Clyde Fitzgerald Blocton a/k/a Clyde F. Blocton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00197-COA

CLYDE FITZGERALD BLOCTON A/K/A APPELLANT
CLYDE F. BLOCTON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/28/2021
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CANDICE LEIGH RUCKER
DISTRICT ATTORNEY: W. CROSBY PARKER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/31/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Following a jury trial in the Harrison County Circuit Court, Clyde Blocton was

convicted of the sexual battery of a five-year-old girl, K.L.1 The circuit court sentenced him

to serve twenty-five years in the custody of the Mississippi Department of Corrections. On

appeal, Blocton claims that the circuit court erred by (1) admitting testimony that was used

to bolster the testimony of K.L. under the tender years exception and (2) admitting irrelevant

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Initials are used to protect the identity of the minor children.
and prejudicial evidence that denied him a fair trial. After review, we find no reversible error

and affirm Blocton’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. Initially, five-year-old K.L. lived with her mother, Emma; thirty-year-old stepfather,

Blocton; two brothers; and her grandmother in a house located in Gulfport, Mississippi.

While living in Gulfport, Blocton began to sexually abuse K.L. According to K.L. when she

was five and six years old, her stepfather “did something very, very bad” to her. K.L.

explained that on multiple occasions Blocton had put “his front private[] part in [her] mouth”

and told her to “suck it.” She also stated that on one occasion Blocton urinated in her mouth.

The abuse occurred while everyone else was asleep. Eventually, K.L. disclosed to her

grandmother that Blocton had been sexually abusing her.

¶3. After K.L.’s initial disclosure, Megan Morvant, a Gulfport Police Department

Detective, was assigned to investigate K.L.’s allegations. On July 11, 2018, Detective

Morvant arranged a forensic interview for K.L. with Daniel Dooley, a forensic interviewer

with the Gulfport Child Advocacy Clinic. Based on his interview with K.L. and his training,

Dooley determined that K.L.’s interview “was consistent with a sexual abuse disclosure.”

¶4. On October 23, 2018, Blocton was arrested on a warrant charging him with sexual

battery. He was released on bond on November 9, 2018, under the condition that he have no

contact with K.L. or her family. Shortly after K.L.’s disclosure, her mother moved the family

to Louisiana. On January 29, 2019, Ashley Meyers, a child protection investigator with the

Louisiana’s Department of Children and Family Services, received a report expressing

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“concerns for a lack of supervision and inadequate shelter.” There was also concern

regarding the possibility that K.L. was still residing with Blocton. The following day,

Investigator Meyers arrived at the house to conduct an investigation, which revealed that the

family was residing in a neighbor’s ten-by-ten shed. The shed was small, had no running

water, two beds, and a microwave. According to Investigator Meyers, two people could not

comfortably stand in the shed for a conversation. Blocton was present when Investigator

Meyers arrived at the home. Investigator Meyers testified that Blocton acknowledged the

bond restriction but insisted on maintaining the family unit. Meyers removed K.L. from her

mother’s custody and placed her in foster care.2 On January 31, 2019, K.L. was placed with

her current foster mother, Megan Sharp. A few days into her placement, K.L. spoke with

Sharp regarding the abuse. According to Sharp, K.L. stated that “her stepfather [put], and she

called it a d**k, in her mouth at certain times, either in a bedroom, on a couch, or in the

bathroom.”

¶5. On June 10, 2019, a Harrison County grand jury indicted Blocton on one count of

sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). When

Blocton failed to appear at his arraignment on July 8, 2019, the circuit court entered a

judgment nisi. Blocton was remanded into custody shortly thereafter. The State promptly

filed a motion to revoke Blocton’s bail, and the circuit court granted the motion on July 22,

2019. His bond was revoked on July 30, 2019. Blocton entered a plea of not guilty in August

2019, and the case proceeded to trial on January 19, 2021, after several continuances.

