that mommy laughed.” Barnes said that Jane indicated that the stick was big; it moved; and it went, “Buzz. Buzz.”

¶ 17. Barnes said there were some therapy sessions where Jane either did not disclose any sexual abuse or she did not disclose anything new. At a session in September 2008, Jane reportedly said that “mommy licked her bootie.” Barnes asked Jane where her bootie was, and Jane first said, “I can’t show you.” Barnes asked Jane if she could point to it. Jane then pointed to her vaginal area. In November 2008, Jane reportedly told Barnes that “when mommy stuck the stick in her boo-tie, she licked her titty.” In December 2008, during “play therapy,” Jane reportedly picked up a toy microphone that was lying on the floor among other toys in the room and indicated to Barnes that the microphone was similar in size to the stick her mother had inserted inside her.

¶ 18. Other witnesses for the State included Venus Gray, a DHS supervisor; Dr. Lucille Rowley, a consultant to the Shafer Center; and Sue’s daughter-in-law.

¶ 19. A number of witnesses testified on Madden’s behalf during her case-in-chief, including Madden, herself. Madden emphatically denied having ever touched Jane inappropriately, and she denied having seen Conley do so either. Madden also denied ever seeing Jane behave in the manner attested to by the State’s witnesses. Madden claimed that from December 26, 2007, until shortly before DHS removed her children in April 2008, she and the two children had resided with Conley in a “40-foot alumilite camper” located in Lamar County, Mississippi. Madden said they moved from her mother’s home in Forrest County, Mississippi, the day after Christmas 2007.

PROCEDURAL HISTORY

¶ 20. Madden’s trial was held in May 2010. A month prior to trial, the trial court conducted a hearing to consider the State’s motions to declare Jane unavailable as a witness pursuant to Rule 804(a)(6) of the Mississippi Rules of Evidence and to declare statements made by Jane admissible pursuant to Rule 803(25).

¶ 21. Upon receiving expert testimony from Barnes, as an expert in marriage and family therapy, the trial court declared Jane unavailable to testify at Madden’s upcoming trial. The trial court found that there was a substantial likelihood that Jane’s emotional or psychological health would be substantially impaired if Jane were required to testify in the physical presence of Madden. See M.R.E. 804(a)(6). The trial court reserved its ruling on the admissibility of Jane’s out-of-court statements.

¶ 22. The record indicates that on the morning of Madden’s trial, prior to voir dire, the trial court made an off-the-record ruling that Jane’s statements would be allowed into evidence. Madden’s counsel thereafter requested a continuing objection with respect to the trial court’s ruling, based on the ground that Jane’s statements constituted inadmissible hearsay. Counsel’s objection was entered on the record immediately preceding opening statements in the case.

¶ 23. During the State’s case-in-chief, the prosecution asked Thornton if she was present in the courtroom when Conley had pleaded guilty to sexual battery of Jane, specifically, to the charge of oral sex. Madden’s counsel objected on the ground of hearsay. Without issuing a definitive ruling, the trial court stated, “You’ve made your point, don’t you? [sic].”

¶ 24. According to the trial transcript, Barnes and Sue both remarked, during their respective cross-examinations, that they had heard that Conley had pleaded guilty to sexual battery of Jane. Conley did not testify at Madden’s trial.

¶25. During closing arguments, the prosecution stated: “We’ve got to show that [Madden], the mother of [Jane], allowed [Conley], the father, to sexually abuse her in her presence. How do we show that? You’ve heard the testimony that [Conley] has pled guilty.”

¶26. During another portion of the State’s closing arguments, the following was said:

All of you heard yesterday ... that [Conley] pled [guilty] to sexual assault and got a probated sentence. Now, frankly, that makes me sick. Makes me sick. But we make decisions to charge people and we make decisions in plea bargain situations based on a case — an individual ease. You may have two defendants. You may have three defendants. And the evidence to one defendant as opposed to another defendant may be different. The law may allow us to use a certain kind of evidence in one case and not in another case. And we make decisions. I hope as long as I’m here I’m going to make decision [sic] that are in the best interest of the victim. The victim in this case is a child.

¶ 27. The jury found Madden guilty of sexual battery and felony child abuse. Madden filed a post-trial motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, in which she raised numerous issues. The trial court denied the motion, and this appeal followed.

¶ 28. As we are reversing and remanding this case back to the trial court for a new trial, we will only discuss those assignments of error we deem necessary for the disposition of this appeal.

DISCUSSION

I. WHETHER THE TRIAL COURT MISAPPLIED MISSISSIPPI’S TENDER-YEARS EXCEPTION TO HEARSAY INADMISSIBILITY.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO HEAR THAT CONLEY HAD PLEADED GUILTY TO SEXUAL BATTERY OF JANE.

¶ 29. We address issues one and two together. Madden argues that the trial court failed to comply with Rule 803(25), commonly referred to as the tender-years exception. She contends that the rule’s prerequisite linchpin of reliability was absent from the underlying facts of the case, and she contends that the trial court failed to conduct an on-the-record analysis of the Wright factors set forth in the comment to the rule. Madden also argues that the trial court erred by allowing evidence of Conley’s guilty plea to go before the jury, as it constituted incompetent evidence and violated her Sixth Amendment confrontation rights.

¶30. Madden’s arguments challenge evidentiary rulings made by the trial court. This Court reviews such rulings under an abuse-of-discretion standard. Hall v. State, 785 So.2d 302, 304 (¶ 6) (Miss.Ct.App.2001). We will not reverse a trial court’s decision on the admissibility of testimony offered at trial unless prejudice amounting to reversible error resulted from the decision. Alexander v. State, 610 So.2d 320, 329 (Miss.1992).

¶ 31. Rule 803(25) provides the following:

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 provided substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 32. The comment to Rule 803(25) provides some factors, commonly called the Wright factors, that the trial court may consider in determining whether the statements) bear(s) a substantial indicia of reliability:

(1) whether there is an apparent motive on 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 declarant’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 declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

See also Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). This list of factors is neither exclusive nor exhaustive. Withers v. State, 907 So.2d 342, 350 (¶ 23) (Miss.2005). “There is no requirement that each factor be listed and discussed separately by the trial judge.” Bosarge v. State, 786 So.2d 426, 437 (¶ 32) (Miss.Ct.App.2001). “Rather, the unifying principle [underlying] these factors [is that they] relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Wright, 497 U.S. at 822, 110 S.Ct. 3139. “[N]o mechanical test is available” for this determination. Eakes v. State, 665 So.2d 852, 865 (Miss.1995). In Klauk v. State, 940 So.2d 954, 956 (¶6) (Miss.Ct.App.2006), this Court stated:

While the notes to [Rule] 803(25) set out several factors, the judge should make an overall determination of the likelihood that these statements are true and make an on[-]the[-]record finding that there is substantial indicia of reliability. [Walls v. State, 928 So.2d 922, 927 (¶ 14) (Miss.Ct.App.2006) ] (citing Hennington v. State, 702 So.2d 403[, 415] (¶ 54) (Miss.1997)). Specifically, before admitting hearsay testimony, the trial court must rule on the factors detailed in Rule 803(25)(a) and (b). Veasley [v. State,] 735 So.2d [432, 437] (¶ 16) [ (Miss.1999) ].

