IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00518-COA
KEVIN DARNELL POWELL A/K/A KEVIN APPELLANT
POWELL
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/10/2015
TRIAL JUDGE: HON. ISADORE W. PATRICK JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY: RICHARD EARL SMITH JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.
ISHEE, J., FOR THE COURT:
¶1. On May 6, 2014, a Warren County grand jury indicted Kevin Powell for one count of
sexual battery of a child under the age of fourteen in violation of Mississippi Code Annotated
section 97-3-95(1)(d) (Rev. 2014). After a jury trial, Powell was found guilty. Powell was
sentenced to twenty years in the custody of the Mississippi Department of Corrections
(MDOC), with twelve years to serve, eight years suspended, and five years of postrelease
supervision. Additionally, Powell was ordered to pay fines, restitution, and other fees
totaling $6,784.50.
¶2. Following trial, Powell moved for a judgment notwithstanding the verdict (JNOV) or,
in the alternative, a new trial; the trial court denied his motions. Powell now appeals.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. In August 2013, after spending a night at Powell’s house, Z.H.1 told her grandmother,
Louise Trueheart, that Powell had been bothering her. While staying at Powell’s—who is
Z.H.’s uncle—Z.H. fell asleep lying on the floor with her cousins. Powell picked up Z.H.
and carried her into a bedroom, where he allegedly “touch[ed] her” and “[put] his mouth on
her.” At trial, Louise testified that when she asked Z.H. if Powell has put his “thing” in her
mouth, Z.H. said yes.
¶4. Next, Louise called Z.H.’s mother, Katherine Trueheart, to inform her of the incident.
Katherine testified that after she asked Z.H. what happened, Z.H. told her that Powell had
“touched her lady,” and Powell “had his face between her legs.” Then on August 12, 2013,
Katherine filed a police report with the Vicksburg Police Department.
¶5. Later that afternoon, Powell voluntarily arrived at the Vicksburg Police Department,
waived his rights, and was interviewed by Lieutenant Troy Kimble.2 In the interview, Powell
confirmed that Z.H. spent the night. But Powell claimed that it looked as though Z.H. was
masturbating while she was lying on the floor. And so, he claimed that he carried her to a
1
The name of the minor victim is changed for confidentiality purposes. Z.H. was
born in 2007.
2
Powell’s interview was played for the jury.
2
bedroom, where he smelled her hands to see if she had been “touching herself.” Powell
claimed that when he did this, Z.H. moved, and that movement caused her pajama bottoms
and underwear to slide down. Powell stated that he smelled around Z.H.’s naval. He
claimed that he bumped her naval, she woke up, and then pushed his head toward her vagina.
According to Powell, Z.H. said she would not tell on him.
¶6. Eventually, on May 6, 2014, Powell was indicted by a Warren County grand jury for
one count of sexual battery of a child under the age of fourteen in violation of section 97-3-
95(1)(d).
¶7. The Vicksburg Police Department referred Z.H. to the Mississippi Children’s
Advocacy Center (MCAC). At MCAC, Z.H. was interviewed by Erin Gowen—a licensed
social worker.3 During the interview, Z.H. stated that when she spent the night at Powell’s
house, he “licked [her] lady” and “put his thing in [her] mouth.”4 Z.H. further stated that
[Powell] told [her] not to tell anyone.”
¶8. At trial, Gowen testified that she had worked as a forensic interviewer for three years
and had conducted over 300 forensic interviews. Gowen also testified that she had been
trained in three interviewing protocols: the RATAC,5 Child First, and Conner House. She
3
Z.H.’s interview was played for the jury.
4
Gowen used anatomical drawings to determine that Z.H. used the word “lady” to
mean “vagina” and the word “thing” to mean “penis.”
5
The RATAC interviewing protocol is not defined within the record, but RATAC
is an acronym for the forensic-interview protocol of rapport, anatomy, touch inquiry, abuse
scenario, and closure. See Mason v. State, 203 So. 3d 732, 735 n.3 (Miss. Ct. App. 2016).
