      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01587-COA

JASON R. CASE A/K/A JASON CASE A/K/A                   APPELLANT
JASON ROBERT CASE

v.

STATE OF MISSISSIPPI                                     APPELLEE

DATE OF JUDGMENT:               08/19/2013
TRIAL JUDGE:                    HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:      LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         OFFICE OF STATE PUBLIC DEFENDER
                                BY: GEORGE HOLMES
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:              DEE BATES
NATURE OF THE CASE:             CRIMINAL - FELONY
TRIAL COURT DISPOSITION:        CONVICTED OF TWO COUNTS OF
                                TOUCHING A CHILD FOR LUSTFUL
                                PURPOSES AND SENTENCED TO SERVE
                                FIFTEEN YEARS ON COUNT I, AND
                                SENTENCED TO FIFTEEN YEARS ON
                                COUNT II, WITH FIVE YEARS TO SERVE
                                AND TEN YEARS SUSPENDED,
                                FOLLOWED BY FIVE YEARS OF POST-
                                RELEASE SUPERVISION, ALL IN THE
                                CUSTODY OF THE MISSISSIPPI
                                DEPARTMENT OF CORRECTIONS, WITH
                                THE SENTENCES TO RUN
                                CONSECUTIVELY, AND TO PAY A $8,000
                                FINE AND $500 TO THE CRIME VICTIMS’
                                COMPENSATION FUND
DISPOSITION:                    AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.

     FAIR, J., FOR THE COURT:
¶1.    Jason Case appeals his conviction of two counts of fondling a child. He claims that

(1) the tender-years hearsay exception was improperly applied; (2) that he was irreparably

prejudiced by irrelevant character evidence; (3) his trial counsel was constitutionally

ineffective; and (4) the trial court erred in allowing the State to refer to him as a “pedophile”

during closing arguments. Finding no error, we affirm.

                                          FACTS

¶2.    In September 2010, the Lincoln County Department of Human Services (DHS)

certified Case as a foster parent. Case was the principal at Hazlehurst Middle School and

lived alone.

¶3.    In January 2011, Keyla O’Quinn, a DHS family protection specialist, received a report

that a mother was using drugs at home in front of her two children – Brian,1 age thirteen, and

Daniel, age nine.2 DHS immediately took the children into custody, and on that same day

placed Brian and Daniel in foster care with Case.

¶4.    Brian and Daniel remained in Case’s custody from January 14, 2011, until June 16,

2011. During that time, the children had weekly visitation with DHS. At trial, O’Quinn

testified that she additionally scheduled supervised visitation (family team meetings) with

the children’s parents and other family members. At one of the team meetings, O’Quinn was

told of some inappropriate behavior occurring in Case’s home. Both children said Case let

       1
         This Court uses pseudonyms to protect the identity of minors who are victims of
sexual abuse.
       2
           Brian and Daniel have the same mother but different fathers.

                                               2
them play with gasoline and fire, and Brian said he almost got burned. O’Quinn also learned

that Case let the children sit in his lap and that he posted pictures of the children on

Facebook. Case was not present for the team meetings. O’Quinn later informed Case that

this type of behavior was unacceptable and that DHS policy prohibits posting pictures of

children on the internet. Case never removed the pictures. O’Quinn also testified that she

felt Case had a “really unusual and strange” relationship with Daniel. For example, Daniel

“was always sitting up under . . . Case’s armpits . . . .”

¶5.    In June 2011, Brian and Daniel were placed with one of Daniel’s relatives. O’Quinn

testified that the children were happy to make the transition. Case, on the other hand, was

upset about the new placement. He agreed to meet O’Quinn in the Cracker Barrel parking

lot so that she could take the children to their new home.

¶6.    Most of O’Quinn’s remaining testimony was admitted under the tender-years hearsay

exception.3 She stated that, while at Cracker Barrel, Brian said that he hoped she was not

going to put any girls in Case’s home. O’Quinn asked Brian to repeat himself, but he would

not. She said that Brian made the statement while the children were moving their belongings

out of Case’s vehicle. O’Quinn did not follow up on his statement.