(Internal quotations omitted). “Corroborating evidence may not be used as an indicia of reliability.” See M.R.E. 805(25) rant.

¶ 33. We find that the trial court complied with subpart (b) of Rule 803(25). As mentioned, the trial court heard evidence pertaining to the State’s motion to declare Jane unavailable to testify at trial. Although Madden objected to the State’s motion, she offered no countervailing evidence in response. Based on our review of the record, we find no abuse of discretion in the trial court’s decision to grant this part of the State’s motion.

¶ 34. The trial court failed, however, to comply with subpart (a) of Rule 803(25), which requires the court to find affirmatively “that the time, content, and circumstances of the statement provided substantial indicia of reliability.”

¶ 35. In Klauk, this Court held that the trial court’s failure to make an on-the-record factual determination as to whether the out-of-court statements of a minor, presumptively within tender years, contained substantial indicia of reliability, was error. See Klauk, 940 So.2d at 956 (¶ 6). We found the error harmless because we determined that the weight of the evidence against the defendant sufficiently outweighed the harm done. Id. at 956-57 (¶¶ 7-8).

¶ 36. Similar to Klauk, the record in the instant case contains no factual determination by the trial court as to the reliability of Jane’s statements. This constitutes error on the part of the trial court. Id. at 956 (¶ 6). But unlike in Klauk, we do not find the error before us is harmless.

¶ 37. The record manifestly shows that Conley’s guilty plea was used as evidence at trial in order to help establish Madden’s guilt on the felony child-abuse charge. The general rule in Mississippi is that where two or more persons are jointly indicted for the same offense, but tried separately, a judgment of conviction or a plea of guilty against one of them is not competent evidence on the trial of the other because such guilty plea or conviction is not evidence of the guilt of the party being tried. Robinson v. State, 465 So.2d 1065, 1068 (Miss.1985) (citing Henderson v. State, 403 So.2d 139, 140-41 (Miss.1981)).

¶ 38. In White v. State, 616 So.2d 304, 307 (Miss.1993), the Mississippi Supreme Court noted that “[f]ederal and state appellate courts have found the admission of a co-conspirator’s plea of guilty, while incompetent as substantive evidence of the defendant’s guilt, may be admissible for other purposes.” (Citing United States v. Medley, 913 F.2d 1248, 1257-58 (7th Cir.1990); United States v. Davis, 766 F.2d 1452, 1456 (10th Cir.1985); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir. 1976); People v. Brunner, 797 P.2d 788, 789 (Colo.Ct.App.1990); State v. Padgett, 410 N.W.2d 143, 146 (N.D.1987); see also State v. Braxter, 568 A.2d 311, 316 (R.I.1990) (guilty plea of accomplice in trial of defendant on same charge admissible when introduced to impeach accomplice, but inadmissible to demonstrate guilt of defendant); State v. Rothwell, 308 N.C. 782, 303 S.E.2d 798, 800-01 (1983) (guilty plea of co-conspirator admissible when admitted for “legitimate purpose” but never as evidence of defendant’s guilt); Greer v. State, 188 Ga.App. 808, 374 S.E.2d 337, 338 (1988) (no error for admission of accomplice’s guilty plea to same crime which defendant is charged where the plea was introduced during the accomplice’s testimony and the accomplice was subject to cross-examination by defendant)).

¶39. White noted a distinction in this area between a conviction based on a jury verdict and one based on a guilty plea. The supreme court explained as follows:

The danger at issue in these cases is that one jury would rely upon the judgment of a prior jury in reaching its decision. These cases are distinguishable, however, because we are dealing with a plea of guilty in the instant case; that is, a prior admission of guilt, which is consistent with the testimony at trial. This is a significant distinction because prior statements have evidentiary value different from prior findings of other tribunals.

Moreover, whether an error in admitting this evidence is sufficiently prejudicial to warrant reversal may be resolved differently where the offending evidence is no more than a repetition of what is said by the witness before a jury and subject to cross[-]examination, as opposed to evidence of the collective judgment of another jury. Finally, where, as here, the issue of the witnesses] guilt is based on conduct not involving the defendant and not at issue in the trial where the witness testifies, the reason for the prohibition loses its force.

Buckley [v. State, 223 So.2d 524 (1969)] and [State v.] Thornhill[, 251 Miss. 718, 171 So.2d 308 (1965) ] involve guilty pleas. Thornhill, however, is easily distinguishable. There the [S]tate sought to introduce the record of conviction of two co-defendants without calling them as witnesses. Thornhill, 251 Miss. at 721, 726-27, 171 So.2d at 312. Obviously such evidence is inadmissible as the guilt or innocence of co-defendants does not per se bear upon the question of guilt of the person on trial. Moreover, the evidence was hearsay if offered to prove the truth of the matters asserted by the plea of guilt. [M.R.E.] 801(c) (Comment: This rule “codifies and simultaneously clarifies the common[-]law definition of hearsay.”) In Buckley, the witness was a co-indictee who testified.

White, 616 So.2d at 307 (emphasis added).

¶ 40. Significantly, Conley did not testify in this case. In Garrison v. State, 726 So.2d 1144, 1146 (¶ 7) (Miss.1998), the supreme court dealt with a case where the trial court had entered the transcript of a co-defendant’s guilty plea when the co-defendant refused to testify at the defendant’s trial. The supreme court reversed this Court’s finding that the trial court had properly admitted the transcript as an exception to the hearsay rule pursuant to Rule 804(b) and found that the admission violated the defendant’s Sixth Amendment confrontation rights. Id. at 1146 (¶ 8).

¶ 41. The State points out that Madden did not object on this ground and, thus, contends that she waived the right to assert it on appeal. Garrison, however, appears to hold otherwise, as the defendant in that case, similarly, had objected to the admission of the guilty-plea transcript based on hearsay grounds. See id. at (¶ 7).

¶ 42. Nevertheless, we find it unnecessary to reach Madden’s constitutional argument. Conley’s guilty plea, as evinced by the prosecution’s closing arguments, was used as evidence in the case to show that he had committed sexual battery upon Jane and to indicate Madden’s culpability in the act. The evidence constituted impermissible hearsay because it was offered to prove the truth of the matters asserted. See, e.g., White, 616 So.2d at 307. Madden preserved the issue for appeal by objecting on the ground of hearsay. For the reasons just discussed, we find that the trial court erred by not sustaining her objection.

¶ 43. Further, as mentioned, Barnes and Sue both commented on the fact that Conley had pleaded guilty, and they both did so at critical points during their respective cross-examinations while defense counsel was probing their credibility and the credibility of some of Jane’s statements. Because Conley’s guilty plea was also allowed to serve as evidence in the trial, it very likely had the effect of bolstering Barnes’s and Sue’s credibility in front of the jury. This in turn might have mistakenly caused the jury to infer trustworthiness on some of Jane’s out-of-court statements based upon incompetent evidence.