3
further explained that there was not much difference between these three interviewing
protocols. Gowen testified that her report in this case was based on her use of the RATAC
protocol—which was reviewed by her supervisor. Gowen also testified that she had been
previously accepted as an expert witness in Hinds County Youth Court. The State then
tendered, and the circuit court accepted, Gowen as an expert in the field of forensic
interviewing. Gowen testified that in her opinion, Z.H.’s disclosure during the interview was
consistent with a child who had been sexually abused.
¶9. Prior to the trial, the circuit court was informed that Powell was not communicating
with defense counsel. Powell’s counsel claimed that due to Powell’s lack of cooperation, he
did not feel that he was going to be properly prepared to go to trial. And so, his counsel
asked to withdraw from Powell’s case. Powell also informed the circuit court that he did not
feel as though he would have adequate representation at trial. According to Powell, his
counsel told him that he was not allowed to have any witnesses. But when the circuit court
asked Powell what potential witnesses he had, Powell referenced a brother-in-law in
California—but he could not recall his name. When the circuit court asked Powell’s counsel
about Powell’s claim that he was advised that he could not have any witnesses, counsel stated
that “[Powell] wanted to call character witnesses . . . .”
¶10. The trial court then asked Powell what the potential witness would say; Powell stated
that Z.H.’s grandmother, Louise, also accused this potential witness of sexual battery of a
child. And Powell stated that there was no attempt by his counsel to contact this witness.
4
Yet when the circuit court asked Powell the potential witness’s name, Powell could not recall
his name. And when the circuit court asked about any other potential witnesses, Powell
admitted that the others were character witnesses.
¶11. The next day, the circuit court asked Powell if he had obtained the name of the witness
in California. Powell stated that he had not, but he knew his last name was “Dillon.” Later
that day, it was discovered that Louise had the contact information for her son-in-law,
Marcus Dillard, who lived in California.
¶12. As the circuit court instructed, counsel for both parties contacted Dillard and informed
the circuit court of what Dillard said. Dillard stated that Louise once told Dillard’s wife that
she was not comfortable with him being alone with his children, and that she did not trust
him. When asked if he had specifically ever been accused of any inappropriate sexual action
toward his children, Dillard said no.
¶13. The circuit court then instructed counsel for both parties to draft the following
statement, which the circuit court read to the jury at trial:
Members of the jury, the name of Marcus Dillard has been mentioned during
trial. Marcus Dillard is married to Jessica, the daughter of Louise Trueheart.
If called to testify he would say he was aware that Louise Trueheart told his
wife, Jessica, that Louise was not confortable with him being alone with his
children if something should happen to Jessica.
The [c]ourt is allowing this out of court statement, not for the truth of the
matter asserted[,] but only for the purpose that the statement was in fact made.
¶14. Also, during the pretrial hearing, Powell argued that counsel did not have a defense
strategy. After being asked by the circuit court when he lost faith in his attorney, Powell
5
answered “about four months ago.” Powell’s counsel said that he would “abide by whatever
the [circuit] [c]ourt rule[d] to the best of [his] ability.” Several days later, Powell and his
defense counsel proceeded to trial.
¶15. After Powell’s trial, the jury returned a verdict of guilty. The judgment of conviction
was entered on November 12, 2015. Powell then retained new counsel to represent him in
his posttrial proceedings. After posttrial proceedings, Powell was sentenced to serve twenty
years in the custody of the MDOC, with twelve years to serve, eight suspended, and five
years of postrelease supervision. The sentencing order after the guilty verdict and after the
presentence investigation was entered by the circuit court on December 10, 2015. On
December 17, 2015, Powell moved for a JNOV or, in the alternative, a new trial challenging,
among other things: (1) the effective assistance of trial counsel, (2) the sufficiency of the
evidence, and (3) the weight of the evidence. After a hearing, the trial court denied Powell’s
motion. Powell now appeals.
DISCUSSION
I. Ineffective Assistance of Counsel
¶16. On appeal, Powell argues that his right to a fair trial and to call witnesses on his behalf
was denied when his counsel mischaracterized his fact witnesses as character witnesses, and
erroneously informed him that he could not call character witnesses or any other witnesses.