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K.L.’s two brothers were also removed from their mother’s custody and placed in
foster care.

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¶6. Before trial, the circuit judge held a separate hearing outside the presence of the jury

to determine the admissibility of K.L.’s disclosures to Dooley (the forensic interviewer) and

Sharp (her foster parent) and to determine whether K.L. was competent to testify at trial.

Dooley and Sharp testified about K.L.’s disclosures. The circuit judge found K.L. competent

to testify at trial but reserved ruling on the admissibility of K.L.’s disclosures to the others

until K.L. testified.

¶7. At trial, the State called K.L. as its first witness. K.L. spoke about several instances

of sexual abuse by Blocton that had occurred when she was five and six years old. K.L.

explained how Blocton would wake her up and place his penis in her mouth. She explained

how he then directed her to suck it.

¶8. Shortly after K.L.’s testimony in front of the jury, the circuit judge conducted a

hearing outside the presence of the jury to rule on whether Dooley and Sharp could testify

about K.L.’s disclosures to them. The circuit judge specifically addressed each reliability

factor under Mississippi Rule of Evidence 803(25) on the record and ruled that K.L.’s

disclosures had substantial indicia of reliability and were, therefore, admissible under the

tender-years hearsay exception.

¶9. After the circuit judge’s ruling, Sharp testified about K.L.’s disclosures to her and

Dooley testified regarding K.L.’s forensic interview. After a video recording of the forensic

interview was admitted into evidence and played for the jury, Dooley testified that K.L.’s

disclosures during the forensic interview were consistent with a child that had been sexually

abused.

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¶10. Subsequently, Detective Morvant testified that in June 2018 she was assigned to

investigate a sexual battery claim of five-year-old K.L. She testified about the victim, the

perpetrator’s identity, and the location of the incidents. Similar to Sharp, Detective Morvant

explained that K.L. disclosed that her stepfather, Blocton, had put his penis in her mouth. She

further stated that K.L. never alleged that anyone other than Blocton had sexually abused her.

¶11. Blocton testified and denied all of K.L.’s accusations. Blocton claimed that statements

made in court regarding K.L. having no relationship with her biological father were false. He

explained that he had personally taken K.L. to her father’s home to play with her siblings.

However, on cross-examination, Blocton acknowledged that after the family moved to

Gulfport, K.L. had no contact with her biological father. Blocton denied ever waking K.L.

when he returned home from work.

¶12. Blocton was convicted of sexual battery and was sentenced to serve twenty-five years

in the custody of the Mississippi Department of Corrections. Blocton then filed an

unsuccessful motion for a new trial or, in the alternative, judgment notwithstanding the

verdict.

¶13. Blocton now appeals and argues that the circuit court erred by (1) admitting testimony

that was used to bolster the testimony of K.L.’s testimony under the tender years exception

and (2) by admitting irrelevant and prejudicial evidence, which denied him a fair trial.

STANDARD OF REVIEW

¶14. We review the admission of hearsay evidence for abuse of discretion. Garcia-Lebron

v. State, 323 So. 3d 1159, 1165 (¶21) (Miss. Ct. App. 2021). “This Court will affirm the

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[circuit] court’s ruling unless it can safely say that the [circuit] abused its discretion in

allowing or disallowing evidence to the prejudice of the accused.” Pitts v. State, 291 So. 3d

751, 755 (¶16) (Miss. 2020) (quoting Tubbs v. State, 185 So. 3d 363, 367 (¶9) (Miss. 2016)).

DISCUSSION

I. Whether the State impermissibly bolstered K.L’s testimony with
the testimony of other witnesses.

¶15. Blocton argues that the circuit judge abused his discretion by permitting K.L.’s foster

mother, Megan Sharp; the forensic interviewer, Dan Dooley; and law enforcement detective,

Megan Morvant, to testify about what K.L. disclosed.