¶ 44. We find that the admission of Conley’s guilty plea into evidence permeated Madden’s trial with obvious unfairness. Accordingly, we hold that Madden is entitled to a new trial where noncompliance with subpart (a) of Rule 803(25) and improper use of Conley’s guilty plea are unlikely to recur.

III. WHETHER THE ADMISSION OF JANE’S STATEMENTS TO BARNES VIOLATED MADDEN’S FUNDAMENTAL CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HER.

¶ 45. Madden argues that the admission of Jane’s statements to Barnes violated her Sixth Amendment right to confront a witness against her under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Madden contends that because Barnes reported her findings to the district attorney’s office, Jane’s statements to Barnes became testimonial, as they were gathered for the purpose of being used in a future criminal proceeding.

¶ 46. Under the Sixth Amendment, a defendant in any criminal prosecution has the right to confront witnesses against him or her. U.S. Const, amend. VI (applicable to the states through U.S. Const, amend. XIV). Prior to Crawford, the United States Supreme Court had interpreted the Confrontation Clause to permit the states to use hearsay statements of a declarant who was not available at trial if the hearsay fell within “a firmly rooted hearsay exception” or if it otherwise bore “particularized guarantees of trustworthiness.” See, e.g., Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (overruled). In Crawford, however, the Supreme Court found that the interpretation of the Sixth Amendment in Roberts was inconsistent with the historical principles behind the Confrontation Clause. Crawford, 541 U.S. at 60, 124 S.Ct. 1354. Crawford held that the Sixth Amendment “commands, not that [hearsay] evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 61. Crawford stated that the principle behind the clause was that “[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59. Crawford, thus, concluded that if the statement proffered is testimonial in nature, it must be subjected to cross-examination regardless of its reliability. Id. at 68.

¶47. In order for Crawford to apply to Jane’s statements as Madden contends in this appeal, we must necessarily find that Jane’s statements were testimonial. Bishop v. State, 982 So.2d 371, 374 (¶ 10) (Miss.2008). “Only [testimonial] statements ... cause the declarant to be a witness within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law....” Crawford, 541 U.S. at 68,124 S.Ct. 1354.

¶ 48. Crawford declined to provide a comprehensive definition of “testimonial” evidence; rather, the Court noted possible formulations for testimonial statements, which includes “at a minimum ... prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.” Id. The Mississippi Supreme Court has concluded that “a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Bishop, 982 So.2d at 375 (¶ 10) (quoting Hobgood v. State, 926 So.2d 847, 852 (¶ 11) (Miss.2006)).

¶ 49. In Williams v. State, 970 So.2d 727, 734 (¶ 22) (Miss.Ct.App.2007), this Court held that a videotaped forensic interview of a sexual-battery victim conducted at a non-profit, non-governmental entity, was testimonial in nature, as contemplated by Crawford, where a law-enforcement officer was present at the interview after having already gathered evidence in the case by recording phone conversations between the victim and the defendant. (Citing T.P. v. State, 911 So.2d 1117, 1123 (Ala.Crim.App.2004); Snowden v. State, 156 Md.App. 139, 846 A.2d 36 (Md.Ct.Spec.App.2004)). We, however, found the erroneous admission of this evidence harmless because the defendant had the opportunity to cross-examine the victim at trial about her statements on the videotape. Id. at (¶ 23).

¶ 50. Relying on Williams, and the two cases cited therein, T.P. and Snowden, Madden argues that Jane’s statements to Barnes were testimonial because even though Barnes’s interviews with Jane occurred at a non-governmental entity, they nonetheless arose from a referral by DHS while in the process of investigating an allegation of child-sexual abuse.

¶ 51. We find the circumstances surrounding Jane’s statements to Barnes distinctly different from those found in Williams, as well as in T.P. and Snowden. The interview in Williams was found to be the functional equivalent of a police interrogation, the primary purpose of which was to gather evidence for prosecutorial purposes. Similarly, in T.P., the complained of statements were elicited from a minor during an interview conducted by both a social worker and a sheriffs investigator as part of a criminal investigation. See T.P., 911 So.2d at 1123 (concluding that “the interview was intended to be used as an investigative tool for a potential criminal prosecution”). Likewise, in Snowden, the complained of statements, as found by the Maryland Supreme Court when it later heard the case on certiorari, were made to a social worker during an interview conducted at the behest of a police investigator and in the investigator’s presence. See State v. Snowden, 385 Md. 64, 867 A.2d 314, 317 (Md.2005) (finding also that each declarant knew that the reason for the interview was because of their allegations against the defendant).

¶ 52. Contrary to Madden’s assertion, there is no indication in the record that law enforcement was ever intimately involved in Jane’s therapy sessions. Nor does the record support Madden’s contention that DHS’s motivation for referring Jane to the Shafer Center was to look for evidence to use in a future prosecution. Rather, it fairly illustrates that DHS’s primary reason for contacting the center was due to the harmful behavior Jane reportedly had been exhibiting toward herself and to others. Cf Bishop, 982 So.2d at 375 (¶ 13) (finding minor’s statements to child therapist were nontestimonial because interactions were strictly for purposes of treatment and not for prosecuto-rial purposes). The fact that Barnes thereafter contacted DHS and the district attorney’s office and reported what she had observed only demonstrates that she was acting in accordance with Mississippi Code Annotated section 43-21-353 (Rev. 2009).

¶ 53. Accordingly, we find that Jane’s statements to Barnes were nontestimonial and did not implicate Madden’s Sixth Amendment right of confrontation.

¶ 54. This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED BARNES TO TESTIFY OUTSIDE THE AREA OF HER EXPERTISE.

¶ 55. Madden argues that Barnes was offered and accepted as an expert in marriage and family therapy, not forensic examination of children alleged to have been sexually abused. Madden asserts that Barnes’s testimony that Jane’s behavior and statements were consistent with a child who has been sexually abused was improper and inadmissible. Madden contends that under Daubert principles, Barnes’s testimony was not remotely determinable by her expertise, and her opinion was irrelevant because it had no reliable relation to the determination of a material fact.

¶ 56. The admission of expert testimony lies within the sound discretion of the trial court. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003). Rule 702 of the Mississippi Rules of Evidence states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, 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.

¶ 57. In McLemore, the Mississippi Supreme Court adopted the Daubert standard for determining the admissibility of expert testimony. McLemore, 863 So.2d at 39 (¶ 5). The supreme court explained the Daubert rule as follows:

[T]he analytical framework provided by the modified Daubert [v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] standard requires the trial court to perform a two-pronged inquiry in determining whether expert testimony is admissible under 702. The modified Daubert rule is not limited to scientific expert testimony — rather, the rule applies equally to all types of expert testimony. First, the court must determine that the expert testimony is relevant — that is, the requirement that the testimony must “assist the trier of fact” means the evidence must be relevant. Next, the trial court must determine whether the proffered testimony is reliable. Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one. Daubert provides “an illustrative, but not an exhaustive, list of factors” that trial courts may use in assessing the reliability of expert testimony.

Id. at 38 (¶ 16) (internal citations omitted).

