IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-01207-COA MICHAEL DONALDSON A/K/A MICHAEL PAUL DONALDSON A/K/A MIKE DONALDSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/02/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JULIE ANN EPPS CYNTHIA ANN STEW ART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 06/19/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Michael Donaldson was convicted o f possession of c h ild pornography and f ilm ing a person in violation of

expectation of

privacy . W e f

ind no error and af

f irm

. FACTS ¶2. During an investigation f or child pornography , the M i s s i s sippi Attorney General’s Cy ber Crim e Unit (the “Cy

ber Crim e Unit”), t hrough I nvestigator Ky le Moore, o btained a
warrant to search Donaldson’s residence. Investigators s e i z ed o ver thirty item s of digital evidence; these item s included a Dell laptop that was f ou n d o n the toilet in the m asterbathroom (“Laptop 1”) and a Dell laptop that was f ound in D onaldson’s wor k v e h icle (“Laptop 2”). ¶3. The Cy

b e r Crim e Unit determ ined that the laptops c ontained over one h undred child pornography v ideos and i m ages. On Laptop 1, they discovered a f older that contained three videos and one JPEG im age. Investigator Joseph Turnage, of the Cy ber Crim e Unit, testif

ied that two of

the videos depicted Donaldson turning the webcam sof tware on and of

f

. ¶4. The third video depicted Donaldson in his bathroom ; he turned o n t he webcam , put it on the f loor, and pointed the cam era at the toilet. He then pretended to f lush the toilet and opened t he b athroom door. I t also included an audio recording o f his conversation w ith MB, who w as a f

ourteen y ear old g irl at the tim e of trial. 1 MB then entered the bathroom , and Donaldson instructed her not to touch the laptop. D onaldson said that he was downloading

som ething f

rom the internet and that the bathroom was the only place in the house where it could d ownload. The bathroom door then closed. The v ideo t hen shows MB pull her pants down, and the webcam captures h er genitalia as s he u sed the bathroom

. Th e v i d e o e n ded with a conversation between Donaldson and M B about the t oilet paper, and MB said that she could not f

lush the toilet. Donaldson told MB not to worry

. Af ter she pulled her pants up, MB exited the bathroom

. Donaldson im m ediately entered the bathroom , f lushed the toilet, picked up the laptop, and stopped the webcam recording. ¶5. Investigator Turnage testif ied t hat MB did not touch the laptop. W hen D o n a l d son picked up the laptop, the video sho w ed “ a brightness on [ Donaldson’s] f ace” f rom the

1 We u se in itials to p ro tect th e m in o r’s id en tity

. 2c om

puter screen. Investigator Turnage testif ied that t his indicated that Donaldson h a d

m inim ized the webcam

bef ore MB entered the bathroom , so that she could not see that the laptop was recording her. ¶6. D o n a l d s o n w a s i n d i c t e d f o r p o s s e s s i on o f child pornography , a violation o f Mississippi C ode Annotated section 97-5-33(5) ( Supp. 2013) ( Count I), and f ilm ing a person in violation of expectation of privacy , a violation of Mississippi Code Annotated section 97- 29-63 (Supp. 2015) (Count II). The jury f o und Donaldson guilty

of both counts. ¶7. Donaldson w as s e n t e n c e d , o n C o u n t I , t o serve f orty y ears in the c ustody of the Mississippi Departm ent of C orrections, w i t h t e n y e a r s s u s p e nded and f

ive y ears of s u

pervised probation. On Count II, D onaldson was sentenced t o serve f ive y ears, and the sentence was
t o r u n consecutively to his sentence f or Count I. Donaldson was also ordered t o p a y a $50,000 f ine within ninety day s of release, $ 1,000 to t he Children’s Trust Fund, and $1,000 to the Victim ’s Com

pensation Fund. ¶8. Donaldson’s m otion f o r a judgm ent notwithstanding t h e v e r d i ct ( JNOV), or in the alternative, a new trial was denied. Donaldson now appeals. ANALYSIS 1. The trial court committed reversible error to preclude Donaldson from testifying as an expert witness. ¶9. Donaldson f

irst argues the trial court erred when it ruled that he could not testif y as

an expert in com

puter f orensics or in any com

puter f ield. Donaldson wanted to testif y a s an expert to contest the State’s expert witnesses w ho of f e red t estim ony that Donaldson placed the pornographic im ages on his com puter.