¶16. “A fundamental principle of evidentiary law provides that hearsay is ‘incompetent

evidence’ unless it falls under one of the exceptions to the rule against hearsay.” Pitts, 291

So. 3d at 755 (¶20) (citing Smith v. State, 724 So. 2d 280, 315 (Miss. 1998)). Mississippi

Rule of Evidence 803(25) is an exception to the hearsay rule. Rule 803(25), also known as

the tender years exception, provides that

[a] statement by a child of tender years describing any act of sexual contact
with or by another is admissible if:

(A) the court—after a hearing outside the jury’s
presence—determines that the statement’s time, content, and
circumstances provide substantial indicia of reliability; and

(B) the child either:

(i) testifies; or

(ii) is unavailable as a witness, and other evidence
corroborates the act.

M.R.E. 803(25). There is no dispute, here, that K.L. was a child of tender years. See Veasley

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v. State, 735 So. 2d 432, 436 (¶16) (Miss. 1999) (“[T]here is a rebuttable presumption that

a child under the age of twelve is of tender years.”).

¶17. The commentary to Rule 803(25) provides a list of factors that a circuit judge should

consider when determining reliability of the child’s hearsay statement including:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the
general character of the declarant; (3) whether more than one person heard the
statements; (4) whether the statements were made spontaneously; (5) the
timing of the declarations; (6) the relationship between the declarant and the
witness; (7) the possibility of the declarant’s faulty recollection is remote; (8)
certainty that the statements were made; (9) the credibility of the person
testifying about the statements; (10) the age or maturity of the declarant; (11)
whether suggestive techniques were used in eliciting the statement; and (12)
whether the declarant’s age, knowledge, and experience make it unlikely that
the declarant fabricated.

M.R.E. 803(25) advisory committee note. “The unifying principle is that these factors relate

to whether the child declarant was particularly likely to be telling the truth when the

statement was made.” Pitts, 291 So. 3d at 756 (¶21) (internal quotation marks omitted)

(quoting Rogers v. State, 95 So. 3d 623, 628) (¶14) (Miss. 2012)). “A [circuit] court’s

determination of substantial indicia of reliability should be made on the record.” Id.

¶18. Here, as required by Rule 803(25), the circuit judge conducted a hearing outside the

jury’s presence to determine whether Sharp, Dooley, and Detective Morvant could testify

about K.L.’s disclosures. The circuit judge addressed each reliability factor in detail on the

record, applied appropriate weight to each and made an overall finding that K.L.’s out-of-

court disclosures had substantial indicia of reliability. On appeal, Blocton contends that

testimony from Sharp, Dooley, and Detective Morvant improperly bolstered K.L’s testimony.

¶19. Because there was no objection to any alleged bolstering from Sharp, Dooley, or

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Detective Morvant, the argument is procedurally barred. See Chase v. State, 645 So. 2d 829,

855 (Miss. 1994). Procedural bar notwithstanding, we will address Blocton’s assertions.

A. Sharp’s Testimony

¶20. Sharp testified that K.L. disclosed the abuse to her while they had a conversation in

Sharp’s room. Sharp denied prompting K.L. to speak with her regarding the abuse and she

explained that K.L. had only been with her a few days when the disclosure occurred. On

cross-examination, Sharp testified that K.L. struggled in school and had days where she was

affected by what occurred.

¶21. Blocton takes issue with Sharp’s use of hearsay under the Rule 803(25) tender years

exception. As discussed above, the circuit judge followed Rule 803(25) when he held a

hearing outside the presence of the jury, at which both Sharp and Dooley testified. Although

the circuit court expressed concern that the timing of the disclosure to Sharp was “too

attenuated,” after considering all the factors as a whole and the circumstances around K.L.’s

statements, he found that Sharp appeared to be a credible witness, had not suggested or

prompted K.L., and that K.L. statements were made spontaneously. Further, Sharp’s

testimony did not just reiterate K.L.’s disclosure, it provided context and information through

the eyes of a foster parent including how it affected K.L.’s behavior and schoolwork.