¶ 58. Barnes was admitted by the trial court as an expert in marriage and family counseling, both at the pretrial hearing and at trial. Her qualifications included a bachelor’s degree in child and family studies from the University of Southern Mississippi; a master’s degree in marriage and family therapy from the same university; and a Mississippi license in marriage and family therapy. In obtaining her master’s degree, Barnes completed five-hundred hours of supervised “face-to-face” contact with couples and families; the majority of those hours were spent with young children. For her licensure requirements, Barnes completed one-thousand hours of client contact, two-hundred hours of which were under the supervision of a licensed marriage and family therapist and a clinical social worker. Thereafter, she was permitted to sit for the board examination for marriage and family therapist. Barnes has testified in both chancery court and juvenile court. This, however, was her first time to testify in a criminal matter, and it was her first time to be admitted as an expert in her field.

¶59. In Bishop, the supreme court found no abuse of discretion in the trial court’s decision to allow expert testimony from a child therapist who had conducted therapeutic sessions with a sexual-abuse victim, not unlike those we find were conducted in this case. Bishop, 982 So.2d at 381 (¶¶ 34-35). The Bishop court reiterated that “an expert may not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child sexu-

al[-]abuse victim has been truthful”; but “it is within the scope of permissible testimony for an expert to testify regarding his or her opinion that the alleged victim’s characteristics are consistent with a child who has been sexually abused.” Id. at (¶ 33).

¶ 60. Here, the only expert testimony given by Barnes was as follows:

Q. Now, based on your training that we’ve already heard and your counseling sessions with [Jane], did you form an opinion as to whether or not [Jane] had been sexually abused?
A. Yes.
Q. What was that opinion?
A. That she was consistent with a child that had been sexually abused.
Q. What did you base that on, if you can just tell the jury?
A. Based on her sexually acting out on self and others, based on her frequency of urination, based on her behavior as far as knowledge of sexual parts, and based on her terminology of sexual parts her body and others, she was consistent of a child that was sexually abused.
Q. You said “acting out.” What do you mean by acting out?
A. From what I’ve seen and heard, she was verbally talking about her sexual part, licking others, masturbating herself, also talking about sexually acting out on children at day care, sexually arousing herself.

¶ 61. Barnes did not testify that sexual abuse had in fact occurred. Nor did she opine on the credibility of Jane’s statements. In line with the Bishop court’s finding, we find that the trial court did not abuse its discretion in admitting Barnes’s expert testimony.

¶ 62. This issue is without merit.

V. WHETHER THE TRIAL COURT ERRED BY REFUSING DEFENSE COUNSEL’S PROFFERED CIRCUMSTANTIAL-EVIDENCE INSTRUCTION.

¶ 63. Madden contends the trial court erred by refusing jury instruction D-7, a circumstantial-evidence instruction, which states:

The court instructs the jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the defendant, then the evidence for the State must be so strong as to establish guilt of the defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than guilt.

¶ 64. The law is clear, a circumstantial-evidence instruction need only be given where there is no direct evidence of a crime. King v. State, 580 So.2d 1182, 1191 (Miss.1991) (citing Gray v. State, 549 So.2d 1316, 1324 (Miss.1989)). Generally, a circumstantial-evidence case is one in which there is neither an eyewitness nor a confession to the crime. Mangum v. State, 762 So.2d 337, 344 (¶ 21) (Miss.2000); see also Foley v. State, 914 So.2d 677, 686 (¶ 15) (Miss.2005) (“[T]here are certainly more types of direct evidence than eyewitness testimony or confessions.”).

¶ 65. Jane was an eyewitness to the sexual abuse allegedly committed upon her person, and her statements to others about the abuse, thus, constituted direct evidence of the crimes. See Foley, 914 So.2d at 687 (¶ 16). Accordingly, we find no error with the trial court’s decision to refuse jury instruction D-7.

¶ 66. This issue is without merit.

VI. WHETHER THE INDICTMENT ADEQUATELY INFORMED MADDEN OF THE NATURE OF THE CHARGES AGAINST HER OR, IN THE ALTERNATIVE, WHETHER THE STATE PRESENTED SUFFICIENT EVIDENCE AS TO THE DATE OF THE ALLEGED OFFENSE.

¶ 67. Madden argues that her indictment failed to notify her adequately of the nature and cause of the accusations against her. Specifically, Madden contends that due to the broad date-range language in the indictment, she was unable to defend herself fully against the charges, other than by denying involvement. She also contends that the State presented no evidence at trial of the date(s) of the alleged offense(s).

¶ 68. Whether the indictment sufficiently notified the defendant of the charge against her is a question of law reviewed under a de novo standard. Winters v. State, 52 So.3d 1172, 1174 (¶ 7) (Miss.2010).

¶ 69. Our supreme court has held that “an allegation as to the time of the offense is not an essential element of the offense charged in an indictment[;] ... within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.” Daniels v. State, 742 So.2d 1140, 1143 (¶ 10) (Miss.1999) (citation and internal quotations omitted). “Further, specific dates are not required in sexual[-]abuse indictments so long as the defendant is fully and fairly advised of the charges against him.” Frei v. State, 934 So.2d 318, 325 (¶ 20) (Miss.Ct.App.2006) (citing Morris v. State, 595 So.2d 840, 842 (Miss.1991)).

¶ 70. In Frei, this Court addressed a similar challenge to an indictment with regard to the sufficiency of the dates alleged therein; we found the claim was waived due to the defendant’s failure to demur to the indictment in the trial court below. Id. Similarly, Madden did not object to the “broad date-range language” contained in her indictment. Therefore, we deem her claim waived.

¶ 71. Procedural bar notwithstanding, we nonetheless find that Madden’s indictment fully and fairly apprised her of the charges against her and did not prohibit her from preparing any defense to the charges.

¶ 72. Madden was charged with violating Mississippi Code Annotated section 97-3-95(1) (Rev.2006) and Mississippi Code Annotated section 97-5-39(l)(c) (Rev.2006), respectively. Section 97-3-95(1) provides, in part, as follows:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

Sexual penetration is defined in Mississippi Code Annotated section 97-3-97(a) (Rev.2006) as, “cunnilingus, fellatio, buggery or pederastry, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.” Section 97 — 5—39(l)(c) provides, in part, that:

A parent, legal guardian or other person who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment for not more than ten (10) years or to payment of a fine of not more than Ten Thousand ■ Dollars ($10,000.00), or both.

¶ 73. We first point out that Madden had asserted at trial that she, Conley, and her two children were living outside the jurisdiction of Forrest County during the dates set forth in her indictment. The State, however, presented evidence that during this time frame, the family actually lived in the home of Madden’s mother, which was located in Forrest County. The jury, obviously, decided in favor of the State’s evidence, having found beyond a reasonable doubt that the offenses occurred in Forrest County. How Madden’s jurisdictional claim would have fared differently had it not been for the “broad date-range language” in the indictment is beyond this Court’s purview.

