           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2016-KA-01257-COA

JOSHUA DEMIEN MAGEE A/K/A JOSHUA                                             APPELLANT
MAGEE

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                            07/25/2016
TRIAL JUDGE:                                 HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                   RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      MATTHEW ALLEN BALDRIDGE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                           MICHAEL GUEST
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED: 12/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       FAIR, J., FOR THE COURT:

¶1.    Joshua Magee was convicted of two counts of sexual battery relating to his then

seven-year-old cousin, Abby.1 At the time of the offense, Magee was thirty-three years of

age and living in the same household as the victim. The victim disclosed repeated acts of

sexual abuse after she and Magee were caught together late at night without explanation. On

appeal, Magee raises a number of evidentiary issues and challenges the weight and

sufficiency of the evidence. We find that none of these contentions have merit, and we



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           We use a fictitious name to protect the identity of the minor victim.
affirm.

                                          DISCUSSION

          1.       Magee’s Prior Felony Conviction

¶2.       Magee testified in his own defense. In his first issue on appeal, he complains that the

trial court erred in permitting the State to impeach him with his prior felony conviction. The

court limited the impeachment to the fact that Magee was a previously convicted felon; it did

not allow the State to elicit the specific offense (aggravated assault), though Magee himself

volunteered from the stand that his prior criminal history was “not dealing with no sexual

activities.”

¶3.       From our review of the record, this issue clearly has been waived. Magee initially

moved in limine to exclude any reference to his prior convictions. The trial court granted the

motion, in part, except to the extent that the prior convictions might be used for impeachment

if Magee testified. A ruling on that aspect of the motion was deferred. When the issue came

up, after Magee declared his intent to testify in his own defense, the trial court began to hold

a Peterson2 hearing to determine whether the impeachment would be allowed. But shortly

after the hearing began, Magee’s attorney interposed that he had no objection to the

impeachment. After the trial court offered the limitation, the attorney accepted it and

reiterated that he had no objection. “In order to preserve an issue for appeal, counsel must

object. The failure to object acts as a waiver.” Havard v. State, 928 So. 2d 771, 791 (¶34)


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              See Peterson v. State, 518 So. 2d 632 (Miss. 1987).

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(Miss. 2006).

¶4.    This issue has been waived.

       2.       Ineffective Assistance of Counsel

¶5.    Next, Magee contends that his trial attorney rendered constitutionally ineffective

assistance of counsel by failing to request a limiting instruction regarding his prior

conviction.

¶6.    To evaluate claims of ineffective assistance of counsel, we employ the two-part

analysis outlined by the United States Supreme Court in Strickland v. Washington, 466 U.S.

668, 687 (1984).      “First, the defendant must show that counsel’s performance was

deficient. . . . Second, the defendant must show that the deficient performance prejudiced

the defense.” Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984) (quoting Strickland, 466

U.S. at 687).

¶7.    “Traditionally, trial counsel’s decision regarding whether to request certain jury

instructions is considered trial strategy.” Taylor v. State, 109 So. 3d 589, 596 (¶27) (Miss.

Ct. App. 2013). The Mississippi Supreme Court has followed the United States Supreme

Court’s cautioning that:

       Judicial scrutiny of counsel’s performance must be highly deferential. It is all
       too tempting for a defendant to second-guess counsel’s assistance after
       conviction or adverse sentence, and it is all too easy for a court, examining
       counsel’s defense after it has proved unsuccessful, to conclude that a particular
       act or omission of counsel was unreasonable. A fair assessment of attorney
       performance requires that every effort be made to eliminate the distorting
       effects of hindsight, to reconstruct the circumstances of counsel’s challenged
       conduct, and to evaluate the conduct from counsel’s perspective at the time.

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Howard v. State, 945 So. 2d 326, 354 (¶57) (Miss. 2006) (quoting Strickland, 466 U.S. at

689) (citations omitted). We therefore “presume that counsel’s decision not to request a

limiting instruction was within the ambit of trial strategy.” Curry v. State, 202 So. 3d 294,

301 (¶24) (Miss. Ct. App. 2016).

¶8.    There are good, strategic reasons counsel may choose not to request a limiting

instruction. “[A] limiting instruction can actually focus the jury’s attention on sensitive

information,” Sipp v. State, 936 So. 2d 326, 331 (¶9) (Miss. 2006), and “has the potential to

do the defendant more harm than good.” Curry, 202 So. 3d at 301 (¶24). Magee has not

rebutted the presumption that counsel’s inaction on this point was anything but sound trial

strategy.