After a review of the record and the parties’ briefs, we characterize, and thus address,
Powell’s argument as an ineffective-assistance-of-counsel claim raised on direct appeal.
6
¶17. Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:
Issues which may be raised in post-conviction proceedings may also be raised
on direct appeal if such issues are based on facts fully apparent from the
record. Where the appellant is represented by counsel who did not represent
the appellant at trial, the failure to raise such issues on direct appeal shall
constitute a waiver barring consideration of the issues in post-conviction
proceedings.
And the Mississippi Supreme Court has held:
It is unusual for [an appellate c]ourt to consider a claim of ineffective
assistance of counsel when the claim is made on direct appeal. This is because
we are limited to the trial court record in our review of the claim[,] and there
is usually insufficient evidence within the record to evaluate the claim . . . .
[W]here the record cannot support an ineffective assistance of counsel claim
on direct appeal, the appropriate conclusion is to deny relief, preserving the
defendant’s right to argue the same issue through a petition for post-conviction
relief. [An appellate c]ourt will rule on the merits on the rare occasions where
(1) the record affirmatively shows ineffectiveness of constitutional
dimensions, or (2) the parties stipulate that the record is adequate to allow the
appellate court to make the finding without consideration of the findings of
fact of the trial judge.
Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations
omitted).
¶18. The record does not affirmatively indicate that Powell received ineffective assistance
of constitutional dimensions. Nor have both parties explicitly stipulated that the record is
adequate to allow us to make findings without considering a trial judge’s findings of fact.
Gordon v. State, 977 So. 2d 420, 425 (¶9) (Miss. Ct. App. 2008). As a result, we decline to
address the merits of this issue. Thus, we dismiss Powell’s claims under this heading without
prejudice to his ability to raise it in postconviction proceedings, if he chooses to do so.
7
II. Designation of the Expert Witness
¶19. Next, Powell claims that the trial court abused its discretion in accepting Gowen as
an expert witness.
¶20. For expert testimony to be admitted at trial, the testimony must conform to the
requirements of Mississippi Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a)
the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
M.R.E. 702. Expert testimony, under Rule 702, must be both relevant and reliable.
Corrothers v. State, 148 So. 3d 278, 294 (¶24) (Miss. 2014). “Testimony is reliable when
it is ‘based upon on scientific facts or data,’ is ‘the product of reliable principles and
methods,’ and when ‘the witness has applied the principles and methods reliably to the facts
of the case.’” Id. at 295 (¶25). “[T]he admission of expert testimony is within the sound
discretion of the trial judge.” Pickett v. State, 143 So. 3d 596, 604 (¶23) (Miss. Ct. App.
2013). Unless the decision was arbitrary and clearly erroneous—amounting to an abuse of
discretion—the trial judge’s decision will stand. Roberts v. Grafe Auto Co., 701 So. 2d 1093,
1098 (Miss. 1997) (citing Seal v. Miller, 605 So. 2d 240, 243 (Miss. 1992)).
¶21. Here, Powell argues that Gowen was not qualified to testify as an expert, and because
she was not qualified, her testimony was unreliable. As for her qualifications, we find that
8
the circuit court did not err in finding that Gowen was qualified to testify as an expert in the
field of forensic interviewing. First, Gowen testified that she earned a bachelor’s degree in
social work, and she was licensed as a social worker by the State of Mississippi. Second,
Gowen testified that she had three years of experience working as a forensic interviewer, and
had conducted over 300 interviews. Third, Gowen testified that she had received training
in the forensic-interviewing protocols. And lastly, Gowen further testified that she had been
previously accepted as an expert witness in Hinds County Youth Court.
