Marion O' Bryan Strickland v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-01697-COA
MARION O’BRYAN STRICKLAND A/K/A APPELLANT
MARION STRICKLAND A/K/A BRYAN
STRICKLAND A/K/A BRIAN STRICKLAND
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/03/2014
TRIAL JUDGE: HON. SMITH MURPHEY
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN
NICOLE H. MCLAUGHLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOHN CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF ENTICING A CHILD TO
PRODUCE A VISUAL DEPICTION OF
SEXUALLY EXPLICIT CONDUCT AND
SENTENCED TO FORTY YEARS, WITH
TWENTY YEARS TO SERVE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND
TWENTY YEARS OF POST-RELEASE
SUPERVISION
DISPOSITION: AFFIRMED: 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Marion O’Bryan Strickland was convicted of one count of enticing a child to produce
a visual depiction of sexually explicit conduct in violation of Mississippi Code Annotated
section 97-5-33(7) (Rev. 2015). The Panola County Circuit Court sentenced Strickland to
forty years in prison, with twenty years to serve and twenty years of post-release supervision
(PRS). Strickland appeals his conviction. This Court finds no error and affirms.
FACTS AND PROCEDURAL HISTORY
¶2. Strickland worked as a high-school teacher in the South Panola County School
District, where he met K.W.,1 a student at South Panola High School. Strickland offered to
connect K.W. with a girl from Oxford, named “Jordan Smith,” and then posed as Jordan in
order to send text messages to K.W. Strickland used an application known as Pinger to
disguise his phone number as another number and took pictures from Facebook in order to
pose as Jordan.
¶3. Strickland sent messages to K.W. that quickly became sexual in nature. First,
Strickland asked K.W. to send photos of himself in exchange for photographs of “Jordan.”
K.W. then sent a picture of his clothed buttocks. Strickland next asked for a picture of
K.W.’s nude genitals, which K.W. sent in exchange for a picture of a female’s genitals.
K.W. stopped sending messages after he sent the photograph of his genitalia.
¶4. At trial, two other high-school boys, H.D. and M.J., testified that Strickland also
attempted to set them up with a girl named Jordan. Strickland allegedly met with H.D. and
offered to introduce him to a community-college recruiter. Strickland then posed as a
recruiter named “Jordan” and sent text messages that turned sexually explicit. Strickland
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This Court declines to name minors in cases involving sexual misconduct.
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requested H.D. to send photographs of himself, but H.D. declined.
¶5. With M.J., Strickland posed as “Jordan,” a freshman at Ole Miss. Strickland and M.J.
also exchanged text messages with each other. Strickland sent two pictures of Jordan and
asked for M.J. to send pictures of himself, but M.J. ended the contact without sending any
photographs.
¶6. A South Panola grand jury indicted Strickland on three counts of enticing a child to
produce a visual depiction of the child engaging in sexually explicit conduct for the
exchanges with K.W., H.D., and M.J. The State, however, only proceeded on Count I, based
on his conduct with K.W. After a three-day trial, held from October 13 to October 15, 2014,
the jury returned a guilty verdict. The trial court denied Strickland’s post-trial motions,
which Strickland now appeals.
ANALYSIS
¶7. Strickland argues on appeal that: (1) the trial court erred in admitting evidence of
Strickland’s interactions with H.D. and M.J. in violation of Mississippi Rule of Evidence
404(b); (2) the trial court erroneously admitted testimony about missing text messages in
contradiction to Mississippi Rule of Evidence 1002, called the “best-evidence rule”; (3) he
received ineffective assistance of counsel; (4) the trial court erred in denying his request to
discharge his counsel and receive new appointed counsel; and (5) the trial court erred in
denying his post-trial motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. This Court will address the merits of each issue.
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I. The trial court did not erroneously admit evidence of Strickland’s
interactions with H.D. and M.J. under Rule 404(b).
¶8. Strickland primarily contends that Rule 404(b) prohibited evidence of his conduct
with H.D. and M.J. and that the evidence did not meet one of the exceptions in Rule 404(b).
