                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2012-KA-00372-SCT

CLAYTON PAUL BATEMAN a/k/a
CLAYTON P. BATEMAN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        02/09/2012
TRIAL JUDGE:                             HON. LAWRENCE PAUL BOURGEOIS, JR.
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: HUNTER N. AIKENS
                                             GEORGE T. HOLMES
                                             FRANCIS RYAN BROSSETTI
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: STEPHANIE B. WOOD
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 08/15/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   Clayton Paul Bateman was convicted in the Harrison County Circuit Court of two

counts of sexual battery and two counts of touching a child for lustful purposes. He was

sentenced to a total of thirty years’ imprisonment. Bateman now appeals his conviction.

Finding no reversible error, we affirm Bateman’s convictions and sentences.

                        FACTS & PROCEDURAL HISTORY
¶2.    In 2009, Clayton Paul Bateman and Melissa Anglada lived together in a mobile home

in Saucier, Mississippi, with their four children. Bateman and Anglada had dated for roughly

a decade, but never married. Bateman was awarded custody of the couple’s children in 2007,

but the couple continued living together until the date Bateman was arrested. This case

involves Bateman’s two oldest daughters, “Rene” and “Bailey.” 1 In 2009, Rene was nine

years old, and Bailey was eight years old.

¶3.    On March 16, 2009, Anglada called the Harrison County Sheriff’s Department to

report an allegation of sexual abuse of Rene by Bateman. Officer Bill Scarbrough responded

to Anglada’s parents’ mobile home, where Anglada, Rene, and Bailey were located. After

hearing the allegations of abuse, Officer Scarbrough contacted Deborah Lacey, a social

worker with the Harrison County Department of Human Services. Lacey took Rene and

Bailey to a Harrison County children’s shelter.

¶4.    On March 18, 2009, forensic psychologist Dr. Donald Matherne performed an

assessment of Rene and Bailey at the request of the Department of Human Services. Rene

told Dr. Matherne that Bateman would sometimes touch her vaginal area with his fingers

underneath her clothes. He also would make her touch his “private area.” Bailey also stated

that Bateman had touched her vaginal area with his fingers underneath her clothes. Both

girls told Dr. Matherne that Bateman had threatened them not to tell anyone about these

touchings.




       1
       To protect the identities of the minor victims, we will use the fictitious names “Rene”
and “Bailey” when referring to Bateman’s daughters.

                                              2
¶5.     On March 19, 2009, Rene and Bailey were interviewed separately by Investigator

Carolyn Prendergast, a criminal investigator for the Harrison County Sheriff’s Department.

Rene informed Investigator Prendergast that on March 16, Bateman had pulled her pants

down and rubbed her “hiney” with his hand. (Rene and Bailey both refer to the female

genitals as “hiney.”) Rene stated that Bateman had done this on multiple occasions, though

she couldn’t remember the first time it happened. In addition, Rene stated that Bateman

would sometimes use his mouth and tongue to touch or lick her “hiney.” Bateman also made

Rene touch his “private” on several occasions. (Rene and Bailey both refer to the male

genitals as “private” or “hiney.”)

¶6.     Bailey told Investigator Prendergast that when she was younger, Bateman would

touch her “hiney” with his hand and would sometimes put his hand inside her “hiney.” She

could not remember any specific instances and initially stated that he had stopped this

behavior when she was four years old. At first, Bailey informed Investigator Prendergast that

she had never seen her father touch anyone else inappropriately, but she later stated that she

once saw him touching Rene.

¶7.     On March 20, 2009, Rene and Bailey were examined by Dr. Daniel Overbeck, an

emergency room doctor at the Garden Park Medical Center in Gulfport, Mississippi. Dr.

Overbeck conducted complete physical examinations of both girls. Bailey’s exam was

normal. Rene’s hymen was absent, and there was some redness and irritation around her

clitoris.

¶8.     Bateman was arrested for the alleged sexual abuse of Rene and Bailey on March 18,

2009. He was indicted by a grand jury in Harrison County on January 19, 2010. Bateman


                                              3
was charged with three counts of sexual battery and two counts of touching a child for lustful

purposes. Specifically, Count I charged Bateman with sexual battery for “inserting his finger

into the vagina” of Rene. Count II charged Bateman with sexual battery for “performing

cunnilingus” upon Rene. Count III charged Bateman with touching a child for lustful

purposes for “touch[ing] or rub[bing] with his hands the vagina” of Rene. Count IV charged

Bateman with sexual battery for “inserting his finger into the vagina” of Bailey. Count V

charged Bateman with touching a child for lustful purposes for “touch[ing] or rub[bing] with

his hands the vagina” of Bailey. All these acts were alleged to have occurred on or between

March 16, 2008, and March 16, 2009.

¶9.    At trial, Rene testified that on March 16, 2009, she went into Bateman’s room and “he

pulled my pants down and he put his hand in my pants and he rubbed my hiney.” 2 She could

not remember if Bateman had touched her underneath her underwear on that particular day.

Rene stated that her father would touch her with his hands, his mouth, and his penis. Rene

was questioned about the details of her father’s behavior and gave the following response:

       Q:       You said that he touched you with his hand. Where on your body
                would he touch you with his hand . . . ?
       A:       My private.
       ...
       Q:       When he would touch you with his hand . . . , would that be on top of
                your clothes or would his skin be touching your skin?
       A:       Both.
       ...
       Q:       . . . [T]he times when he would touch you with his hand and his skin
                would actually be touching your skin, did he keep his hand still or did
                he move it around any?
       A:       He moved it around.



       2
           By the date of the trial, Rene was twelve years old, and Bailey was eleven years old.

                                                4
She also described how Bateman would use his mouth to touch her inappropriately.

       Q:    Okay. Well, let’s talk about when he would touch you with his mouth.
             Where on your body . . . would he touch you?
       A:    My private.
       ...
       Q:    . . . [W]as that on top of your clothes, or underneath?
       A:    Underneath my clothes.
       Q:    Was his skin touching your skin?
       A:    Yes.

Rene also testified that Bateman would make her touch his penis with her hands and mouth.

When questioned about the frequency of this abuse, Rene could not give a specific answer,

but stated that Bateman had never gone more than a month or two without touching her

inappropriately in some way.

¶10.   Bailey also testified that Bateman had touched her with his hands and mouth:

       Q:    Now, tell me, when your dad would touch you on your private place,
             what part of his body would touch you?
       A:    His hand or his mouth. Usually his hand, though.
       ...
       Q:    Okay. When he would touch you with his hand . . . , was that on top of
             your clothes or was it underneath your clothes.
       A:    Both, but usually underneath.
       Q:    . . . [Was] his skin touching your skin?
       A:    Yes.
       Q:    And when he would touch you with his hand, would he keep his hand
             still, or did he do something with his hands, or nothing?
       A:    He moved it.
       ...
       Q:    Okay. And . . . you said he would [sic] that your dad would touch you
             with his mouth too?
       A:    Yes.
       ...
       Q:    Was that on top of your clothes or underneath?
       A:    Underneath.
       Q:    Was his skin touching your skin?
       A:    Yes.