¶7.    In January 2012, O’Quinn requested a “fact interview” with Brian after she received

a separate report from another investigation. She explained that fact interviews are



       3
        The judge conducted a hearing outside of the presence of the jury and ruled the
testimony admissible.

                                               3
conducted when there are allegations of abuse. When Brian came into her office, she told

him that she had concerns about other children that were placed in Case’s home. O’Quinn

then asked Brian if Case ever touched him in way that made him uncomfortable. At first,

Brian made a funny expression and said he was ready to go. But after O’Quinn offered to

end the interview, he chose to continue. Brian told O’Quinn that Case touched his penis

twice. O’Quinn ended the interview and contacted the Children’s Advocacy Center (CAC)

for a forensic interview. Brian’s statement during his interview at the CAC was consistent

with the statement he gave to O’Quinn.

¶8.    Brian testified that he did not like living with Case. He said that Case would give him

and Daniel melatonin and Benadryl at night to put them to sleep. After giving them the

medications, Case would rock Daniel to sleep. Brian also said that Case would make him

sleep in his underwear, even though he preferred to sleep in shorts and a shirt.

¶9.    Brian also testified that Case touched him inappropriately on two separate occasions.

The first incident occurred one night while he and Case were watching a movie. Brian had

fallen asleep on the love seat, and he woke up when he felt Case’s hands in his pants. Brian

stated that Case was on the love seat with him, lying behind him, and facing the same way

as him. Case was “rubbing” and “jerking” Brian’s penis. Brian acted like he was asleep so

that Case would leave him alone. The second time, Brian was in his bed. Case came out of

Daniel’s bedroom and got in bed with Brian, waiting for him to fall asleep. Brian woke up

when Case put his hand in his boxers. Brian testified that Case was moving and “jerking”


                                              4
his penis up and down. Brian slapped Case’s hand away and waited for him to leave. Brian

also testified that after the second incident, he started locking his bedroom door and

wrapping his blanket tightly around him to keep Case from touching him.

¶10.   Brian testified that he remembered what he told O’Quinn at Cracker Barrel, and also

testified that he told O’Quinn about the two fondling incidents during the January 2012

interview. Brian said that he waited to tell her about the incidents because he was scared.

Case did not testify.

                                        DISCUSSION

       1. Tender-Years Exception

¶11.   Case argues that the trial court erred in applying the tender-years exception to

O’Quinn’s hearsay testimony. This Court employs “an abuse-of-discretion standard when

reviewing claims that the trial judge erred by admitting hearsay.” White v. State, 48 So. 3d

454, 456 (¶9) (Miss. 2010) (internal citations omitted).

¶12.   Mississippi Rule of Evidence 803(25), also known as the tender-years exception,

provides:

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

¶13.   On appeal, Case challenges the trial court’s finding that Brian was of tender years

                                                5
when he made the statement and its finding that his statement had substantial indicia of

reliability.

¶14.    The Mississippi Supreme Court has held that “there is a rebuttable presumption that

a child under the age of twelve is of tender years.” Veasley v. State, 735 So. 2d 432, 436

(¶16) (Miss. 1999). The court elaborated, stating:

        Where an alleged sexual abuse victim is twelve or older, there is no such
        presumption and the trial court must make a case-by-case determination as to
        whether the victim is of tender years. This determination should be made on
        the record and based on a factual finding as to the victim's mental and
        emotional age. If the court finds that the declarant is of tender years, then it
        must still rule on the Rule 803(25)(a) and (b) factors before admitting the
        testimony.

Veasley, 735 So. 2d at 437 (¶16).

¶15.    Here, a tender-years hearing was held outside the presence of the jury. Brian was

twelve or older when he reported Case’s abuse to O’Quinn, so the trial judge had to first

make an on-the-record determination, based on factual findings, that Brian’s mental and

emotional age was of tender years.

