source: Caselaw Access Project

author: WESTBROOKS, J.,

license: Public Domain

text:
    Yoginder DANDASS a/k/a Yogineer Dandass a/k/a Yogi Dandass, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01352-COA
    Court of Appeals of Mississippi.
    05/02/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied December 14, 2017

      ATTORNEY FOR APPELLANT: MERRIDA COXWELL
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Yoginder Dandass was convicted of sexual battery against his adoptive daughter, Sara. The trial court sentenced Dan-dass to a term of twenty-five years in the custody of Mississippi Department of Corrections, with five years suspended. Dan-dass appeals his conviction and sentence on numerous grounds. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dandass and his wife, Wendy, adopted Sara when she was nine years old. Sara was living in a Russian orphanage when she was adopted. The Dandasses also had two natural children of their own. Sara knew little English and was provided a private tutor for a few months before she was brought to the United States. At trial, Sara testified that the language barrier remained a problem for her. She had not had a family before being adopted and did not know how to function in one. She testified that she was punished often and did not understand what was expected of her.

¶ 3. Sara was brought to Starkville and placed in public school, but still battled with a language barrier. Sara testified that her relationship with her father began to change as she grew older. According to Sara, Dandass initiated sexual contact with her when she was around eleven years old. Dandass began with asking her to touch him while he was wearing clothes. Sara testified that the first incident of sexual abuse occurred when she was invited to a sleepover at her friend Katya’s home. Kat-ya spoke Russian and helped Sara translate when she first arrived to Starkville,

¶ 4. Sara testified that she went to ask her parents for permission to spend the night at Katya’s house, but only her father was at home. She asked him if she could spend the night at her friend’s house, and he replied by telling Sara to hang up her phone. Sara complied and Dandass took Sara’s hand and placed it in his genital area. Dandass proceeded to take his shirt and shorts off and told Sara to place her hand on his penis. According to Sara, she knew that' if she did not, her father would not allow her to go to her friend’s sleepover.

¶ 5. Sara testified that her • father had her perform oral sex on him many times. The sexual contact continued until Sara was seventeen. Sara testified that she performed the acts out-of fear and manipulation. She also testified that she was not physically forced to perform the sexual acts on her father. She could leave his room and refuse to perform the acts, but she knew there would be consequences. if she left. According to Sara, Dandass would punish her for refusing his sexual advances by taking away her art supplies and sometimes slapping her. Sara did not report her sexual contact with Dandass to the police or any of her friends.

¶ 6. The sexual contact between Dandass and Sara always occurred in his and Wendy’s bedroom, when the family was away. Most of the contact consisted of oral sex and touching, but Dandass attempted to initiate vaginal intercourse on one occasion. Sara testified that she refused. According to Sara, she also saw Dandass looking at provocative pictures of her on his computer.

¶7. Sara did not bond well vdth her adoptive family. She did not enjoy many of the activities that they engaged in, and her personality did not' mesh well with her mother’s personality. According to Sara, she always wanted, a strong relationship with her mother, but her mother always pushed her away.

¶ 8. At trial, Dandass denied having any sexual contact with Sara. He claimed to have noticed some tension between Sara and the rest of the family, but had not realized the extent of the friction until Sara was in the eleventh grade. According to Dandass, her desire to attend the Savannah College of Art and Design (SCAD) added to the tension. Tuition at SCAD was expensive, and Dandass noted that the school was unaccredited. Dandass wanted Sara to attend Mississippi State University where Sara could attend for free, since both Dandass and .his wife worked there.

¶ 9. Dandass contended that Sara’s desire to attend SCAD increased once her high-school art teacher promised her a full scholarship. Dandass testified that he attempted to bring Sara off “cloud nine” because SCAD was expensive, and it was almost impossible that her art teacher could procure a full scholarship for her. Dandass contended that he reinforced the option of Sara attending Mississippi State University, because it would be ’ free to attend, and she could live at home with the family. According to Dandass, Sara did not relent on her desire to attend. SCAD. Dan-dass further testified that Sara idolized her art teacher, and her desire to attend SCAD was Cemented when she began dating the art teacher’s son.

¶ 10. Dandass did not have a favorable opinion of Sara’s boyfriend. Dandass contended that Sara’s boyfriend was the person who made the initial allegations against him, because of Dandass’s dislike of him. The State objected to this statement, since the court had previously ruled that Sara’s romantic past was improper to discuss. The court sustained the objection. Dandass’s theory of the case was that Sara fabricated the sexual-abuse allegations in retaliation for Dandass discouraging her attendance to SCAD and to get out of the Dandass family home.

¶ 11. At trial, Wendy claimed that Sara fit in well with the family at first but did not bond with the family over time. According to Wendy, the friction increased as Sara aged, and the situation worsened when Sara began dating her high-school art teacher’s son. Wendy agreed with Dan-dass that much of the tension with Sara related to her desire to attend. SCAD.

¶ 12. During the State’s case-in-chief, .it introduced two photos of Sara in provocative poses. Sara previously testified that Dandass asked her to pose provocatively in the- photos, which were taken by Sara’s friend. To rebut those claims, the defense sought to have a forensic specialist, Greg Bott, testify that the “cookies” on the family computer—which was used ' by all members of the household—were sexual in nature from pornographic websites. The defense sought to use Bott’s testimony to argue that this search history provided an alternative source for Sara’s sexual knowledge, and gave her the desire to take provocative photos. The trial court found the defense’s evidence irrelevant and inadmissible, since the defense could not prove that it was Sara who went to those pornographic websites.

¶ 13. The defense also sought to introduce a painting that Sara made for Dan-dass at trial. The defense’s theory was that Sara would not have painted anything for Dandass if he was sexually abusing her. The trial court also found the painting to be irrelevant, since it could not prove or disprove the allegations of sexual abuse.

¶ 14. Dandass asserts five assignments of error on appeal. First, he asserts that the State was allowed to bolster the victim’s testimony with hearsay. Second, he argues that the State’s closing argument infringed on his right to a fair trial. Third, the trial court erred in admitting the State’s improper rebuttal evidence, and denying Dandass’s rebuttal evidence. Fourth, the- verdict was against the' overwhelming weight of the evidence. Fifth, the trial court erred by excluding expert testimony and evidence that would support Dandass’s case-in-chief. Finding no error we affirm.

DISCUSSION

I. Whether the State impermissibly bolstered Sara’s testimony with the testimony of other witnesses.

A. Whether testimony by Sara’s friend constituted inadmissible hearsay.,

¶ 15. Dandass asserts that the trial court committed reversible error when it allowed Sara’s friend Hannah to testify regarding provocative photos she allegedly took at Dandass’s behest. According to Hannah, Dandass told Sara to take pictures of herself, because he believed that she could be a model. Sara went to Hannah’s home, and Hannah testified that she took pictures of Sara, including nude photos. The defense objected to Hannah’s testimony on the ground that it was hearsay. Nevertheless, the trial court overruled the objection, finding that her testimony was admissible under Mississippi Rule of Evidence 801(d)(1)(B).

