Yoginder Dandass v. State of Mississippi , 233 So. 3d 856 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-01352-COA
YOGINDER DANDASS A/K/A YOGINEER APPELLANT
DANDASS A/K/A YOGI DANDASS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/07/2015
TRIAL JUDGE: HON. LEE SORRELS COLEMAN
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MERRIDA COXWELL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF SEXUAL BATTERY AND
SENTENCED TO TWENTY-FIVE YEARS,
WITH TWENTY YEARS TO SERVE AND
FIVE YEARS SUSPENDED, FOLLOWED
BY FIVE YEARS OF POSTRELEASE
SUPERVISION, AND TO PAY A $3,000
FINE AND REGISTER AS A SEX
OFFENDER
DISPOSITION: AFFIRMED - 05/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Yoginder Dandass was convicted of sexual battery against his adoptive daughter,
Sara.1 The trial court sentenced Dandass to a term of twenty-five years in the custody of
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To protect the identity of the minor child, she will be referred to by the fictitious
name “Sara.”
Mississippi Department of Corrections, with five years suspended. Dandass appeals his
conviction and sentence on numerous grounds. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Dandass and his wife, Wendy, adopted Sara when she was nine years old. Sara was
living in a Russian orphanage when she was adopted. The Dandasses also had two natural
children of their own. Sara knew little English and was provided a private tutor for a few
months before she was brought to the United States. At trial, Sara testified that the language
barrier remained a problem for her. She had not had a family before being adopted and did
not know how to function in one. She testified that she was punished often and did not
understand what was expected of her.
¶3. Sara was brought to Starkville and placed in public school, but still battled with a
language barrier. Sara testified that her relationship with her father began to change as she
grew older. According to Sara, Dandass initiated sexual contact with her when she was
around eleven years old. Dandass began with asking her to touch him while he was wearing
clothes. Sara testified that the first incident of sexual abuse occurred when she was invited
to a sleepover at her friend Katya’s home. Katya spoke Russian and helped Sara translate
when she first arrived to Starkville.
¶4. Sara testified that she went to ask her parents for permission to spend the night at
Katya’s house, but only her father was at home. She asked him if she could spend the night
at her friend’s house, and he replied by telling Sara to hang up her phone. Sara complied and
Dandass took Sara’s hand and placed it in his genital area. Dandass proceeded to take his
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shirt and shorts off and told Sara to place her hand on his penis. According to Sara, she knew
that if she did not, her father would not allow her to go to her friend’s sleepover.
¶5. Sara testified that her father had her perform oral sex on him many times. The sexual
contact continued until Sara was seventeen. Sara testified that she performed the acts out of
fear and manipulation. She also testified that she was not physically forced to perform the
sexual acts on her father. She could leave his room and refuse to perform the acts, but she
knew there would be consequences if she left. According to Sara, Dandass would punish her
for refusing his sexual advances by taking away her art supplies and sometimes slapping her.
Sara did not report her sexual contact with Dandass to the police or any of her friends.
¶6. The sexual contact between Dandass and Sara always occurred in his and Wendy’s
bedroom, when the family was away. Most of the contact consisted of oral sex and touching,
but Dandass attempted to initiate vaginal intercourse on one occasion. Sara testified that she
refused. According to Sara, she also saw Dandass looking at provocative pictures of her on
his computer.
¶7. Sara did not bond well with her adoptive family. She did not enjoy many of the
activities that they engaged in, and her personality did not mesh well with her mother’s
personality. According to Sara, she always wanted a strong relationship with her mother, but
her mother always pushed her away.
¶8. At trial, Dandass denied having any sexual contact with Sara. He claimed to have
noticed some tension between Sara and the rest of the family, but had not realized the extent
of the friction until Sara was in the eleventh grade. According to Dandass, her desire to
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attend the Savannah College of Art and Design (SCAD) added to the tension. Tuition at
SCAD was expensive, and Dandass noted that the school was unaccredited. Dandass wanted
Sara to attend Mississippi State University where Sara could attend for free, since both
Dandass and his wife worked there.