Alternatively, Strickland argues that even if the evidence met an exception to Rule 404(b)’s
general prohibition, it was not properly admitted under Mississippi Rule of Evidence 403,
which caused undue prejudice. Strickland further contends that the admission of this
evidence compromised his right to not testify.
¶9. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility
of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused,
the Court will not reverse this ruling.” Gore v. State, 37 So. 3d 1178, 1183 (¶13) (Miss.
2010) (quoting Price v. State, 898 So. 2d 641, 653 (¶29) (Miss. 2005)). Therefore, this Court
must determine if the trial court abused its discretion by allowing M.J. and H.D. to testify.
¶10. Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
“As there exists an inherent danger of prejudicial effect in the use of other acts evidence, the
404(b) exception for which the crime is introduced must be a material issue in the case.
Moreover, its probative value must not be substantially outweighed by the prejudicial effect.”
Leedom v. State, 796 So. 2d 1010, 1015 (¶15) (Miss. 2001); M.R.E. 403.
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¶11. Before trial, the trial court conducted a hearing to determine the admissibility of the
evidence of Strickland’s conduct with the other boys.
“Evidence of a sexual offense, other than the one charged, which involves a
victim other than the victim of the charged offense for which the accused is on
trial,” may be considered by the jury “if properly admitted under Rule 404(b),
filtered through Rule 403, and accompanied by an appropriately-drafted
limiting or cautionary instruction[.]”
Green v. State, 89 So. 3d 543, 549 (¶15) (Miss. 2012) (quoting Derouen v. State, 994 So. 2d
748, 756 (¶20) (Miss. 2008)).
¶12. In Green, the trial court admitted testimony from four different victims in a sexual-
battery and lustful-touching case because of the “overwhelming similarities to prove motive,
opportunity, intent[,] and the other factors under Rule 404(b).” Id. at 547 (¶9). The
Mississippi Supreme Court determined that the testimony of the victims illustrated that
“Green engaged in the sexual abuse of female family members in a similar manner (the same
or similar acts, in the same or similar locations), when they were near the age of puberty, i.e.,
vulnerable, ‘young and developing . . . juveniles.’” Id. at 549 (¶17). The supreme court
found the trial court did not abuse its discretion by admitting the testimony under Rule
404(b). Id. at 551 (¶17). Further, the supreme court ruled the evidence properly passed
through Rule 403 and ultimately concluded the trial court did not err. Id. at 552 (¶22).
¶13. The Gore court reached a similar result in affirming the trial court’s decision to permit
testimony from the defendant’s daughter about prior sexual acts when the defendant was on
trial for sexual acts he performed on his grandchild. Gore, 37 So. 3d at 1187 (¶¶20-21). The
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supreme court reasoned that the trial court did not abuse its discretion in finding the evidence
met the exceptions of Rule 404(b) and passed through Rule 403, and the trial court properly
issued a limiting instruction. Id. at (¶21).
¶14. Strickland argues, however, that Green, Derouen, and Gore involve molestation, rape,
and other physical, sexual acts that differ from the crime charged against him. This
argument, however, is disingenuous because the purpose of the rule applies equally
regardless of the severity of the act as long as the evidence properly meets one of the
exceptions to Rule 404(b). Therefore, this Court can properly apply these cases to
Strickland.
¶15. Here, the State intended to proffer the testimony of H.D. and M.J. to show
Strickland’s plan, knowledge, preparation, motive, and absence of mistake. The trial court
conducted a hearing on the admissibility of the evidence and considered the testimony of Tim
Douglas, an agent with the Mississippi Bureau of Investigation (MBI). Agent Douglas
testified about his interrogation with Strickland where he admitted his involvement in texting
K.W., H.D., and M.J. Agent Douglas also detailed the similarities of Strickland’s actions
with each boy. Strickland used Pinger to change his phone number, disguised himself as
Jordan, sent sexually explicit text messages, sent inappropriate pictures, and targeted high-
school-aged boys. Further, M.J. and H.D. testified that they separately sent text messages
to Strickland, they both received pictures, and then both were asked to send sexually explicit
pictures of themselves.