¶ 16. “This Court’s, standard of review for the admission of evidence is abuse of discretion.” Hobgood v. State, 926 So.2d 847, 853 (¶ 16) (Miss. 2006) (citing Clark v. State, 891 So.2d 136, 139 (¶ 11) (Miss. 2004)). “Therefore, unless that discretion is abused this Court should not overturn the trial court’s ruling.” Id. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter” and is generally not admissible at trial. Moss v. State, 977 So.2d 1201, 1207 (¶ 5) (Miss. Ct. App. 2007). One exception to the general rule barring hearsay testimony is found in Rule 801(d)(1)(B). Id.

Rule 801(d)(1)(B) permits the introduction of a prior consistent statement if (1) the declarant has testified at the trial and been subject to cross-examination, (2) the testimony of the witness as to the prior statement was consistent with the declarant’s testimony as a witness, [and] (3) the prior statement was offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Moss, 977 So.2d at 1207 (¶ 5).

¶ 17. Dandass argues that since Sara was not impeached by the defense regarding whether Dandass asked her to take the pictures, Hannah’s testimony was inadmissible hearsay, and it should not have been admitted into evidence. Dandass also contends that the hearsay exception does not apply since the allegations against Dan-dass were not a recent fabrication, due to Sara’s dislike of the Dandass family over a course of years. We do not agree.

¶ 18. Sara testified at trial before Hannah’s testimony was admitted. Sara was subject to cposs-examination, and the defense’s neglect to question her regarding her statements to Hannah does not result in Hannah’s testimony being inadmissible hearsay. Moreover, Hannah’s testimony was consistent with Sara’s testimony, which satisfies the second prong of the exception. Furthermore, Dandass’s casein-chief focused on attacking Sara’s credibility. Dandass’s defense theory sought to paint Sara as a liar who fabricated the sexual-abuse allegations against Dandass, because he was pi’eventing her from attending the college of her choice and disliked Sara’s boyfriend. Dandass implied at trial that Sara’s boyfriend, and not Sara, made the initial allegations of sexual abuse since he did not have a favorable opinion of Sara’s, boyfriend or his father, the high-school art teacher. Hannah’s testimony rebutted the defense’s theory of fabrication and substantiated Sara’s abuse claims. The trial court found that Hannah’s testimony was not hearsay, and we agree.

B. Whether Sara’s recorded interview with Beverly Moorehead constituted inadmissible hearsay.

¶ 19. Dandass argues that the trial court erred when it admitted Sara’s recorded interview with forensic interviewer Beverly Moorehead into evidence. Dan-dass’s defense counsel filed a pretrial motion to prohibit the State from playing Sara’s interview with Moorehead on the grounds that the interview contained numerous hearsay statements. During the pretrial hearing, the State argued that the statement fell under the “tender years” exception or “medical treatment” exception. The court noted a potential hearsay issue but found the motion to prohibit the DVD premature.

¶ 20. During a later motion hearing, both parties agreed that the tender-years exception did not apply. The State noted that though the exception did not apply, it may have had other avenues to admit the statement into evidence. During trial, the State offered the DVD of the interview into evidence. Dandass’s counsel objected on the basis that it was cumulative. The trial court overruled the objection and allowed the DVD into evidence. Dandass asserts that the admission of the DVD was a reversible error, as it constituted hearsay without an exception. We do not agree.

¶21. The State asserts that the DVD was admissible under Mississippi Rule of Evidence 803(4), which provides that a statement is not hearsay if it is made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or their inception or general cause, and is supported by circumstances that substantially indicate its trustworthiness. Dandass argues that Rule 803(4) does not apply, because the State cannot satisfy the two-prong requirement for application of the rule.

¶ 22. The following must be met for Rule 803(4) to apply:

First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment. ... [Statements made by a child abuse victim that the abuser is a member of the immediate household are reasonably pertinent to treatment, as treatment encompasses treating emotional and psychological injuries and is relevant to prevention.

Branch v. State, 998 So.2d 411, 414 (¶ 10) (Miss. 2008) (quotation marks omitted).

¶ 23. Dandass asserts that the State cannot satisfy the second requirement of the two-prong test, because Dandass was required to leave the family home after Sara made the statement and was no longer a member of the household at the time of the interview. We do not find this argument compelling.

¶24. Moorehead was qualified by the State as an expert forensic interviewer for child-sex-abuse cases. Moorehead testified to her observations of Sara during the interview. She testified that Sara’s statements were consistent with a child who had been sexually abused. Moorehead testified as to the indicators that she looks for to determine the consistency of a victim’s statements and explained certain clues that may have been beyond a juror’s understanding as a layperson in relation to the video.

¶25. Dandass challenges the admission of the video solely because he was required to move out of the home after allegations that he sexually abused his daughter. Dandass was a member of the household when Sara made her initial complaint to the authorities. Moreover, a mere technicality of Dandass having to move out of the family home should not prohibit the application of this rule. “The admissibility of evidence rests within the discretion of the trial court, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Caves v. State, 179 So.3d 1175, 1180 (¶ 20) (Miss. Ct. App. 2015) (quoting Palmer v. State, 939 So.2d 792, 794-95 (¶ 7) (Miss. 2006)). We do not find that admission of the DVD prejudiced Dandass. Accordingly, we find no error.

C. Whether additional hearsay statements constitute plain error.

¶ 26. Dandass asserts that the State elicited hearsay statements from its witnesses that were inadmissible. Dandass maintains that though the trial counsel failed to object to the statements, the admission of those statements constitutes plain error. Dandass argues that the State used those impermissible hearsay statements to argue to the jury that the State’s witnesses’ statements supported Sara’s allegations. Dandass contends that the culmination of the witness statements amounted to improper bolstering. We do not agree.

¶ 27. “Under the plain-error standard of review, we consider: (1) whether there was an error; (2) that adversely affected [the] defendant’s substantive rights, causing a manifest miscarriage of justice.” Rodgers v. State, 166 So.3d 537, 545 (¶ 15) (Miss. Ct. App. 2014) (citing Flora v. State, 925 So.2d 797, 811 (¶ 42) (Miss. 2006)). “For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.” Conners v. State, 92 So.3d 676, 682 (¶ 16) (Miss. 2012).

¶28. During closing arguments, the prosecutor reiterated statements made by all witnesses that testified at trial. He discussed the testimony elicited from the State’s witnesses, and highlighted the statements that corroborated Sara’s account of sexual abuse. Prosecutors are permitted to draw inferences and discuss testimony elicited at trial, and we do not find that the prosecutor’s statements were made in error. Moreover, we find that the assigned error is procedurally barred.

¶29. “[U]nobjeeted-to hearsay evidence, once received by the court and presented to the jury, becomes competent evidence and may aid in supporting a verdict the same as any other competent evidence.” Shaheed v. State, 205 So.3d 1105, 1111 (¶ 16) (Miss. Ct. App. 2016) (quoting Veal v. State, 585 So.2d 693, 697 (Miss. 1991)). “Hearsay evidence, where admitted without objection, may properly be considered and given its natural and logical probative effect, as if it were in law competent evidence. Hearsay evidence admitted without objection may be regarded as sufficient to establish a fact in controversy.” Id. (citing Burns v. State, 438 So.2d 1347, 1350 (Miss. 1983)).