                                            5
She stated that she could remember only one occasion when he had touched her with his

mouth. Bailey also could not remember when the abuse began, but said, “I wasn’t that young

when it stopped.” Bailey said she could remember more at trial than when she talked to

Investigator Prendergrast back in 2009, and she did not think Bateman had ever gone more

than a year without touching her.

¶11.   Prendergast recounted the details of her interviews with Rene and Bailey. The jury

was allowed to hear the audiotapes of those interviews. In the interviews, both girls

described the details of Bateman’s alleged abuse, indicating on an age-appropriate

anatomical diagram that they had been touched in their vaginal areas.

¶12.   Dr. Overbeck recounted his examinations of Rene and Bailey from 2009. He informed

the jury that Rene’s hymen was absent and that there was some irritation on her vaginal area.

Dr. Overbeck explained that, in his opinion, an eight-year-old girl’s hymen could be broken

only by some sort of penetration. On cross-examination, Dr. Overbeck indicated that it is

possible, though very uncommon, for a female to lose her hymen by some way other than

penetration, such as through a serious blunt-force trauma. Based on his examination, Dr.

Overbeck concluded that his findings regarding Rene were consistent with a child who had

been sexually abused. Dr. Overbeck also informed the jury that his examination of Bailey

was normal. While it was not possible for Dr. Overbeck to determine whether Bailey had

been touched inappropriately, he did conclude that she had not been penetrated.

¶13.   In describing his examinations of Rene and Bailey to the jury, Dr. Matherne explained

his utilization of the “fist demonstration ” to determine what degree of penetration, if any,

might have occurred. During his examinations, he asked the girls to make a fist with one


                                             6
hand, representing the area that was touched, and to use the other hand to describe how they

were touched. Dr. Matherne testified that Rene “took her hand, she touched the exterior and

then she inserted, and she inserted it all the way in.” Based on this demonstration, Dr.

Matherne testified that Rene’s interview was consistent with a child who had suffered sexual

abuse. Referring to Bailey, Dr. Matherne stated, “When using the fist demonstration, the

depth of penetration was very shallow, and it was apparent that there was no significant

digital penetration on her part when she was conveying to me what happened.”

Nevertheless, Dr. Matherne expressed the opinion that Bailey’s interview was consistent with

a child who had “experienced an inappropriate act.”

¶14.   Bateman testified on his own behalf and denied the abuse. He presented no other

evidence or witnesses. At the conclusion of the trial, the jury returned a verdict finding

Bateman guilty of Counts I, II, III, and V. The jury found Bateman not guilty of Count IV,

sexual battery against Bailey. Bateman was sentenced to thirty years each for Counts I and

II, to run concurrently. He also was sentenced to fifteen years each for Counts III and V, to

run consecutively to each other and concurrently with Counts I and II. Bateman was given

credit for time served.

¶15.   Following the trial court’s denial of his post-trial motions, Bateman filed an appeal

to this Court, raising the following issues:

       I.     The trial court erred in granting Instruction S-10.

       II.    The evidence was insufficient to support the verdict on Count V;
              alternatively, the verdict on Count V was against the overwhelming
              weight of the evidence.




                                               7
       III.   The trial court erred in allowing Dr. Matherne to testify as to his
              “fist demonstration” methodology.

       IV.    Bateman’s convictions on Counts II, III, and V violate his double
              jeopardy protection against subsequent prosecution for the same
              offense.

       V.     Bateman’s constitutional right to a speedy trial was violated.

       VI.    Ineffective Assistance of Counsel

                                       DISCUSSION

       I. The trial court did not abuse its discretion in granting Instruction S-10.

¶16.   Jury instructions are within the discretion of the trial court, so this Court must review

the grant or denial of a jury instruction for an abuse of discretion. Newell v. State, 49 So. 3d

66, 73 (Miss. 2010) (internal citations omitted). When considering whether error lies in

granting or refusing a jury instruction, the instructions actually given must be read as a whole

and in context. Ruffin v. State, 992 So. 2d 1165, 1176 (Miss. 2008). No reversible error

exists if the instructions fairly announce the law of the case and create no injustice.

Rubenstein v. State, 941 So. 2d 735, 784-785 (Miss. 2006).

¶17.   Bateman’s argument on this issue addresses his conviction on Count II, sexual battery

against Rene by cunnilingus. Bateman argues that the trial court erred in granting Instruction

S-10 because it removed from the jury’s province the factual issue of whether oral

stimulation constitutes penetration. Instruction S-10 states:

       The Court instructs the jury that proof of contact, skin to skin, between a
       person’s mouth, lips, or tongue and the genital opening of a woman’s body,
       whether by kissing, licking, or sucking is sufficient proof of sexual penetration
       through the act of cunnilingus.




                                               8
Bateman contends that Instruction S-10 authorized the jury to find him guilty of sexual

battery without a finding of “sexual penetration.”

¶18.   “Sexual penetration is the essence of the offense of sexual battery.” West v. State, 437

So. 2d 1212, 1213 (Miss 1983). Section 97-3-95(1)(d) of the Mississippi Code requires

proof of “sexual penetration” for a person to be convicted of sexual battery. Miss. Code

Ann. § 97-3-95(1)(d) (Rev. 2006). “‘Sexual penetration’ includes cunnilingus, fellatio, . .

. any penetration of the genital or anal openings of another person’s body by any part of a

person’s body, and insertion of any object into the genital or anal openings of another

person’s body.” Miss. Code Ann. § 97-3-97(a) (Rev. 2006) (emphasis added).

¶19.   This Court has held that slight penetration to the vulva or labia is sufficient to

constitute the offense of rape. Jackson v. State, 452 So. 2d 438, 440 (Miss. 1993). Sexual

battery is no different. Johnson v. State, 626 So. 2d 631, 633 (Miss. 1993). In Johnson, this

Court affirmed the trial court’s use of a jury instruction defining “sexual penetration” as,

among other things, “mouth to vagina contact commonly called cunnilingus.” Id. This Court

held that “proof of contact, skin to skin, between a person’s mouth, lips, or tongue and the

genital opening of a woman’s body, whether by kissing, licking, or sucking, is sufficient

proof of ‘sexual penetration’ through the act of ‘cunnilingus’ within the purview of § 97-3-

97(a) . . . .” Id. at 633-634.

