        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-00501-COA

DEZJON DANIELS A/K/A NOOKIE                                                APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         03/21/2016
TRIAL JUDGE:                              HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:                PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                        DEE BATES
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 08/15/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

       WESTBROOKS, J., FOR THE COURT:

¶1.    After a two-day trial, Dezjon Daniels was convicted of sexual battery in the Circuit

Court of Pike County. Daniels was sentenced to thirty-five years in the custody of the

Mississippi Department of Corrections (MDOC), with twenty-five years to serve, ten years

suspended, and five years of postrelease supervision (PRS). Daniels was also ordered to pay

$5000 in restitution to the Crime Victims’ Compensation Fund. After the verdict, the trial

court denied Daniels’s motion for a judgment notwithstanding the verdict (JNOV) or, in the

alternative, a new trial. On direct appeal, Daniels raises three issues. After review of the

record, we affirm.
                          FACTS AND PROCEDURAL HISTORY

¶2.    On or about July 23, 2014, Pamela Ard reported an incident of sexual battery to

Detective Todd Dillon, an investigator with the Pike County Sheriff’s Department. Ard

reported her son, H.A.,1 had been sexually molested or raped by Daniels or “Nookie.”2

Daniels and H.A. are cousins, and Ard regularly took her children, H.A. and P.A., to stay

with Daniels and his mother, Linda Stalling. At the time of this incident, H.A. was either

nine or ten years old, and Daniels was at least twenty-four months older than H.A. Daniels

was nineteen years old.

¶3.    H.A. was interviewed at the Children’s Advocacy Center by forensic interviewer Jade

Douglas. H.A. informed Douglas that Daniels’s “front went inside of his back.” H.A. and

Daniels were left alone one day while Stalling, P.A., and other cousins went to the store.

H.A. asked Daniels if he could play the video game that Daniels was playing. H.A. stated

Daniels told him that in order to play the game, H.A. had to give him “some booty” or have

sex. H.A. stated he went into the bathroom, pulled down his pants, put his hands on the

toilet, then Daniels “put his thing in his thing.” It was during the interview that Douglas

learned H.A. was referring to Daniels’s penis entering H.A.’s anus.

¶4.    At trial, Ard testified she frequently dropped off her children at Stalling’s house,

because Stalling babysat. Ard stated H.A. had been trying to tell her something, but she kept



       1
           We have used initials to protect the identity of the victim.
       2
           Daniels is sometimes referred to as “Nookie” by his family.

                                                2
ignoring him. Finally, H.A. told her of the abuse that occurred at Stalling’s house. Ard

testified she called Stalling and threatened to tell police if Stalling and Daniels did not meet

her at her house to discuss the incident in person. Upon arrival, Ard confronted Daniels. Ard

further testified she asked Daniels if he had sex with H.A., and Daniels replied, “If he said

I did it, then I did it.” Ard notified police shortly after the exchange with Stalling and

Daniels.

¶5.    Detective Dillon, Douglas, P.A., and H.A. testified at trial for the State. Daniels

testified at trial and vehemently denied abusing H.A. Following a two-day trial, Daniels was

found guilty of sexual battery and later sentenced to thirty-five years in the custody of the

MDOC, with ten years suspended and five years of PRS. Daniels filed a motion for a JNOV

or, in the alternative, a new trial. After a hearing, the trial court denied Daniels’s motion.

Daniels now timely appeals.

                                       DISCUSSION

       I.     Whether the trial court erred in admitting certain expert testimony.

¶6.    This Court has previously held that “the admission of expert testimony is governed

by Rule 702 of the Mississippi Rules of Evidence and caselaw, specifically Mississippi

Transportation Commission v. McLemore, 863 So. 2d 31 (Miss. 2003).” Carter v. State, 996

So. 2d 112, 116 (¶13) (Miss. Ct. App. 2008). Rule 702 states:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) the testimony

                                               3
       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.

M.R.E. 702.3

¶7.    “[T]he admission of expert testimony is within the sound discretion of the trial judge.”

Carter, 996 So. 2d at 116 (¶13) (citing McLemore, 863 So. 2d at 34 (¶4)). “Therefore, the

decision of a trial judge will stand unless we conclude that the decision was arbitrary and

clearly erroneous, amounting to an abuse of discretion.” Id. (citation and quotation marks

omitted).

¶8.    Also, “the trial court must engage in a two-pronged inquiry, determining whether the

expert testimony rests on a reliable foundation and is relevant to the matter.” Worthy v.

McNair, 37 So. 3d 609, 615 (¶16) (Miss. 2010). Furthermore, “regarding the reliability

prong the testimony must be grounded in the methods and procedures of science, not merely

a subjective belief or unsupported speculation.” Id. (citing McLemore, 863 So. 2d at 36

(¶11)); see also Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 590 (1993). Daniels

asserts Douglas’s opinion was based on speculation, not reliable scientific principles and

methods applied to the facts of the case. However, we disagree. This is an excerpt of

Douglas’s testimony on direct examination:

       Q.      Can you tell us what your opinion is as to whether or not – can you tell
               us what your opinion is as to his consistency with regard to children


       3
         The trial in this case preceded the nonsubstantive restyling of the Rules of Evidence
in July 2016, so we have used the former language.