¶ 30. Dandass’s trial counsel neglected to object to the witness statements and failed to object to the reiteration of those statements 'during the State’s closing arguments. A careful review of the record shows that Dandass’s trial attorney objected to numerous statements made during the State’s closing arguments but not the statements that Dan-dass now assigns as error on appeal. “It is axiomatic that a litigant is required to make a timely objection.” Willie v. State, 204 So.3d 1268, 1276 (¶ 21) (Miss. 2016) (quoting Walker v. State, 671 So.2d 581, 597 (Miss. 1995)). The Mississippi Supreme Court has “repeatedly held that if no contemporaneous objection is made, the error, if any, is waived.” Id. Accordingly, we find no error.

II. Whether the prosecutor’s closing arguments improperly vouched for the State’s witness and imper-missibly impugned Dandass’s integrity, in violation of his right to a fair trial.

¶31. Dandass contends that his Sixth Amendment rights were violated during the prosecutor’s closing remarks. Dandass maintains that the prosecutor improperly vouched for State witnesses in several portions of his closing arguments. Dandass notes that his trial counsel failed to object to the prosecutor’s statements. Nevertheless, Dandass asserts that the prosecutor’s remarks constitute plain error and that his case should be reversed on those grounds. After careful review, we find no error.

A. Whether the prosecutor’s closing remarks constituted improper vouching.

¶ 32. Dandass argues that several remarks made by the prosecutor in his summation improperly vouched for the credibility of testimony that supported the State’s theory of the case. However, those remarks were taken out of the context of the prosecutor’s closing statements. The first remark, placed in context, does not support Dandass’s assertion of plain error. The first remark in context reads:

And Sara said her dad was having her take, and these pictures were on his computer. So do these pictures prove what Sara said? That he forced her to perform oral sex on him? No. They proved that there were pictures of Sara half dressed on his computer. But [Sam] was telling the truth about the pictures. She didn’t lie to you about these [pictures], Hannah backs up what Sara said about these pictures.

(Emphasis added). Taken out of context, one could argue that the prosecutor was making personal assurances of the witness’s veracity. However, placing the allegedly improper remark in context of the preceding statements, the prosecutor reiterated that Sara was telling the truth regarding the provocative pictures that were found on Dandass’s computer. Accordingly, we find no error.

¶33. The second challenged remark placed in context provides:

[Sara] [t]old Freddie [Bardley] the same thing she’s told everybody else, “He made me suck his penis since I was 11.” Then she talks to Kenny [Watkins], the first statement, same things Truth. Same thing. Then she talks to Moorehead. [You all] watched her. Same thing, [Sara] ... writes Kenny another statement, Same thing. Every single time. Are these statements different from one another? So some contain things that the other one doesn’t? Did [Sara] say every word to you guys on the witness stand that’s contained in these statements? No. You know what that is? That is telling the truth. Had she wanted to make this all up, she would [not] have had her story straight to where she could say exactly every single time, the same thing.

(Emphasis added). The prosecutor reiterated to the jury that Sara’s recounting of the sexual abuse by her father was consistent'. Her statements to several different individuals did not change. Though the use of the term “truth” could be viewed as attesting for the veracity of her statements, this statement was not a reversible error. In view of the context of the statements and Dandass’s theory of the case (that Sara lied about being sexually abused, because she wanted to attend the college of her choice), the prosecutor drew inferences from the evidence presented at trial,

¶34. The supreme court has stated that “[a]n impassioned argument is not in itself an improper argument.” Goff v. State, 14 So. 3d 625, 654 (¶ 116) (Miss. 2009) (quoting Bell v. State, 725 So.2d 836, 851 (Miss. 1998)). “Furthermore, the prosecutor, as any other. counsel, is free to recall and comment on testimony offered in evidence and to draw inferences. The prosecutor may comment upon' any facts introduced into evidence. He may draw whatever deductions seem to him proper from these facts.” Id. Accordingly, we find no error with this statement.

¶ 35. The third remark placed in context provides:

And the time that you heard from him, he wouldn’t answer a straight question when I asked him, He was arrogant, and he lied to you. He said “I got on my computer to do work after the. police left.” What did Vickie Roberts tell us yesterday? He deleted folders of information off of his computer and then ran a defrag to where nobody could tell what it was that, he deleted. He lied to you. She did not.

(Emphasis added). In closing, the prosecutor reiterated that Dandass was a computer professor who possessed knowledge on how to clear computers of incriminating information. Sara alleged that Dandass had provocative pictures of her on. his computer, which supported the sexual-abuse allegations. Prosecutors are allowed to make reasonable inferences and draw deductions from the facts. We find no error.

¶36. The fourth and fifth challenged statements placed in context include:

You heard from a lot of people. One way we as humans determine who to believe is reasons people have to lie. What reason does Sara have to lie? She’s out of their house. She has nothing to do with them anymore. ... She got up here in front of a roomful of strangers and talked about heinous things that happened to her. She knew things about her father—that his penis was uncircumcised—that no little girl should know. That no 20-year-old should know. She didn’t have to do it but, it’s the truth.

(Emphasis added). Here, the prosecutor made reasonable inferences since Sara was near the age of majority at trial and no longer had contact with the Dandass family. The prosecutor commented upon facts derived from trial and made an impassioned argument about the reasons that Sara could have forgone the pursuit of the case.

¶ 37. “The question for this Court is whether the prosecutor’s remarks denied the defendant a fundamentally fair trial.” Byrom v. State, 863 So. 2d 836 (¶ 123) (Miss. 2003) (quoting Lockett v. State, 517 So.2d 1317, 1333 (Miss. 1987)). “The prosecutor’s remarks are viewed in light of the entire trial.” Id. “It is imperative that the statements be read in their appropriate context in light of that which the prosecutor was in fact arguing to the jury at the time.” Holland v. State, 705 So.2d 307, 347 (Miss. 1997).

¶ 38. Dandass’s brief also cites five additional remarks of similar statements that he contends were plain error. For the plain-error doctrine to apply, there must have been an error that results in a manifest miscarriage of justice or “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Conners, 92 So.3d at 682 (¶ 15) (quoting Brown v. State, 995 So.2d 698, 703 (¶ 21) (Miss. 2008)). After placing the prosecutor’s closing arguments in context of the closing remarks, we do not find them to have seriously affected Dandass’s right to a fair trial. Therefore, we find no error.

B. Whether the prosecutor’s statements referring to Dandass as a “sexual predator” who “groomed the victim” constitute reversible error.

¶ 39. Dandass asserts that the use of the term “groom” coupled with the term “sexual predator” in the prosecutor’s closing arguments was a reversible error. Dandass argues that in using the term “groom,” the prosecutor offered his personal opinion unsupported by the evidence. Dandass contends that in child-sexual-assault cases, expert testimony is required to define the term “groom.” In Mississippi, very few cases have addressed groom as a term of art for sexual purposes. Neither this Court nor the supreme court has found that a prosecutor cannot use the term “groom” in closing arguments when addressing sexual-assault cases. In the context of the prosecutor’s closing arguments, we find no error.