¶20.   Instruction S-10 is taken verbatim from this Court’s holding in Johnson. After

reviewing the plain language of Section 97-3-97(a), along with this Court’s holdings

applying that statute, we find that Instruction S-10 is clearly a correct statement of law. Read

in conjunction with the other instructions, Instruction S-10 merely informed the jury that if

                                               9
it found beyond a reasonable doubt that cunnilingus had occurred between Bateman and his

daughter, and that some penetration had occurred, however slight, the jury could find

Bateman guilty of sexual battery on Count II.        In addition, Instruction S-10 had an

evidentiary basis. Rene testified that Bateman had touched her vaginal area with his mouth

and tongue. This allegation was repeated to Dr. Overbeck, Dr. Matherne, and Prendergast.

Accordingly, the trial judge correctly instructed the jury that this conduct could constitute

sexual penetration under Mississippi law.

       II. The evidence was sufficient to support the verdict on Count V, and the
           verdict was not against the weight of the evidence.

¶21.   Count V charged Bateman with touching a child for lustful purposes by touching or

rubbing Bailey’s vagina with his hands. Bateman argues that the evidence presented at trial

was insufficient to establish that this alleged touching occurred during the one-year period

listed on the indictment. Rather, in Bateman’s opinion, the weight of the evidence suggests

that Bateman had not touched Bailey since she was four years old.

¶22.   In reviewing the sufficiency of the evidence, this Court will view all evidence in the

light most favorable to the verdict. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). If any

reasonable trier of fact could have found the essential elements of the crime beyond a

reasonable doubt, this Court will not disturb the verdict. Id. The State receives the benefit

of all favorable inferences reasonably drawn from the evidence. Hughes v. State, 983 So.

2d 270, 275-276 (Miss. 2008).

¶23.   In reviewing a challenge to the weight of the evidence, this Court will overturn a

verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow



                                             10
it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844. The

evidence is viewed in the light most favorable to the verdict. Id. If the verdict is against the

overwhelming weight of the evidence, the proper remedy is to grant a new trial, but this

remedy should be used only in exceptional cases where the evidence “preponderates heavily

against the verdict.” Id. The jury, as the trier of fact, is the sole judge of the weight of the

evidence and the credibility of the witnesses. Valmain v. State, 5 So. 3d 1079, 1086 (Miss.

2009) (citing Mohr v. State, 584 So. 2d 426, 431 (Miss. 1991)). “Conflicting testimony does

not evince overwhelming evidence; ‘[w]here the verdict turns on the credibility of conflicting

testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.’”

Brown v. State, 995 So. 2d 698, 702 (Miss. 2008) (quoting Nicholson v. State, 523 So. 2d

68, 71 (Miss. 1988)).

¶24.   Count V charged Bateman with touching a child for lustful purposes in violation of

Section 97-5-23 of the Mississippi Code. That statute provides:

       [A]ny person above the age of eighteen (18) years, who, for the purposes of
       gratifying his or her lust, or indulging his or her depraved licentious sexual
       desires, shall handle, touch or rub with hands or any part of his or her body any
       member thereof, any child under the age of sixteen (16) years, with or without
       the child’s consent . . . shall be guilty of a felony.

Miss. Code Ann. § 97-5-23(1) (Rev. 2006). Bateman does not argue that the evidence was

insufficient to prove that he touched Bailey inappropriately. Rather, Bateman argues that the

State failed to prove that this touching occurred during the time frame in the indictment.

Bateman argues that Bailey contradicted her own testimony at trial with prior statements to

other witnesses. During her 2009 interview with Prendergast, Bailey stated that Bateman had

not touched her since she was four years old. At trial, Bailey testified that Bateman had


                                              11
never gone a whole year without touching her inappropriately. A general denial was the only

evidence offered by Bateman to contradict Bailey’s statements at trial.

¶25.   Reviewing the evidence in the light most favorable to the verdict, a reasonable jury

could have found that Bateman did touch Bailey for lustful purposes during the time frame

listed in the indictment. The exact date of this touching was not an essential element of the

State’s proof. This Court has held that a specific date is not required in a child-abuse case as

long as the defendant is “fully and fairly advised of the charge against him.” Morris v. State,

595 So. 2d 840, 842 (Miss. 1991) (“Traditionally, time and place have been viewed as not

requiring considerable specificity because they ordinarily do not involve proof of an element

of crime.”)

¶26.   It is well-settled that “the unsupported word of the victim of a sex crime is sufficient

to support a guilty verdict where that testimony is not discredited or contradicted by other

credible evidence.” Miley v. State, 935 So. 2d 998, 1001 (Miss. 2006). The State presented

sufficient evidence, aside from Bailey’s testimony, to prove that Bateman had touched Bailey

for the purpose of gratifying his lustful desires.       Dr. Matherne opined that Bailey’s

examination was consistent with a child who had suffered “an inappropriate act,” and Bailey

stated at trial that her father had never gone more than a year without touching her

inappropriately. Dr. Matherne also opined that “the information she provided did indicate

that it had occurred on more than one occasion and more recently than four years of age.”

Based on this information, a reasonable jury could have found each of the essential elements

of the crime in Count V. Therefore, we find that the trial court did not err in denying

Bateman’s motion for judgment notwithstanding the verdict.


                                              12
¶27.   In addition, the verdict was not against the weight of the evidence. It was the jury’s

duty to weigh the credibility of Bailey’s statements to Prendergast and her testimony at trial.

See Nicholson, 523 So. 2d at 71 (finding that the verdict was not against the weight of the

evidence where victim gave conflicting statements regarding identity of defendant; it was the

jury’s duty to judge the credibility of the victim’s statements). At trial, Bailey was three

years older than she was when she first was interviewed about the abuse. She stated that she

could remember more at trial than she did at the initial interview. Bailey’s statements at trial

were corroborated by Dr. Matherne’s opinion that Bailey had suffered “an inappropriate act.”

If any conflict in the witnesses’ statements arose, it was the jury’s duty to resolve that

conflict. See Valmain, 5 So. 3d at 1086 (finding that verdict was not against the weight of

the evidence where defendant denied sexually penetrating minor victim; conflicting

testimony created an issue of fact for the jury to resolve). We find that the trial court did not

err in denying Bateman’s motion for a new trial, as the evidence does not preponderate so

heavily against the verdict that allowing it to stand would constitute an unconscionable

injustice.

       III. The trial court did not err in allowing Dr. Matherne’s testimony
            regarding the “fist demonstration.”

¶28.   Bateman argues that Dr. Matherne’s explanation of the “fist demonstration” does not

meet the standard of admissibility for expert testimony. The admission of expert testimony

is within the discretion of the trial court. Bishop v. State, 982 So. 2d 371, 380 (Miss. 2008).

This Court will not reverse the trial court’s decision to admit expert testimony unless the




                                               13
decision was “arbitrary and clearly erroneous, amounting to an abuse of discretion.” Lima

v. State, 7 So. 3d 903, 907 (Miss. 2009).

¶29.   The admissibility of expert testimony is governed by Rule 702 of the Mississippi

Rules of Evidence. This rule allows a witness qualified as an expert to testify in the form of

an opinion if “(1) the testimony is based on 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 to the facts of the case.” M.R.E. 702. This Court has adopted the United States

Supreme Court’s standard for judging the admissibility of expert testimony set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993), and modified by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.