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¶16. Relying on Cole v. State, 126 So. 3d 880, 886 (¶27) (Miss. 2013), the trial court noted
that “prosecutors should clearly present the alternative purpose for the evidence, and trial
judges should state the purpose for which the evidence is being admitted, and then provide
the jury an appropriate limiting instruction.” As such, the trial court determined the State
presented sufficient reasoning that the evidence qualified under the exceptions to Rule
404(b).
¶17. Precedent also requires the trial court to scrutinize the evidence under Rule 403 before
admitting it. Rule 403 states: “[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury[.]” The trial court found the evidence was “not more prejudicial than
probative and it is not going to confuse the issues or mislead the jury.” As such, the trial
court conducted a proper analysis under Rule 403.
¶18. Even if the evidence meets an exception in Rule 404(b) and passes the balancing test
in Rule 403, Derouen and its progeny require the trial court to issue cautionary and limiting
instructions restricting the jury’s consideration of the evidence. Derouen, 994 So. 2d at 756(¶20). Here, the trial court issued instructions after the testimony of M.J. and H.D., as well
as a jury instruction. The limiting jury instruction stated in part:
You have heard evidence about the defendant’s acts with other individuals,
[M.J.] and [H.D.,] about which the defendant is not on trial before you. You
are not to consider these acts as evidence that the defendant committed the
crime for which he is now charged against [K.W.] You may consider the other
acts with [M.J.] and [H.D.] for the limited purpose of establishing proof of
motive, opportunity, identity, plan, preparation, or knowledge. You cannot
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and must not simply infer that the defendant acted in conformity with his
previous acts and that he is therefore guilty of the charge for which he is
presently on trial[.]
This instruction meets the standards set forth in Derouen and substantially tracks the
instruction language presented in Gore. Derouen, 994 So. 2d at 756 (¶20); Gore, 37 So. 3d
at 1184 (¶14). Therefore, the trial court properly admitted the evidence.
¶19. Strickland also contends that the admission of the evidence compromised his right to
not testify. He argues that the admission of this prejudicial evidence forced him to testify on
his own behalf in order to refute the allegations. To support his proposition, Strickland relies
on the supreme court’s decision in Robinson v. State, 35 So. 3d 501, 507 (¶17) (Miss. 2010).
In Robinson, the supreme court found that the admission of improper character evidence
jeopardized Robinson’s constitutional right to remain silent. Id. But, unlike here, the
Robinson court found the trial court erred in admitting the character evidence. Id. Therefore,
because the character evidence was properly admitted, Robinson does not apply.
¶20. For these reasons, this Court finds the trial court did not abuse its discretion in
admitting the evidence of the incidents involving M.J. and H.D. under Rule 404(b). This
issue is meritless.
II. The admission of testimony about the text messages and photographs
did not violate the “best-evidence rule.”
¶21. Secondly, Strickland argues the trial court erred in allowing testimony about the
missing text messages and photographs instead of physical copies. Though the State put on
evidence of the reasons for not proffering the actual text messages, Strickland contends the
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State failed to meet its burden under Rule 1002. The State counters that Strickland failed to
raise this objection at trial, and, even so, the testimony did not violate the best-evidence rule.
¶22. This Court first addresses the State’s procedural argument. “The supreme court has
stated that ‘counsel must make specific objections in order to preserve a question for
appellate review. This Court has said many times that general objections will not suffice.
Objections to the admissibility of evidence must specifically state the grounds; otherwise, the
objection is waived.’” Hoye v. State, 1 So. 3d 946, 948 (¶6) (Miss. Ct. App. 2009) (quoting
Seeling v. State, 844 So. 2d 439, 445 (¶17) (Miss. 2003)). The record indicates that
Strickland failed to object to this evidence under the best-evidence rule. Strickland also
admits this failure in his appellant’s brief. Therefore, this issue is procedurally barred.
¶23. Strickland, however, urges this Court to consider this issue under the plain-error
doctrine. “Under the plain-error doctrine, we can recognize obvious error which was not
properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental,
substantive right.’” Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008) (citation omitted).