¶ 40. Dandass cites several cases in different jurisdictions that have held that the. use of the term of “groom” in sexual-abuse cases is beyond the understanding of a jury of laypersons, and requires expert testimony to define and explain its meaning. Dandass cites four jurisdictions that have found that the term “groom” is too difficult for a jury of laypersons to understand. However, several jurisdictions have also found expert testimony was either inadmissible or superfluous to define “groom” to the jury.

¶ 41. In State v. Sena, 144 N.M. 821, 192 P.3d 1198, 1204 (¶ 20) (2008), the New Mexico Supreme Court found that expert testimony was not needed to explain to the jury how the defendant’s behavior showed his sexual intent or his lack of mistake or accident. The court opined that lay witnesses and laypersons on the jury were well equipped to understand how the defendant’s behavior proved his sexual intent. Id.

¶ 42. In State v. Braham, 67 Wash.App. 980, 841 P.2d 785, 790 (1992), the Washington Court of Appeals found that' it was unable to conceive of any basis for the admission of expert testimony to explain “grooming,” since an expert opinion was not necessary to explain that an adult in a close relationship with a child will have a greater opportunity to engage in the alleged sexual misconduct. Id.

¶ 43. Other jurisdictions have found that expert testimony to discuss the term “grooming” was inadmissible on other grounds. See State v. Vidrine, 9 So.3d 1095, 1111 (La. Ct. App. 2009) (finding that expert testimony on grooming was inadmissible and more prejudicial than probative); People v. Diaz, 85 A.D.3d 1047, 1051, 926 N.Y.S.2d 128 (N.Y. App. Div. 2011) (finding that the trial court erroneously concluded that testimony regarding “grooming” of children by sex offenders was admissible and was more prejudicial than probative).

¶44. The prosecutor used the term “groom” in his closing arguments to describe Sara’s testimony, and how Dandass began his sexual encounters with her. The prosecutor inferred that Dandass groomed Sara based on Sara’s testimony regarding the instructions Dandass gave her to perform oral sex on him, and her description of the gradual progression of sexual contact. In context of the argument, the use of the term “groom” is similar to “coached” or “primed” as a descriptive term to illustrate Dandass’s sexual abuse of Sara, beginning when she was around eleven years old and could barely speak English..

¶ 45. The prosecutor is entitled to argue reasonable inferences from the evidence at trial. In the context of the witness testimony and the prosecutor’s closing arguments, we do not find that a layperson on the jury could not understand whether Dandass’s behavior proved sexual intent. Moreover, we do not find that expert testimony was required to aid the jury in understanding the term “groomed” as a description of behavior that occurred over a course of years. Accordingly, we find no error.

III. Whether the State’s rebuttal was improper.

¶ 46. Dandass asserts that the court committed reversible error in allowing the State to introduce improper rebuttal evidence that was not a part of the State’s case-in-chief. “A trial court’s decision to allow substantive evidence in rebuttal is reviewed for abuse of discretion.” Gilmore v. State, 119 So.3d 278, 292 (¶ 39) (Miss. 2013) (citing Mills v. State, 813 So.2d 688, 691 (¶ 11) (Miss. 2002)).

¶ 47. The general rule in Mississippi is that “the party who has the burden of proof, and the duty to open the case, must in his opening, and before he rests in his proof, introduce all the substantive evidence upon which he relies to establish his demand, and the extent of that demand.” Id. (citing Roney v. State, 167 Miss. 827, 150 So. 774, 775 (1933)). In Myers v. State, 353 So.2d 1364, 1369 (Miss. 1978), the supreme court stated that admission of substantive evidence during rebuttal “does not constitute reversible ■ error, unless it is shown that no opportunity is afforded the defendant to reply by surrebuttal testimony.”

¶ 48. The rebuttal testimony that Dan-dass assigns error to was that of Vickie Roberts. Dandass was apprised of the alie-gations of sexual abuse against him shortly after midnight on October 28, 2012. Dan-dass testified that after he learned of the allegations, he could not sleep and went into his home office to do technical work on his computer for his job. Roberts performed a forensic examination of Dan-dass’s home-office computer and found that he had deleted fifty folders from his computer on October 28, around 2:16 a.m., and those deleted files were unretrievable.

¶49. Dandass’s counsel objected to the rebuttal testimony. The trial court ruled that the testimony was provided to rebut Dandass’s assertion that he used his home-office computer for technical purposes in the early morning of October 28, hours after Dandass was apprised of Sara’s allegations. Roberts testified that Dandass not only deleted fifty folders from his computer, but he also made those files unretrieva-ble. She also testified that a normal user could not bypass the “trash can.” Her testimony attacked the assertion that Dan-dass, a computer-science professor, was merely using his computer for technical purposes.

¶ 50. Roberts also testified that on October 28, Dandass ran a “defrag” on his computer, , which had the effect of writing over any remnants of the deleted files. As a result, , she could not retrieve the deleted files. Since Dandass testified that he used the computer on the morning of October 28 to perform technical work and Sara alleged that he had provocative pictures and videos of her on his computer, the State introduced Roberts’s testimony in rebuttal to refute Dandass’s arguments. Since the rebuttal testimony was-introduced to rebut Dandass’s contention that he was merely performing technical work on his computer shortly after he learned of the allegations against him and he was afforded the opportunity to cross-examine Roberts, we find that the trial court did not abuse its discretion.

IY. Whether the verdict was against the overwhelming weight of the evidence.

¶ 51. Dandass argues that his judgment and sentence should .be reversed, because the verdict contradicts the overwhelming weight of the evidence. Dan-dass contends that Sara was neither reliable nor credible and that no reasonable jury should have believed her. We do not agree.

¶ 52. “In reviewing a challenge to the sufficiency of the evidence, [this Court] determines whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Wales v. State, 73 So.3d 1113, 1120-21 (¶ 20) (Miss. 2011) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)), The evidence is sufficient if it “is of such quality and weight -that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (quotation marks omitted). The Court will reverse and render “if the facts and inferences, properly considered, ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty.’ ” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 53. When the weight of the evidence is challenged, this Court “will reverse only when the verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Wales, 73 So.3d at 1121 (¶ 23) (citing Bush, 895 So.2d at 844 (¶ 18)). In light of the evidence submitted at trial, we find that the verdict was not contrary to the weight of the evidence. Sara’s testimony was detailed, and her statements recounting the incidences of sexual abuse were consistent. The State’s witnesses corroborated her testimony. It is within the jury’s purview 'to determine the credibility of each witness, and they found Sara’s allegations credible. Therefore, we find that the verdict was not contrary to the weight of the evidence.

Y. Whether the trial court committed reversible error in excluding a defense witness and evidence in support Dandass’s case-in-chief.

¶ 54. Dandass asserts that the trial court committed reversible error, by excluding testimony from defense witness Greg Bott and excluding a painting by Sara for Dan-dass’s birthday from evidence. Dandass contends that the testimony and painting were relevant under Rule 401 of the Mississippi Rules of Evidence. We do not agree.