¶ 74. Madden’s other contention — that the State failed to present evidence of the dates of the alleged offenses — challenges the sufficiency of the evidence. In reviewing the sufficiency of the evidence, the relevant inquiry is whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 75. Based on the evidence presented at trial, Jane reportedly told Sue that the sexual abuse had occurred in the bedroom and the bathroom in the home where she was living with her mom (Madden) and dad (Conley). Rational minds could reasonably conclude from the State’s evidence that Jane was referring to Madden’s mother’s home in Forrest County.

¶ 76. Also, time was not an essential element for either offense in this case. Jane, undisputably, was under the age of fourteen and at least twenty four months Madden’s junior at the time the alleged sexual battery occurred. See Miss.Code Ann. § 97 — 3—95(l)(d). And for purposes of section 97-5-39, the term “child” as used in that section, is defined by Mississippi Code Annotated section 43-21-105 (Supp. 2011) as a person under the age of eighteen.

¶ 77. Notably, there is no statute of limitations for either offense. See Miss. Code Ann. § 99-1-5 (Supp.2011). Thus, when exactly these offenses occurred was immaterial. See, e.g., McBride v. State, 61 So.3d 174, 184 (¶ 33) (Miss.Ct.App.2010) (holding that in a prosecution under section 97 — 3—95(l)(d), where sufficient evidence at trial proved the victim was under age fourteen at the time of the crime, “the time frame of the incident is not relevant because it is not an element of the crime”).

¶ 78. Furthermore, Madden’s indictment set forth an approximate time frame in which the charged offenses had allegedly occurred. This is suitable practice in these types of cases. As we explained in McBride, “[i]t is not uncommon in cases dealing with the sexual crimes against a child-victim that the time of the crime is less specific in the indictment.” Id. at 184 (¶ 35). Due to the “nature of the crime” and the “trauma” it inflicts, victims — especially children — may have difficulty identifying the exact date(s) of the crime. Id.

¶ 79. In upholding our decision in McBride, the Mississippi Supreme Court held that where “ ‘on or about’ language is used in an indictment, the [State] is not required to prove [the] exact date(s) so long as a date reasonably near is established.” McBride v. State, 61 So.3d 138, 150 (¶ 51) (Miss.2011).

¶ 80. Viewing the evidence in the light most favorable to the State, and giving the State the benefit of all favorable inferences that can be drawn therefrom, there is sufficient evidence for a reasonable fact-finder to find that the offenses charged in the indictment occurred within, or reasonably near, the time frame set forth in Madden’s indictment.

¶ 81. This issue is without merit.

VII. WHETHER THE STATE PRESENTED SUFFICIENT EVIDENCE TO CONVICT MADDEN OF CHILD NEGLECT.

¶ 82. Madden argues that the State presented no evidence that the alleged abuse perpetrated by Conley was continuous in nature. She adds that: “More importantly, however, the State presented absolutely no evidence whatsoever that Madden permitted Conley to abuse [Jane].”

¶ 83. The elements to felony child abuse and our standard of review with regard to the sufficiency of the evidence were stated in the preceding issue.

¶ 84. Jane related a number of instances to others that both Madden and Conley, repeatedly, sexually abused her during the time that they lived in the home owned by Madden’s mother. Evidence was presented that Madden was Jane’s primary caregiver and that Jane was practically always in her sight.

¶ 85. Viewing this evidence in the light most favorable to the State, we find that a rational trier of fact could have found the essential elements of felony child abuse beyond a reasonable doubt.

¶ 86. This issue is without merit.

¶ 87. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE, C.J., BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. IRVING AND GRIFFIS, P.JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON AND MAXWELL, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . To protect the minor’s identity, the minor's name, and the names of her sister and foster parents have been replaced with pseudonyms.

      . In Mississippi, “there is a rebuttable presumption that a child under the age of twelve is of tender years.” Veasley v. State, 735 So.2d 432, 436 (¶ 16) (Miss.1999). Jane was three years old at the time she reportedly made her disclosures; thus, there is no dispute that she was a child of tenders years.


source: Caselaw Access Project

author: RUSSELL, J.,

license: Public Domain

text:
    Terry FLEMING, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01590-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied June 5, 2012.
    Certiorari Denied Sept. 20, 2012.
    Sanford E. Knott, attorney for appellant.

      Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Terry Fleming appeals the Hinds County Circuit Court’s judgment denying his motion for post-conviction relief. He argues the circuit court erred in failing to resentence him as a non-habitual offender due to the expungement of one of his felony convictions after he was sentenced. Upon review, we find no error and affirm the circuit court’s denial of post-conviction relief.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1993, Fleming was convicted of sale of cocaine, a felony. In 1994, Fleming was convicted of possession of cocaine, also a felony. In 2000, Fleming was convicted of two additional felonies, namely sale of cocaine and sale of marijuana. Because Fleming had two prior felonies at the time of his 2000 convictions, the circuit court sentenced him as a habitual offender. Fleming’s conviction and sentence were previously affirmed by this Court, and the Mississippi Supreme Court denied certio-rari on October 24, 2002.

¶ 3. In 2009, Fleming’s 1994 conviction was expunged by the circuit court. Later in 2009, Fleming filed a motion with the Mississippi Supreme Court seeking permission to proceed with a motion for post-conviction relief in the circuit court. On January 6, 2010, the supreme court entered an order granting Fleming leave to proceed and directed the circuit court to conduct an evidentiary hearing. On February 25, 2010, Fleming filed a motion for post-conviction relief seeking to be resen-tenced as a non-habitual offender due to the expungement of his 1994 felony conviction. The circuit court denied Fleming’s motion, and he appeals that decision. We are presented with two issues on appeal: (1) whether Fleming’s motion for post-conviction relief was time-barred and (2) whether Fleming should be resentenced as a non-habitual offender where he had two prior felony convictions at the time of his sentencing as a habitual offender, but one felony was later expunged. Upon review, we find no error and affirm.

DISCUSSION

¶ 4. The circuit court’s denial of a motion for post-conviction relief will not be reversed unless its decision was clearly erroneous. Martin v. State, 66 So.3d 1288, 1289 (¶ 3) (Miss.Ct.App.2011) (citing Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002)). “However, when issues of law are raised, the proper standard of review is de novo.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

I. Whether Fleming’s motion for post-conviction relief was time-barred.

¶ 5. The State contends Fleming’s motion for post-conviction relief was time-barred. In Mississippi, a motion for post-conviction relief must be filed within the following time frame:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment or conviction.

Miss.Code Ann. § 99-39-5(2) (Supp.2011).

¶ 6. In the instant case, Fleming was required to file his motion for post-conviction relief within three years “after the time in which [Fleming’s] direct appeal [was] ruled upon by the Supreme Court of Mississippi.” Miss.Code Ann. § 99-39-5(2). Our supreme court denied Fleming’s petition for writ of certiorari on October 24, 2002. Fleming did not file his motion until February 25, 2010 — well over three years after the supreme court’s order denying certiorari. Therefore, Fleming’s motion for post-conviction relief was time-barred unless he met an exception to the three-year statute of limitations.