B. Detective Morvant’s Testimony

¶22. Blocton argues that Detective Morvant’s testimony “contained assumptions that

sexual battery had in fact occurred, on the dates specified, at the location alleged and

[committed] by [him].” He specifically claims that Detective Morvant could have only

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learned of the information through hearsay, and her testifying to them as fact was “improper

hearsay premised on hearsay.”

¶23. “The admissibility of law enforcement’s testimony that refers to victims’ statements

depends on whether it is offered to prove a fact (testimonial hearsay) or whether it is offered

merely to show why the officer acted as he did (non[-]testimonial hearsay).” Jones v. State,

287 So. 3d 995, 1006 (¶40) (Miss. Ct. App. 2019). This Court held that statements do not

constitute hearsay when admitted to “explain[] an officer’s course of investigation or

motivation for the next investigatory step by that officer.” Id. (quoting Birkley v. State, 203

So. 3d 689, 696 (¶16) (Miss. Ct. App. 2016)); see also Morment v. State, 315 So. 3d 475, 481

(¶19) (Miss. Ct. App. 2020).

¶24. Detective Morvant testified that in June 2018 she was assigned to investigate a sexual

battery claim of five-year-old K.L. She testified about the victim, perpetrator’s identity, and

the location of the incidents. Similar to Sharp, Detective Morvant explained that K.L.

disclosed that her stepfather Blocton had put his penis in her mouth. She further stated that

K.L. never alleged that anyone other than Blocton had sexually abused her.

¶25. Detective Morvant did not assume that sexual abuse occurred. As a part of her

investigation, Detective Morvant referred K.L. to the forensic interviewer, Daniel Dooley.

Her testimony was not offered to bolster K.L.’s testimony. Rather, her testimony was offered

to show what she learned from her investigation and what she did as a result of it. See Bailey

v. State, 956 So. 2d 1016, 1032 (¶59) (Miss. Ct. App. 2007); see also Morment, 315 So. 3d

at 481 (¶21). Indeed, based on her investigation and K.L.’s forensic interview, Blocton was

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arrested and later indicted.

C. Dooley’s Testimony

¶26. Dooley, a forensic interviewer with the Gulfport Child Advocacy Center, interviewed

K.L. when she was six years old. According to Dooley, K.L. described situations where her

stepfather would put his penis in her mouth. Dooley testified that on the recording of the

interview, K.L. referred to a penis as “gus” or “guts.” However, when given an anatomical

drawing, she identified what a penis was. Dooley also testified that K.L. described a time

where there was “candy or something put on his penis.” K.L. also mentioned Blocton

urinating in her mouth and a child-like reference to semen. Based on his training as a forensic

interviewer, Dooley stated that K.L.’s statements were consistent with a sexual-abuse

disclosure.

¶27. Prior to Dooley’s testimony regarding K.L.’s interview, the State questioned Dooley

concerning his experience as a forensic interviewer. Blocton claims that testimony about

Dooley’s experience bolstered K.L.’s testimony. He specifically takes issue with Dooley’s

statement that he had conducted “more than 6,000 forensic interviews” with other child sex-

abuse victims.

¶28. Mississippi Rule of Evidence 702 places the circuit judge “as gatekeeper on questions

of admissibility of expert testimony.” McCammon v. State, 299 So. 3d 873, 883 (¶25) (Miss.

Ct. App. 2020) (citing Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 40 (¶25) (Miss.

2003)). “The proponent of expert testimony must show by a preponderance of the evidence

that the expert is qualified, that he possesses scientific knowledge that will assist the jury, and

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that his testimony is based on sufficient facts and data and reliable principles and methods,

reliably applied to the facts of the case.” Id. (quoting Brown v. Prof’l Bldg. Servs. Inc., 284

So. 3d 754, 761-62 (¶30) (Miss. Ct. App. 2017)). “To be relevant, the evidence must ‘fit’ the

case by being ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a

factual dispute.’” Id. (quoting Corrothers v. State, 148 So. 3d 278, 294 (¶24) (Miss. 2014)).