A. Whether the trial court erred in excluding the testimony of Greg Bott.

¶ 55. “Expert testimony admitted at trial must meet the requirements of Rule 702 of the Mississippi Rules of Evidence.” Corrothers v. State, 148 So.3d 278, 294 (¶ 24) (Miss. 2014). “Rule 702 requires expert testimony to- be both relevant and reliable.” Id. (quoting Denham v. Holmes ex rel. Holmes, 60 So.3d 773, 784 (¶ 36) (Miss. 2011)). The relevance prong requires that the evidence “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. “Evidence not relating to an issue in the case is not relevant and not helpful to the jury.” 'Id “To be relevant, the evidence must fit the case by being sufficiently tied to the facts of the case that it will aid. the jury in resolving a factual dispute.” Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)) (quotation marks omitted).

¶ 56. At trial, Dandass sought to introduce Bott’s testimony to establish that Sara used the family computer and to impeach Sara’s statements that she had never seen pornography before. Dandass’s trial counsel sought to impeach Sara’s statements to forensic interviewer Beverly Moorehead that she had never seen pornography. Bott’s testimony was proffered outside of the jury’s presence, and he testified that Sara’s user profile on the family computer visited pornographic cites.

¶ 57. The court inquired if there was any way to determine if Sara was the actual person who used her user profile on' the family computer to access the pornographic sites. Bott testified that the administrator could log in to the profiles that he created. The trial judge understood' Bott’s statements to mean that' anyone could have logged in to Sara’s profile to visit a pornographic site. The court found Bott’s testimony could not establish who really accessed' the pornographic sites under Sara’s profile since all family members, including Dandass, had access to it. As a result, the trial judge found:the expert testimony, irrelevant and not legitimate, rebuttal evidence.

-¶ 58.'At the conclusion of the proffer, the court found that “there would have to be some proof of the fact that Sara did in fact access or had some information about sexually explicit actions.” The court further concluded that it would not- be proper to admit Bott’s testimony, and we agree. Bott’s testimony could ‘not reliably establish that Sara accessed her user profile on the family computer to visit pornographic websites, when Bott admitted that there was no reliable way of -determining if it was Sara or someone else.

¶ 59. This Court reviews the trial court’s admissibility determination for abuse of discretion. Anderson v. State, 62 So.3d 927, 936 (¶ 23) (Miss. 2011). “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.” Denham, 60 So.3d at 783 (¶ 34). We find that the trial judge did not abuse his discretion in excluding Bott’s testimony.

B. Whether the exclusion of the painting was in error.

¶ 60. Dandass argues that the admission of the painting substantiated his case-in-chief, because the painting would have allowed the jury to decide if Sara’s gift to Dandass might be inconsistent with someone who was sexually abused. The standard of review for the admission or exclusion of evidence is abuse of discretion. The trial court’s decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion. Williams v. State, 54 So.3d 212, 213-214 (¶ 5) (Miss. 2011).

¶ 61. The painting did not establish whether Sara’s allegations of sexual abuse were credible or not. “Reversal is required only if the defendant can show that he was prejudiced or harmed by the exclusion of the evidence.” Overton v. State, 195 So.3d 715, 719 (¶ 19) (Miss. 2016) (citation and quotation marks omitted). Finding no prejudice or harm by the exclusion of the painting, we find this issue without merit.

CONCLUSION

¶ 62. Finding no error, we affirm Dan-dass’s conviction and sentence.

¶ 63. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS, WITH TWENTY YEARS TO SERVE AND FIVE YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION, AND TO PAY A $3,000 FINE AND REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. GRIFFIS, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . To protect the identity of the minor child, she will be referred to by the fictitious name ‘‘Sara.”


author: LEE, C.J.,'

text:
    Dr. Tontel OBENE, Appellant v. JACKSON STATE UNIVERSITY; Dr. Melvin Davis, Individually and in his Official Capacity as Executive Director of the Mississippi Urban Research Center; Dr. Felix Okojie, individually and in his Official Capacity as Vice President for Research, Development and Federal Affairs; and Ms. Sandra Sellers, individually and in her Capacity as Executive Director of Human Resources, Appellees
    NO. 2015-SA-01766-COA
    Court of Appeals of Mississippi.
    05/09/2017
    Rehearing Denied September 26, 2017
    Certiorari Denied January 11, 2018

      ATTORNEYS FOR APPELLANT: J. KEITH PEARSON, SARAH LYNN DICKEY
    ATTORNEYS FOR APPELLEES: ALAN M. PURDIE, DION JEFFERY SHANLEY
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,'

FOR THE COURT:

¶ 1. Dr. Tontel Obene appeals the order of the circuit court granting summary judgment to Jackson State University (JSU) on her wrongful-termination claim. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2; In September 2009, Dr. Obene was employed by JSU as the lead epidemiológist/evaluator for the Delta Health Project, a research project coordinated by the Mississippi Urban Research Center (MURC), a division of JSU. The project was furided by a five-year grant for HIV prevention from the Centers for Disease Control (CDC). The CDC provided funding to the Mississippi Department of Health (MDH), and in turn, MDH contracted with MURC to perform part of the evaluation work' under the grant. At all relevant times, Dr. Obene’s supervisor was Dr. Melvin" Davis, the director of MURC and the project director for the grant.

¶ 3. At the time relevant to this appeal, Dr. Obene’s employment with JSU was tied directly to her work on the grant project and characterized by a letter of employment dated August 20, 2010, which read, in pertinent part:

This is to inform you of your continued employment on the staff of Jackson State University as Epidemiologist/Evaluator, MS Urban Research Center, at a salary of $60,000 per annum (pro-rata)s. effective for the period of July 1, 2010 and extending through September 29, 2010.
Please note that Jackson State Universi-' ty, the employer, reserves the right to terminate your employment and/or decrease the saláry specified at any time by giving one month’s notice.

The dates- of employment stated in the letter directly corresponded with the phases of the five-year grant, which was renewable every year. The first phase was set to expire on September 29,2010.

¶ 4. The grant was extended for a period of three months, September 30, 2010, through December 31, 2010. Dr. Obene was assigned to complete the application for the three-month continuation phase. One of Dr. Obene’s job responsibilities included drafting the budget proposal for the next phase of the grant project’s continuation. During the first phase of the project, Dr. Davis received 2% of the grant funds for his supervisory role. For: the continuation phase, Dr. Davis requested that Dr. Obene submit the application with a proposed increase to 10% for his extra-duty pay because he anticipated a greater involvement during the continuation phase. Dr. Obene refused, stating that she did not believe the requested increase was justified, and there was no room in the budget.

¶ 6, Subsequently, Dr. Obene filed a complaint dated August 25,2010, with Sandra Sellers, the executive director of the Human Resources Department at JSU, detailing numerous grievances against Dr. Davis. She also copied the State Auditor, Attorney General, Dr. Davis, and Dr. Davis’s supervisor, Dr. Felix Okojie, on the complaint. Both in her complaint to Sellers and at her deposition, Dr. Obene stated that she believed Dr. Davis’s request for an increase -to 10% was illegal because JSU had a moratorium-on extra-duty pay.