¶ 7. Fleming cites the following statute to support his position that his ease was excepted from the statute of limitations:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentenced]

Miss.Code Ann. § 99 — 39—5(2)(a)(i) (emphasis added). Fleming argues his case fell under this exception to the three-year statute of limitations because the expungement of his 1994 conviction by the circuit court in 2009 was an “intervening decision.” An “intervening decision” under this section refers to case law — a decision of the “Supreme Court of either the State of Mississippi or the United States” — not an order of expungement entered by a circuit court. See Glenn v. State, 940 So.2d 969, 970-71 (¶¶4-5) (Miss.Ct.App.2006) (discussing “intervening case law”). Further, Fleming failed to provide any intervening decision by the Mississippi Supreme Court or the United States Supreme Court that would adversely affect the outcome of his conviction or sentence. See Oaks v. State, 912 So.2d 1075, 1077 (¶ 7) (Miss.Ct.App.2005) (holding petitioner’s failure to “present any intervening decision from the Supreme Court of either the United States or the State of Mississippi which would have actually adversely affected the outcome of his conviction or sentence” rendered his motion for post-conviction relief time-barred). Because Fleming failed to cite or argue any relevant exception, we find that Fleming’s motion for post-conviction relief was time-barred. Notwithstanding this time bar, we will address the merits of Fleming’s argument.

II. Whether Fleming should be re-sentenced as a non-habitual offender where he had two prior felony convictions at the time of his sentencing as a habitual offender, but one felony was later expunged.

8. Fleming argues that he is entitled to be resentenced as a non-habitual offender due to the expungement of his 1994 conviction in 2009. Our habitual-offender statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (Rev.2007) (emphasis added).

¶ 9. Fleming does not dispute being sentenced as a habitual offender at the time of his 2000 convictions. Rather, he asserts the expungement of his 1994 felony conviction in 2009 entitles him to be re-sentenced as a non-habitual offender since he no longer has two pre-2000 felony convictions. We have been unable to find any Mississippi case law on this point. But a plain reading of section 99-19-81 states that a sentence imposed under this statute “shall not be reduced.” Moreover, although not in effect at the time of Fleming’s 2000 convictions, the Legislature later enacted a statute which states, in pertinent part, that “[a]ny criminal conviction which has been expunged or nonadjudicat-ed may be used for the purpose of determining habitual offender statutes!/]” Miss.Code Ann. § 45-27-21 (Rev.2011) (effective from and after July 1, 2006).

¶ 10. We also find guidance in our ex-pungement statute:

Upon the dismissal of a person and discharge of proceedings against him ..., the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the bureau ..., all recordation relating to his arrest, indictment, trial, finding of guilt, and dismissal and discharge pursuant to this section. If the court determines, after hearing, that such person was dismissed and the proceedings against him discharged, or that the person had satisfactorily served his sentence or period of probation and parole, it shall enter an order of expunction. The effect of the order shall be to restore the person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, indictment or trial in response to any inquiry made of him for any purpose.

Miss.Code Ann. § 41-29-150(d)(2) (Supp.2011). This statute also states: “It is the intent and purpose of the Legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.” Miss.Code Ann. § 41-29-150(g) (emphasis added). In addition to the plain language of the statute, our supreme court has discussed the rehabilitative purpose of the expungement statute, stating:

We are of the opinion the statute is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetrates further felonies. The statute is suited precisely to this problem.

Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980). Further, “[t]he purpose of the habitual offender acts is to punish not only for the immediate offense, but to also punish for a pattern of criminal conduct.” Berry v. State, 907 So.2d 1011, 1013 (¶ 10) (Miss.Ct.App.2005) (citing Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980)).

¶ 11. In the instant case, the circuit court’s judgment to deny Fleming’s motion for post-conviction relief stated, in pertinent part, as follows:

After hearing oral argument on the issue, the Court finds the motion should be denied. The expungement statute was passed by the [Legislature to give first time offenders an opportunity for rehabilitation such that they could be productive members of society. [Fleming] was entitled to an expungement [for his 1994 possession of cocaine conviction]. However, [Fleming] did not seek expungement until after he committed at least two more felonies and was sentenced as a habitual [offender]. The Court finds that to allow [Fleming] to be resentenced as a non-habitual [offender] would contravene the legislative purposes of the expungement and habitual [offender] statutes.

¶ 12. We agree with the circuit court’s reasoning and the result reached. From a plain reading of section 41-29-150(g), it is clear that the Legislature intended to allow certain expungements to “promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.” In the instant case, Fleming was not rehabilitated because he was convicted of two more felonies after his 1994 conviction, both of which involved controlled substances. Indeed, Fleming’s pattern of criminal conduct in the drug arena evinced his unwillingness to become rehabilitated. Further, Fleming did not seek expungement of his 1994 conviction until after he was convicted of two more felonies and sentenced as a habitual offender. Therefore, we find that Fleming was not entitled to be resentenced as a non-habitual offender. The judgment of the circuit court denying Fleming’s motion for post-conviction relief is affirmed.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

      . See Fleming v. State, 829 So.2d 1245 (Miss.2002).

      . There are other exceptions to the three-year statute of limitations for post-conviction-relief cases, but none of those exceptions are applicable to this case. See Miss.Code Ann. § 99-39-5(2)(a)-(b).

      .Miss.Code Ann. § 99-39-5(2)(a)(i).


author: IRVING, P.J.,

text:
    CITY OF JACKSON, Mississippi, Appellant v. Slade MOORE, Appellee.
    No. 2010-CC-01057-COA.
    Court of Appeals of Mississippi.
    May 22, 2012.
    Rehearing Denied Sept. 11, 2012.

      Pieter J. Teeuwissen, Lara E. Gill, Ridgeland, attorneys for appellant.
    Thomas J. Bellinder, Dennis C. Sweet III, Jackson, attorneys for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. The City of Jackson (City) appeals the judgment of the Hinds County Circuit Court affirming the order of the Jackson Civil Service Commission (Commission) reversing Officer Slade Moore’s termination from the Jackson Police Department (JPD) for his use of excessive force in making arrests, particularly in the arrest of Chad Calcóte. The City contends that the Commission’s decision to reinstate Officer Moore is not based on substantial evidence, is arbitrary and capricious, and is beyond the scope of the power granted to the Commission under Mississippi law.

¶ 2. We find merit in the City’s contention. Accordingly, we reverse and render the Commission’s order and the circuit court’s judgment affirming that order.

FACTS

¶ 3. On July 5, 2005, Shirlene Anderson was sworn in as chief of the Jackson Police Department. Immediately after taking office, Chief Anderson began reviewing the personnel files of officers with writeups for misconduct, including writeups for the use of excessive force. She discovered that Officer Moore’s file contained several complaints, including Calcote’s complaint, alleging that Officer Moore had used excessive force. However, Officer Moore’s file did not indicate that JPD had taken any action. As a result, Chief Anderson transferred Officer Moore from police patrol to the Department of Research and Planning until she could review all of the complaints in his file and make a determination regarding the complaints against him. During his reassignment, Officer Moore retained his current rank, pay, and benefits.

¶ 4. After Chief Anderson completed her review of the complaints against Officer Moore, she terminated him. In her letter of termination, she advised Officer Moore that he was being terminated because of his use of excessive force in arresting Cal-cóte. Additionally, she pointed out that he had a history of using excessive force in making arrests and that continuing his employment as a police officer with the City would continue to expose it to liability.