                                              4
              that have suffered sexual abuse?

       A.     The consistency comes with being able to provide the details, the
              sensory details of how it felt, the position in which his body was at the
              time of the alleged incident, knowing that it was inside or outside of
              his, what he calls, back. And being able to know that your pants were
              up or down and how they got down. All of those play into consistent
              statements of a child who has been sexually abused.

¶9.    Daniels’s trial counsel objected to Douglas being proffered as an expert witness.

Douglas has a master’s degree in social work. She trained for the ChildFirst forensic

interviewing protocol through the National Child Protection Training Center. She has

interviewed over 900 children regarding alleged sexual abuse, alleged physical abuse, and

witnesses to violent crime. Douglas relied on her training in gathering as much information

as possible from H.A. Therefore, we find no abuse of discretion in the trial court’s decision

accepting Douglas as an expert witness in forensic interviewing.

¶10.   Further, Daniels argues Douglas’s testimony impermissibly passed judgment on

whether he was the specific perpetrator of the alleged abuse. The following is an excerpt

from Douglas’s testimony at trial during direct examination:

       Q.     Did you form an opinion about [H.A.’s] statements to you with regard
              to its consistency in your interview?

       A.     Yes.

       Q.     Can you tell us what your opinion is as to whether or not – can you tell
              us what your opinion is as to his consistency with regard to children
              that have suffered sexual abuse?

       A.     The consistency comes with being able to provide the details, the
              sensory details of how if felt, the position in which his body was at the

                                              5
              time of the alleged incident, knowing that it was inside or outside of
              his, what he calls, his back. And being able to know that your pants
              were up or down and how they got down. All of those play into
              consistent statements of a child who has been sexually abused.

       Q.     And did you form an opinion in this case?

       A.     Yes.

       Q.     And what was that opinion?

       A.     It was consistent with the allegations of sexual abuse by Dezjon
              Daniels.

¶11.   The Mississippi Supreme Court has held that “the expert should not be permitted to

pass judgment on whether the defendant was the specific perpetrator.” Smith v. State, 925

So. 2d 825, 838 (¶31) (Miss. 2006). However, we find that Douglas’s testimony did not

conclude that Daniels was the perpetrator. Douglas’s testimony pertains to H.A.’s credibility

rather than H.A.’s veracity. The Supreme Court has previously held that “any opinions as

to a witness’s veracity should generally be excluded, unless otherwise admissible.” Id. at 839

(¶33). However, “[e]vidence that [an] interview[] w[as] credible, i.e.[,] capable of being

believed, [i]s properly admitted.” Id. at 838 (¶32).

¶12.   Furthermore, Douglas found that H.A.’s characteristics were consistent with children

who had been abused. “While an expert may not opine that an alleged child-sexual-abuse

victim has been truthful, the scope of permissible expert testimony under Rule 702 includes

an expert’s opinion that the alleged victim’s characteristics are consistent with those of

children who have been sexually abused.” Lattimer v. State, 952 So. 2d 206, 221 (¶38)


                                              6
(Miss. Ct. App. 2006) (citation omitted).

¶13.   Additionally, the jury examined the videotaped interview between Douglas and H.A.

The jury also heard the testimony of Daniels and were able to draw their own conclusions

regarding other witness testimony. “As always, the jury has the prerogative to accept or

reject, in whole or part, the testimony of any witness, expert or lay.” Smith, 925 So. 2d at 839

(¶33). Accordingly, we find no abuse of discretion in the trial court’s decision to overrule

the objection allowing Douglas’s expert testimony.

       II.    Whether admission of H.A.’s forensic medical records violated
              Daniels’s Sixth Amendment right to confrontation, and whether
              trial counsel’s stipulation of the records constituted ineffective
              assistance of counsel.

              A.      H.A.’s Forensic Medical Records

¶14.   Daniels asserts H.A.’s forensic medical records are testimonial in nature and violate

his Sixth Amendment right to confrontation. “A document is testimonial when it is created

for the sole purpose of the State’s use as evidence against the defendant.” Vanwey v. State,

147 So. 3d 367, 370 (¶10) (Miss. Ct. App. 2014) (citation omitted). Daniels asserts H.A.’s

medical records are testimonial, because the police referred H.A. for forensic evaluations and

numerous officers were present for the interview. As a result, Daniels asserts the forensic

records are inadmissible hearsay. “However, a general hearsay objection is insufficient to

preserve an alleged Confrontation Clause violation for appellate review.” Anthony v. State,

23 So. 3d 611, 620 (¶41) (Miss. Ct. App. 2009) (quoting Briggs v. State, 16 So. 3d 696, 698-

99 (¶11) (Miss. Ct. App. 2008)). In Anthony, “[the defendant] made no Sixth-Amendment

                                               7
objection to the admission of the abuse record at trial or in [the] posttrial motion, [and] her

arguments on this issue [were] procedurally barred.” Id.