¶ 6. On September 28, 2010, Dr. Davis .emailed Dr. Obene to remind her that September 29, 2010, was the last day of, her employment due to her contract’s expiration—which corresponded with the phase of the grant. Additionally, an exit interview was completed. At this time the grant was in a phase of renewal. Dr. Obene stated in her deposition that she expected her employment to be renewed along with the renewal of the grant, as this was the usual practice. However, on November 28, 2010, Dr. Obene received a letter from Sellers, stating that her employment with JSU was “terminated effective September 29, 2010.” Dr. Obene filed suit for wrongful discharge against JSU, in which she asserted she was terminated for reporting the illegal activity of Dr. Davis. JSU filed a motion for summary judgment, and a hearing was held on the motion. The circuit court granted JSU’s motion for summary judgment, finding that Dr. Obene’s wrongful-termination claim was precluded by Mississippi law because the activity reported by Dr. Obene was not illegal as required under McAm. Dr. Obene now appeals the order of the circuit court granting summary judgment.

STANDARD OF REVIEW

¶ 7. This Court reviews a circuit court’s grant or denial of summary judgment de novo. Gibbs v. Porterville Water Ass’n, 203 So.3d 661, 663 (¶ 8) (Miss. Ct. App. 2016) (citing Stribling v. Rushing’s Inc., 115 So.3d 103, 104 (¶ 5) (Miss. Ct. App. 2013)). According to Mississippi Rule of Civil Procedure 56(c), summary judgment is proper where “the pleadings, depositions, answers to interrogatories and admissions on- file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Upon review, this Court must view the evidence in the light most favorable to the party against whom the motion has been made.” Dorman v. Power, 203 So.3d 33, 36 (¶ 12) (Miss. Ct. App. 2016) (internal quotation marks omitted) (citing Grand-Legacy LLP v. Gant, 66 So.3d 137, 143 (¶ 17) (Miss. 2011)).

DISCUSSION

¶ 8. The circuit court granted JSU’s motion for summary judgment, finding that Dr. Obene’s wrongful-termination claim was barred, as it did - not fall under a McAm exception. Dr. Obene argues that she was an at-will employee and that the circuit* court erred -in its application of McAm. JSU argues that Dr. Obene was not an at-will- employee and thus was not terminated, but rather that her contract was simply not renewed. As such,-“JSU maintains that Dr. Obene, as a contractual employee, cannot bring a wrongful-termination suit. Accordingly, we review Dr. Obene’s employment status and the application of McAm below.

I. At-Will Employment

¶9. Mississippi follows the doctrine of employment' at will, under which “either an employer or an employee may terminate an employment relationship, unless the parties are bound by an employment contract or a contract^ detailing the term of employment.” Gibbs, 203 So.3d at 665 (¶ 14). It is evident from the record that Dr. Obene’s employment with JSU was characterized by an employment contract that coincided with the grant project on which she worked, and that this employment contract specified a definite term of employment. However, the employment contract also explicitly stated'that “Jackson State University, the employer, reserved] the right to terminate [Dr. Obene’s] employment ... at any time

¶ 10. This Court has previously addressed the situation' where" both an ■ employment contract with a definite date and a right to terminate at the sole discretion of the employer existed. Miranda v. Wesley Health Sys. LLC, 949 So.2d 63, 67 (¶ 16) (Miss. Ct. App. 2006). In Miranda, we stated the following:

A “definite term” self-evidently must be definite. A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment.

Id. Accordingly, we held that, “Since there was no limit on the reasons for which [the employer] could end [the employee’s] employment at any time, this was an at-will relationship. [The employee’s] contract was for one year with incontestable exceptions. With an unfettered right to terminate, the contract’s length was irrelevant.” Id. at 67-68 (¶ 17).

¶ 11. Similarly, in the instant case, there was a contract for a definite period; however, there was also a provision that gave JSU the right to terminate Dr. Obene’s employment at any time. As such, the provision giving JSU the unfettered right to terminate rendered Dr. Obene’s employment at will.

II. Application of McArn

¶ 12. Mississippi’s adherence to the at-will-employment doctrine usually precludes an at-will employee from suing for wrongful termination as “an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” Galle v. Isle of Capri Casinos Inc., 180 So.3d 619, 622 (¶ 13) (Miss. 2015) (quoting Harris v. Miss. Valley State Univ., 873 So.2d 970, 986 (¶ 46) (Miss. 2004)). However, in McArn, 626 So.2d at 607, the Mississippi Supreme Court identified two narrow public-policy exceptions to the at-will doctrine for which an employee is not barred from bringing suit: (1) where an employee refuses to participate in an illegal act, and (2) where an employee is discharged for reporting illegal acts of his employer. “The two exceptions to the Mississippi employment-at-will doctrine identified by the McArn court over [twenty] years ago remain the only two recognized so far.” Swindol v. Aurora Flight Scis. Corp., 194 So.3d 847, 849 (¶4) (Miss. 2016) (quoting Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 521 (5th Cir. 2015)).

¶ 13. The McArn exceptions only apply where the activity complained of is actually illegal: “the acts complained of [must] warrant the imposition of criminal penalties, as opposed to mere civil penalties.” Hammons v. Fleetwood Homes of Miss. Inc., 907 So.2d 357, 360 (¶ 11) (Miss. Ct. App. 2004). “[Because] the act itself must be criminal to implicate the exception^] [it renders] the subjective intent or belief of the plaintiff irrelevant.” Wheeler v. BL Dev. Corp., 415 F.3d 399, 404 (5th Cir. 2005).

¶ 14. In the instant case, Dr. Obene argues her wrongful-termination claim was premised upon a McArn exception because she was terminated for reporting the illegal act of Dr. Davis. Dr. Obene claims that summary judgment was improper because there was a genuine issue of material fact as to whether Dr. Davis’s actions were illegal. Specifically, Dr. Obene argues that Dr. Davis’s request for 10% of the grant funds for his supervisory role was a violation of title 18, section 641 of the United States Code (2012), which states as follows:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or [w]hoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined[,] or converted ... [s]hall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

¶ 15. According to Dr. Obene, Dr. Davis “knowingly and willfully attempted to fraudulently appropriate a portion of the CDC grant funds by demanding an increase in his portion of the federal grant funds to 10% without performing any additional work and without any justification.” However, the conduct that Dr. Obene complains about wholly fails to constitute an illegal act under section 641. Further, there was no evidence that JSU or Dr. Davis had committed an illegal act beyond Dr. Obene’s assertion that Dr. Davis’s request for an increase of the grant funds was illegal.

¶ 16. The record is clear, and the parties do not dispute, that Dr. Davis requested that Dr. Obene increase his allocation for his supervisory role from 2% to 10% in her proposed budget for the grant’s continuation application. While Dr. Obene may have believed that such a request for an increase would have been illegal because JSU had a moratorium on extra-duty pay, her subjective belief about the criminality of the act was irrelevant. Wheeler, 415 F.3d at 404. The act she complained of must have actually been illegal. Hammons, 907 So.2d at 360 (¶ 11). A request for an increase in the allocation of pay in the funds proposal portion of a grant application to the government does not—as Dr. Obene contends—constitute a knowing and fraudulent appropriation of government funds in violation of section 641. Because the act Dr. Obene complained of was not actually illegal, her at-will-termination claim does not fall within a protected exception of McAm.

