           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2017-KA-01672-COA

DARNELL DONTE MARION A/K/A DARNELL                                           APPELLANT
D. MARION A/K/A DARNELL MARION

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                             08/14/2017
TRIAL JUDGE:                                  HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                    JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       OFFICE OF STATE PUBLIC DEFENDER
                                              BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE:                        OFFICE OF ATTORNEY GENERAL
                                              BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                            ANTHONY N. LAWRENCE III
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  AFFIRMED - 03/12/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       WESTBROOKS, J., FOR THE COURT:

¶1.    Darnell Donte Marion was convicted in the Jackson County Circuit Court of one count

of touching M.B.1 for lustful purposes in violation of Mississippi Code Annotated section 97-

5-23(1) (Rev. 2006). Marion was sentenced to fifteen years in the custody of the Mississippi

Department of Corrections, with six years to serve without parole, and the remainder on

postrelease supervision.2 Marion filed a motion for a judgment notwithstanding the verdict


       1
           We will use initials to protect the minor child’s identity.
       2
           Marion will also be required to register as a sex offender upon his release.
(JNOV motion), or in the alternative, for a new trial. However, the circuit court denied

Marion’s motion, and he appeals. After review of the record, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In 2013, Marion was evicted from his apartment in Pascagoula, Mississippi. Mariah

H. offered to let Marion stay with her until he worked out other living arrangements. Mariah

shared an apartment with her three children and her friend, Angelique. Mariah’s younger

sister, M.B., sometimes stayed at the apartment as well and slept in the room with Mariah’s

children. At that time, M.B. was seven years old.

¶3.    Mariah testified that Angelique informed her that she had gone through Marion’s

phone and discovered a number of photographs and videos of M.B. Mariah and her

boyfriend at the time woke Marion to confront him about the images. Marion denied having

any photos or video; however, Marion later admits to deleting the video. Subsequently,

Angelique called the police, and Marion was apprehended a short time later walking down

the street.

¶4.    Officer Ryan Morris testified that he had been alerted that Marion’s cell phone may

have contained photographs and other evidence, so he seized the phone. Detective Kimberly

Stevens arrived and collected Marion’s cell phone.

¶5.    Mariah called M.B.’s mother, Tammy, who checked M.B. out of school to bring her

to Mariah’s apartment to speak with the police. M.B. informed Tammy that Marion had been

asking whether he could be her boyfriend. M.B. also told Tammy that Marion “hunched”3

       3
         M.B. explained that the words “hunched” and “humped” meant that Marion put his
genitals on her backside and started to move.

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her when he slipped into bed with her one night. M.B. was later interviewed by Stephanie

McGrew at the Child Advocacy Center. McGrew testified that M.B. informed her that

Marion tried to kiss her and “humped” her while in the bed. M.B. testified that Marion tried

to remove his clothing; however, M.B. said she would tell, and Marion got up and lay on the

floor. M.B. testified that she tried to tell Mariah what happened shortly after the incident but

Mariah did not wake up.

¶6.    Marion was arrested and denied being in bed with M.B. But, later in the recorded

interview, Marion stated that he may have been in the bed with M.B.; however, the

“hunching” motion was actually him rocking himself to sleep because he had gone out

drinking earlier in the night. Marion also stated to police that he must have accidentally

recorded M.B. as he was cleaning the bedroom earlier that morning.

¶7.    After a jury trial, Marion was convicted of one count of touching M.B. for lustful

purposes and was sentenced to fifteen years in the custody of the Mississippi Department of

Corrections, with six years to serve without parole, and the remainder on postrelease

supervision. Marion filed a JNOV motion, or in the alternative, for a new trial, which the

trial court denied. Marion appeals.

                                       DISCUSSION

       I.     The trial court did not err in admitting M.B.’s testimony under the
              tender-years Exception.

¶8.    The Mississippi Supreme Court has held that “[the reviewing 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) (citation omitted).


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¶9.    Under the then-applicable Mississippi Rule of Evidence 803(25),

       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.

Williams v. State, 35 So. 3d 480, 488 (¶29) (Miss. 2010).

¶10.   “The comment to th[at] rule contains a nonexhaustive list of twelve factors that the

trial judge should consider when determining whether there are sufficient indicia of

reliability.” Id. These factors are as follows:

       (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.

Id. at 488-89 (¶29); see also M.R.E. 803(25) advisory committee’s note.

¶11.   Marion maintains that the trial court did not make an on-the-record finding that M.B.

was of tender years or that her statements disclosing the abuse were credible and provided

substantial indicia of reliability. The record shows that the trial court conducted a hearing

to consider whether M.B. was a child of tender years. Mariah and M.B.’s mother testified

during the hearing, and the trial court watched the video of M.B.’s forensic interview.



                                                4
¶12.   The record shows that both the State and Marion stipulated that M.B. was a child of

tender years. Although the record shows that the trial court did not issue an “on-the-record”

ruling at the hearing, it reveals that the trial court issued an order on June 16, 2017, finding

that M.B. was seven years old at the time she disclosed the alleged sexual abuse to her

mother, sister, and forensic interviewer. Also in that order, the trial court found that the time,

content, and circumstances of M.B.’s statement provided a substantial indicia of reliability,

and that M.B. was presumed to be of tender years given her age at the time of disclosure and

that the presumption had not been rebutted. Marion’s trial began more than a month later on

August 14, 2017.