“For the plain-error doctrine to apply, there must have been an error that resulted in a
manifest miscarriage of justice or ‘seriously affect[s] the fairness, integrity[,] or public
reputation of judicial proceedings.’” Conners v. State, 92 So. 3d 676, 682 (¶15) (Miss. 2012)
(quoting Brown v. State, 995 So. 2d 698, 703 (¶21) (Miss. 2008)). Therefore, this Court will
examine the merits of this issue under the plain-error doctrine.
¶24. Strickland asserts the trial court erred when it admitted testimony about the text
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messages and photographs, specifically the photograph of K.W.’s penis, in lieu of the actual
text messages and photographs. The best-evidence rule is found in Mississippi Rule of
Evidence 1002. Rule 1002 states: “To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise
provided by law.” However, Rule 1004 lists several exceptions to the best-evidence rule.
Rule 1004 states in part:
The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if:
(1) Originals Lost or Destroyed. All originals are lost or have been destroyed,
unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available
judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was under
the control of the party against whom offered, he was put on notice, by the
pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and he does not produce the original at the hearing[.]
M.R.E. 1004(1)-(3).
¶25. Agent Douglas, K.W., and Strickland all testified to the existence of the photograph
of K.W.’s penis. While Strickland disputed the contents of the photograph, he did not deny
that he received a photograph from K.W. Strickland only argues the best-evidence rule
required the admission of the actual text messages and photograph rather than testimony
about them. However, “[t]he best[-]evidence rule only expresses a preference for original
documents, but does not preclude the admission of secondary evidence.” Watson v. State,
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465 So. 2d 1091, 1092 (Miss. 1985) (finding photocopy admissible in place of original
letter).
¶26. The State put on evidence that the contents on K.W.’s phone were erased and could
not be recovered. K.W. testified that his phone locked up and Strickland offered to unlock
the phone, but warned him that the process would erase the contents of his phone. K.W.
agreed to let Strickland fix the phone, which resulted in the deletion of the entire contents of
the phone. Agent Douglas also testified that Strickland confirmed that he deleted the
contents of K.W.’s phone.
¶27. Agent Douglas also testified that he attempted to access Strickland’s phone. Agent
Douglas stated that he asked Strickland for the code to his password-protected phone,
Strickland gave him several different codes, and none of the codes unlocked the phone.
Agent Douglas further testified that the forensic technician could not retrieve the data from
K.W.’s phone or unlock Strickland’s phone. Strickland argues the State should have called
the technician to testify to the retrieval process in order to provide expert testimony as to the
destruction of the evidence. However, Agent Douglas provided sufficient testimony on the
matter to show that neither the photographs nor the text messages were accessible.
¶28. Therefore, the State put on sufficient evidence to show the loss or destruction of the
messages and photograph to allow for secondary evidence in the form of testimony. For
these reasons, this Court finds no error in the trial court’s admission of testimony about the
text messages and photographs in lieu of the actual messages and photographs. Further,
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because this Court finds no error, the plain-error doctrine does not apply. This issue is
without merit.
III. Strickland’s counsel did not perform in a constitutionally deficient
manner.
¶29. Strickland’s third assignment of error asserts that Strickland received ineffective
assistance of counsel when his trial counsel, Randolph Walker, failed to object to the
admission of the testimony regarding the missing text messages.
¶30. “When considering a claim of ineffective assistance of counsel, this Court must find
that trial counsel’s performance was deficient and that there would have been a different
result in the verdict if it were not for trial counsel’s deficiency.” Payton v. State, 41 So. 3d
713, 719 (¶23) (Miss. Ct. App. 2009). “The defense counsel is presumed to have acted
competently and the effectiveness of his or her efforts are determined on the basis of the
totality of the circumstances.” Kirksey v. State, 728 So. 2d 565, 567 (¶10) (Miss. 1999)
(citation omitted).
¶31. Additionally, “[this] Court rarely determines issues of ineffective assistance of counsel
on direct appeal unless: ‘(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 court.’” Payton,
41 So. 3d at 719 (¶23) (quoting Graves v. State, 914 So. 2d 788, 798 (¶35) (Miss. Ct. App.
2005)).