1Í17. Dr. Obene’s wrongful-termination claim is precluded by Mississippi law and, as discussed, does not fall within a McAm exception. Therefore, there is no genuine issue of material fact, and JSU is entitled to summary judgment.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . McArn v. Allied Bruce-Terminix Co., 626 So.2d 603 (Miss. 1993).


author: CARLTON, J.,

text:
    Travis SHANKS a/k/a Travis Keycon Shanks, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00787-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied November 14, 2017

      ATTORNEY FOR APPELLANT: TRAVIS SHANKS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. On March 24, 2003, Travis Shanks pled guilty to deliberate-design murder following a plea hearing before the Claiborne County Circuit Court. Shanks filed his current motion for postconviction relief (PCR) on September 11, 2015. The trial court dismissed Shanks’s PCR motion in a January 11, 2016 order, finding that the face of the motion and the prior proceedings clearly showed that Shanks was not enti-tied to any collateral relief. Aggrieved, Shanks timely appeals. ■ •

■ ¶ 2. On appeal, Shanks argues: (1) his motion is not procedurally barred because he raises errors affecting his fundamental rights; (2) the trial court denied him due process by failing to inform him of the elements of the crime charged against him; (3) he did not enter his guilty plea knowingly, intelligently, and voluntarily; (4) he received ineffective assistance of counsel; (5) the trial court failed' to' establish a factual basis for his guilty plea or inform him of the elements of the crime charged; (6) the trial court failed to conduct a competency hearing; and (7) he received an illegal sentence.

¶ 3. Because we find that Shanks’s motion is both successive-writ barred and time-barred, we affirm the trial court’s dismissal of his PCR motion.

FACTS

¶ 4. A grand jury indicted Shanks -on January 9, 2003, for. capital murder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2000). The. indictment charged:

[Shanks] did wilfully, unlawfully, felo-niously, without the authority of law, and with or without design to effect death, kill and murder one David Small[s], a human being,'at a time when he, [Shanks,] was then and there engaged in the commission of the crime of robbery of the said [Smalls].

¶ 5. By his March 24, 2003 petition, in a negotiated plea ' agreement, Shanks pled guilty to deliberate-design murder in order .to receive the district attorney’s recommendation of a sentence of life imprisonment. As proof of the elements of his charged offense, and to satisfy the factual basis of his plea, Shanks submitted under oath in his guilty-plea petition that the following facts were true: “I killed David Smalls by shooting him [five] times outside the liquor store in Claiborne County ...

¶ 6. In addition to Shanks’s guilty-plea petition, Shanks’s attorney, Bill Barnett, certified that he discussed the contents of the petition with Shanks, he was satisfied Shanks fully understood the petition and executed it knowingly and voluntarily, and he knew of no reason for the court to reject Shanks’s guilty plea.

¶7. In its March 24, 2003 sentencing order, the trial court sentenced Shanks to life imprisonment. The trial court also noted the following in its sentencing order: (1)Shanks was advised of his legal and constitutional rights; (2) Shanks freely, voluntarily, and intelligently waived those rights; (3) Shanks was advised of the consequences of his guilty plea; and (4) upon direct questioning, Shanks admitted his guilt. Shanks, 972 So.2d at 735 (¶ 4).

¶ 8. On March 30, 2006, Shanks filed his first PCR motion with the trial court, claiming his guilty plea was involuntary “because he did not fully understand the elements of the crime of murder.” Id. at (¶ 5). The trial court denied Shanks’s first PCR motion, finding it barred by the three-year time limit set forth in Mississippi Code Annotated section 99-39-5(2) (Rev. 2006). Id. at (¶¶ 5, 7). On appeal, this Court affirmed. Id. at 735-36 (¶¶ 7, 11).

¶ 9. Shanks filed his current and second PCR motion on September 11, 2015, more than twelve years after his sentencing on March 24, 2003. The trial court summarily dismissed the motion, and aggrieved, Shanks appeals.

STANDARD OF REVIEW

¶10.. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Thinnes v. State, 196 So.3d 204, 207-08 (¶ 10) (Miss. Ct. App. 2016) (quoting Carson v. State, 161 So.3d 153, 155 (¶ 2) (Miss. Ct. App. 2014)).

DISCUSSION

¶ 11. As set forth below, we find that Shanks fails to meet his burfien to show a violation of a fundamental constitutional right or to support his other post-conviction claims for relief. “Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) provides that an order denying [or dismissing] a PCR motion is considered a final judgment and a bar to a second or successive motion.” Cummings v. State, 203 So.3d 1174, 1176 (¶ 7) (Miss. Ct. App. 2016). Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides a defendant who pleads guilty with three years from the date of his judgment of conviction to file his PCR motion. Id. at 1175 (¶ 7). Shanks’s current PCR motion is a successive writ that he filed outside the pstab-lished three-year time limit. Therefore, unless Shanks can show that an exception applies, his motion is both successive-writ barred and time-barred.

¶ 12. As the PCR movant, Shanks bears the burden to demonstrate his claims are not procedurally barred because an exception applies. See McComb v. State, 135 So. 3d 928, 931-32 (¶¶ 10, 13) (Miss. Ct. App. 2014). There are three statutory exceptions to the procedural bars. Cummings, 203 So.3d at 1176 (¶ 8) (citing Miss. Code Ann. §§ 99-39-5(2)(a)-(b) & 99-39-23(6)). Also excepted are “errors affecting fundamental constitutional rights.” Row land v. State, 42 So.3d 503, 508 (¶ 16) (Miss. 2010). However, “mere assertions of constitutional rights violations do not suffice to overcome the procedural bar[s].” White v. State, 59 So.3d 633, 636 (¶ 11) (Miss. Ct. App. 2011) (citing Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010)). Here, Shanks contends his claims are not procedurally barred because they raise errors affecting his constitutional rights.

¶ 13. The Mississippi Supreme Court has held “that a valid guilty plea operates as a waiver of all nonjurisdictional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss. 1991) (citing Ellzey v. State, 196 So.2d 889, 892 (Miss. 1967)). Such rights include “those secured by the Fifth, Sixth[,] and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890.” Sanders v. State, 440 So.2d 278, 283 (Miss. 1983) (superseded by statute on other grounds) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Phillips v. State, 421 So.2d 476, 479 (Miss. 1982)). A valid guilty plea is one entered voluntarily and intelligently, meaning the defendant was “advised concerning the nature of the charge against him and the consequences of the plea.” Holland v. State, 956 So.2d 322, 327 (¶ 11) (Miss. Ct. App. 2007) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991)). “The burden of establishing a claim for an involuntary guilty plea is on the petitioner.” Id. (citing Green v. State, 802 So.2d 181, 184 (¶ 19) (Miss. Ct. App. 2001)).