¶15.   Daniels’s trial counsel did not object to the introduction of the records into evidence.

In fact, Daniels’s trial counsel stipulated to the forensic records being submitted into

evidence. Notwithstanding the procedural bar, this Court finds no abuse of discretion by the

trial judge allowing H.A.’s forensic report and medical records into evidence. The record

reflects that Daniels’s trial counsel relied on the results of the forensic records to develop a

defense.

              B.      Assistance of Counsel

¶16.   “To prove ineffective assistance of counsel, [one] must show that: (1) his counsel’s

performance was deficient, and (2) this deficiency prejudiced his defense.” Jackson v. State,

73 So. 3d 1176, 1181 (¶19) (Miss. Ct. App. 2011) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). Furthermore, the merits of a claim of ineffective assistance of counsel

brought on direct appeal should be addressed only when “(1) the record affirmatively show[s]

ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is

adequate to allow the appellate court to make the finding without consideration of the

findings of fact of the trial judge.” Id. at 1181 (¶20); see also Colenburg v. State, 735 So.

2d 1099, 1101 (¶5) (Miss. Ct. App. 1999).

¶17.   The State does not stipulate the record affirmatively shows ineffectiveness. However,

Daniels contends his counsel provided deficient representation because of counsel’s decision


                                               8
to stipulate to the admission of the forensic report. However, we disagree with Daniels’s

assertion. The stipulation of the medical records into evidence is a part of trial counsel’s

defense strategy. Daniels submits there is no reasonable trial strategy in stipulating the

records that violated his Sixth Amendment right to confrontation. However, the forensic

records did not document any signs of physical trauma. Furthermore, a strong presumption

exists “that the attorney’s conduct fell within the wide range of reasonable professional

assistance.” Hancock v. State, 964 So. 2d 1167, 1175 (¶18) (Miss. Ct. App. 2007).

“[C]ounsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain

questions, or make certain objections fall within the ambit of trial strategy and will not stand

as support for an ineffective assistance of counsel claim.” Id. (citation and quotation marks

omitted).

¶18.   Accordingly, we find no merit in Daniels’s claim that he received ineffective

assistance of counsel. Moreover, this Court has held that “when a party raises an ineffective

assistance of counsel claim on direct appeal, the proper resolution is to deny relief without

prejudice to the defendant’s right to assert the same claim in a postconviction relief

proceeding.” Lattimer, 952 So. 2d at 222 (¶42) (citation omitted).

       III.   Whether the evidence was sufficient to establish venue.

¶19.   Daniels contends the State failed to present sufficient evidence to establish beyond a

reasonable doubt that the incident occurred in Pike County. “Proof of venue is indispensable

to a criminal trial[,] and it may be proved by direct or circumstantial evidence.” Smith v.


                                               9
State, 646 So. 2d 538, 541 (Miss. 1994) (citations omitted). In Smith, “none of the witnesses

testified during the State’s case-in-chief that the crimes took place in [the venue in which the

incident was alleged to have occurred].” Id.

¶20.   Ard testified the incident took place at Stalling’s house, located “maybe five or six

miles away from her home.” She testified Stalling’s house is located in Pike County.

Daniels asserts no witness testified as to the address of Daniels’s house. Further, Daniels

argues Ard guessed the location of the house while giving her testimony. The following is

an excerpt of Ard’s testimony during direct examination:

       Q.       Okay. What state4 is it in?

       A.       It’s in Magnolia. It’s in Osyka, where she lives.

       Q.       Okay. What State?

       A.       Mississippi.

       Q.       Okay. And what County?

       A.       Walthall – I mean, Pike County.

¶21.       “Direct or circumstantial evidence may be used to prove venue.” Lee v. State, 910

So. 2d 1123, 1126 (¶10) (Miss. Ct. App. 2005) (citation omitted). Although Ard mistakenly

named the wrong city in which Stalling lives, she quickly corrected herself. Moreover, both

cities Ard named are located in Pike County.

¶22.   Although the State could have presented additional evidence to establish venue, Ard’s


       4
           In the record, the word “state” is written. However, the word should be “city.”

                                              10
testimony sufficiently established venue.5 Accordingly, we affirm the judgment of the circuit

court.

¶23.     AFFIRMED.

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




         5
          In Turner v. State, 220 So. 2d 295, 297 (Miss. 1969), the Court held, “although
additional proof could have been offered by the State to prove venue even more conclusively,
. . . under all the facts . . . the proof was sufficient to meet the burden placed on the State.”

                                               11