¶16.    During the tender-years hearing, the judge heard O’Quinn’s testimony regarding the

statements Brian made at Cracker Barrel and in the January 2012 interview. The judge noted

that Brian was thirteen at the time he made those statements to O’Quinn. Ultimately, the

judge held that, based on O’Quinn’s testimony, Brian was a child of tender years when he

made those statements. When defense counsel requested a more detailed finding, the judge

discussed the fact that Brian was taken from his mother’s home at age thirteen and that he


                                               6
had since lived in at least four different foster homes. The judge elaborated, stating that

“[Brian] certainly would not be anymore advanced than an ordinary thirteen-year-old would

be and that, in fact, a child who had been subjected to that environment . . . would probably

be behind other children mentally and emotionally who had grown up in a stable two-parent

family home . . . .” We find the judge’s ruling is supported by a sufficient on-the-record

determination.

¶17.   Next, to determine whether Brian’s statements have substantial indicia of reliability,

the trial judge must make an on-the-record finding, considering the twelve factors provided

in Rule 803(25)’s official comment.4 However, each factor need not be discussed separately

by the trial judge, so long as the record supports a “finding that the victim’s statements bore

indicia of reliability.” Elkins v. State, 918 So. 2d 828, 833 (¶18) (Miss. Ct. App. 2005)


       4
        These factors, often referred to as the Wright factors, e.g., Hennington v. State, 702
So. 2d 403, 415-17 (¶¶54, 62) (Miss. 1997) (citing Idaho v. Wright, 497 U.S. 805, 821-22
(1990)), include:

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

                                              7
(citation omitted).

¶18.   After finding Brian was a child of tender years, the judge continued his analysis and

considered the twelve factors in an effort to determine whether Brian’s statements bore

substantial indicia of reliability. The judge made the following findings on the record: (1)

Brian’s statement to O’Quinn at Cracker Barrel that she should not place any girls with Case

was “textbook spontaneous”; (2) Brian’s “funny expression” at the interview in response to

O’Quinn asking whether Case had ever inappropriately touched him was evidence of the

spontaneity of his subsequent statement, despite the fact that the statement was given in

response to a question; (3) there is no blood relationship between O’Quinn and Brian; (4) no

special relationship between O’Quinn and Brian had been established; and (5) the inference

was made that Brian’s statement to O’Quinn was corroborated by his statements to the CAC

in McComb. Because the trial judge supported his findings with substantial evidence, we

reject Case’s argument that this finding was an abuse of discretion.

¶19.   Even if it was error to admit O’Quinn’s testimony based on lack of reliability, the

error would be harmless. As recently discussed in Webb v. State, this Court applies a

harmless-error analysis when the trial court fails to make an on-the-record finding of indicia

of reliability. Webb v. State, 113 So. 3d 592, 601 (¶30) (Miss. Ct. App. 2012) (citing Klauk

v. State, 940 So. 2d 954, 956-57 (¶7) (Miss. Ct. App. 2006) (citation omitted)). The

harmless-error test instructs this Court to “determine whether the weight of the evidence

against the defendant is sufficient to outweigh the harm done by allowing admission of the


                                              8
evidence.” Veasley, 735 So. 2d at 437 (¶7) (quoting Fuselier v. State, 702 So. 2d 388, 391

(¶9) (Miss. 1997)). In Klauk, we held that, absent the challenged hearsay testimony, “the

victim’s testimony was sufficient to convict the perpetrator.” Webb, 113 So. 2d at 601 (¶30)

(citing Klauk, 940 So. 2d at 957 (¶8)).

¶20.   Here, without O’Quinn’s testimony, there was still sufficient evidence to convict

Case. Brian testified at trial and was subject to wide-open cross-examination by Case’s

attorney. Specifically, Brian not only testified that Case touched his penis on two different

occasions, but also addressed his statements to O’Quinn and his behavior during both the

custody exchange at Cracker Barrel and the interview. Under the circumstances set out

above, we find no reversible error.