¶9. Dandass contended that Sara’s desire to attend SCAD increased once her high-school
art teacher promised her a full scholarship. Dandass testified that he attempted to bring Sara
off “cloud nine” because SCAD was expensive, and it was almost impossible that her art
teacher could procure a full scholarship for her. Dandass contended that he reinforced the
option of Sara attending Mississippi State University, because it would be free to attend, and
she could live at home with the family. According to Dandass, Sara did not relent on her
desire to attend SCAD. Dandass further testified that Sara idolized her art teacher, and her
desire to attend SCAD was cemented when she began dating the art teacher’s son.
¶10. Dandass did not have a favorable opinion of Sara’s boyfriend. Dandass contended
that Sara’s boyfriend was the person who made the initial allegations against him, because
of Dandass’s dislike of him. The State objected to this statement, since the court had
previously ruled that Sara’s romantic past was improper to discuss. The court sustained the
objection. Dandass’s theory of the case was that Sara fabricated the sexual-abuse allegations
in retaliation for Dandass discouraging her attendance to SCAD and to get out of the Dandass
family home.
¶11. At trial, Wendy claimed that Sara fit in well with the family at first but did not bond
with the family over time. According to Wendy, the friction increased as Sara aged, and the
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situation worsened when Sara began dating her high-school art teacher’s son. Wendy agreed
with Dandass that much of the tension with Sara related to her desire to attend SCAD.
¶12. During the State’s case-in-chief, it introduced two photos of Sara in provocative
poses. Sara previously testified that Dandass asked her to pose provocatively in the photos,
which were taken by Sara’s friend. To rebut those claims, the defense sought to have a
forensic specialist, Greg Bott, testify that the “cookies” on the family computer—which was
used by all members of the household—were sexual in nature from pornographic websites.
The defense sought to use Bott’s testimony to argue that this search history provided an
alternative source for Sara’s sexual knowledge, and gave her the desire to take provocative
photos. The trial court found the defense’s evidence irrelevant and inadmissible, since the
defense could not prove that it was Sara who went to those pornographic websites.
¶13. The defense also sought to introduce a painting that Sara made for Dandass at trial.
The defense’s theory was that Sara would not have painted anything for Dandass if he was
sexually abusing her. The trial court also found the painting to be irrelevant, since it could
not prove or disprove the allegations of sexual abuse.
¶14. Dandass asserts five assignments of error on appeal. First, he asserts that the State
was allowed to bolster the victim’s testimony with hearsay. Second, he argues that the
State’s closing argument infringed on his right to a fair trial. Third, the trial court erred in
admitting the State’s improper rebuttal evidence, and denying Dandass’s rebuttal evidence.
Fourth, the verdict was against the overwhelming weight of the evidence. Fifth, the trial
court erred by excluding expert testimony and evidence that would support Dandass’s case-
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in-chief. Finding no error we affirm.
DISCUSSION
I. Whether the State impermissibly bolstered Sara’s testimony with
the testimony of other witnesses.
A. Whether testimony by Sara’s friend constituted
inadmissible hearsay.
¶15. Dandass asserts that the trial court committed reversible error when it allowed Sara’s
friend Hannah to testify regarding provocative photos she allegedly took at Dandass’s behest.
According to Hannah, Dandass told Sara to take pictures of herself, because he believed that
she could be a model. Sara went to Hannah’s home, and Hannah testified that she took
pictures of Sara, including nude photos. The defense objected to Hannah’s testimony on the
ground that it was hearsay. Nevertheless, the trial court overruled the objection, finding that
her testimony was admissible under Mississippi Rule of Evidence 801(d)(1)(B).
¶16. “This Court’s standard of review for the admission of evidence is abuse of discretion.”
Hobgood v. State, 926 So. 2d 847, 853 (¶16) (Miss. 2006) (citing Clark v. State, 891 So. 2d
136, 139 (¶11) (Miss. 2004)). “Therefore, unless that discretion is abused this Court should
not overturn the trial court’s ruling.” Id. Hearsay is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter” and is generally not admissible at trial. Moss v. State, 977 So. 2d 1201,
1207 (¶5) (Miss. Ct. App. 2007). One exception to the general rule barring hearsay
testimony is found in Rule 801(d)(1)(B). Id.Rule 801(d)(1)(B) permits the introduction of a prior consistent statement if
(1) the declarant has testified at the trial and been subject to cross-examination,
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(2) the testimony of the witness as to the prior statement was consistent with
the declarant’s testimony as a witness, [and] (3) the prior statement was
offered to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive.
Moss, 977 So. 2d at 1207 (¶5).