Ct. 1167, 143 L. Ed. 2d 238 (1999). See Miss. Transp. Comm’n v. McLemore, 863 So. 2d

31, 35-39 (Miss. 2003). Expert testimony must be relevant and reliable to be admissible.

McLemore, 863 So. 2d at 38. Further, “[t]he trial court must make a ‘preliminary assessment

of whether the reasoning or methodology underlying the testimony is scientifically valid and

of whether that reasoning and methodology properly can be applied to the facts in issue.’”

Id. at 36 (quoting Daubert, 509 U.S. at 593).

¶30.   Prior to trial, the trial court held a Daubert hearing regarding Dr. Matherne’s

qualifications and testimony. Dr. Matherne shared his educational background and his

professional experience in the field of forensic psychology. Bateman’s attorney cross-

examined Dr. Matherne on his knowledge, skill, experience, training, and education, and did

not object to the court’s acceptance of Dr. Matherne as an expert in the field of forensic

psychology. Dr. Matherne then testified regarding his examination of Rene and Bailey,


                                              14
explaining the “fist demonstration” that he had used during his interviews with the girls. Dr.

Matherne’s “fist demonstration” was used to create a visual representation of the victims’

verbal statements regarding the degree of penetration, if any, they suffered. Dr. Matherne

stated this demonstration was used primarily to determine if further physical examination was

necessary.   Bateman’s attorney had the opportunity to cross-examine Dr. Matherne

thoroughly on his use of the “fist demonstration and also called a competing expert witness

to challenge the reliability of Dr. Matherne’s methods. At the end of the Daubert hearing,

the court heard oral argument on Bateman’s motion in limine to exclude the “fist

demonstration” testimony. The court first noted that Dr. Matherne had been accepted as an

expert in the field of forensic psychology. Next, the court found that Dr. Matherne’s “fist

demonstration” was relevant to the case.        The court noted that Dr. Matherne’s “fist

demonstration” did not meet many of the Daubert factors, but found that this did not render

the testimony automatically inadmissible. The trial court found that Dr. Matherne’s “fist

demonstration” testimony was reliable and allowed him to testify regarding the “fist

demonstration” at trial.

¶31.   In allowing Dr. Matherne to testify regarding the “fist demonstration,” the trial court

noted that he had been allowed to testify on this specific technique in Davis v. State, 878 So.

2d 1020 (Miss. Ct. App. 2004), and Anderson v. State, 62 So. 3d 927 (Miss. 2011). In these

cases, the Court of Appeals and this Court, respectively, upheld the admission of Dr.

Matherne’s testimony regarding the “fist demonstration.” In Davis, the Court of Appeals

found that the “‘fist technique’ referred to by Dr. Matherne was only a form of information

gathering[,]” rather than expert testimony. Davis, 878 So. 2d at 1024. In Anderson, this


                                              15
Court held that Dr. Matherne’s testimony simply illustrated a technique used to gather

information from minor victims, adopting the reasoning stated in Davis. Anderson, 62 So.

3d at 938.

¶32.   Bateman argues that Dr. Matherne’s testimony met none of the principles for

reliability set out in Daubert.3 However, this Court already has addressed this exact issue and

found no error in the trial court’s allowing Dr. Matherne’s testimony, irrespective of total

compliance with Daubert. See Anderson, 62 So. 3d at 939. This Court has held that failure

to meet the Daubert principles does not automatically render an expert’s testimony

inadmissible. Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So. 2d

716, 723 (Miss. 2005). Daubert’s list of factors is meant to be illustrative, but not exhaustive,

and the factors’ applicability depends on “the nature of the issue, the expert’s particular

expertise, and the subject of the testimony.” McLemore, 863 So. 3d at 37 (citing Kumho

Tire, 526 U.S. at 137). “Many factors will bear on the inquiry, and we do not presume to set

out a definitive checklist or test.” Daubert, 509 U.S. at 593. Bateman takes particular issue

with the fact that Dr. Matherne’s use of the “fist demonstration” has not been published or

peer-reviewed. Yet, as the United States Supreme Court in Khumo Tire reasoned, “It might

not be surprising in a particular case . . . that a claim made by a scientific witness has never

been subject to peer review.” Khumo Tire, 526 U.S. at 151.



       3
        The principles of reliability set out in Daubert are: (1) whether the theory or
technique can be and has been tested; (2) whether it has been subjected to peer review and
publication; (3) whether, in respect to a particular technique, there is a high known or
potential rate of error; (4) whether there are standards controlling the technique’s operation;
and (5) whether the theory or technique enjoys general acceptance in the relevant scientific
community. Daubert, 509 U.S. at 592-594.

                                               16
¶33.   Guided by the principles of Daubert and the language of Rule 702, the trial court

allowed Dr. Matherne to testify regarding the “fist demonstration.” Dr. Matherne had been

accepted by the court, with no objection from Bateman, to give expert testimony in the field

of forensic psychology. The trial court found that Dr. Matherne’s “fist demonstration”

testimony was reliable based on his extensive professional experience in the field of forensic

psychology, that it was was clearly relevant to the issues before the court, and prior decisions

of the Court of Appeals and this Court had found no reversible error in the admission of this

testimony. The record clearly reflects that Dr. Matherne’s “fist demonstration” testimony was

based on his professional experience in the field of forensic psychology and would assist the

trier of fact in understanding a fact at issue. See M.R.E. 702; Anderson, 62 So. 3d at 937.

Therefore, the trial court did not act arbitrarily or clearly erroneously in allowing Dr.

Matherne to testify regarding the “fist demonstration.”

       IV. Bateman’s right to be protected against double jeopardy was not
           violated.

¶34.   Bateman argues that his convictions on Counts II, III, and V violate his right to be

protected against double jeopardy, because the evidence failed to establish distinguishable

offenses on particular occasions for each count. Bateman does not argue that he was given

multiple punishments for the same offense, nor that he already has been prosecuted for these

offenses. Rather, Bateman contends he would be unable to claim double jeopardy in a

subsequent prosecution for a similar offense during the same time frame.

¶35.   We first note that Bateman never raised the issue of double jeopardy at trial.

Nevertheless, “[A]s the protection against double jeopardy is a fundamental right, [this



                                              17
Court] will not apply a procedural bar,” and Bateman’s claim can be raised for the first time

on appeal. Graves v. State, 969 So. 2d 845, 846-847 (Miss. 2007) (citing Fuselier v. State,

654 So. 2d 519, 522 (Miss. 1995)). Claims of double-jeopardy violations are reviewed de

novo. Goforth v. State, 70 So. 3d 174, 188 (Miss. 2011) (citing Boyd v. State, 977 So. 2d

329, 334 (Miss. 2008)).

