OF JUDGMENT: 05/01/2015
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
LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
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.
AND PROCEDURAL HISTORY
On April 7, 2014, J.S. 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.
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.
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.
Ineffective Assistance of Counsel
"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.
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."
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