         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01567-COA

RUBIN RENFROW A/K/A RUBIN B. RENFROW                                         APPELLANT
III

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          10/17/2014
TRIAL JUDGE:                               HON. MICHAEL H. WARD
COURT FROM WHICH APPEALED:                 SIMPSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JULIE ANN EPPS
                                           CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ABBIE EASON KOONCE
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED PETITION FOR POST-
                                           CONVICTION COLLATERAL RELIEF
DISPOSITION:                               AFFIRMED: 05/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    This appeal arises from Rubin Renfrow’s petition for post-conviction collateral relief

(PCCR) as to his conviction of possessing photographs of an actual child engaging in

sexually explicit conduct, in violation of Mississippi Code Annotated section 97-5-33(5)

(Rev. 2014). The special circuit court judge denied his petition. We find no error and affirm.

                                          FACTS

¶2.    In 2006, child-pornography images were found on Renfrow’s computer. A year later

in 2007, Renfrow told officers that he knew of the pictures depicting child pornography on
his computer. He was indicted for the willful possession of child pornography. After trial

in 2008, Renfrow was convicted.

¶3.    Renfrow first appealed to this Court in 2009. His conviction was affirmed. Renfrow

v. State, 34 So. 3d 617, 636 (¶62) (Miss. Ct. App. 2009). In 2013, Renfow filed an

application for leave to file a PCCR petition with the supreme court. The supreme court

remanded to the circuit court for an evidentiary hearing on two specific issues: (1) whether

Renfrow was denied due process of law and a fair trial when evidence of legal emails and

stories was admitted to show Renfrow “preferred children,” and (2) whether counsel was

ineffective in failing to properly object and request limiting instructions and/or to appeal the

admission of unfairly prejudicial evidence.

¶4.    At the hearing, the special circuit court judge heard testimony from Joseph K.

Speetjens, an expert in computer science, computer programming, computer software,

computer security, and forensic analysis of computers. Terrell Stubbs, Renfrow’s previous

counsel, also testified about his trial strategy. The special circuit court judge found, based

on this testimony and the record, that Renfrow did not receive ineffective assistance of

counsel and that he was not denied due process.

                                STANDARD OF REVIEW

¶5.    “When reviewing a trial court's denial or dismissal of a PCCR petition, we will only

disturb the trial court’s factual findings if they are clearly erroneous; however, we review the

trial court’s legal conclusions under a de novo standard of review.” Martin v. State, 138 So.

3d 267, 268 (¶3) (Miss. Ct. App. 2014) (citing Hughes v. State, 106 So. 3d 836, 838 (¶4)



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(Miss. Ct. App. 2012)).

                                         ANALYSIS

       I.     Whether Renfrow’s counsel was ineffective in not understanding and
              presenting his defense to the jury.

¶6.    Renfrow claims that his trial counsel did not properly understand the computer science

involved in the case and that he chose an inadequate defense.

¶7.    In assessing an ineffective-assistance-of-counsel claim, this Court follows the test

established in Strickland v. Washington, 466 U.S. 668, 686 (1984). Wiley v. State, 517 So.

2d 1373, 1378 (Miss. 1987). To succeed on an ineffective-assistance-of-counsel claim,

       a defendant must show that: (1) his counsel’s performance was deficient, and
       (2) this deficiency prejudiced his defense. The burden of proof rests with the
       defendant to prove both prongs. Under Strickland, there is a strong
       presumption that counsel’s performance falls within the range of reasonable
       professional assistance. To overcome this presumption, the defendant must
       show that there is a reasonable probability that, but for the counsel’s
       unprofessional errors, the result of the proceeding would have been different.

Maggitt v. State, 26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009) (citing Strickland, 466 U.S.

at 687) (internal citations and quotations omitted). “When determining if both prongs of the

Strickland test have been met, . . . this Court must look to the totality of the circumstances.”

Hibbler v. State, 115 So. 3d 832, 842 (¶32) (Miss. Ct. App. 2012) (quoting Payton v. State,

708 So. 2d 559, 563 (¶12) (Miss. 1998)).

¶8.    Regarding trial strategy, “[t]his Court has held that the conduct of trial counsel is

measured toward the view that he has wide latitudinal discretion in effectuating reasonable

representation on behalf of his client and that the decisions made at trial are strategic.”

Nichols v. State, 27 So. 3d 433, 443 (¶36) (Miss. Ct. App. 2009) (internal quotations


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omitted). “This Court rarely second guesses trial counsel regarding matters of trial strategy.”

Id. Furthermore, “[h]aving a trial strategy negates an ineffective assistance of counsel claim,

regardless of counsel’s insufficiencies.” Hall v. State, 735 So. 2d 1124, 1127 (¶10) (Miss.

Ct. App. 1999).

¶9.    The special circuit court judge found that Stubbs understood the defense and that he

took steps to effectively present that defense to the jury during trial. Renfrow argues on

appeal that the issue is not whether Stubbs understood his trial strategy but whether his trial

strategy was reasonable. This argument ignores the presumption that “performance falls

within the range of reasonably professional assistance.” Maggitt, 26 So. 3d at 365 (¶12).