Additionally, “[t]he scope of permissible expert testimony under [Mississippi] Rule [of

Evidence] 702 includes an expert’s opinion that the alleged victim’s characteristics are

consistent with those of children who have been sexually abused.” Young v. State, 106 So.

3d 811, 818 (¶14) (Miss. Ct. App. 2011).

¶29. The State tendered Dooley as an expert in forensic interviewing and the questions

previously asked by the State were to establish Dooley’s credibility and qualifications as

required under Rule 702. “[T]he admission of testimony is left to the sound discretion of the

circuit court, and we will only find error where the circuit court abuses that discretion.”

Mason v. State, 203 So. 3d 732, 741 (¶43) (citing Bishop v. State, 982 So. 2d 371, 375 (¶15)

(Miss. 2008)). Finding no abuse of discretion, we affirm the circuit court’s ruling.

¶30. K.L. testified at trial and was subjected to cross-examination by the defense. K.L.’s

statements to Sharp, Dooley, and Detective Morvant were all consistent with her initial

disclosure despite being disclosed at different times throughout the ongoing court

proceedings. We find that the circuit court acted within its discretion by concluding that

K.L.’s out-of-court statements were supported by sufficient indicia of reliability. Accordingly

this issue is without merit.

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II. Whether the admission of Investigator Meyers’ testimony violated
Blocton’s right to a fair trial.

¶31. Blocton argues that the admission of Investigator Meyers’ testimony resulted in him

not receiving a fair trial. He argued that her testimony regarding K.L.’s placement with a

foster family violated Mississippi Rules of Evidence 404(b) and 403 because it informed the

jury that Blocton had committed child abuse. Blocton argues that this Court should consider

this issue under the plain-error doctrine. In the alternative, Blocton argues that his defense

attorney’s failure to object is equivalent to ineffective assistance of counsel.

¶32. Regarding the admissibility of evidence, “decisions are left to the sound discretion of

the [circuit] court so long as they are within the boundaries of the Mississippi Rules of

Evidence.” Herrington v. State, 102 So. 3d 1241, 1247 (¶20) (Miss. Ct. App. 2012) (internal

quotations marks omitted) (quoting Moss v. State, 977 So. 2d 1201, 1207 (¶4) (Miss. Ct.

App. 2007)). The circuit court’s decision will not be found in error unless the circuit court

abused its discretion. Id. In Mississippi, however, it is well-established law that “[t]he failure

to make a timely objection to an issue at trial waives consideration of the issue on appeal.”

Id. (quoting Johnson v. State, 75 So. 3d 63, 67 (¶10) (Miss. Ct. App. 2011)). “The [circuit]

court will not be held in error on a matter that was never presented for its consideration.” Id.

¶33. Although no objection was made to Investigator Meyers’ testimony at trial, we may

still review the circuit court’s decision under the plain-error doctrine. See Mitchell v. State,

788 So. 2d 853, 855 (¶8) (Miss. Ct. App. 2001). “Under the plain-error doctrine, we can

recognize obvious error which was not properly raised by the defendant . . . and which affects

a defendant’s ‘fundamental, substantive right.’” Conners v. State, 92 So. 3d 676, 682 (¶15)

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(Miss. 2012) (quoting Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008)). “For the plain-

error to apply, there must have been an error that resulted in a manifest miscarriage of justice

or “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting Brown v. State, 995 So. 2d 698, 703 (¶21) (Miss. 2008)).

¶34. After a review of the record, we find that there was no “violation of a legal rule that

could be considered plain, clear, or obvious and was prejudicial on the result of the trial.”

Blanchard v. State, 55 So. 3d 1074, 1077 (¶16) (Miss. 2011).