¶9.    Nonetheless, counsel’s intentions cannot be “fully apparent from the record,” and this

issue is best left to a potential motion for post-conviction relief. See M.R.A.P. 22(b). We

deny relief on this issue without prejudice to a potential motion for post-conviction relief.

       3.     Tender Years Exception

¶10.   Next, Magee contends that the trial court erred in admitting hearsay statements of the

victim under Mississippi Rule of Evidence 803(25), the tender years exception. It provides:

       (25) Tender Years Exception. A statement by a child of tender years
       describing any act of sexual contact with or by another is admissible if: (A)
       the court – after a hearing outside the jury’s presence – determines that the
       statement’s time, content, and circumstances provide substantial indicia of
       reliability; and (B) the child either: (i) testifies; or (ii) is unavailable as a
       witness, and other evidence corroborates the act.

The reliability of the proffered hearsay testimony is evaluated according to the Wright

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factors, which are:

       (1) whether there is an apparent motive on the 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.

Withers v. State, 907 So. 2d 342, 347-48 (¶14) (Miss. 2005) (quoting Idaho v. Wright, 497

U.S. 805, 822 (1990)).

¶11.   The court in this case held an extensive hearing on the admissibility of the hearsay

statements and rendered from the bench a lengthy, detailed, and thoughtful opinion expressly

addressing each of the Wright factors. The ruling occupies nearly fifteen pages in the

transcript, and, suffice to say, adequately addressed every relevant factor.           Magee’s

complaints, on the other hand, are supported only by cursory argument and concern questions

of fact and credibility that were thoroughly addressed by the trial court. Specifically, Magee

disagrees with the trial court regarding the degree of spontaneity of the victim’s statements

(the court found that two of the three statements were not spontaneous but were not the

product of suggestive questioning), and Magee claims that the victim was inconsistent in her

statements. On the latter point, the judge found that the victim was relating different

incidents when speaking to different people, rather than being inconsistent per se. The court

made extensive and detailed findings:

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       And during the interview with [the Child Advocacy Center], [Abby] didn’t talk
       about [the incidents she described to the other two witnesses]. She talked
       about the Defendant performing oral sex on her and basically did not disclose
       the same thing that she had disclosed to Ms. Martin and Mr. Davis, Mr. Milton
       Davis.

       Now while that may seem to be inconsistent [–] and actually certainly is
       inconsistent [–] it doesn’t seem surprising to me that a child of that age at
       different times is going to remember some things and put relative importance
       on some things. I think that[,] in watching the interview[, the interviewer] was
       obviously aware of the allegations that – of the disclosure [Abby] had made to
       Martin [and] Davis [and] attempted . . . to direct [Abby’s] attention back to
       that, but she certainly didn’t go so far as to say, “Now, didn’t you tell your
       grandmother and Mr. Davis that he put his thing in your mouth?” She didn’t
       do that and the child didn’t go forward and volunteer anything further than she
       had already said.

       To me that is consistent with a child under the age of seven or seven or eight
       years old making a report of these things happening[ but] doesn’t really want
       to talk about it and is going to relate different things at different times [–] with
       more than one thing happening.

Otherwise, Magee just disagrees with the weighing of the various factors and the necessity

and fairness of the tender years exception, but he does not develop the latter point into a

separate issue.

¶12.   This Court reviews evidentiary rulings for an abuse of discretion, which may be found

only if the decision is not supported by substantial credible evidence or where “the reviewing

court has a definite and firm conviction that the court below committed a clear error of

judgment and [in the] conclusion it reached upon a weighing of the relevant factors.”

Withers, 907 So. 2d at 345 (¶7) (citation and quotations omitted).

¶13.   Magee’s complaints are entirely directed to the trial court’s findings regarding


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credibility and its weighing of the various factors under consideration – issues that were

entrusted to the trial court’s discretion and were thoroughly and soundly addressed by that

court. As we can find no abuse of that discretion, this issue is without merit.

       4.     Sufficiency of the Evidence

¶14.   When reviewing the sufficiency of the evidence, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (abrogated on other grounds). Where

the facts and inferences “point in favor of the defendant on any element of the offense with

sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that

the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if

“reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different

conclusions on every element of the offense,” the evidence will be deemed to have been

sufficient. Id.

