Jordan v. State
| Decision Date | 14 February 2023 |
| Docket Number | 2021-KA-01421-COA |
| Parties | MICHAEL JORDAN A/K/A MICHAEL S. JORDAN A/K/A MICHAEL SHAWN JORDAN APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Court of Appeals of Mississippi |
MICHAEL JORDAN A/K/A MICHAEL S. JORDAN A/K/A MICHAEL SHAWN JORDAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
No. 2021-KA-01421-COA
Court of Appeals of Mississippi
February 14, 2023
DATE OF JUDGMENT: 02/28/2018
HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL JUDGE
ATTORNEY FOR APPELLANT:
OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.
GREENLEE, J.
¶1. Michael Jordan was convicted by a Harrison County Circuit Court jury of four counts of sexual battery against his fifteen-year-old stepdaughter, Jane.[1] The circuit court sentenced Jordan to thirty years on each count to be served concurrently in the Mississippi Department of Corrections without eligibility for parole. After the denial of Jordan's motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, the circuit
court granted his motion to file an out-of-time appeal.
¶2. On appeal, Jordan claims (1) the circuit court erred by admitting into evidence the sexual assault nurse examiner's testimony that Jane's physical examination was not abnormal, (2) the circuit court erred by admitting into evidence a video recording of him and Jane, (3) his counsel was ineffective for failing to object on the basis of hearsay to the admissibility of Jane's letter to her mother, and (4) the State did not present sufficient evidence to convict him of sexual battery in Count IV of the indictment. Finding no reversible error, we affirm Jordan's convictions and sentence.
FACTS AND PROCEDURAL HISTORY
¶3. Jane's mother Joan began dating Jordan when Jane was in elementary school. Joan and Jordan eventually married, and the family moved to North Carolina when Jane was in middle school. When Jordan first moved in, Jane and her siblings got in trouble a lot because Jordan felt they were being disrespectful toward him. When Jane was in approximately the ninth grade, her relationship with Jordan seemingly improved as he drove her home from school and extracurricular activities. Around that time, Jane started feeling more comfortable around Jordan, he started giving her "lessons" on how to talk to and interact with boys. When they were in the car together, Jordan would touch Jane's thigh or grab her like he was going to kiss her while they acted out dates. He would tell her, "These are the kind of things you have to be prepared for that a guy might do." Eventually, Jordan told Jane that he liked her and asked her if she was ready to take their relationship to the next level. But later he told her, "It was a joke. It was a test." Unsurprisingly, Jane was confused.
¶4. In 2014, when Jane was in the tenth grade, she and her family moved to Mississippi. Later that year-from November 30, 2014, to December 12, 2014-Joan traveled to Missouri for work. While Joan was out of town, Jordan told Jane that her mother wanted him to teach her about boys, and he started giving Jane more "lessons" at night. Jordan told Jane how boys liked to be touched and kissed, and then he would demonstrate on her or ask her to demonstrate on him. Eventually, Jordan performed oral sex on Jane. They continued to have sex-vaginal, oral, and anal-almost every night while Joan was out of town. Jane was fifteen years old.
¶5. Jordan's sexual abuse of Jane continued after Joan returned from Missouri. At some point, Jane tried to convince Jordan to stop. But Jordan kept making advances toward Jane, and she felt obligated to continue having sex with him. On April 10, 2015, Joan came home early while Jordan was performing oral sex on Jane in the laundry room. According to Joan, Jane looked startled when she encountered her in the TV room. Then Joan saw a light on in the laundry room. When she went to the door, she noticed that Jordan had an erection through his boxers. Jordan immediately asked Joan why she did not call him before coming home, which was confusing to Joan because she had never done that before. Joan became suspicious and decided to purchase a "nanny cam" to place in the house.
¶6. The nanny cam arrived several days later on April 15, 2015. Joan thought Jordan would notice the camera in the laundry room, so she placed it in the garage where Jordan spent a lot of time. Later, she moved the camera and placed it between the kitchen and the TV room. Joan watched and deleted the recordings daily because she did not know how
much recording space was on the camera. On April 28, 2015, at 9:49 p.m., the camera recorded Jordan and Jane sitting on the couch having a conversation. Then Jordan put his foot on Jane's leg, and she began sucking his toes.[2] The video recording was published to the jury at trial.