¶17. Dandass argues that since Sara was not impeached by the defense regarding whether
Dandass asked her to take the pictures, Hannah’s testimony was inadmissible hearsay, and
it should not have been admitted into evidence. Dandass also contends that the hearsay
exception does not apply since the allegations against Dandass were not a recent fabrication,
due to Sara’s dislike of the Dandass family over a course of years. We do not agree.
¶18. Sara testified at trial before Hannah’s testimony was admitted. Sara was subject to
cross-examination, and the defense’s neglect to question her regarding her statements to
Hannah does not result in Hannah’s testimony being inadmissible hearsay. Moreover,
Hannah’s testimony was consistent with Sara’s testimony, which satisfies the second prong
of the exception. Furthermore, Dandass’s case-in-chief focused on attacking Sara’s
credibility. Dandass’s defense theory sought to paint Sara as a liar who fabricated the sexual-
abuse allegations against Dandass, because he was preventing her from attending the college
of her choice and disliked Sara’s boyfriend. Dandass implied at trial that Sara’s boyfriend,
and not Sara, made the initial allegations of sexual abuse since he did not have a favorable
opinion of Sara’s boyfriend or his father, the high-school art teacher. Hannah’s testimony
rebutted the defense’s theory of fabrication and substantiated Sara’s abuse claims. The trial
court found that Hannah’s testimony was not hearsay, and we agree.
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B. Whether Sara’s recorded interview with Beverly
Moorehead constituted inadmissible hearsay.
¶19. Dandass argues that the trial court erred when it admitted Sara’s recorded interview
with forensic interviewer Beverly Moorehead into evidence. Dandass’s defense counsel filed
a pretrial motion to prohibit the State from playing Sara’s interview with Moorehead on the
grounds that the interview contained numerous hearsay statements. During the pretrial
hearing, the State argued that the statement fell under the “tender years” exception or
“medical treatment” exception. The court noted a potential hearsay issue but found the
motion to prohibit the DVD premature.
¶20. During a later motion hearing, both parties agreed that the tender-years exception did
not apply. The State noted that though the exception did not apply, it may have had other
avenues to admit the statement into evidence. During trial, the State offered the DVD of the
interview into evidence. Dandass’s counsel objected on the basis that it was cumulative. The
trial court overruled the objection and allowed the DVD into evidence. Dandass asserts that
the admission of the DVD was a reversible error, as it constituted hearsay without an
exception. We do not agree.
¶21. The State asserts that the DVD was admissible under Mississippi Rule of Evidence
803(4), which provides that a statement is not hearsay if it is made for purposes of medical
diagnosis or treatment and describes medical history, or past or present symptoms, pain, or
sensations, or their inception or general cause, and is supported by circumstances that
substantially indicate its trustworthiness. Dandass argues that Rule 803(4) does not apply,
because the State cannot satisfy the two-prong requirement for application of the rule.
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¶22. The following must be met for Rule 803(4) to apply:
First, the declarant’s motive in making the statement must be consistent with
the purposes of promoting treatment; and second, the content of the statement
must be such as is reasonably relied on by a physician in treatment. . . .
[S]tatements made by a child abuse victim that the abuser is a member of the
immediate household are reasonably pertinent to treatment, as treatment
encompasses treating emotional and psychological injuries and is relevant to
prevention.
Branch v. State, 998 So. 2d 411, 414 (¶10) (Miss. 2008) (quotation marks omitted).
¶23. Dandass asserts that the State cannot satisfy the second requirement of the two-prong
test, because Dandass was required to leave the family home after Sara made the statement
and was no longer a member of the household at the time of the interview. We do not find
this argument compelling.
¶24. Moorehead was qualified by the State as an expert forensic interviewer for child-sex-
abuse cases. Moorehead testified to her observations of Sara during the interview. She
testified that Sara’s statements were consistent with a child who had been sexually abused.
Moorehead testified as to the indicators that she looks for to determine the consistency of a
victim’s statements and explained certain clues that may have been beyond a juror’s
understanding as a layperson in relation to the video.
¶25. Dandass challenges the admission of the video solely because he was required to
move out of the home after allegations that he sexually abused his daughter. Dandass was
a member of the household when Sara made her initial complaint to the authorities.