¶32. Strickland maintains that Walker rendered ineffective assistance when he failed to
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object to the testimony about the missing text messages and photographs under the best-
evidence rule. As previously discussed, the trial court properly admitted the testimony about
the text messages and photographs. Further, “‘counsel’s choice[s] of whether or not to file
certain motions, call witnesses, ask certain questions, or make certain objections fall within
the ambit of trial strategy’ and will not stand as support for an ineffective assistance of
counsel claim.” Jackson v. State, 73 So. 3d 1176, 1181-82 (¶22) (Miss. Ct. App. 2011)
(citations omitted). As such, Strickland failed to prove Walker acted in a constitutionally
deficient manner due to his failure to object.
¶33. Also, this Court finds the record does not affirmatively show any indication of
ineffective assistance of counsel. “The Mississippi Supreme Court has stated that, where 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.” Wilcher v. State, 863 So. 2d 719, 761
(¶162) (Miss. 2003) (quoting Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App.
2002)). The parties here did not stipulate to the adequacy of the record for this Court to find
ineffective assistance. Therefore, this Court declines to find ineffective assistance of counsel
at this juncture, but preserves this issue for post-conviction-relief proceedings. This issue
is without merit.
IV. The trial court properly denied defense counsel’s motion to withdraw
and Strickland’s request for appointed counsel.
¶34. Next, Strickland argues the trial court committed error by refusing Walker’s motion
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to withdraw due to “philosophical and tactical differences.” Strickland also assigns error in
the trial court’s denial of his request for appointed counsel. These actions, according to
Strickland, deprived him of his constitutional right to his choice of counsel.
¶35. “The trial court has complete discretion when considering a motion to withdraw as
counsel.” Hill v. State, 134 So. 3d 721, 725 (¶15) (Miss. 2014) (citation omitted). Walker
filed his motion to withdraw on August 25, 2014, fifty-three days before trial. The trial court
then held a hearing on the motion on September 24, 2014, only eighteen days before trial.
At the hearing, the trial court determined that counsel had been on the case since October 14,
2013, represented Strickland in two prior proceedings, and competently represented
Strickland in the criminal proceeding. The trial court also noted the case had been continued
four separate times. Based on these reasons, the trial court denied Walker’s motion to
withdraw. This decision fell within the discretion of the trial court, and the trial court did not
commit error by denying counsel’s motion.
¶36. Strickland also contends the trial court’s actions deprived him of his choice of
counsel. “An accused is granted the right to retain counsel of his choice or he may choose
to have counsel appointed for him.” Id. Though “the right to counsel is absolute, the right
to counsel of choice is not absolute.” Harris v. State, 999 So. 2d 436, 438 (¶15) (Miss. Ct.
App. 2009) (citing Atterberry v. State, 667 So. 2d 622, 630 (Miss. 1995)).
¶37. At the hearing on the motion to withdraw, Strickland requested the appointment of
new counsel after the trial court denied Walker’s motion to withdraw. Strickland cited the
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same reasoning as Walker in that the two disagreed over tactical approaches. However,
Strickland did not argue other reasons for needing new counsel. “[I]n order to warrant a
substitution of counsel during trial, the defendant must show good cause, such as a conflict
of interest[,] a complete breakdown of communication[,] or an irreconcilable conflict which
leads to an apparently unjust verdict.” Taylor v. State, 435 So. 2d 701, 703 (Miss. 1983).
Though the request for new counsel occurred prior to trial, Strickland failed to assert any
reason that Walker could not competently represent him or that Walker’s continued
representation would lead to an unfair trial.
¶38. Further, the record indicates the trial court allowed Strickland to retain new counsel
by the start of the trial if he desired. At trial, Strickland appeared with Walker and did not
retain a new attorney. The record indicates that the trial court informed Strickland of his
right to participate in his defense and his right to proceed with either Walker as his attorney
or on his own as a pro se litigant. The trial court asked Strickland if he approved of Walker’s
continued representation, and Strickland replied in the affirmative.
¶39. Further, the trial court allowed Strickland to confer with Walker after he questioned
each witness and to speak to the jury as part of his defense. “While every accused has the
constitutional right to be represented by an attorney, it must be balanced against the right of
an accused to represent himself, that is, to present his own case pro se without an attorney.”
