BARNES, J., for the Court:
¶ 1. Johnny R. Young Jr. was convicted, under Mississippi Code Annotated section 97-3-95(1)(d) (Rev.2006), of three counts of sexual battery of a minor and sentenced to three concurrent life sentences in the custody of the Mississippi Department of Corrections (MDOC). Young appeals his convictions, and finding no reversible error, we affirm.
¶ 2. In June 2007, Young's eight-year-old daughter, "Cindy,"
¶ 3. In November 2007, Young was indicted on three counts of sexual battery of a minor. The indictment referenced incidences occurring between November 3, 2005, and November 3, 2006. A jury trial was held September 21-28, 2009, and Young was convicted on all three counts. The circuit court sentenced Young to three concurrent life sentences in the custody of the MDOC. Young filed a motion for a judgment notwithstanding the verdict (JNOV) and, in the alternative, a motion for a new trial, which the circuit court denied. Young timely filed an appeal, alleging that the circuit judge had erred in the admission or exclusion of certain evidence and that the evidence was insufficient to support the verdict.
¶ 4. Young filed a motion in limine to exclude various out-of-court statements made by Cindy, arguing that the statements were hearsay, prior consistent statements, and violations of the Confrontation Clause.
¶ 5. "The standard of review governing the admission or exclusion of evidence is abuse of discretion." Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009) (citing Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008)). A circuit court's decision to admit or exclude evidence will only be reversed if it "result[s] in prejudice and harm or adversely affect[s] a substantial right of a party." Id. at 951 (¶ 34) (quoting Hammons v. State, 918 So.2d 62, 65 (¶ 10) (Miss.2005)).
¶ 6. Since Cindy was under twelve years of age, the circuit court ruled that her statements fell under Mississippi Rule of Evidence 803(25), which is the tender-years hearsay exception. This rule provides:
In assessing whether such testimony is reliable, the comments to the rule list several factors to be considered. These factors are:
M.R.E. 803(25) cmt.
¶ 7. We find no abuse of discretion in the court's admission of the forensic interview and the out-of-court statements made by Cindy to Dunsford. The videotaped forensic interview showed Cindy spontaneously drawing pictures of the sexual abuse that occurred. Floyd testified that she did not prompt Cindy to draw the pictures; in fact, Floyd was not even present in the room when Cindy did so. Therefore, we find that it falls under the tender-years exception. Furthermore, the circuit judge, in addressing the contemporaneous objection to Dunsford's testimony, thoroughly addressed the factors to be considered in allowing such hearsay evidence and appropriately applied them, stating:
We find no abuse of the circuit court's discretion in admitting Cindy's prior statements at trial.
¶ 8. Young filed a motion in limine to exclude evidence of prior bad acts, which the circuit judge denied. Anna Smith, Young's half-sister, presented testimony that twenty years ago, when Young was fifteen years old and Anna was five years old, Young had Anna take off her pants, removed his pants, and bounced her on his leg, rubbing his penis against her. Anna's mother, who was also Young's step-mother, walked in and witnessed this event. Young was sent to Meridian, Mississippi, for several months to receive mental-health treatment. Additionally, Young's father, Johnnie Edward Young Sr., testified that, in 2004, Cindy told him and his wife "that her daddy put his tongue on her bottom."
¶ 9. Generally, under Mississippi Rule of Evidence 404(b), evidence submitted "to prove the character of a person in order to show that he acted in conformity therewith" is not admissible. However, in Derouen v. State, 994 So.2d 748 (Miss.2008), the Mississippi Supreme Court carved out an exception in cases that involve the sexual assault of a minor, stating:
Id. at 754-55 (¶ 17) (quoting Lambert v. State, 724 So.2d 392, 395 (¶ 14) (Miss. 1998) (Mills, J., dissenting)). The Derouen court concluded:
Id. at 756 (¶ 20).
¶ 10. Although the incident concerning Anna was remote in years, we find that
¶ 11. We find that the evidence of Young's prior bad acts properly fell under the parameters set forth by the supreme court in Derouen and, therefore, was admissible. The circuit judge, noting that Derouen applied 404(b) to this specific fact situation, performed an on-the-record analysis and found that while the "particular evidence [was] prejudicial" under Mississippi
An identical jury instruction was also given regarding the testimony of Young Sr. Young also admitted at trial that the incident with Anna occurred, and he testified to two other incidents with Anna that had occurred prior to that one.