Moreover, a mere technicality of Dandass having to move out of the family home should not
prohibit the application of this rule. “The admissibility of evidence rests within the discretion
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of the trial court, and reversal will be appropriate only when an abuse of discretion resulting
in prejudice to the accused occurs.” Caves v. State, 179 So. 3d 1175, 1180 (¶20) (Miss. Ct.
App. 2015) (quoting Palmer v. State, 939 So. 2d 792, 794-95 (¶7) (Miss. 2006)). We do not
find that admission of the DVD prejudiced Dandass. Accordingly, we find no error.
C. Whether additional hearsay statements constitute plain error.
¶26. Dandass asserts that the State elicited hearsay statements from its witnesses that were
inadmissible. Dandass maintains that though the trial counsel failed to object to the
statements, the admission of those statements constitutes plain error. Dandass argues that
the State used those impermissible hearsay statements to argue to the jury that the State’s
witnesses’ statements supported Sara’s allegations. Dandass contends that the culmination
of the witness statements amounted to improper bolstering. We do not agree.
¶27. “Under the plain-error standard of review, we consider: (1) whether there was an
error; (2) that adversely affected [the] defendant’s substantive rights, causing a manifest
miscarriage of justice.” Rodgers v. State, 166 So. 3d 537, 545 (¶15) (Miss. Ct. App. 2014)
(citing Flora v. State, 925 So. 2d 797, 811 (¶42) (Miss. 2006)). “For the plain-error doctrine
to apply, there must have been an error that resulted in a manifest miscarriage of justice or
seriously affects the fairness, integrity or public reputation of judicial proceedings.” Conners
v. State, 92 So. 3d 676, 682 (¶15) (Miss. 2012).
¶28. During closing arguments, the prosecutor reiterated statements made by all witnesses
that testified at trial. He discussed the testimony elicited from the State’s witnesses, and
highlighted the statements that corroborated Sara’s account of sexual abuse. Prosecutors are
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permitted to draw inferences and discuss testimony elicited at trial, and we do not find that
the prosecutor’s statements were made in error. Moreover, we find that the assigned error
is procedurally barred.
¶29. “[U]nobjected-to hearsay evidence, once received by the court and presented to the
jury, becomes competent evidence and may aid in supporting a verdict the same as any other
competent evidence.” Shaheed v. State, 205 So. 3d 1105, 1111 (¶16) (Miss. Ct. App. 2016)
(quoting Veal v. State, 585 So. 2d 693, 697 (Miss. 1991)). “Hearsay evidence, where
admitted without objection, may properly be considered and given its natural and logical
probative effect, as if it were in law competent evidence. Hearsay evidence admitted without
objection may be regarded as sufficient to establish a fact in controversy.” Id. (citing Burns
v. State, 438 So. 2d 1347, 1350 (Miss. 1983)).
¶30. Dandass’s trial counsel neglected to object to the witness statements and failed to
object to the reiteration of those statements during the State’s closing arguments. A careful
review of the record shows that Dandass’s trial attorney objected to numerous statements
made during the State’s closing arguments but not the statements that Dandass now assigns
as error on appeal. “It is axiomatic that a litigant is required to make a timely objection.”
Willie v. State, 204 So. 3d 1268, 1276 (¶21) (Miss. 2016) (quoting Walker v. State, 671 So.
2d 581, 597 (Miss. 1995)). The Mississippi Supreme Court has “repeatedly held that if no
contemporaneous objection is made, the error, if any, is waived.” Id. Accordingly, we find
no error.
II. Whether the prosecutor’s closing arguments improperly vouched
for the State’s witness and impermissibly impugned Dandass’s
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integrity, in violation of his right to a fair trial.
¶31. Dandass contends that his Sixth Amendment rights were violated during the
prosecutor’s closing remarks. Dandass maintains that the prosecutor improperly vouched for
State witnesses in several portions of his closing arguments. Dandass notes that his trial
counsel failed to object to the prosecutor’s statements. Nevertheless, Dandass asserts that
the prosecutor’s remarks constitute plain error and that his case should be reversed on those
grounds. After careful review, we find no error.
A. Whether the prosecutor’s closing remarks constituted
improper vouching.