Metcalf v. State, 629 So. 2d 558, 562 (Miss. 1993). This balancing of representation can lead
to what is known as “hybrid representation,” and “a trial court may certainly permit hybrid
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representation in its discretion.” Id. at 563. The Metcalf court further noted that in hybrid
representation “the primary focus must be on whether the defendant had a fair chance to
present his case in his own way.” Id. (quoting McKaskle v. Wiggins, 465 U.S. 168, 177
(1984)).
¶40. Strickland fully participated in his representation and enjoyed competent
representation at trial. For these reasons, the trial court did not abuse its discretion in
denying Walker’s motion to withdraw, denying Strickland’s request for appointed counsel,
or allowing hybrid representation. This issue is without merit.
V. The trial court did not err in denying Strickland’s post-trial motions.
¶41. Lastly, Strickland argues that the trial court erred in denying his motion for a JNOV
or, in the alternative, a new trial. Strickland contends the evidence was insufficient to
support a finding that he committed the crime. Further, he asserts that the jury verdict was
against the overwhelming weight of the evidence.
A. Sufficiency of the Evidence
¶42. A motion for a JNOV challenges the legal sufficiency of the evidence. Reed v. State,
956 So. 2d 1110, 1111 (¶6) (Miss. Ct. App. 2007). To determine the sufficiency of the
evidence, the central issue is “whether the evidence shows ‘beyond a reasonable doubt that
[the] accused committed the act charged, and that he did so under such circumstances that
every element of the offense existed; and where the evidence fails to meet this test it is
insufficient to support a conviction.’” Conner v. State, 138 So. 3d 158, 162 (¶8) (Miss. Ct.
16
App. 2013) (quoting Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)).
¶43. “When reviewing the sufficiency of the evidence, this Court must ask 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.” Miles v.
State, 956 So. 2d 349, 350 (¶6) (Miss. Ct. App. 2007) (citation omitted). Further, “when this
[C]ourt reviews the sufficiency of the evidence, we consider all evidence in the light most
favorable to the State.” Moore v. State, 160 So. 3d 728, 735 (¶31) (Miss. Ct. App. 2015)
(citation omitted). Therefore, this Court must determine whether the State proved, beyond
a reasonable doubt, that Strickland committed the crime charged.
¶44. Mississippi Code Annotated section 97-5-33(7) (Rev. 2014) states: “No person shall
by any means, including computer, knowingly entice, induce, persuade, seduce, solicit,
advise, coerce[,] or order a child to produce any visual depiction of adult sexual conduct or
any sexually explicit conduct.” Strickland argues that the photograph did not depict sexually
explicit conduct and the State’s failure to produce the photograph prevented the jury from
finding he violated the statute.
¶45. Strickland first disputes that the picture contained sexually explicit conduct.
“Sexually explicit conduct” means actual or simulated: (i) Oral genital contact,
oral anal contact, or sexual intercourse as defined in Section 97-3-65, whether
between persons of the same or opposite sex; (ii) Bestiality; (iii) Masturbation;
(iv) Sadistic or masochistic abuse; (v) Lascivious exhibition of the genitals or
pubic area of any person; or (vi) Fondling or other erotic touching of the
genitals, pubic area, buttocks, anus[,] or breast.
Miss. Code Ann. § 97-5-31(b) (Rev. 2014). Strickland contends only subsection (v) could
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apply to the picture of K.W.’s erect penis. However, he denies that the picture constituted
a lascivious exhibition.
¶46. The supreme court adopted the factors outlined in United States v. Dost, 636 F. Supp.
828, 832 (S.D. Cal. 1986), to determine whether a visual depiction of a child constitutes a
lascivious exhibition. Hood v. State, 17 So. 3d 548, 555 (¶17) (Miss. 2009) (citation
omitted). These factors are:
1. whether the focal point of the visual depiction is on the child’s genitalia or
pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e.[,] in
a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire,
considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity; [or]
6. whether the visual depiction is intended or designed to elicit a sexual
response in the viewer.
Id.
¶47. Hood is instructive. In Hood, the defendant alleged that a video depicting nude male
children was not sexually explicit conduct. Id. at 555-56 (¶18). The supreme court applied
the Dost factors and found the video, which included multiple images that depicted only the
nude genitalia of the young boys, was lascivious in nature and established sexually explicit
conduct. Id. Thus, the supreme court affirmed the jury’s verdict convicting Hood under
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section 97-5-33(5).