¶36.   The only case cited by Bateman in support of this argument is Goforth v. State, 70 So.

3d 174 (Miss. 2011), which he concedes is distinguishable from this case. In Goforth, this

Court reversed the defendant’s convictions for sexual battery because her constitutional right

of confrontation was violated. Id. at 187. We rendered judgment on the defendant’s behalf

because we found that a retrial would violate her right to protection against double jeopardy.

Id. at 190. The defendant’s indictment contained five identically worded allegations of

sexual battery. Id. Even though the jury found the defendant guilty of the first two counts

and not guilty of the remaining three counts, this Court found no identifiable basis for their

distinction among the counts. Id. at 189-190. On retrial, it would have been impossible to

determine on which specific charges she had been convicted or acquitted. Id.

¶37.   Bateman’s reliance on Goforth is misguided. Unlike the defendant in Goforth,

Bateman’s indictment charged him with five distinct offenses, rather than multiple

indistinguishable counts of the same offense. Bateman was convicted of two distinct counts

of sexual battery and one distinct count of lustful touching against Rene. Bateman also was

convicted of one distinct count of lustful touching against Bailey. Each of these crimes was

alleged to have occurred during a specific time frame. As stated previously in this opinion,

specific dates are not required in child sexual-abuse cases as long as the defendant is “fully


                                             18
and fairly informed of the charges against him.” Tapper v. State, 47 So. 3d 95, 102 (Miss

2010) (“In our case today, it appears from the record and testimony, that the State could not

narrow the time frame or provide more specific details than it did.”). The State presented

sufficient evidence to support each of these separate counts. It is clear that Bateman cannot

be prosecuted subsequently for the same offenses against Rene or Bailey during this time

frame. See Eakes v. State, 665 So. 2d 852, 860 (Miss. 1995) (rejecting defendant’s double-

jeopardy claim, finding that he could claim double jeopardy if additional actions were

brought charging him with sexually abusing the same victim in the same county on or about

the same dates in the indictment). Therefore, Bateman’s argument is without merit.

       V. Bateman’s right to a speedy trial was not violated.

¶38.   Bateman claims his constitutional right to a speedy trial was violated because roughly

three hundred days passed between his arrest and the date he was indicted.

¶39.   “The standard of review for a speedy trial claim focuses on the fact question of

whether the trial delay arose from good cause.” Flora v. State, 925 So. 2d 797, 814 (Miss.

2006) (citing DeLoach v. State, 722 So. 2d 512, 516 (Miss. 1998)). If substantial credible

evidence supports a finding of good cause, this Court will not disturb that finding. Folk v.

State, 576 So. 2d 1243, 1247 (Miss. 1991). The sole remedy for a speedy-trial violation is

reversal of the trial court’s decision and dismissal of the charges against the defendant. Price

v. State, 898 So. 2d 641, 647 (Miss. 2005) (citing DeLoach v. State, 722 So. 2d 512, 516

(Miss. 1998).

¶40.   Criminal defendants are guaranteed the right to a speedy trial by the United States and

Mississippi Constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26 (1890). When


                                              19
considering an alleged violation of a defendant’s right to a speedy trial, this Court applies the

four-part test developed by the United States Supreme Court in Barker v. Wingo, 407 U.S.

514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). See Adams v. State, 583 So. 2d 165, 167

(Miss. 1991). The relevant factors to be considered are: (1) the length of delay; (2) the

reason for delay; (3) whether the defendant asserted his right to a speedy trial; and (4)

whether the defendant has been prejudiced by the delay. See Barker, 407 U.S. at 530-533.

None of these factors is a necessary or sufficient condition to the finding of a violation of the

right to a speedy trial; they must be considered together with other relevant circumstances.

Id. at 533.

              A. Length of Delay

¶41.   The right to a speedy trial attaches at the time of arrest, indictment, or information,

when the defendant has been accused. Flora, 925 So. 2d at 815. This Court has held that

a delay of eight months or more is presumptively prejudicial and requires a balancing of the

remaining Barker factors. See Smith v. State, 550 So. 2d 406, 408 (Miss. 1989) (internal

citations omitted).

¶42.   Bateman’s right to a speedy trial attached on March 18, 2009, the day he was arrested

for the alleged sexual abuse of Rene and Bailey. He made an initial appearance on that day

and then appeared again on March 20, 2009.4 He was indicted on January 19, 2010, some 308

days after his arrest. Bateman’s trial began on February 16, 2012, some 1,065 days after he




       4
        The chronology of events provided by Bateman to the trial court indicates that
Bateman made a “2nd initial appearance” on March 20, 2009. The record is silent as to why
he appeared in court on that day.

                                               20
was arrested. Therefore, the delay in this case is presumptively prejudicial, and we must

address the remaining Barker factors.

          B. Reason for Delay

¶43.   When the length of the delay is presumptively prejudicial, the burden shifts to the

prosecution to produce evidence justifying the delay. Bailey v. State, 78 So. 3d 308, 321

(Miss. 2012) (citing Stevens v. State, 808 So. 2d 908, 916 (Miss. 2002)). Different reasons

for delay are assigned different weights. Barker, 407 U.S. at 532. A deliberate attempt to

delay trial to inhibit the defense is weighed heavily against the State. Id. More neutral

reasons, such as an overcrowded docket, should be weighed less heavily but nonetheless

must be considered, since the responsibility for such circumstances rests with the

government. Id. On the other hand, “A delay caused by the actions of the defendant . . . tolls

the running of the time period for that length of time, and is subtracted from the total amount

of the delay.” Taylor v. State, 672 So. 2d 1246, 1259 (Miss. 1996).

¶44.   Based on the chronology of events provided by Bateman to the trial court, the

following is a timeline of the events relevant to Bateman’s speedy-trial claim:

       March 18, 2009        Bateman is arrested.
       March 18, 2009        Bateman makes initial appearance.
       March 20, 2009        Bateman makes second initial appearance.
       January 19, 2010      Bateman is indicted.
       February 3, 2010      Bateman makes formal demand for speedy trial.
       February 8, 2010      Court grants Bateman’s demand for speedy trial. Trial is
                             set for April 26, 2010.
       March 23, 2010        Court grants Bateman’s motion to continue trial to
                             September 7, 2010.
       August 24, 2010       Court grants Bateman’s motion to continue trial to
                             October 25, 2010.
       October 6, 2010       Court continues trial to February 7, 2011, on its own
                             motion (no court reporter available).


                                              21
       February 3, 2011  Court grants Bateman’s motion to continue trial to May
                         2, 2011.
       May 2, 2011       Court grants Bateman’s motion to continue trial to June
                         20, 2011.
       June 15, 2011     Court grants Bateman’s motion to continue trial to
                         August 22, 2011.
       July 29, 2011     Court grants Bateman’s motion to continue trial to
                         November 14, 2011.
       November 14, 2011 Court grants Bateman’s motion to continue trial to
                         February 6, 2011.
       February 6, 2011  Bateman’s trial begins.