¶7. After watching the video, Joan filed a report with the Gulfport Police Department. Then Joan took Jane to the Department of Human Services (DHS) where Jane was questioned about her relationship with Jordan. Initially, Jane did not disclose the sexual abuse, but eventually she disclosed what Jordan had done to her. At some point later, Jane wrote a letter to her mother about what happened. The letter was published to the jury at trial.[3]
¶8. Cassie Harrell, a registered nurse and SANE nurse (sexual assault nurse examiner) with Gulfport Memorial Hospital, testified that Jane came to the emergency room with her mother on May 1, 2015, after being referred by DHS. Jane reported that she had been sexually assaulted by her stepfather, Jordan, from December 2014 to April 2015. Jane disclosed oral, rectal, and vaginal penetration with his penis and finger, and she said that Jordan had choked her as well. Harrell then performed a sexual assault kit on Jane but did not find anything of evidentiary note during the examination. Over numerous objections from defense counsel, Harrell testified that she did not find anything "abnormal," which was not surprising considering approximately three weeks had passed since Jane's last sexual
encounter with Jordan. Similarly, Jane testified, "I didn't think [the nurse] would [be] finding anything because we hadn't had sexual relations very recently."[4]
¶9. Amy Winters, an expert in forensic serology, tested the swabs taken from Jane's mouth, vagina, and rectum for the presence of seminal fluid. According to Winters, all the swabs tested negative for seminal fluid. Winters explained that seminal fluid may not have been detected for the following reasons: ejaculation may not have occurred, ejaculation may have occurred on a surface other than Jane's body, a condom may have been used, any semen sample may have broken down or expelled from Jane's body over time, or the incident did not occur. Additionally, she explained that seminal fluid most likely would not be detected in the vagina more than three days after intercourse, in the rectum after one day, or in the mouth after several hours. Finally, Winters indicated that if the last times Jane had vaginal sex and oral sex were April 10, 2015, and April 26, 2015, respectively, she would not expect to find seminal fluid on swabs that were obtained on May 1, 2015.
¶10. Ultimately, the jury convicted Jordan of all four counts of sexual battery. Subsequently, Jordan filed a motion for JNOV or, in the alternative, a new trial. After a hearing, the court denied the motion. Later, the circuit court granted Jordan's motion to file an out-of-time appeal.
DISCUSSION
I. Whether the circuit court erred by allowing the SANE nurse to testify that the results of Jane's sexual assault kit were not abnormal.
¶11. Jordan seemingly claims that the circuit court erred by allowing Harrell (the SANE nurse) to offer expert opinion testimony regarding her physical examination of Jane. "The admission of evidence is reviewed under the abuse-of-discretion standard." Smith v. State, 326 So.3d 510, 517 (¶17) (Miss. Ct. App. 2021) (citing Boggs v. State, 188 So.3d 515, 519 (¶9) (Miss. 2016)).
¶12. At trial, Harrell indicated that she did not find anything of evidentiary note while examining Jane. When the prosecutor asked her if that was normal or abnormal given the circumstances, defense counsel objected based on lack of a proper foundation. After the circuit court instructed the State to lay a proper foundation, Harrell testified that she had been a SANE nurse for four and one-half years and that she had applied twelve to fifteen sexual assault kits. Then Harrell testified that she did not find anything "abnormal" during Jane's examination. Defense counsel objected again, and the circuit court instructed Harrell to define "abnormal." Harrell explained that "abnormal" would include the presence of cuts, growths, bruising, discoloration, or bleeding. Harrell testified that she did not find anything abnormal in this case, which did not surprise her. Defense counsel objected again and argued that the question-whether the lack of any abnormal findings was surprising-required Harrell to reach an opinion or conclusion. Then the following colloquy occurred:
COURT: That's what she [was] called for. It's overruled. She can answer it.
COUNSEL: Your Honor, I don't think she's qualified to - -
COURT: I've ruled.
COUNSEL: I'm just - -
COURT: You got your objection.
COUNSEL: With all due respect to the [c]ourt, Your Honor, I have to articulate my reasons why.
COURT: I'm going to give you an opportunity, but not in front of the jury.
COUNSEL: Yes, sir. We can do that later. We appreciate it.
When Harrell repeated that she was not surprised by the lack of findings and asked why she was not surprised, defense counsel renewed the previous objection, and it was overruled again. Harrell...
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