¶48. Here, testimony established that the photograph of K.W. depicted only an erect penis.
Looking to the Dost factors, the photograph focused on K.W.’s genitalia, was sexually
suggestive, was fully nude, and likely was intended to elicit a sexual response from the
viewer. Based on the Dost factors and the Hood decision, this Court finds the photograph
did constitute sexually explicit conduct to support Strickland’s conviction.
¶49. Strickland, however, asserts that the lack of an actual photograph meant the jury could
not find that any sexually explicit conduct occurred. As previously stated, this Court
concludes that the testimony sufficiently established the existence and content of the
photograph. Therefore, Strickland’s contention fails.
¶50. Looking at the sufficiency of the evidence, K.W., H.D., and M.J. testified to
substantially similar encounters with Strickland. The boys all testified that they received text
messages from a girl named Jordan after Strickland told them she would contact them. Each
boy also testified that the text messages became sexually explicit, that Jordan sent pictures
of herself, and that Jordan asked for sexually explicit pictures in return. K.W. further
testified to his conversations with Strickland, described the photograph he sent Strickland,
and stated that Strickland erased the contents from his phone.
¶51. Moreover, Strickland told Agent Douglas he did elicit and receive the photograph
from K.W., though he stated his reason for getting the photograph was to counsel K.W.
Agent Douglas also testified that Strickland admitted the Pinger account belonged to him and
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when he called the Pinger number that K.W., M.J., and H.D. received messages from,
Strickland’s phone rang.
¶52. Though he disputed that he first contacted K.W., Strickland admitted to messaging
K.W. Further, Strickland confirmed that he requested and received a picture of a penis,
though he maintained that he neither enticed K.W. to send the picture nor could he confirm
whom the photograph depicted. Strickland also denied that he attempted to elicit nude
photographs from the boys for sexual purposes.
¶53. Based on this evidence, Strickland solicited a sexually explicit photograph from K.W.,
which meets all of the element of the crime. Considering the evidence in the light most
favorable to the State, this Court finds the evidence was sufficient to support Strickland’s
conviction.
B. Weight of the Evidence
¶54. Additionally, Strickland challenges the trial court’s denial of his motion for a new
trial. “A motion for a new trial challenges the weight of the evidence.” Shinn v. State, 179
So. 3d 1006, 1008 (¶7) (Miss. 2015).
When reviewing a denial of a motion for a new trial based on an objection to
the weight of the evidence, we will 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). This Court should grant a new trial “only in exceptional cases
in which the evidence preponderates heavily against the verdict.” Id. In considering the
case, “the evidence should be weighed in the light most favorable to the verdict.” Id.
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¶55. Strickland argues the weight of the evidence does not support the jury verdict because
the absence of the photographs and text messages rendered the verdict unconscionable.
Strickland, however, fails to address the multiple witnesses who testified at trial. The
evidence showed Strickland posed as a young female, used a fake phone number, sent
sexually explicit text messages and photographs to K.W., and received a photograph of
K.W.’s erect penis. Strickland admitted to these facts in his statement to Agent Douglas,
who testified to the contents of the statement, and he also failed to refute this evidence at
trial.
¶56. “The jury is charged with the responsibility of weighing and considering conflicting
evidence, evaluating the credibility of witnesses, and determining whose testimony should
be believed.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct. App. 1999) (internal
citations omitted). The jury weighed the evidence and the credibility of the witnesses.
Therefore, the weight of the evidence supported the jury’s verdict. As such, the trial court
did not abuse its discretion in denying Strickland’s motion for a new trial. This issue is
meritless.
¶57. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT OF
CONVICTION OF ENTICING A CHILD TO PRODUCE A VISUAL DEPICTION OF
SEXUALLY EXPLICIT CONDUCT AND SENTENCE OF FORTY YEARS, WITH
TWENTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND TWENTY YEARS OF POST-RELEASE
SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON, AND GREENLEE, JJ., CONCUR.
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