¶15.   Magee presents two challenges to the sufficiency of the evidence supporting his

convictions. The first is a specific attack on the sufficiency of the evidence supporting his

sexual battery conviction on Count II, and the second is a more general attack on the

credibility of the victim.

¶16.   Count II alleged that Magee “performed cunnilingus” on the victim. On appeal, he

contends that the victim’s testimony at trial – that he had “touched” her “vagina” with his


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“mouth,” was insufficient to support the conviction. Magee contends that this failed to meet

the State’s burden to prove penetration. Mississippi Code Annotated section 97-3-97(a)

(Rev. 2014) defines sexual penetration as including in relevant part “cunnilingus” and “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.”

¶17.   While we think the victim’s testimony that Magee “touched” her “vagina” with his

“mouth,” taken in the context of her other testimony unambiguously describing sexual abuse,

was adequate, there is other evidence in the record supporting the conviction on this count.

The child’s hearsay statements were admitted into evidence under the tender years exception

to the rule against hearsay and were, therefore, competent substantive evidence. See M.R.E.

803(25); Veal v. State, 585 So. 2d 693, 697 (Miss. 1991). During the interview, the victim

stated that Magee had “sucked” on her “middle,” which she had identified as her genital area.

This unambiguously proved penetration. “[P]roof 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 [section] 97-3-97(a).” Bateman v. State, 125 So. 3d 616,

623 (¶19) (Miss. 2013) (citation and internal quotation marks omitted).

¶18.   The evidence was clearly sufficient to support the conviction under Count II.

¶19.   Magee’s other challenge to the sufficiency of the evidence is almost entirely an attack

on the credibility of the victim; he contends that she was not credible based on alleged


                                              8
contradictions and inconsistencies in her testimony and the various hearsay statements that

were admitted into evidence. These contentions largely track those made in the prior issue

contesting the reliability of the hearsay statements. But it is the jury, not the reviewing court,

that is the arbiter of witness credibility. See Hartfield v. State, 161 So. 3d 125, 140 (¶23)

(Miss. 2015). Our review on appeal is limited to whether any rational trier of fact could have

found Magee guilty. See Bush, 895 So. 2d at 843 (¶16). We cannot find the verdict here

unsupported by sufficient evidence.

       5.      Weight of the Evidence

¶20.   Finally, Magee contends that his convictions were against the overwhelming weight

of the evidence. A new trial based on the weight of the evidence should be granted “only in

exceptional cases in which the evidence preponderates heavily against the verdict.” Bush,

895 So. 2d at 844 (¶18) (citation omitted). “[T]he evidence must be viewed in the light most

favorable to the verdict[.]” Jenkins v. State, 131 So. 3d 544, 551 (¶23) (Miss. 2013). And

the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the

trial. “[R]eversal is warranted only if the trial court abused its discretion in denying [the]

motion for a new trial.” Waits v. State, 119 So. 3d 1024, 1028 (¶13) (Miss. 2013).

¶21.   Magee does not actually brief this issue separately; his reasons for urging that the

verdict was against the overwhelming weight of the evidence are the same ones as in his

arguments concerning the sufficiency of the evidence – they are almost entirely an attack on

the credibility of the witnesses. As we explained in the previous issue, the jury, not the


                                                9
reviewing court, is the judge of the credibility of witnesses. Hartfield, 161 So. 3d at 140

(¶23). “It is the jury’s role to assess the weight and credibility of the evidence and to resolve

any conflicts in the evidence.” Whittle v. State, 182 So. 3d 1285, 1289 (¶12) (Miss. Ct. App.

2015) (citing Latiker v. State, 918 So. 2d 68, 73 (¶12) (Miss. 2005)). This Court can “only

disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to

allow it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18).

¶22.     That is not the case here. From our own review of the record, the victim’s testimony

was direct, unequivocal, and sufficiently detailed in describing the abuse that had occurred.

She was generally consistent in her prior statements and had no apparent motive to lie. Her

account was corroborated by her being discovered entering the house late at night with

Magee, an incident Magee himself admitted occurred (though in his telling it was under

different circumstances). From this record, we cannot find Magee’s convictions to be “so

contrary to the overwhelming weight of the evidence that to allow [them] to stand would

sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). This issue is without

merit.

¶23.     AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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