¶ 12. Based upon Derouen, we find no abuse of discretion in the circuit court's admission of this evidence, and this issue is without merit.
¶ 13. Young contends that the circuit court erred in allowing Floyd to testify as an expert in forensic interviews, arguing that her methodology employed in the interviews "does not pass scrutiny under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)." Floyd had been employed as a forensic-interview specialist for the Family Resource Center of Northeast Mississippi in Tupelo since 2005. Prior to that, she was employed in the same capacity at the Children's Advocacy Center in Mantachie, Mississippi, for a little over a year.
¶ 14. The "admission of expert testimony is governed by Rule 702 of the Mississippi Rules of Evidence and case law[.]" Carter v. State, 996 So.2d 112, 116 (¶ 13) (Miss.Ct.App.2008). The admission of such testimony is subject to the circuit court's discretion and "will stand `unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.'" Id. (citation omitted). In Carter, this Court considered the expert testimony of two child-abuse forensic interviewers and deemed the testimony admissible, stating:
Id. at 117 (¶ 16) (emphasis added). Also, in Lattimer v. State, 952 So.2d 206, 221(¶ 38) (Miss.Ct.App.2006), this Court noted: "While an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert's opinion that the alleged victim's characteristics are consistent with those of children who have been sexually abused." (Quoting Elkins v. State, 918 So.2d 828, 832 (¶ 9) (Miss.Ct.App.2005)).
¶ 16. Young has offered no evidence to undermine our Carter analysis; therefore, we find no error in the circuit court's admission of Floyd as an expert witness in the field of forensic interviewing.
¶ 17. Young claims that the circuit court erred in admitting Thomas as an expert witness to testify regarding her examination of Cindy. Young argues that Thomas "testified repeatedly regarding causation and beyond her disclosed opinions," which was outside the scope of her expert designation.
¶ 18. To support his argument, Young cites Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645, 652 (¶ 20) (Miss. 2009), which states that testimony from a nursing expert regarding diagnostic impressions is "impermissible" as they "are not qualified to make medical diagnoses or attest to the causes of illnesses." The record reflects that Thomas testified as to the physical evidence that she found (i.e., the thinning of the hymen, the level of estrogenization, and scars in the anal area). Her testimony was that the examination results were "consistent with blunt penetrating trauma of the vaginal area and the anal area." Thomas admitted that she was not a doctor, nor was she capable of rendering an opinion as to medical causation.
¶ 19. We find that admission of Thomas's testimony was not in error. This Court has allowed and accepted a qualified and experienced nursing professional's testimony "as to whether a victim's injuries are consistent with a sexual assault." Murray v. State, 20 So.3d 739, 742 (¶ 7) (Miss.Ct.App.2009). As in the present case, a registered nurse conducted a sexual-assault examination of the minor child in Murray after allegations of sexual assault. We found no error in the admittance of the nurse's expert testimony at trial, concluding that "[s]ince [the nurse] had personally conducted the examination of [the child], her testimony assisted the jury and was both relevant and reliable." Id. Similarly, Thomas was qualified to conduct sexual-assault examinations, and her testimony regarding her personal examination of Cindy was "relevant and reliable" and of assistance to the jury. This assignment of error is without merit.
¶ 20. The circuit court ruled that Young's expert witness, Dr. Gary Mooers, was not qualified to provide expert testimony as a forensic interviewer. Young contends that Dr. Mooers has a more extensive education and more years of experience than Floyd and should have been allowed to testify as to how the forensic interview was conducted. Young concludes that this exclusion affected his constitutional rights and was reversible error.
(Emphasis added). Testimony showed that Dr. Mooers, while highly trained and professionally educated in social work, was only nominally familiar with the methodology utilized by Floyd. Although Floyd was a student of Dr. Mooers while obtaining her Bachelor's degree, Dr. Mooers admitted that he did not teach classes in forensic interviewing to her as those types of classes were generally "too specialized for an undergraduate course." Furthermore, Dr. Mooers testified that "the interviewer was certainly competent and that he "didn't have a criticism of how she did things." Therefore, the circuit judge concluded:
We find no error in the circuit judge's reasoning. Accordingly, this issue is without merit.