¶32. Dandass argues that several remarks made by the prosecutor in his summation
improperly vouched for the credibility of testimony that supported the State’s theory of the
case. However, those remarks were taken out of the context of the prosecutor’s closing
statements. The first remark, placed in context, does not support Dandass’s assertion of plain
error. The first remark in context reads:
And Sara said her dad was having her take, and these pictures were on his
computer. So do these pictures prove what Sara said? That he forced her to
perform oral sex on him? No. They proved that there were pictures of Sara
half dressed on his computer. But [Sara] was telling the truth about the
pictures. She didn’t lie to you about these [pictures]. Hannah backs up what
Sara said about these pictures.
(Emphasis added). Taken out of context, one could argue that the prosecutor was making
personal assurances of the witness’s veracity. However, placing the allegedly improper
remark in context of the preceding statements, the prosecutor reiterated that Sara was telling
the truth regarding the provocative pictures that were found on Dandass’s computer.
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Accordingly, we find no error.
¶33. The second challenged remark placed in context provides:
[Sara] [t]old Freddie [Bardley] the same thing she’s told everybody else, “He
made me suck his penis since I was 11.” Then she talks to Kenny [Watkins],
the first statement, same thing. Truth. Same thing. Then she talks to
Moorehead. [You all] watched her. Same thing. [Sara] . . . writes Kenny
another statement. Same thing. Every single time. Are these statements
different from one another? So some contain things that the other one doesn’t?
Did [Sara] say every word to you guys on the witness stand that’s contained
in these statements? No. You know what that is? That is telling the truth. Had
she wanted to make this all up, she would [not] have had her story straight to
where she could say exactly every single time, the same thing.
(Emphasis added). The prosecutor reiterated to the jury that Sara’s recounting of the sexual
abuse by her father was consistent. Her statements to several different individuals did not
change. Though the use of the term “truth” could be viewed as attesting for the veracity of
her statements, this statement was not a reversible error. In view of the context of the
statements and Dandass’s theory of the case (that Sara lied about being sexually abused,
because she wanted to attend the college of her choice), the prosecutor drew inferences from
the evidence presented at trial.
¶34. The supreme court has stated that “[a]n impassioned argument is not in itself an
improper argument.” Goff v. State, 14 So. 3d 625, 654 (¶116) (Miss. 2009) (quoting Bell v.
State, 725 So. 2d 836, 851 (Miss. 1998)). “Furthermore, the prosecutor, as any other counsel,
is free to recall and comment on testimony offered in evidence and to draw inferences. The
prosecutor may comment upon any facts introduced into evidence. He may draw whatever
deductions seem to him proper from these facts.” Id. Accordingly, we find no error with this
statement.
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¶35. The third remark placed in context provides:
And the time that you heard from him, he wouldn’t answer a straight question
when I asked him. He was arrogant, and he lied to you. He said “I got on my
computer to do work after the police left.” What did Vickie Roberts tell us
yesterday? He deleted folders of information off of his computer and then ran
a defrag to where nobody could tell what it was that he deleted. He lied to you.
She did not.
(Emphasis added). In closing, the prosecutor reiterated that Dandass was a computer
professor who possessed knowledge on how to clear computers of incriminating information.
Sara alleged that Dandass had provocative pictures of her on his computer, which supported
the sexual-abuse allegations. Prosecutors are allowed to make reasonable inferences and
draw deductions from the facts. We find no error.
¶36. The fourth and fifth challenged statements placed in context include:
You heard from a lot of people. One way we as humans determine who to
believe is reasons people have to lie. What reason does Sara have to lie?
She’s out of their house. She has nothing to do with them anymore. . . . She
got up here in front of a roomful of strangers and talked about heinous things
that happened to her. She knew things about her father - - that his penis was
uncircumcised - - that no little girl should know. That no 20-year-old should
know. She didn’t have to do it but, it’s the truth.
(Emphasis added). Here, the prosecutor made reasonable inferences since Sara was near the
age of majority at trial and no longer had contact with the Dandass family. The prosecutor
commented upon facts derived from trial and made an impassioned argument about the
reasons that Sara could have forgone the pursuit of the case.
¶37. “The question for this Court is whether the prosecutor’s remarks denied the defendant
a fundamentally fair trial.” Byrom v. State, 863 So. 2d 836 (¶123) (Miss. 2003) (quoting
Lockett v. State, 517 So. 2d 1317, 1333 (Miss. 1987)). “The prosecutor’s remarks are viewed
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in light of the entire trial.” Id. “It is imperative that the statements be read in their
appropriate context in light of that which the prosecutor was in fact arguing to the jury at the
time.” Holland v. State, 705 So. 2d 307, 347 (Miss. 1997).
¶38. Dandass’s brief also cites five additional remarks of similar statements that he
contends were plain error. For the plain-error doctrine to apply, there must have been an
error that results in a manifest miscarriage of justice or “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Conners, 92 So. 3d at 682 (¶15)
(quoting Brown v. State, 995 So. 2d 698, 1703 (¶21) (Miss. 2008)). After placing the
prosecutor’s closing arguments in context of the closing remarks, we do not find them to
have seriously affected Dandass’s right to a fair trial. Therefore, we find no error.
B. Whether the prosecutor’s statements referring to
Dandass as a “sexual predator” who “groomed the
victim” constitute reversible error.
¶39. Dandass asserts that the use of the term “groom” coupled with the term “sexual
predator” in the prosecutor’s closing arguments was a reversible error. Dandass argues that
in using the term “groom,” the prosecutor offered his personal opinion unsupported by the
evidence. Dandass contends that in child-sexual-assault cases, expert testimony is required
to define the term “groom.” In Mississippi, very few cases have addressed groom as a term
of art for sexual purposes. Neither this Court nor the supreme court has found that a
prosecutor cannot use the term “groom” in closing arguments when addressing sexual-assault
cases. In the context of the prosecutor’s closing arguments, we find no error.
¶40. Dandass cites several cases in different jurisdictions that have held that the use of the
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term of “groom” in sexual-abuse cases is beyond the understanding of a jury of laypersons,
and requires expert testimony to define and explain its meaning. Dandass cites four
jurisdictions that have found that the term “groom” is too difficult for a jury of laypersons
to understand. However, several jurisdictions have also found expert testimony was either
inadmissible or superfluous to define “groom” to the jury.
¶41. In State v. Sena, 192 P.3d 1198, 1204 (¶20) (N.M. 2008), the New Mexico Supreme
Court found that expert testimony was not needed to explain to the jury how the defendant’s
behavior showed his sexual intent or his lack of mistake or accident. The court opined that
lay witnesses and laypersons on the jury were well equipped to understand how the
defendant’s behavior proved his sexual intent. Id.
¶42. In State v. Braham, 841 P.2d 785, 790 (Wash. Ct. App. 1992), the Washington Court
of Appeals found that it was unable to conceive of any basis for the admission of expert
testimony to explain “grooming,” since an expert opinion was not necessary to explain that
an adult in a close relationship with a child will have a greater opportunity to engage in the
alleged sexual misconduct. Id.
¶43. Other jurisdictions have found that expert testimony to discuss the term “grooming”
was inadmissible on other grounds. See State v. Vidrine, 9 So. 3d 1095, 1111 (La. Ct. App.
2009) (finding that expert testimony on grooming was inadmissible and more prejudicial than
probative); People v. Diaz, 85 A.D.3d 1047, 1051 (N.Y. App. Div. 2011) (finding that the
trial court erroneously concluded that testimony regarding “grooming” of children by sex
offenders was admissible and was more prejudicial than probative).
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¶44. The prosecutor used the term “groom” in his closing arguments to describe Sara’s
testimony, and how Dandass began his sexual encounters with her. The prosecutor inferred
that Dandass groomed Sara based on Sara’s testimony regarding the instructions Dandass
gave her to perform oral sex on him, and her description of the gradual progression of sexual
contact. In context of the argument, the use of the term “groom” is similar to “coached” or
“primed” as a descriptive term to illustrate Dandass’s sexual abuse of Sara, beginning when
she was around eleven years old and could barely speak English.
¶45. The prosecutor is entitled to argue reasonable inferences from the evidence at trial.
In the context of the witness testimony and the prosecutor’s closing arguments, we do not
find that a layperson on the jury could not understand whether Dandass’s behavior proved
sexual intent. Moreover, we do not find that expert testimony was required to aid the jury
in understanding the term “groomed” as a description of behavior that occurred over a course
of years. Accordingly, we find no error.
III. Whether the State’s rebuttal was improper.
¶46. Dandass asserts that the court committed reversible error in allowing the State to
introduce improper rebuttal evidence that was not a part of the State’s case-in-chief. “A trial
court’s decision to allow substantive evidence in rebuttal is reviewed for abuse of discretion.”
Gilmore v. State, 119 So. 3d 278, 292 (¶39) (Miss. 2013) (citing Mills v. State, 813 So. 2d
688, 691 (¶11) (Miss. 2002)).
¶47. The general rule in Mississippi is that “the party who has the burden of proof, and the
duty to open the case, must in his opening, and before he rests in his proof, introduce all the
17
substantive evidence upon which he relies to establish his demand, and the extent of that
demand.” Id. (citing Roney v. State, 167 Miss. 827, 150 So. 774, 775 (1933)). In Myers v.
State, 353 So. 2d 1364, 1369 (Miss. 1978), the supreme court stated that admission of
substantive evidence during rebuttal “does not constitute reversible error, unless it is shown
that no opportunity is afforded the defendant to reply by surrebuttal testimony.”
¶48. The rebuttal testimony that Dandass assigns error to was that of Vickie Roberts.
Dandass was apprised of the allegations of sexual abuse against him shortly after midnight
on October 28, 2012. Dandass testified that after he learned of the allegations, he could not
sleep and went into his home office to do technical work on his computer for his job.
Roberts performed a forensic examination of Dandass’s home-office computer and found
that he had deleted fifty folders from his computer on October 28, around 2:16 a.m., and
those deleted files were unretrievable.
¶49. Dandass’s counsel objected to the rebuttal testimony. The trial court ruled that the
testimony was provided to rebut Dandass’s assertion that he used his home-office computer
for technical purposes in the early morning of October 28, hours after Dandass was apprised
of Sara’s allegations. Roberts testified that Dandass not only deleted fifty folders from his
computer, but he also made those files unretrievable. She also testified that a normal user
could not bypass the “trash can.” Her testimony attacked the assertion that Dandass, a
computer-science professor, was merely using his computer for technical purposes.
¶50. Roberts also testified that on October 28, Dandass ran a “defrag” on his computer,
which had the effect of writing over any remnants of the deleted files. As a result, she could
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not retrieve the deleted files. Since Dandass testified that he used the computer on the
morning of October 28 to perform technical work and Sara alleged that he had provocative
pictures and videos of her on his computer, the State introduced Roberts’s testimony in
rebuttal to refute Dandass’s arguments. Since the rebuttal testimony was introduced to rebut
Dandass’s contention that he was merely performing technical work on his computer shortly
after he learned of the allegations against him and he was afforded the opportunity to cross-
examine Roberts, we find that the trial court did not abuse its discretion.
IV. Whether the verdict was against the overwhelming weight of the
evidence.
¶51. Dandass argues that his judgment and sentence should be reversed, because the verdict
contradicts the overwhelming weight of the evidence. Dandass contends that Sara was
neither reliable nor credible and that no reasonable jury should have believed her. We do not
agree.
¶52. “In reviewing a challenge to the sufficiency of the evidence, [this Court] determines
whether, viewing the evidence in the light most favorable to the verdict, any rational trier of
fact could have found the defendant guilty beyond a reasonable doubt.” Wales v. State, 73
So. 3d 1113, 1120-21 (¶20) (Miss. 2011) (citing Bush v. State, 895 So. 2d 836, 843 (¶16)
(Miss. 2005)). The evidence is sufficient if it “is of such quality and weight that, having in
mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded
[jurors] in the exercise of impartial judgment might reach different conclusions on every
element of the offense.” Id. (quotation marks omitted). The Court will reverse and render
“if the facts and inferences, properly considered, ‘point in favor of the defendant on any
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element of the offense with sufficient force that reasonable [jurors] could not have found
beyond a reasonable doubt that the defendant was guilty.’” Id. (quoting Edwards v. State,
469 So. 2d 68, 70 (Miss. 1985)).
¶53. When the weight of the evidence is challenged, this Court “will reverse only when the
verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Wales, 73 So. 3d at 1121 (¶23) (citing Bush, 895 So. 2d at 844
(¶18)). In light of the evidence submitted at trial, we find that the verdict was not contrary
to the weight of the evidence. Sara’s testimony was detailed, and her statements recounting
the incidences of sexual abuse were consistent. The State’s witnesses corroborated her
testimony. It is within the jury’s purview to determine the credibility of each witness, and
they found Sara’s allegations credible. Therefore, we find that the verdict was not contrary
to the weight of the evidence.