¶35. Blocton also asserts that in the alternative, he received ineffective assistance counsel

due to his attorney’s failure to object to Investigator Meyers’ testimony. Generally, “claims

of ineffective assistance of counsel should be raised in a motion for post-conviction relief,

not on direct appeal.” Battle v. State, 269 So. 3d 325, 330 (¶19) (Miss. Ct. App. 2018) (citing

Pinter v. State, 221 So. 3d 378, 386 (¶17) (Miss. Ct. App. 2017)); see also Cork v. State, 329

So. 3d 1183, 1191-92 (¶31) (Miss. 2021) (“[G]enerally, ineffective-assistance-of-counsel

claims are more appropriately brought during post-conviction proceedings.”). We have

previously stated:

It is unusual for this Court to consider a claim of ineffective assistance of
counsel when the claim is made on direct appeal because there is usually
insufficient evidence within the record to evaluate the claim. Because an
appellate court is limited to the trial record on direct appeal, issues of
ineffective assistance of counsel are more appropriate in a motion for post-
conviction relief. We may address such claims on direct appeal only if the
issues are based on facts fully apparent from the record. If the record is not
sufficient to address the claims on direct appeal, the Court should dismiss the
claims without prejudice, preserving the defendant’s right to raise the claims
later in a properly filed motion for post-conviction relief.

Id. (quoting Johnson v. State, 191 So. 3d 732, 735-36 (¶13) (Miss. Ct. App. 2015)).

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However, the record here does suffice; therefore, we address Blocton’s ineffective assistance

claim on direct appeal.

¶36. “[T]o prevail on an ineffective-assistance-of-counsel claim, a defendant must first

prove that his counsel was deficient, which requires showing that ‘counsel made errors so

serious that he or she was not functioning as the counsel guaranteed the defendant by the

Sixth Amendment.’” Cork, 329 So. 3d at 1192 (¶32) (quoting Chamberlin v. State, 55 So.

3d 1046, 1050 (¶4) (Miss. 2010)). “Secondly, a defendant must prove that the deficient

performance prejudiced the defense, which requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. (quoting

Chamberlin, 55 So. 3d at 1050 (¶4) (quoting Strickland v. Washington, 466 U.S. 668, 687

(1984))).

¶37. The Mississippi Supreme Court “strongly presume[s] that counsel’s conduct falls

within the wide range of reasonable professional assistance, and the challenged act or

omission might be considered sound trial strategy.” Id. at (¶33) (citing Chamberlin, 55 So.

3d at 1050 (¶4)). Therefore, “defense counsel is presumed competent,” and “even where

professional error is proven, this Court must determine if there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceedings would have been

different.” Id.

¶38. Blocton contends his trial counsel was constitutionally ineffective for failing to object

to Investigator Meyers’ testimony. He claims that “[f]ailure to protest and object to the

prejudicial use of other bad acts” meet both of Strickland’s requirements. However, he offers

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no argument or citation of authority in an effort to demonstrate that his attorney was

constitutionally ineffective, as required. See M.R.A.P. 28(a)(7). Furthermore, even if Blocton

could overcome the presumption that his attorney’s decision not to object was reasonable,

he has failed to demonstrate prejudice as required in Strickland. Blocton’s assertion that his

trial lawyer rendered constitutionally ineffective assistance fails.

CONCLUSION

¶39. The circuit court properly considered the indicia-of-reliability factors under Rule

803(25) and acted within its discretion by admitting K.L.’s out-of-court disclosures to others.

Further, we note that “‘a defendant is entitled to a fair trial but not a perfect one,’ for there

are no perfect trials.” Conners v. State, 92 So. 3d 676, 688 (¶33) (Miss. 2012) (quoting

Brown v. U.S., 411 U.S. 223, 231-32 (1973)). We find no error; therefore, we affirm the

circuit court’s judgment.

¶40. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE AND EMFINGER, JJ., CONCUR. McCARTY, J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. SMITH, J., NOT PARTICIPATING.

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