¶22. Yet Powell takes issue with the fact that Gowen was unable to distinguish between
the various interviewing protocols: Child First, Corner House, and RATAC. Gowen testified
that at the time of Z.H.’s interview, the MCAC was using the RATAC—which was
developing into Child First. And Gowen explained that the protocols had a lot of similarities,
with very little difference between them. What is more, Gowen testified that not only did she
adhere to the RATAC protocol when she conducted Z.H.’s interview, but the interview was
reviewed by her supervisor. The record shows that Gowen testified—in detail—as to how
she conducted the interview with Z.H., and she testified in detail as to what Z.H. told her.
After reviewing the record, we find no indication that Gowen failed to reliably apply the
principles and methods of forensic interviewing to the facts of the case. Thus we find that
the circuit court judge did not abuse his discretion in admitting Gowen’s expert testimony.
This claim is without merit.
III. Denial of Motion for JNOV or New Trial
9
¶23. Lastly, Powell claims that the circuit court erred in denying his motion for a JNOV
or, in the alternative, a new trial. A motion for a JNOV challenges the legal sufficiency of
the evidence. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). While on the other
hand, a motion for a new trial challenges the weight of the evidence. Id. at 844 (¶18).
¶24. In arguing that the circuit court erred in denying his motion for a JNOV or new trial,
Powell relies not on arguments that challenge the legal sufficiency of the evidence or the
weight of the evidence. Instead, Powell’s arguments under this issue are related to his
ineffective-assistance-of-counsel claims.
¶25. While the circuit court denied Powell’s motion, we decline to delve into the merits of
this issue on appeal, as we find that Powell’s motion was untimely. Uniform Rule of Circuit
and County Court Practice 10.05 required that “a motion for a new trial must be made within
ten days of the entry of judgment.”6 (Emphasis added). As for a motion for a JNOV, our
supreme court has held “that a motion for a JNOV, as it relates to a criminal case, is untimely
where filed beyond the ten-day limit for a motion for a new trial and beyond the term of the
court.” Well v. State, 73 So. 3d 1203, 1206 (¶5) (Miss. Ct. App. 2011) (quoting McGraw v.
State, 688 So. 2d 764, 770 (Miss. 1997)).
¶26. In this case, the record shows that Powell’s judgment of conviction, though not
6
We note that the Uniform Rules of Circuit and County Court Practice no longer
govern criminal practice in Mississippi, and have been replaced by the Rules of Criminal
Procedure, effective July 1, 2017. Because Powell’s motion preceded this change, we apply
Rule 10.05 and the accompanying precedent in this case. The rule currently in force, Rule
25.1(c), also includes a ten-day deadline. MRCrP 25.1(c).
10
explicitly titled as such, was entered on November 12, 2015.7 Under the Uniform Rule of
Circuit and County Court Practice 10.05, the ten-day time limitation was measured from the
date of conviction. See Allen v. State, 200 So. 3d 1100, 1101 (¶2) (Miss. Ct. App. 2016).
And so, to be timely, Powell’s motion for a new trial would have needed to be filed within
ten days of November 12, 2015. Instead, however, Powell’s motion was not filed until
December 17, 2015—well past the ten-day requirement, and also outside of the term of the
court.8 Warren County’s first November 2015 term began on Monday, November 2, 2015.
The term lasted two weeks—ending on November 16, 2015. And so, the term of the court
expired before the ten-day limit for filing a motion for a JNOV or, in the alternative, a new
trial. This Court has held that the circuit court does not have any discretion to extend time
limits for filing a motion for a JNOV or new trial. Ross v. State, 16 So. 3d 47, 53 (¶7) (Miss.
Ct. App. 2009).
¶27. Though the circuit court denied Powell’s motion on the merits, on appeal, we find that
Powell’s motion was untimely, and thus, should have been dismissed. As such, we decline
to address the merits of the circuit court’s denial of Powell’s motion for a JNOV or new trial.
This issue is without merit.
CONCLUSION
¶28. Upon review of the record, we find no merit to any of the issues raised on appeal.
7
Powell’s judgment of conviction was titled “Order Jury Verdict and Pre-Sentence
Investigation.”
8
See State of Mississippi Judicial Directory and Court Calender (2015).
11
Therefore, we affirm the judgment of the circuit court.
¶29. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT
PARTICIPATING.
12