Dandass v. State

          DATE OF JUDGMENT: 08/07/2015

         OKTIBBEHA COUNTY CIRCUIT COURT, HON. LEE SORRELS COLEMAN.

          ATTORNEY FOR APPELLANT: MERRIDA COXWELL.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER.

          DISTRICT ATTORNEY: FORREST ALLGOOD.

          BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶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 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 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 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 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- 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, (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 ...