¶ 22. Young claims that during closing arguments, the State went beyond the record and "sought to appeal to the sympathy of the jury and not the facts and the reasonable inferences to be drawn therefrom." Specifically, Young is referencing the comment made by the State to the jury: "Now [Cindy] has told y'all, each and every one of y'all. Are you going to help her?" Young says this statement asked the jury to be advocates for the child, not fact-finders, and the State's remarks were a modified version of a "golden rule" argument. "A golden rule argument asks the jurors to put themselves in the place of one of the parties." Jones v. State, 962 So.2d 1263, 1275 (¶ 47) (Miss. 2007) (citation omitted).
¶ 23. The State claims that Young waived this issue by failing to make any specific objections to the argument. However, the record reflects that defense counsel made an immediate objection to the State's comment and requested a curative instruction. The judge overruled the
¶ 24. The Mississippi Supreme Court has held that deference is given to a circuit court's ruling regarding the propriety of a closing argument "because the [circuit] court is in the best position to determine if an alleged improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the [circuit] court's ruling will stand." Jones, 962 So.2d at 1275 (¶ 45) (citing Stevens v. State, 806 So.2d 1031, 1057 (¶ 114) (Miss.2001)). Counsel is "usually given wide latitude during closing arguments." Young v. State, 791 So.2d 875, 880 (¶ 15) (Miss.Ct.App.2001) (citing McGilberry v. State, 741 So.2d 894, 910 (¶ 44) (Miss. 1999)). As such, "when a jury is properly instructed that statements made by counsel are not evidence, reversal is not required." Walker v. State, 913 So.2d 198, 240 (¶ 157) (Miss.2005) (citation omitted).
¶ 25. We do not find the State's remark to be improper. The comment did not ask the jurors to put themselves in Cindy's place and was not a "golden rule" argument. Nor do we find that the comment resulted in undue prejudice, particularly considering the circuit court submitted the following instruction to the jury: "Arguments, statements, and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. Any arguments, statements, and remarks having no basis in the evidence should be disregarded by you." As this Court has stated, it is "well-settled law [that] jurors are presumed to follow the instructions given by the court." Harris v. State, 37 So.3d 1237, 1247 (¶ 37) (Miss.Ct.App.2010) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)).
¶ 26. Accordingly, we find that the State's comment did not constitute reversible error, and this issue is without merit.
¶ 27. In his appeal to this Court, Young challenges the sufficiency of the evidence as it relates to his motion for a JNOV and, in the alternative, a motion for a new trial. "A motion for a JNOV challenges the legal sufficiency of the evidence." Fulgham v. State, 12 So.3d 558, 562 (¶ 20) (Miss.Ct.App.2009) (citing Hearn v. State, 3 So.3d 722, 740 (¶ 53) (Miss.2008)). "[A] motion for a new trial challenges the weight of the evidence." Id. (citing Hearn, 3 So.3d at 741 (¶ 56)). On appeal, Young claims that there was insufficient proof as to when the alleged incidents of sexual battery occurred and as to whether the incidents occurred at all.
¶ 28. Unless the denial of a motion for a JNOV "is such that fair-minded jurors could only find the defendant not guilty" with respect to one or more elements of the crime charged, it will not be disturbed on appeal. Id. (citing Hearn, 3 So.3d at 740 (¶ 54)). During the trial, Young moved for a directed verdict at the end of the State's case-in-chief, alleging insufficient proof. The State responded:
Viewing the matter in the light most favorable to the non-movant, the circuit court denied Young's motion for a directed verdict.
¶ 29. There was ample testimony that Cindy was sexually assaulted by Young and that it happened during the period alleged in the indictment. Cindy reported the sexual abuse in 2007, and she later testified as follows:
If Cindy was approximately five years old when the sexual assault began, then it started in 2003 or 2004 (around the time when Cindy originally mentioned it to her grandfather) and continued until she reported it in 2007.
¶ 30. Viewing the evidence in light most favorable to the State, we find that a "fair-minded juror" could conclude that there was sufficient evidence that Young sexually assaulted Cindy as alleged in the indictment. Also, in considering the circuit court's denial of the motion for a new trial, we do not find that the verdict is against the overwhelming weight of the evidence. The issue is without merit.
¶ 31. "This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. However, where there was no reversible error in any part, there is no reversible error to the whole." McLaurin v. State, 31 So.3d 1263, 1270 (¶ 35) (Miss.Ct.App.2009) (citing Bright v. State, 894 So.2d 590, 596 (¶ 31) (Miss.Ct.App.2004)). Finding that no individual errors exist on appeal, we find no cumulative error that would result in a reversal of Young's conviction. Accordingly, we affirm the judgment of the circuit court.
¶ 32.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS,