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Powell v. State

Court of Appeals of Mississippi

August 29, 2017

KEVIN DARNELL POWELL A/K/A KEVIN POWELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/10/2015

         WARREN COUNTY CIRCUIT COURT HON. ISADORE W. PATRICK JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          DISTRICT ATTORNEY: RICHARD EARL SMITH JR.

          BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.

          ISHEE, J.

         ¶1. On May 6, 2014, a Warren County grand jury indicted Kevin Powell for one count of sexual battery of a child under the age of fourteen in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). After a jury trial, Powell was found guilty. Powell was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, eight years suspended, and five years of postrelease supervision. Additionally, Powell was ordered to pay fines, restitution, and other fees totaling $6, 784.50.

         ¶2. Following trial, Powell moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; the trial court denied his motions. Powell now appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶3. In August 2013, after spending a night at Powell's house, Z.H.[1] told her grandmother, Louise Trueheart, that Powell had been bothering her. While staying at Powell's-who is Z.H.'s uncle-Z.H. fell asleep lying on the floor with her cousins. Powell picked up Z.H. and carried her into a bedroom, where he allegedly "touch[ed] her" and "[put] his mouth on her." At trial, Louise testified that when she asked Z.H. if Powell has put his "thing" in her mouth, Z.H. said yes.

         ¶4. Next, Louise called Z.H.'s mother, Katherine Trueheart, to inform her of the incident. Katherine testified that after she asked Z.H. what happened, Z.H. told her that Powell had "touched her lady, " and Powell "had his face between her legs." Then on August 12, 2013, Katherine filed a police report with the Vicksburg Police Department.

         ¶5. Later that afternoon, Powell voluntarily arrived at the Vicksburg Police Department, waived his rights, and was interviewed by Lieutenant Troy Kimble.[2] In the interview, Powell confirmed that Z.H. spent the night. But Powell claimed that it looked as though Z.H. was masturbating while she was lying on the floor. And so, he claimed that he carried her to a bedroom, where he smelled her hands to see if she had been "touching herself." Powell claimed that when he did this, Z.H. moved, and that movement caused her pajama bottoms and underwear to slide down. Powell stated that he smelled around Z.H.'s naval. He claimed that he bumped her naval, she woke up, and then pushed his head toward her vagina. According to Powell, Z.H. said she would not tell on him.

         ¶6. Eventually, on May 6, 2014, Powell was indicted by a Warren County grand jury for one count of sexual battery of a child under the age of fourteen in violation of section 97-3-95(1)(d).

         ¶7. The Vicksburg Police Department referred Z.H. to the Mississippi Children's Advocacy Center (MCAC). At MCAC, Z.H. was interviewed by Erin Gowen-a licensed social worker.[3] During the interview, Z.H. stated that when she spent the night at Powell's house, he "licked [her] lady" and "put his thing in [her] mouth."[4] Z.H. further stated that [Powell] told [her] not to tell anyone."

         ¶8. At trial, Gowen testified that she had worked as a forensic interviewer for three years and had conducted over 300 forensic interviews. Gowen also testified that she had been trained in three interviewing protocols: the RATAC, [5] Child First, and Conner House. She further explained that there was not much difference between these three interviewing protocols. Gowen testified that her report in this case was based on her use of the RATAC protocol-which was reviewed by her supervisor. Gowen also testified that she had been previously accepted as an expert witness in Hinds County Youth Court. The State then tendered, and the circuit court accepted, Gowen as an expert in the field of forensic interviewing. Gowen testified that in her opinion, Z.H.'s disclosure during the interview was consistent with a child who had been sexually abused.

         ¶9. Prior to the trial, the circuit court was informed that Powell was not communicating with defense counsel. Powell's counsel claimed that due to Powell's lack of cooperation, he did not feel that he was going to be properly prepared to go to trial. And so, his counsel asked to withdraw from Powell's case. Powell also informed the circuit court that he did not feel as though he would have adequate representation at trial. According to Powell, his counsel told him that he was not allowed to have any witnesses. But when the circuit court asked Powell what potential witnesses he had, Powell referenced a brother-in-law in California-but he could not recall his name. When the circuit court asked Powell's counsel about Powell's claim that he was advised that he could not have any witnesses, counsel stated that "[Powell] wanted to call character witnesses . . . ."

         ¶10. The trial court then asked Powell what the potential witness would say; Powell stated that Z.H.'s grandmother, Louise, also accused this potential witness of sexual battery of a child. And Powell stated that there was no attempt by his counsel to contact this witness. Yet when the circuit court asked Powell the potential witness's name, Powell could not recall his name. And when the ...


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