¶10.   At the evidentiary hearing, Stubbs testified that the child-pornography images were

located in more than one location on the computer, and he prepared his trial strategy in order

to explain this to the jury. Stubbs argued at trial that a computer virus placed the images on

Refrow’s computer without his knowledge. Renfrow contends that this was not the best

available defense. Rather, he would argue that the images were placed on his computer when

he clicked on pop-up windows. Renfrow’s preferred defense would supposedly explain the

ten images that were presented by the prosecution at trial. However, Stubbs knew through

discovery that the ten images were in more than one location on the computer and that more

images were also found deleted on the computer. It is not evident in the record whether

Renfrow’s preferred defense would explain the presence of the photographs in other areas

of the computer.

¶11.   The defense presented by Stubbs does not fall outside the “wide latitudinal discretion



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in effectuating reasonable representation on behalf of his client.” Nichols, 27 So. 3d at 443

(¶36). Renfrow has not shown that Stubbs’s performance was deficient. Renfrow therefore

fails to meet the first prong of the Strickland test. This issue is without merit.

       II.    Whether Renfrow was denied due process of law and a fair trial when
              evidence of legal emails and stories was admitted to show Renfrow
              “preferred children.”

¶12.   Renfrow next argues that certain evidence and testimony was improperly allowed

before the jury. With regard to the admission or exclusion of evidence, the Court applies an

abuse-of-discretion standard. Stone v. State, 94 So. 3d 1078, 1081 (¶9) (Miss. 2012).

¶13.   The evidence at issue consisted of emails and pornographic stories found on

Renfrow’s computer as well as his browser history. The testimony revealed that Renfrow

entered information into websites seeking a “companion,” that Renfrow purchased “he-she”

videos, that Renfrow’s hard drive contained 170 other related pictures and over 500 deleted

pictures. Also, during Renfrow’s cross-examination, the prosecution asked him about his

past work as a principal and teacher.

¶14.   Renfrow argues that all of these instances of legal conduct were elicited to show that

he “preferred children.” However, the State argues that these instances were not only

relevant but admissible as each spoke to Renfrow’s motive, intent, plan, knowledge, and

absence of mistake or accident. M.R.E. 404(b).

¶15.    The Court finds that the trial judge did not abuse his discretion in permitting the

above evidence and testimony. Under Mississippi Rules of Evidence 404(b), evidence of

other crimes, wrongs, or acts may be admissible “as proof of motive, opportunity, intent,



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preparation, plan, knowledge, identity, or absense of mistake or accident.” Renfrow’s

defense was that he accidentally and unknowingly downloaded the child pornography to his

hard drive. The information regarding his computer usage and emails was used to negate this

defense and to show that he did not download the images by accident. The evidence and

testimony showed Renfrow’s intent to search out these types of images, and the fact that all

of these things existed on Renfrow’s computer showed that he knew more about the

operation of the computer than he was willing to tell.

¶16.   The Court finds that the evidence and testimony at issue were relevant and probative

for a purpose other than to prove Renfrow’s character. Therefore, this issue is without merit.

       III.   Whether Renfrow’s counsel was ineffective in failing to properly
              object and request limiting instructions and/or to appeal the
              admission of unfairly prejudicial evidence suggesting that Renfrow
              was a bad person who should be convicted because he “preferred
              children.”

¶17.   Finally, Renfrow contends that his counsel was ineffective because the evidence and

testimony discussed above warranted objection and a limiting instruction. He also argues

that trial counsel should have raised these issues on appeal. Again the Court considers the

test articulated in Strickland, 466 U.S. at 686.

¶18.   “[C]ounsel’s choice of whether or not to . . . call certain witnesses, ask certain

questions, or make certain objections falls within the ambit of trial strategy. This Court

rarely second guesses trial counsel regarding matters of trial strategy.” Nichols, 27 So. 3d

at 443 (¶36). “Decisions to make particular objections . . . cannot give rise to an ineffective

assistance of counsel claim.” Moss v. State, 977 So. 2d 1201, 1214 (¶31) (Miss. Ct. App.



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2007).

¶19.     Much of the evidence and testimony was admitted over objections by Renfrow’s trial

counsel. And certain questions asked of Renfrow himself could have been avoided if

Renfrow followed his counsel’s advice to not take the stand. Renfrow argues that his

attorney should have objected in each of these instances, but “decisions such as the decision

not to object are considered tactical, and do not rise to the level of ineffective assistance of

counsel.” Golden v. State, 968 So. 2d 378, 390 (¶50) (Miss. 2007). “[C]ounsel might have

reasons for deciding not to object to a question which is technically objectionable. For

instance, counsel might conclude that an objection would draw attention to the question and

answer.” Id. For these reasons, Renfrow has not shown that trial counsel was deficient.

¶20.     Furthermore, Renfrow’s ineffective-assistance-of-counsel claims fail the second prong

of the Strickland test, which requires a showing of a reasonable probability that the result of

the proceeding would have been different. Maggitt, 26 So. 3d at 365 (¶12). Beyond the

evidence and testimony presented against him, Renfrow took the stand in his own defense.

During his testimony, Renfrow said that he saw the child-pornography images and that he

was aware that the images were on his computer. On cross-examination, he tried to explain

his previous statements, saying, “But now, there is two kinds of visions, sir. There is direct

focusing of the eye on an image, and then there is something called peripheral vision. You

can be aware that something is there and not necessarily be looking directly at it.” Due to

Renfrow’s own testimony at trial, the result of the proceeding would have been the same

regardless of the alleged errors. Thus, Renfrow fails to prove ineffective assistance of



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counsel.

¶21. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT
DENYING THE PETITION FOR POST-CONVICTION COLLATERAL RELIEF IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

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




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