¶45.   Bateman was incarcerated for 308 days before he was indicted. By the time the trial

actually began, though, Bateman’s requests for continuances had created a 575-day delay.

The prosecutor clearly indicated this to the trial court at a pretrial hearing on Bateman’s

motion to dismiss. The trial court found Bateman’s speedy-trial argument to be disingenuous

due to his seven requests for continuance.

¶46.   Although Bateman’s requests for continuance caused the most significant delay to

Batmeman’s trial date, this Court has held that well-taken motions for continuance may

justify delay in a criminal trial. Flora v. State, 925 So. 2d 797, 815 (Miss. 2006). This

period must be subtracted from the total period of the delay. See Taylor, 672 So. 2d at 1259.

Therefore, the State is left with an unexplained 380-day delay in this case, representing the

time between his arrest and his first motion for continuance. This period does not include

the 120-day continuance ordered sua sponte by the trial court, which was justified and will

not count against either side. We must weigh this factor in Bateman’s favor.

          C. Defendant’s timely assertion of his right to a speedy trial




                                             22
¶47.   Bateman filed a demand for a speedy trial on February 3, 2010, two days after his

arraignment, and 310 days after his arrest. Therefore, Bateman claims that this factor should

weigh in his favor.

¶48.   “Although it is the State’s duty to ensure that the defendant receives a speedy trial, a

defendant has some responsibility to assert this right.” Taylor, 672 So. 2d at 1261. “[F]ailure

to assert this right will make it difficult for a defendant to prove that he was denied a speedy

trial.” Barker, 407 U.S. at 532. This Court has held that this factor weighs against a

defendant who waits a significant amount of time after arrest to demand a speedy trial. C.f.,

Noe v. State, 616 So. 2d 298, 301 (Miss. 1993) (holding that the defendant’s failure to assert

his right to a speedy trial until one year after his arrest weighed heavily against him under

this Barker factor); Wall v. State, 718 So. 2d 1107, 1113 (Miss. 1998) (holding that

defendant’s assertion of his right to a speedy trial two months before his trial began did not

satisfy this Barker factor).

¶49.   This Court has held that a defendant’s failure to demand a speedy trial between his

arrest and indictment is “critical” to the analysis of a speedy-trial claim. State v. Woodall,

801 So. 2d 678, 684 (Miss. 2001). In Woodall, the defendant never made a demand for a

speedy trial during the period between his arrest and his indictment, a period of 366 days.

Id. at 684. The defendant argued that “there was no means by which [he] could have forced

the speedy trial issue.” Id. at 685. The State disagreed, asserting that it receives such

demands regularly. Id. In reversing the dismissal of the claims against the defendant, this

Court held that, while a defendant does not have to raise the speedy-trial issue to preserve

it, he does have a duty, according to Barker, to assert that right. Id. E.g., Watts v. State, 733


                                               23
So. 2d So. 2d 214, 236 (Miss. 1999); Stogner v. State, 627 So. 2d 815, 819 (Miss. 1993)

(holding that a defendant’s failure to assert the right to speedy trial must be weighed against

him in Barker analysis). The defendant failed to do so in a timely manner and provided no

proof of his inability to raise the issue. Id. Accordingly, this Court weighed this Barker

factor against the defendant. Id. See also Young v. State, 891 So. 2d 813, 818 (Miss. 2005)

(This Court, relying on Woodall, weighed this factor against a defendant who had made no

request for an attorney or for a speedy trial during the 366 days between his arrest and

indictment).

¶50.   While Bateman did assert his right to a speedy trial two days after his arraignment,

he already had been in State custody for approximately 310 days by that point. He certainly

knew of the charges against him, as he already had made two initial appearances.5 The

record contains no evidence that Bateman requested bail, an attorney, or a speedy trial during

the period between his arrest and his indictment. See Young v. State, 891 So. 2d at 818. The

trial court promptly responded to Bateman’s request on February 8, 2010, setting his trial

date for April 26, 2010. Bateman failed to assert his right to a speedy trial in a timely manner

and offered no evidence of his inability to do so. See Woodall, 801 So. 2d at 685.

Accordingly, we must weigh this factor against Bateman.

           D. Prejudice to the defendant




       5
       The record in this case contains no less than ten pro se filings by Bateman, even
though he was represented by counsel. In July of 2011, he even filed his own motion to
dismiss for lack of prosecution, which includes a complete speedy-trial analysis in light of
Barker v. Wingo.

                                              24
¶51.    The final prong of Barker encompasses two aspects: actual prejudice in defending the

case and interference with the defendant’s liberty. Perry v. State, 637 So. 2d 871, 876 (Miss.

1994). The three main considerations in determining whether the accused was prejudiced

by a lengthy delay are: “(1) preventing ‘oppressive pretrial incarceration’; (2) minimizing

anxiety and concern of the accused; and (3) limiting the possibility that the defense will be

impaired.” Brengettcy v. State, 794 So. 2d 987, 994 (Miss. 2001) (quoting Barker, 407 U.S.

532).

                      1. Oppressive Pretrial Incarceration

¶52.    The first interest to be considered is whether the delay caused oppressive pretrial

incarceration. As noted above, Bateman was incarcerated for roughly ten months before he

was indicted. However, incarceration alone is not a sufficient showing of prejudice to

warrant reversal. Taylor, 672 So. 2d at 1261. “[A] defendant’s assertion of prejudice

attributable solely to incarceration, with no other harm, typically is not sufficient to warrant

reversal.” Jenkins v. State, 947 So. 2d 270, 277 (Miss. 2006) (citing Ross v. State, 605 So.

2d 17, 23 (Miss. 1992)). In Magnusen v. State, 646 So. 2d 1275, 1285 (Miss. 1994), we held

that the defendant’s pretrial incarceration was not oppressive where there was no evidence

that his “employment or family life was disrupted or his financial resources drained or his

associations curtailed[.]” Bateman’s only claim is that the length of his incarceration is

presumptively prejudicial under the first Barker factor. As this Court has held, this bare

assertion is not enough. Bateman failed to “demonstrate how his pretrial incarceration has

been oppressive.” See Hersick v. State, 904 So. 2d 116, 124 (Miss. 2004). This interest does

not weigh in Bateman’s favor.


                                              25
                      2. Anxiety or Concern to the Defendant

¶53.   The second interest to be considered is whether the delay caused anxiety or concern

to the defendant. “An analysis of the second interest . . . is related to the considerations

discussed under the third Barker factor, the defendant’s assertion of the right.” Hersick, 904

So. 2d at 124. Bateman’s only claim here is that a defendant is presumed to have suffered

some anxiety during incarceration. Even when the defendant does not assert any specific

anxiety, this Court has presumed that some anxiety is “inevitably present.” Jaco v. State,

574 So. 2d 625, 632 (Miss. 1995) (citing Barker, 407 U.S. at 537 (White, J., concurring)).

¶54.   Bateman offered no evidence to the trial court or to this Court that he suffered from

any legitimate anxiety or concern during his incarceration. Even assuming some anxiety as

a natural consequence of incarceration, Bateman’s own actions contributed to much of the

delay in this case. Bateman waited until 310 days after his arrest to assert his right to a

speedy trial. Once a trial date was set, Bateman’s seven requests for continuance contributed

to a major delay in his trial. Therefore, we cannot weigh this interest in Bateman’s favor.