¶ 14. In the present case, the circuit court found: (1) Shanks freely, voluntarily, and intelligently waived his legal and constitutional rights; (2) Shanks was advised of the consequences of his guilty plea; and (3) Shanks knowingly and voluntarily entered his guilty plea. Further, in his guilty-plea petition, Shanks swore under oath: (1) he was mentally competent to plead guilty; (2) he was not undfer the influence of drugs or alcohol or suffering from mental illness; (3) he understood the matters in the indictment against him; (4) he understood the consequences of pleading guilty; (5) he freely and voluntarily offered his guilty plea; and (6) he was satisfied with his attorney’s legal services. Shanks’s attorney also certified his satisfaction to these facts. As a result, the record reflects that Shanks has failed to meet his burden to establish the involuntariness of his guilty plea.

¶ 15. Furthermore, even though Shanks asserts in the instant PCR motion that the trial court denied him due process by failing to inform him of the elements of second-degree murder, the record reflects that Shanks pled guilty to and was sentenced for first-degree (deliberate-design) murder. This Court previously determined during its review of Shanks’s 2006 PCR motion “that Shanks was sufficiently informed of the elements of [deliberate-design] murder and the consequences of pleading guilty to such a crime.” See Shanks, 972 So.2d at 736 (¶ 11). We fur-' ther held in our prior opinion that Shanks’s claim regarding the voluntariness of his guilty plea was proeedurally barred since “he. voluntarily and knowingly entered a guilty plea for murder[.]” Id. Notwithstanding any applicable procedural bars, we find upon review of the record and relevant caselaw that Shanks’s claims regarding due process and the voluntariness of his guilty plea lack merit.

¶ 16. In further addressing the claims Shanks asserts in his instant PCR motion, we also recognize that claims as to the involuntáriness of guilty pleas and the ineffectiveness of counsel are not excepted from the procedural bars although they involve fundamental constitutional rights. Jones v. State, 174 So.3d 902, 907 (¶ 12) (Miss. Ct. App. 2015) (citing Kirk v. State, 798 So.2d 345, 346 (¶ 6) (Miss. 2000)). Even despite the application of relevant procedural bars, however, we acknowledge that a movant’s ineffective-assistance claim “must demonstrate: (1) his attorney’s performance was deficient, and (2). this deficiency deprived him of a fair trial.” Thompson v. State, 78 So.3d 939, 941 (¶ 4) (Miss. Ct. App. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A movant who relies solely on his own affidavit in making an ineffective-assistance-of-counsel claim, however, does not meet the pleading requirements of our PCR statute. See Vitela v. State, 183 So.3d 104, 108 (¶ 14) (Miss. Ct. App. 2015); Miss. Code Ann. § 99-39-9(l)(e) (Rev. 2015).

¶ 17. Notwithstanding the applicable procedural bars, we find Shanks fails to provide any evidence, other than his own assertions, to support his ineffective-assistance-of-counsel claim. See id, As a result, Shanks fails to meet the statutory pleading requirements to demonstrate that . his counsel was ineffective under Strickland, Further, in his guilty-plea petition, Shanks swore under oath that he was satisfied with his attorney’s services. Therefore, Shanks’s claim lacks merit.

¶ 18. As to Shanks’s assertions about his mental competency, we acknowledge that a defendant’s right to be free from trial or conviction while incompetent constitutes a fundamental right that may overcome the procedural bars to PCR motions. See Smith v. State, 149 So.3d 1027, 1031 (¶ 8) (Miss. 2014) (citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Once the trial court has reasonable ground to believe that the defendant is incompetent, the trial court must submit the defendant to a mental evaluation and then conduct a competency hearing. Sanders v. State, 9 So.3d 1132, 1136 (¶¶ 15-16) (Miss. 2009) (discussing URCCC 9.06).

¶ 19. As discussed, however, Shanks swore under oath in his guilty-plea petition that he was mentally competent to make the petition and was not under the influence of drugs or alcohol or suffering from any mental illness. His attorney also certified that he knew of no reason the trial court should reject Shanks’s guilty plea: Furthermore, according to the trial court’s sentencing order, Shanks appeared personally before the trial court, entered his guilty plea voluntarily and intelligently, and admitted his guilt upon direct, questioning. Once again, Shanks fails to present evidence beyond his own assertions to support his claim of incompetency.

¶20. This Court cannot consider “matters which were' never presented or argued in the trial court and are not part of- the record.” Foster v. State, 148 So.3d 1012, 1015 (¶ 9) (Miss. 2014). In an effort to establish his incompetency, Shanks attaches to his appellate brief a number of exhibits that purport to document his educational and mental health histories from the late 1980s through the late 1990s. However, Shanks presented none of these exhibits to the trial court. Moreover, the documents fail to contradict the evidence before the trial court or to provide a reasonable ground to question Shanks’s competency at the time he entered his guilty plea in 2003. The record thus reflects that the trial court possessed no reasonable ground to believe Shanks was incompetent at the time of his guilty plea. As a result, the trial court was not required to conduct a competency hearing. See URCCC 9.06. We therefore And that Shanks’s claim on this -issue lacks merit and fails to overcome the procedural bars.

1121. In considering Shanks’s final assignment of error, we acknowledge the right to be free from an illegal sentence is a fundamental right that may overcome the procedural bars to PCR motions. See Vitela, 183 So.3d at 108 (¶ 15). “An illegal sentence is one that ‘does not conform to the applicable penalty statute.’ ” Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss. 2014) (quoting Grayer v. State, 120 So.3d 964, 969 (¶ 16) (Miss. 2013)). However, Mississippi Code Annotated section 97-3-21 (Rev. 2000) provides a mandatory sentence of life imprisonment for defendants convicted of deliberate-design murder. As the record reflects, Shanks pled guilty to deliberate-design murder. Therefore, the trial court was statutorily authorized and required to sentence Shanks to life imprisonment. As a result, his claim of an illegal sentence fails to overcome the procedural bars.

CONCLUSION

¶ 22. The circuit court adjudicated Shanks guilty of deliberate-design murder and sentenced him to life imprisonment on March 24, 2003. Shanks filed his first PCR motion on March 30, 2006, which the trial court subsequently denied. Shanks filed his current PCR motion on September 11, 2015, over twelve years after his judgment of conviction and Well beyond the three-year limitations period set forth in section 99-39-5(2). Because Shanks fails to demonstrate the applicability of an exception to the successive-writ bar pr the time-bar, we affirm the trial court’s dismissal '.of his PCR motion.

¶ 23. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAD BORNE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, ■ P.JJ., ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ, CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN ' OPINION.

      . The State submits this is Shanks’s third PCR motion. In Shanks v. State, 972 So.2d 734 (Miss. Ct. App. 2007), this Court considered a PCR motion Shanks filed in 2006. However, the record before us is unclear as to whether Shanks has filed any other prior PCR motion.

      . See also Boyd v. State, 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014) ("In Mississippi, since Rowland, only four types of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims.”). Cf. Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 96-97 (1950) (reversing a conviction despite procedural defects where the defendant's fundamental rights to be free from unreasonable searches and seizures and to be free from compulsion to give evidence against himself were violated).

      . See also URCCC 8.04 (discussing the rights waived by the entry of a guilty plea).