¶ 5. Officer Moore requested that the Commission review his termination. The Commission held a hearing at which Chief Anderson, Deputy Chief Brent Winstead, and Officer Moore testified. Chief Anderson testified that her decision to terminate Officer Moore was based on the outcome of the Calcóte case, Officer Moore’s numerous allegations of misconduct, and his violation of certain provisions of JPD’s General Orders and Rules and Regulations.

¶ 6. Deputy Chief Winstead testified that he had previously held supervisory authority over Officer Moore. He stated that he had evaluated Officer Moore over a period of eighteen months and that he had given Officer Moore outstanding performance ratings. However, he was not aware of any of the complaints against Officer Moore that led to Officer Moore’s termination, as he was not his supervisor during that time period.

¶ 7. During his testimony, Officer Moore admitted that there had been a struggle between him and Calcóte on the day of Calcote’s arrest. He testified that he had fully cooperated with JPD’s Internal Affairs Department during its investigation of the incident. Officer Moore further testified that Officer Michael Recio and Mayor Frank Melton had contacted him in 2005 to request that he join Mayor Melton’s “Street Crimes Strike Team,” and that he had initially agreed. However, once he discovered that the Strike Team’s actions were illegal, he asked to be removed from the team and returned to the police precinct as a shift sergeant. According to Officer Moore, he was relieved of his police duties several months after leaving the Strike Team. According to Officer Moore, after he learned of the City’s intent to terminate his employment, Mayor Melton contacted him and asked him to return to the Strike Team. Officer Moore reluctantly agreed because he thought the transfer would prevent his termination. However, Chief Anderson terminated him before his re-assignment to the Strike Team became effective. Officer Moore testified that he believed that his termination was related to his not wanting to be a member of the Mayor’s Strike Team.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. The City argues that the Commission’s decision is not supported by substantial evidence. Specifically, the City argues that the Commission substituted its judgment for the City’s.

¶ 10. The Commission’s review of a city’s decision to remove, suspend, demote, or discharge a civil-service employee is limited to determining whether the “disciplinary action was or was not made for political or religious reasons and was or was not made in good faith for cause.” Miss.Code Ann. § 21-31-23 (Rev.2007). The circuit court's review of the Commission’s decision is limited to a review of the transcript of the proceedings before the Commission to determine “whether the judgment or order of removal, discharge, demotion, suspension[,] or combination thereof made by the Commission, was or was not made in good faith for cause.... ” Id.

¶ 11. An appellate court’s “scope of review of the decisions of the civil service commission is limited, and the criterion is whether or not, from an examination of the record!,] there exists credible evidence substantiating the commission’s action.” Grant v. City of Columbus, 812 So.2d 976, 978 (¶ 6) (Miss.2002). Furthermore, an appellate court is to use the “credible evidence” standard of review to determine whether the commission’s decision was in “good faith for cause.” Id. (quoting City of Jackson v. Froshour, 530 So.2d 1348,1355 (Miss.1988)).

¶ 12. The Commission determined that Officer Moore should be reinstated. However, the last paragraph of the Commission’s order is the only paragraph that discusses why the Commission held as it did. The Commission stated that this Court’s decision in Calcóte, holding the City of Jackson liable for Officer Moore’s actions, did not prevent it from reinstating Officer Moore. It did not address whether the City’s decision to terminate Officer Moore’s employment was or was not made in good faith for cause, nor did it address whether the City’s decision was or was not religiously or politically motivated. The Commission concluded that because the City had admitted that Officer Moore’s actions were within the scope of his employment and, thus, not malicious, Officer Moore’s termination “was not supported by evidence.”

¶ 13. We find that the Commission’s decision to reinstate Officer Moore was not made in good faith for cause. As previously stated, the Commission could reverse the City’s decision only if it found that the City had terminated Officer Moore for political or religious reasons, or that the termination decision was made in bad faith and without cause. The Commission, without citing any authority, found that “[t]he liability of the City of Jackson for the negligence of an officer is not necessarily grounds for the termination of the officer even when injury results to an arrested individual.” That may or may not be so in the case of a single act of negligence on the part of an officer. However, we need not decide that question today. Suffice it to say, Officer Moore’s ease involves more than a single act of negligence. More importantly, the Commission lacked the authority to look behind the City’s reasons for the termination except to determine whether the termination was for political or religious reasons, or was made in bad faith and without cause. There is nothing in the transcript of the Commission’s proceedings that would suggest that the City acted in bad faith or that its decision was religiously or politically motivated. Therefore, we find that the Commission’s decision to reinstate Officer Moore was not made in good faith for cause. Consequently, we reverse and render the Commission’s order reinstating Officer Moore and the circuit court’s judgment affirming that order.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . By statute, Officer Moore was entitled to an investigation by the Commission of the reasons for his termination. Miss.Code Ann. § 21-31-23 (Rev.2007).

      . In City of Jackson v. Calcote, 910 So.2d 1103, 1110-11 (¶¶ 20-23) (Miss.Ct.App.2005), the City was held liable to Calcóte for injuries that he suffered as a result of Officer Moore’s use of excessive force in arresting him.


text:
    VALLEY ROAD ACTION COMMITTEE, an Unincorporated Association, Andy Smith, Rev. Sam Thompson, James Mathis, Charles Whitlock and Randy Guttery, Appellants v. LAUDERDALE COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2011-CA-00364-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.

      Robert M. Logan Jr., Newton, attorney for appellants.
    Lee Thaggard, Meridian, Andrew Warren Impastato, attorneys for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. This case involves the closure of a portion of a state aid road in Meridian, Mississippi. The Lauderdale County Board of Supervisors (“Board”) voted in favor of abandoning approximately 1600 feet of Valley Road. Five individuals and the Valley Road Action Committee (collectively referred to as “Committee”) appealed the Board’s decision to the Lauderdale County Circuit Court, which affirmed. The Committee appeals that decision. The Board cross-appeals, asserting that the Committee does not have standing. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

II2. On April 19, 2010, after publication of notice of hearing, a public hearing was held to determine whether to close a portion of Valley Road to the public. The minutes of the hearing provided a summary of the proceedings, the evidence presented, and the various concerns of the witnesses.

¶ 3. The minutes reflect that the proponents’ reasons to close Valley Road were as follows:

[S]afety to Atlas personnel and equipment due to high traffic volumes through the plant; excessive speed of vehicle[s] through the Atlas plant area[;] potential expansion of Atlas plant jeopardized by safety concerns with traffic on Valley Road[;] potential closure of Atlas plan and accompanying loss of hundreds of local jobs; the availability of an alternate and better route in the form of 31st Avenue; ... the closure of the segment of Valley Road would not adversely affect the adjacent interstate and interchange roadway system ...; and ... public interest and convenience did not require the segment of Valley Road to remain open.