       2. Character Evidence

¶21.   Case argues the trial court erred in allowing the State to admit “unfounded, irrelevant,

and highly prejudicial” character evidence. Case specifically refers to the State’s evidence

that he placed photographs of the children on Facebook and that he allowed the children to

play with gasoline. Our supreme court has held, “[a]n objection must be made with

specificity, and failure to articulate the grounds for objection constitutes a waiver of the

alleged error.” Smith v. State, 986 So. 2d 290, 295 (¶13) (Miss. 2008) (quoting Ross v. State,

954 So. 2d 968, 987 (¶27) (Miss. 2007)). Case failed to object on the ground of irrelevant

character evidence. Consequently, he waived any argument concerning character evidence

when he failed to raise it in the trial court.


                                                 9
       3. Ineffective Assistance of Counsel

¶22.   Case also argues that his counsel was ineffective by failing to object to the

“damaging[,] irrelevant character evidence” previously discussed. The State responds that

defense counsel’s decision not to object to certain evidence was strategic, and therefore does

not give rise to an ineffective-assistance-of-counsel claim. See, e.g., Hall v. State, 735 So.

2d 1124, 1127 (¶10) (Miss. Ct. App. 1999) (stating that having a trial strategy negates an

ineffective-assistance-of-counsel claim, despite counsel’s insufficiencies).

¶23.   The Mississippi Supreme Court has stated:

       It is unusual for this [c]ourt to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal. This is because we are
       limited to the trial court record in our review of the claim[,] and there is
       usually insufficient evidence within the record to evaluate the claim . . . .
       [W]here the record cannot support an ineffective assistance of counsel claim
       on direct appeal, the appropriate conclusion is to deny relief, preserving the
       defendant's right to argue the same issue through a petition for post-conviction
       relief. This Court will rule on the merits on the rare occasions where (1) the
       record affirmatively shows 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.

Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations

omitted). The record does not affirmatively indicate that Case suffered denial of effective

assistance of counsel of constitutional dimensions. Nor have the parties stipulated that the

record was adequate to allow this Court to make a finding without considering the findings

of fact by the trial judge. We therefore decline to address this issue without prejudice to

Case’s right to seek post-conviction relief if he chooses to do so.

                                              10
       4. Prosecutorial Comments

¶24.   Case next argues that the trial court erred in allowing the prosecutor to refer to Case

as a pedophile in his closing argument, as stated below:

       The State of Mississippi thought it is better to take these children away from
       their mother’s drug use and then they put them with a pedophile. The State of
       Mississippi, to their discredit, is saying we have to deal with the pedophile. .
       . . What man would routinely give them Benadryl to . . . try to make ’em go to
       sleep? Who does that? I don’t. You have been charged here with being
       reasonable people to see who is telling the truth. I stand here and tell you that
       responsibility . . . for a pedophile, to place with a pedophile, that’s all it is.

¶25.   Case failed to object until the end of the State’s closing argument. Case also failed

to request a jury instruction prohibiting the jury from considering the prosecutor’s remarks.

So the issue is barred on appeal. Havard v. State, 94 So. 3d 229, 236 (¶14) (Miss. 2012).

¶26.   Procedural bar notwithstanding, Case’s argument fails. “Attorneys on both sides are

generally afforded broad latitude during closing arguments . . . [s]o long as counsel in his

address to the jury keeps fairly within the evidence and the issues involved . . . .” Moffett v.

State, 156 So. 3d 835, 857 (¶61) (Miss. 2014) (citation and quotations omitted). Here, the

prosecutor’s comments, taken in context, show that the prosecutor was commenting on the

facts presented in the evidence. Thus, we cannot say the prosecutor’s comments were

improper.

¶27. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF
CONVICTION OF TWO COUNTS OF TOUCHING A CHILD FOR LUSTFUL
PURPOSES AND SENTENCE TO SERVE FIFTEEN YEARS ON COUNT I, AND
SENTENCE OF FIFTEEN YEARS ON COUNT II, WITH FIVE YEARS TO SERVE
AND TEN YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF POST-
RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI

                                              11
DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN
CONSECUTIVELY, AND TO PAY A $8,000 FINE AND $500 TO THE CRIME
VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO LINCOLN COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, JAMES AND WILSON, JJ., CONCUR.




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