                      3. Impairment of the Defense

¶55.   The third and most serious interest to be considered is whether the delay impaired the

defense. See Barker, 407 U.S. at 532 (“Of these, the most serious is the last, because the

inability of a defendant adequately to prepare his case skews the fairness of the entire

system.”). Bateman argues only that his defense was inherently prejudiced to some extent by

the fact that he was incarcerated. See id. at 533 (“[I]f a defendant is locked up, he is hindered

in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.”) This

Court generally will find prejudice where “there was a loss of evidence, the death of a


                                               26
witness, or the investigation became stale.” Magnusen, 646 So. 2d at 1285. On the other

hand, “‘Delay is not an uncommon defense tactic’ because ‘[a]s the time between the

commission of the crime and trial lengthens, witnesses may become unavailable or their

memories may fade.’” Guice v. State, 952 So. 2d 129, 145 (Miss. 2007) (quoting Barker,

407 U.S. at 521). If these witnesses support the prosecution, its case will be weakened. Id.

See also U.S. v. Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986)

(“[D]elay is a double-edged sword . . . . The passage of time may make it difficult or

impossible for the Government to carry [its] burden.”).

¶56.   The State pointed out that it never requested a continuance or took any action to delay

the trial once the first trial date was set. In fact, the State indicated to the trial court that its

case file was marked “ready for trial” on April 26, 2010, the original trial date, and no

additional investigation was performed after that date. The State also argued that it intended

to call the same witnesses that it indicated on its initial witness list. According to the State,

Bateman did not submit a witness list until some time in November 2011, shortly before the

hearing on his motion to dismiss. During the pretrial hearing on Bateman’s speedy-trial

claim, Bateman’s argument focused solely on the length of the delay.

¶57.   We find that the State provided sufficient evidence that Bateman’s defense was in no

way hindered by the delay. General denial was Bateman’s only defense; he offered no alibi

that could be corroborated through other witnesses. In fact, he offered no witnesses at all.

He offered no proof that any evidence had been lost. In addition, the majority of the delay

in this case was requested by Bateman to allow him to prepare his case. In sum, Bateman




                                                 27
failed to demonstrate that the delay in this case resulted in his inability adequately to prepare

his case. See Barker, 407 U.S. at 532.

¶58.   After reviewing the three interests implicated by the fourth Barker prong, we find that

the delay between Bateman’s arrest and his trial did not result in any prejudice to Bateman.

Aside from some level of presumed anxiety, there is no evidence in the record that Bateman’s

incarceration was oppressive or that it impaired his defense.

           E. Balancing Test

¶59.   After reviewing all of the factors relevant to the analysis of a speedy-trial claim, we

must balance each factor along with other relevant circumstances. See Barker, 407 U.S. at

533. (“[T]hese factors have no talismanic qualities; courts must still engage in a difficult and

sensitive balancing process.”). We find that, while the first two Barker factors may weigh

in Bateman’s favor, the remaining Barker factors do not. Bateman’s own requests for

continuances delayed his trial date for almost three years, while the State was prepared to

proceed at the initial trial date. Bateman neglected to assert his right to a speedy trial until

almost a year after his arrest, and the trial court promptly met his request. Finally, the delay

of Bateman’s trial did not result in any prejudice to Bateman’s defense, as there is no

evidence of lost evidence, fading memories, or unavailable witnesses that would aid

Bateman’s general denial. After considering the Barker factors along with all other relevant

circumstances, we find that Bateman’s right to a speedy trial was not violated.

       VI. Ineffective Assistance of Counsel

¶60.   Bateman has expressed the belief that he received ineffective assistance of counsel.




                                               28
Generally, ineffective assistance claims are more appropriately brought during post-

conviction proceedings. Archer v. State, 986 So. 2d 951, 955 (Miss. 2008). However, such

a claim may also be raised on direct appeal “if such issues are based on facts fully apparent

from the record.” Miss. R. App. P. 22(b) (emphasis added). If the defendant’s appellate

counsel did not represent the defendant at trial, failure to raise such issues on direct appeal

will bar consideration of the issue in post-conviction proceedings. Id. Bateman’s appellate

counsel, who did not represent Bateman at trial, makes no specific claims of ineffective

assistance, but merely asks this Court to acknowledge the assertion of the claim. Bateman

therefore has preserved the right to raise this issue in future post-conviction-relief

proceedings.

                                      CONCLUSION

¶61.   For the foregoing reasons, we affirm Bateman’s convictions and sentences on

Counts I, II, III, and V.

¶62. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF
THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL
BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND
SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF
TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF
FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. SENTENCE OF FIFTEEN (15) YEARS IN
COUNT III TO RUN CONSECUTIVELY WITH THE FIFTEEN (15) YEARS IN
COUNT V FOR A TOTAL OF THIRTY (30) YEARS; SENTENCE OF THIRTY (30)
YEARS IN COUNT I TO RUN CONCURRENTLY WITH THE THIRTY (30) YEARS
IN COUNT II, FOR A TOTAL OF THIRTY (30) YEARS TO RUN
CONCURRENTLY WITH COUNTS III AND V FOR A TOTAL OF THIRTY (30)
YEARS DAY FOR DAY UNDER SECTION 47-7-3. APPELLANT SHALL


                                              29
REGISTER AS A SEX OFFENDER UNDER SECTION 45-3-27. APPELLANT
SHALL BE GIVEN CREDIT FOR ANY AND ALL TIME SERVED AS TO THIS
CHARGE.

      RANDOLPH, P.J., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN,
JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. CHANDLER, J., CONCURS IN PART AND IN
RESULT WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.

       CHANDLER, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶63.   I respectfully concur in part and in the result. In Anderson v. State, 62 So. 3d 927

(Miss. 2011), I wrote separately to express my opinion that Dr. Matherne’s fist-

demonstration methodology does not meet the modified Daubert standard for admissibility

of expert testimony under Rule 702 of the Mississippi Rules of Evidence. See Miss. Transp.

Comm’n v. McLemore, 863 So. 2d 31, 39 (Miss. 2003) (citing Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). As in

Anderson, I believe the trial court abused its discretion by finding the fist demonstration

methodology was reliable and admissible. But, because the admission of the fist-

demonstration testimony was harmless in light of the overwhelming evidence of Bateman’s

guilt of sexual battery, I concur with the majority’s decision to affirm Bateman’s convictions.