V. Whether the trial court committed reversible error in excluding a
defense witness and evidence in support Dandass’s case-in-chief.
¶54. Dandass asserts that the trial court committed reversible error by excluding testimony
from defense witness Greg Bott and excluding a painting by Sara for Dandass’s birthday
from evidence. Dandass contends that the testimony and painting were relevant under Rule
401 of the Mississippi Rules of Evidence. We do not agree.
A. Whether the trial court erred in excluding the testimony
of Greg Bott.
¶55. “Expert testimony admitted at trial must meet the requirements of Rule 702 of the
Mississippi Rules of Evidence.” Corrothers v. State, 148 So. 3d 278, 294 (¶24) (Miss. 2014).
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“Rule 702 requires expert testimony to be both relevant and reliable.” Id. (quoting Denham
v. Holmes ex rel. Holmes, 60 So. 3d 773, 784 (¶36) (Miss. 2011)). The relevance prong
requires that the evidence “assist the trier of fact to understand the evidence or to determine
a fact in issue.” Id. “Evidence not relating to an issue in the case is not relevant and not
helpful to the jury.” Id. “To be relevant, the evidence must fit the case by being sufficiently
tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. (quoting
United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)) (quotation marks omitted).
¶56. At trial, Dandass sought to introduce Bott’s testimony to establish that Sara used the
family computer and to impeach Sara’s statements that she had never seen pornography
before. Dandass’s trial counsel sought to impeach Sara’s statements to forensic interviewer
Beverly Moorehead that she had never seen pornography. Bott’s testimony was proffered
outside of the jury’s presence, and he testified that Sara’s user profile on the family computer
visited pornographic cites.
¶57. The court inquired if there was any way to determine if Sara was the actual person
who used her user profile on the family computer to access the pornographic sites. Bott
testified that the administrator could log in to the profiles that he created. The trial judge
understood Bott’s statements to mean that anyone could have logged in to Sara’s profile to
visit a pornographic site. The court found Bott’s testimony could not establish who really
accessed the pornographic sites under Sara’s profile since all family members, including
Dandass, had access to it. As a result, the trial judge found the expert testimony irrelevant
and not legitimate rebuttal evidence.
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¶58. At the conclusion of the proffer, the court found that “there would have to be some
proof of the fact that Sara did in fact access or had some information about sexually explicit
actions.” The court further concluded that it would not be proper to admit Bott’s testimony,
and we agree. Bott’s testimony could not reliably establish that Sara accessed her user
profile on the family computer to visit pornographic websites, when Bott admitted that there
was no reliable way of determining if it was Sara or someone else.
¶59. This Court reviews the trial court’s admissibility determination for abuse of discretion.
Anderson v. State, 62 So. 3d 927, 936 (¶23) (Miss. 2011). “A trial judge’s determination as
to whether a witness is qualified to testify as an expert is given the widest possible discretion
and that decision will only be disturbed when there has been a clear abuse of discretion.”
Denham, 60 So. 3d at 783 (¶34). We find that the trial judge did not abuse his discretion in
excluding Bott’s testimony.
B. Whether the exclusion of the painting was in error.
¶60. Dandass argues that the admission of the painting substantiated his case-in-chief,
because the painting would have allowed the jury to decide if Sara’s gift to Dandass might
be inconsistent with someone who was sexually abused. The standard of review for the
admission or exclusion of evidence is abuse of discretion. The trial court’s decision will
stand unless the reviewing court concludes that the decision was arbitrary and clearly
erroneous, amounting to an abuse of discretion. Williams v. State, 54 So. 3d 212, 213-214
(¶5) (Miss. 2011).
¶61. The painting did not establish whether Sara’s allegations of sexual abuse were
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credible or not. “Reversal is required only if the defendant can show that he was prejudiced
or harmed by the exclusion of the evidence.” Overton v. State, 195 So. 3d 715, 719 (¶19)
(Miss. 2016) (citation and quotation marks omitted). Finding no prejudice or harm by the
exclusion of the painting, we find this issue without merit.
CONCLUSION
¶62. Finding no error, we affirm Dandass’s conviction and sentence.
¶63. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE
YEARS, WITH TWENTY YEARS TO SERVE AND FIVE YEARS SUSPENDED,
FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION, AND TO PAY
A $3,000 FINE AND REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. GRIFFIS, P.J., AND BARNES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS
IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
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