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Nelson v. State

Court of Appeals of Mississippi

April 4, 2017

DWIGHT NELSON A/K/A PETER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/01/2015

         SIMPSON COUNTY CIRCUIT COURT HON. EDDIE H. BOWEN TRIAL JUDGE

          ATTORNEY FOR APPELLANT: WARREN LOUIS MARTIN JR.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH JASON L. DAVIS

          DISTRICT ATTORNEY: DANIEL CHRISTOPHER JONES

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

          WESTBROOKS, J.

         ¶1. Dwight Nelson was convicted in the Circuit Court of Simpson County of sexual battery and touching a child for lustful purposes. Nelson was sentenced to serve life in prison for sexual battery and ten years for gratification of lust. His sentences were ordered to run consecutively. After the denial of his post-trial motion, Nelson timely filed his notice of appeal. On appeal, he raises several issues. Finding no error, we affirm the circuit court's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On April 7, 2014, J.S.[1] informed her mother, Courtney Sumrell, that she had been raped by her "Uncle Peter." At the time, J.S. was ten years old. Nelson is sometimes called "Peter" by his family. Nelson is Sumrell's uncle, who had been staying with Sumrell's aunt, Hazel Nelson, during the time of the abuse. J.S. and Sumrell lived with Teresa Arrington, Sumrell's mother. Arrington lived next door during the time of the abuse. Sumrell took J.S. to the police station the same night J.S. reported the abuse. The police informed Sumrell to take her daughter to Simpson General Hospital for further examination. No scars, tearing, or torn hymen was found during J.S.'s examination. Upon further investigation, Nelson was arrested and charged with sexual battery and touching a child for lustful purposes.

         ¶3. At trial, J.S. testified Nelson started sexually abusing her when she was six or seven years old, until she was ten years old. During her forensic interview, J.S. described the sexual acts performed on her by Nelson. She described how his affection turned from tickling to something more. J.S. gave details about Nelson rubbing his "private" on her "private." J.S. stated Nelson would put "grease" on his penis before penetrating her. J.S. stated the last time the sexual abuse occurred was a little before Thanksgiving break, in 2013, although the record shows the abuse could have also occurred between the Thanksgiving and Christmas breaks in 2013 at her grandmother's house. During their last encounter, J.S. said Nelson put a piece of wood behind his door so that no one could enter his room. She stated Nelson pulled her pants down and lay on top of her. She said it hurt her stomach, because he put his weight on her. J.S. stated Nelson's "private" went inside her "private, " and something "wet and clear-white" came out of Nelson's "private." Additionally, she stated when he finished, Nelson took a rag and wiped himself.

         ¶4. Following trial, Nelson was convicted in the Circuit Court of Simpson County of sexual battery and touching a child for lustful purposes. Nelson was sentenced to serve life in prison for sexual battery and ten years for gratification of lust, with the sentences to run consecutively and without eligibility for parole, probation, or early release. After the denial of his post-trial motions, Nelson timely filed his notice of appeal.[2]

         DISCUSSION

         I. Ineffective Assistance of Counsel

         ¶5. "To prove ineffective assistance of counsel, [one] must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense." Jackson v. State, 73 So.3d 1176, 1181 (¶19) (Miss. Ct. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "We only consider an ineffective-assistance-of-counsel claim on direct appeal when: '(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.'" Webb v. State, 113 So.3d 592, 602 (¶41) (Miss. Ct. App. 2012) (citation omitted). However, "[i]f this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings." Collins v. State, 70 So.3d 1144, 1148 (¶17) (Miss. Ct. App. 2011) (citation and quotation marks omitted). "Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record." Id.

         ¶6. In Webb, this court did not address the merits of Webb's claims-particularly Webb's claim that "his counsel did not adequately object to the hearsay witnesses." Webb, 113 So.3d at 602 (¶41). While Webb stipulated the record was adequate, the State did not. Id. "With no stipulation by both parties and no apparent 'ineffectiveness of constitutional dimensions' in the trial record, " the court did "not address the merits of Webb's claims." Id.

         ¶7. In this case, with no stipulation by the parties, we address the adequacy of the record. Nelson contends his trial counsel was ineffective, because counsel did not make any contemporaneous objections at trial. However, Nelson's counsel presented four witnesses and provided the jury with a possible defense. Also, Nelson contends that his trial counsel failed to conduct a proper investigation into his case. Nelson's counsel did not present any testimony from a treating physician to aid in Nelson's assertion that he was incapacitated due to back surgery. Counsel did not submit medical records. And counsel mentioned Nelson was a truck driver, but did not submit any date to provide Nelson with a possible alibi during the time J.S. said the abuse occurred. "Counsel's choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make ...


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