¶64.   Rule 702 provides:

       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
       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.




                                              30
M.R.E. 702. This Court has adopted the modified Daubert standard for admissibility of

expert testimony. McLemore, 863 So. 2d at 39. Before admitting expert testimony, the trial

court, acting as “gatekeeper,” must find that the expert testimony is both relevant and

reliable. Id. at 38. The reliability analysis focuses on the principles and methodology

underlying the expert opinion, not on the conclusions generated. Id. at 37.

¶65.   Daubert provided a list of illustrative, but not exhaustive, factors that may be

considered to assess the reliability of proffered expert testimony. McLemore, 863 So. 2d at

37 (citing Daubert, 509 U.S. at 592-94, 113 S. Ct. 2786). These factors are:

       whether the theory or technique can be and has been tested; whether it has
       been subjected to peer review and publication; whether, in respect to a
       particular technique, there is a high known or potential rate of error; whether
       there are standards controlling the technique’s operation; and whether the
       theory or technique enjoys general acceptance within a relevant scientific
       community.

McLemore, 863 So. 2d at 37 (citing Daubert, 509 U.S. at 592-94, 113 S. Ct. 2786). The

applicability of these factors in a particular case “depends on the nature of the issue, the

expert’s particular expertise, and the subject of the testimony.” McLemore, 863 So. 2d at 37

(citing Kumho Tire Co. v. Carmichael, 526 U.S. 237, 151, 119 S. Ct. 1167, 143 L. Ed. 2d

238 (1999)). The trial court should consider the Daubert factors “where they are reasonable

measures of the reliability of expert testimony.” McLemore, 863 So. 2d at 37 (quoting

Kumho Tire, 526 U.S. at 152, 119 S. Ct. 1167).

¶66.   At the Daubert hearing, Dr. Matherne, a clinical psychologist, testified that he

conducts forensic interviews of alleged child sex-abuse victims for the purpose of assisting

the Department of Human Services in investigating abuse allegations. Dr. Matherne testified



                                             31
that he has been in practice for more than forty years and he investigates about seventy-five

allegations of child sex abuse per year. Dr. Matherne testified that he personally developed

the fist-demonstration methodology and incorporated it into his interviewing technique. He

testified that the fist demonstration allows the child to replicate the event in terms of whether

there was any degree of penetration; this information is used to determine whether a physical

examination is necessary. Dr. Matherne testified that the fist demonstration is an

“information-gathering technique” that is “extremely effective.” He admitted that the

technique has not been subjected to peer-review or publication, and because it is not a test,

there is no known rate of error. However, Dr. Matherne testified that, in his personal

observation, the medical examination tended to validate the information the child provided

in the fist demonstration. The defense called another psychologist, Dr. Beverly Smallwood,

who testified that she had never heard of the fist-demonstration methodology and had been

unable to find any publication that addressed it.

¶67.   Relying on Anderson, the trial court found that the technique was reliable and

admissible. At the trial, Dr. Matherne testified that the fist demonstration is the “most

advantageous way” of getting a child to demonstrate what she remembers happened. He

testified that, during Rene’s fist demonstration, she had inserted her finger all the way into

her closed fist. Dr. Matherne testified that “she was disclosing that there was penetration and

that the penetration was deep.” Bateman argues that the fist-demonstration evidence was

unreliable, and that it was the only evidence of penetration that supported his conviction of

sexual battery of Rene.




                                               32
¶68.   The majority finds that Dr. Matherne’s testimony was reliable, despite its failure to

meet the Daubert factors, stating that “failure to meet the Daubert principles does not

automatically render an expert’s testimony inadmissible.” Maj. Op. ¶32. But analysis of this

issue should not end there. “[W]hether testimony is based on professional studies or personal

experience, the ‘gatekeeper’ must be certain that the expert exercises the same level of

‘intellectual rigor that characterizes the practice of an expert in the relevant field.’”

McLemore, 863 So. 2d at 37-38 (quoting Kumho Tire, 526 U.S. at 152, 119 S. Ct. 1167).

“[N]either Daubert nor the Federal Rules of Evidence requires that a court ‘admit opinion

evidence that is connected to existing data only by the ipse dixit of the expert,’ as

self-proclaimed accuracy by an expert [is] an insufficient measure of reliability.” McLemore,

863 So. 2d at 37 (quoting Kumho Tire, 526 U.S. at 157, 119 S. Ct. 1167).

¶69.   The majority casts reliability concerns aside by finding that the fist demonstration is

“only a form of information gathering.” But most scientific testing is a form of information-

gathering. A forensic interviewer gathers information from an alleged child sex-abuse victim

through the use of techniques designed to minimize the danger of misreporting. See, e.g.,

Mooneyham v. State, 915 So. 2d 1102, 1107 (Miss. 2005) (Chandler, J., specially

concurring). Therefore, the fact that the fist-demonstration methodology is a form of

information gathering does not remove it from the strictures of Daubert. While forensic

interviewing techniques are not subject to testing and determining a rate of error, other

Daubert factors are helpful in determining the reliability of such a technique. These are (1)

whether the technique has been subjected to peer review and publication, (2) whether there




                                             33
are standards controlling the technique’s operation, and (3) whether the technique enjoys

general acceptance in the relevant scientific community.

¶70.   Our courts have established that forensic interviewing is a field that is controlled by

generally accepted standards. Young v. State, 106 So. 3d 811, 818 (Miss. Ct. App. 2011);

Carter v. State, 996 So. 2d 112, 117 (Miss. Ct. App. 2008); Williams v. State, 970 So. 2d

727, 735 (Miss. Ct. App. 2007); Lattimer v. State, 952 So. 2d 206, 221 (Miss. Ct. App.

2006). But the fist demonstration exists outside of these standards – it is purely a creation of

Dr. Matherne’s that has not been subjected to peer review and publication, does not enjoy

general acceptance in the psychology community, and is not subject to any standards

controlling its operation, save those known only to Dr. Matherne. “[S]elf-proclaimed

accuracy by an expert [is] an insufficient measure of reliability.” McLemore, 863 So. 2d at

37 (quoting Kumho Tire, 526 U.S. at 157, 119 S. Ct. 1167). Nothing before the trial court

showed that Dr. Matherne’s fist-demonstration testimony exhibited the ‘intellectual rigor that

characterizes the practice of an expert in the relevant field.’” McLemore, 863 So. 2d at 37-38

(quoting Kumho Tire, 526 U.S. at 152, 119 S. Ct. 1167).

¶71.   I would find that Dr. Matherne’s fist-demonstration testimony was unreliable and that

its admission was error. However, because other evidence established Bateman’s penetration

of Rene, I would find that the error was harmless beyond a reasonable doubt. For these

reasons and the reasons stated in my separate opinion in Anderson, I respectfully concur in

part and in the result.

       DICKINSON, P.J., JOINS THIS OPINION.




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