¶ 4. The East Mississippi Economic Development Group hired Neel Schaffer Engineers to perform a traffic study. The engineer presented a detailed report and concluded: “The existing and diverted traffic volumes are anticipated to operate at acceptable levels, based on the traffic counts conducted at the study interchanges and the anticipated diversion of Valley Road traffic.”

f 5. The opponents of closing Valley Road, who live in and around the area and own businesses in the area, provided reasons for opposing the closing of Valley Road as reflected in the minutes as follows:

[Ijnconvenience to citizenry using Valley Road; ... Valley Road pre-dated Atlas Roofing; ... businesses located south of Atlas Roofing could be adversely affected; a perception that the James Chaney Historic Site would be less accessible to the public; ... safety concerns expressed by Atlas and its personnel were exaggerated or unsubstantiated; time for emergency vehicles to respond to calls for assistance could be increased; ... 31st Avenue was not a desirable alternate route and involved increased distance to desired locations; and ... public interest and convenience did require[] the segment of Valley Road to remain open.

¶ 6. After hearing testimony at the public hearing on April 19, 2010, the Board voted, three to two, in favor of abandoning approximately 1600 feet of Valley Road. Thereafter, the Board adopted a resolution authorizing the abandonment of Valley Road. The resolution stated that “the public interest or convenience does not require the section ... to remain open to the public, but rather, it is in the public interest or convenience to close, vacate, or abandon said section ... of said Valley Road.” The resolution also directed that it be spread upon the minutes of the Board and that copies be furnished to any adjoining landowners. It is undisputed that the only three adjoining landowners were given notice and that none objected to the Board’s decision.

¶ 7. The Committee appealed the Board’s decision to the Lauderdale County Circuit Court. The Board, in turn, claimed that the Committee lacked standing. On January 31, 2011, the circuit court entered an order affirming the Board’s decision to close a portion of Valley Road “[d]ue to the continued unsafe conditions on the open portion of Valley Road[.]” The circuit court also found that the Committee had standing. The Committee appeals the circuit court’s affirmance of the Board’s decision to close a portion of Valley Road.

DISCUSSION

I. Whether the Committee has standing

¶ 8. We will first address the Board’s cross-appeal regarding standing. “In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.” Hudson v. Jones County Bd. of Supervisors, 77 So.3d 1148, 1150 (¶ 5) (Miss.Ct.App.2011) (quoting Burgess v. City of Gulfport, 814 So.2d 149, 152-53 (¶ 13) (Miss.2002)). Colorable interest, “when used to describe a claim or action, means ‘appearing to be true, valid, or right.’ ” Id. (quoting Hall v. City of Ridgeland, 37 So.3d 25, 33 n. 6 (Miss.2010)). “To establish standing on grounds of experiencing an adverse effect from the conduct of he defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.” Id. (quoting Hall, 37 So.3d at 33-34 (¶ 24)).

¶ 9. In the instant case, the circuit court found that the Committee had standing, reasoning as follows:

This [c]ourt held an evidentiary hearing regarding standing on January 11, 2010. After hearing testimony, evidence, and oral arguments[,] this [c]ourt finds that the [Committee] in this case [has] standing. It seems that all five named individuals are members of the Valley Road Action Committee. The Committee is an unincorporated association formed for the sole purpose of opposition to the closing of Valley Road[;] they have a bank account[;] and they have raised the money to fund this appeal. There are minutes kept for each meeting[;] a record of membership is kept[;] and anyone in the community was allowed to join the association.
The majority of the members live south of Atlas Roofing Company and south of the portion of the proposed abandoned portion of Valley Road. They are residents and business owners of the area very near the proposed abandoned portion of Valley Road. Accordingly, the members of this association would be daily affected by the closure, as opposed to other members of the general public who occasionally travel this portion of Valley Road. Therefore, this [c]ourt finds that they have standing to appeal this decision.

¶ 10. We find that the Committee would suffer an adverse effect different from that of the general public. Therefore, the Committee has standing in this case. This issue lacks merit.

II. Whether the Board’s decision was supported by substantial evidence

¶ 11. When this Court reviews a decision by a circuit court concerning an agency action, we apply the same standard of review that the trial courts are bound to follow. Mill Creek Props., Inc. v. City of Columbia, 944 So.2d 67, 69 (¶ 6) (Miss.Ct.App.2006). We must “determine whether the order of the administrative agency: (1) was unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party.” Id. (citing Miss. Sierra Club v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519 (¶ 15) (Miss.2002)).

¶ 12. Our supreme court has defined substantial evidence as “ ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion’ or ... more than a ‘mere scintilla’ of evidence.” Hall, 37 So.3d at 36 (¶ 33) (quoting Hooks v. George County, 748 So.2d 678, 680 (Miss.1999)). Further, an act is arbitrary when “it is not done according to reason or judgment, but depending on the will alone.” Id. (quoting Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (Miss.1998)). An act is capricious if “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id. (quoting Burks, 708 So.2d at 1370).

¶ 13. Mississippi Code Annotated section 65-7-121(1) (Supp.2011) sets forth the requirements for a county board of supervisors to close, vacate, or abandon a public road. Under this statute, a county board of supervisors must find that one of the following conditions exists to abandon a section of a road:

(1) The board of supervisors of any county may, upon its own motion or upon the petition of any interested resident of the county, by resolution spread upon its minutes, declare any section of the county road system abandoned upon its finding that one or more of the following circumstances are applicable to the section in question:
(a) The section does not provide primary access to occupied properties;
(b) Traffic on the section has for a period of at least ten (10) consecutive years been intermittent and of such low volume that no substantial public purpose is being served thereby;
(c) The board of supervisors has, for a period of at least the previous five (5) consecutive years, not maintained such section as part of the county road system; or
(d) For any reason, the public interest or convenience does not require the section to remain open to the public or that it is in the public interest or convenience to close, vacate and abandon the section.

Miss.Code Ann. § 65-7-121(1). In this case, the Board voted to close Valley Road under subsection (d). The minutes reflect that the Board’s reasoning for closing the road was primarily due to safety concerns of the public, Atlas employees, and vendors. We find that the Board’s decision to close a portion of Valley Road was supported by substantial evidence, was not arbitrary or capricious or beyond the Board’s powers, and did not violate any constitutional or statutory right. Therefore, this issue lacks merit.

¶ 14. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR.

      . On March 28, 2010, and April 2, 2010, the Board published notice of the April 19, 2010 hearing in the Meridian Star as required under Mississippi Code Annotated section 65-7-121(2) (Supp.2011).

      . Proponents of closing Valley Road included Roger Myrick of Atlas Roofing, Mark Bailey of Neel Schaffer Engineering, M.L. Waters of EMBDC, and Michael Sims, who was the chairman of the local union.

      . The opponents included: Robert Logan (attorney for the Valley Road Action Committee): Andy Smith (owner of Three Oaks Farms); Sam Thompson; Charles Whitlock (resident); Randy Guttery (VFD); Bob Gray; Jan Gray; Frank Buckley; Cathy Moulds; Marty McCann; Harvey Speed; and Rev. Milton Johnson (NAACP Branch President).

      .The adjoining land owners were Atlas Roofing Corporation, the City of Meridian, and Robert E. Green.