¶13.   Traditionally, our Mississippi Supreme Court and this Court have applied a harmless-

error analysis when it has been determined that the trial court failed to conduct an “on-the-

record” analysis finding of indicia of reliability. See Veasley v. State, 735 So. 2d 432, 437

(¶¶16-17) (Miss. 1999); Klauk v. State, 940 So. 2d 954, 957 (¶7) (Miss. Ct. App. 2006).

Under the harmless-error test, “this Court must determine whether the weight of the evidence

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

evidence.” Veasley, 735 So. 2d at 437 (¶17) (quoting Fuselier v. State, 702 So. 2d 388, 391

(¶9) (Miss. 1997)).

¶14.   In Klauk, this Court found “that the trial court erred in admitting evidence without

first making the required on the record factual determination that [the victim]’s statements

contained substantial indicia of reliability.” Klauk, 940 So. 2d at 956 (¶6). Next, this Court

addressed “whether such error compell[ed] reversal” and determined “whether the weight



                                                5
of the evidence against Klauk is sufficient to outweigh the harm done by allowing admission

of [the] evidence.” Id. at 957 (¶7). Ultimately, this Court found that the “[trial] court’s error

in admitting the hearsay statements was harmless.” Id. at (¶8).

¶15.   Moreover, this Court has previously held that “a sufficient on-the-record finding of

reliability does not require ‘each factor be listed and discussed separately by the trial judge.’”

Webb v. State, 113 So. 3d 592, 600 (¶24) (Miss. Ct. App. 2012) (quoting Bosarge v. State,

786 So. 2d 426, 437 (¶32) (Miss. Ct. App. 2001)).

¶16.   Here, we do not need to reach the level of applying “harmless-error” analysis. While

the trial court did not make its findings and rulings during the pre-trial hearing, the trial court

issued an order with its findings prior to trial—unlike the trial court in Klauk. Therefore, we

find that the trial court’s order was an “on-the-record” factual determination under Rule

803(25).

¶17.   Evidence within the record supports the trial court’s finding that M.B.’s out-of-court

statements bore a substantial indicia of reliability and were supported by corroborative

evidence. But, Marion further maintains that M.B.’s disclosures to her mother were not

spontaneous, because M.B.’s mother questioned M.B. after picking her up from school to

talk to the police. While spontaneity is indeed one of the factors to consider, there are eleven

other factors to consider when admitting evidence under Rule 803(25). Therefore, we find

no abuse of discretion with the trial court’s decision to admit M.B.’s statements through the

tender-years exception. Accordingly, the trial court properly admitted the hearsay statements

under Mississippi Rule of Evidence 803(25) prior to the start of trial, thus giving Marion



                                                6
ample time to prepare his defense.

       II.     The trial court did not abuse its discretion by admitting the video
               of M.B. sleeping recovered from Marion’s phone.

¶18.   Marion asserts that the trial court abused its discretion by admitting into evidence a

video of M.B. sleeping recorded on Marion’s phone. As a result, Marion argues that he is

entitled to a new trial.

¶19.   The Mississippi Supreme Court has held that “[a reviewing c]ourt reviews the

admission of evidence under the abuse-of-discretion standard.” Johnson v. State, 204 So. 3d

763, 766 (¶7) (Miss. 2016). “Evidentiary rulings are affirmed unless they affect a substantial

right of the complaining party.” Id. (quoting Sewell v. State, 721 So. 2d 129, 138 (Miss.

1998)).

¶20.   Marion filed a motion in limine to prevent the State from presenting the video.

Marion asserted that the video was irrelevant, prejudicial, and should be excluded pursuant

to Rules 401, 402, 403, and 404 of the Mississippi Rules of Evidence.4 “Rule 404 generally

prohibits the admission of evidence of a person’s character for the purpose of proving that

he or she acted in conformity with that character on a particular occasion.” Johnson, 204 So.

3d at 768 (¶14) (citing M.R.E. 404(a)). Marion, however, has failed to show how the

admission of the video adversely affected a substantial right.

¶21.   We also note that the record does not reflect that the trial court expressly stated on the

record that the video would be more probative than prejudicial under Rule 403; however,



       4
        Relevant evidence is admissible unless otherwise prohibited by law. M.R.E. 402.
To be “relevant,” the evidence must be material and probative. See M.R.E. 401.

                                               7
both parties were given an opportunity to argue their position during the hearing on the

motion in limine and motion to suppress.

¶22.   In Hudson v. State, 977 So. 2d 344 (Miss. Ct. App. 2007), a “trial judge did not state

on the record that [the] testimony would be more probative than prejudicial, [but] both parties

were given the opportunity to argue their position [during a hearing].” Id. at 349 (¶25). This

Court has held that “[t]his implicit [type of] Rule 403 balancing test [is] sufficient.” Id.; see

also Hoops v. State, 681 So. 2d 521, 530 (Miss. 1996).

¶23.   Here, the trial court heard testimony from both parties regarding the validity and

veracity of the cell phone video recording and found that the video was more probative than

prejudicial. Accordingly, we find no abuse of discretion, and this issue lacks merit.

¶24.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL,
McDONALD, McCARTY AND C. WILSON, JJ., CONCUR. LAWRENCE, J., NOT
PARTICIPATING.




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