3¶10. “This Court uses an abu s e o f d i s c r e t i o n s t a n dard f or decisions to exclude expert testim o ny .” T.L. W

allace Constr., Inc. v. McArthur, Thames, Slay, & Dews PLLC , 234 So. 3d 312, 329 (¶64) (Miss. 2017). “This Court will not reverse the decision of the trial judge unless that decision ‘was arbitrary and clearly erroneous, am o unting to an abus e of discretion.’” Id. at 332 (¶76). ¶11. Rule 702 of

the Mississippi Rules of Evidence provides:
A witness who is qualif ied as a n expert by knowledge, skill, e x p e r ience, training, or education m ay testif y in the f orm of an opinion or otherwise if : (a) the expert’s s c ientif ic, tec h n i c al, or other specialized knowledge will help the trier o f f

act to understand the evidence or to determ ine a f act in issue; (b) the testim ony

is based on suf

f icient f acts or data; (c) the testim ony

is the product of reliable principles and m ethods; and (d) the expert h as reliably applied the principles and m ethods to the f acts of the case. Mississippi courts apply “the fe d e r a l s t a n d a rd established in Daubert v. Merrell Dow Pharm. , Inc. , 5 09 U.S. 579, 113 S. Ct. 2 7 86, 125 L. Ed. 2d 469 (1993) to the adm issibility of expert testim o ny pursuant to Rule 702.” T.L. W allace Constr., Inc. , 234 So. 3d at 333 (¶78). ¶12. Rule 702 requires the trial court to consider six p rinciples necessary to adm it expert witness testim ony . First, the court m ust d eterm i ne that the witness intends to of f e r “expert” testim o ny . M.R.E. 701 & 702. Second, the wit n e s s mu s t b e “qualif ied as an e xpert by knowledge, skill, experience, training, or educ a t i o n .” M.R.E. 702. Third, the c ourt m ust determ ine that the e xpert t estim ony m ust “help the tr i e r o f f

act to understand the evidence

4or to determ ine a f a ct in issue.” M .R.E. 702(a). F ourth, the court m ust determ i ne that the

e x p e rt’s “testim ony i s based o n suf f icient f a cts or data.” M .R.E. 702(b). F if th, the c o u r t

m ust determ i ne that the expert ’ s “ testim o ny is the product of reliable principles and

m ethods.” M.R.E. 702(c). And, sixth, t he court m ust determ i ne that “the expert has reliably applied the principles and m ethods to the f a cts of the case.” M.R.E. 702(d). ¶13. Here, the trial c ourt held a Daubert hearing and considered whether Donaldson would be allowed to testif

y as an expert witness. The trial court f o und two reasons t o e x c l u de Donaldson’s testim ony . ¶14. First, D onaldson would n o t be a l l o w e d t o t e stif y as an e x pert witness b ecause his counsel f ailed to com

ply with the discovery requirem ents. Donaldson’s counsel di d n ot provide the proper designation of an e x p e r t w i t ness t o identif y Donaldson o r disclose the opinions, reports, and statem ents that he m ight of f er at trial. Bowie v. Montfort Jones Mem’l Hosp ., 861 S o. 2d 1 037, 1 0 4 2 ( ¶ 1 4 ) ( M i s s. 2003). W e f i nd no abuse of d iscretion and no reversible error in this ruling. ¶15. Nevertheless, the secon d r e a s o n t h e c o u r t g a v e t o e x clude Donaldson’s expert testim o ny was t h a t h e w a s not “qualif ied” as an expert witness. Because we hold the f irst

reaso n w a s s uf

f icient to exclude Donaldson as an expert witness, it is not necessary to

a d d r ess the second r e ason. Theref ore, we f ind no error in the exclusion o f D onaldson’s testim o ny as an expert witness. 2. T he evidence was insufficient to support the verdict on C o u n t I – possession of child pornography. ¶16. Donaldson next argues that there was insuf f i cient evidence to support the verdict on

5Count I, possession of child pornography

. In the review of the suf f iciency of the e vidence, this Court “view[ s] the evidence in the light m ost f avorable to the [ State]” a nd asks whether “any rational trier of f

act could h a v e f

o u n d the essential elem ents of the crim e bey ond a reasonable doubt.” Harris v. State , 107 So. 3d 1075, 1077-78 (¶10) (Miss. Ct. App. 2013) (citation om itted). This Court “accept[ s] all credible evidence consistent with guilt as true and give[ s] the State the benef it of all f avorable inf

e rence s r e a s o n a b l y drawn f rom the evidence.” Moore v. State , 160 So

. 3 d 7 2 8 , 735 ( ¶31) (Miss. Ct. App. 2015) (internal quotation m arks om itted). ¶17. To f

ind Donaldson guilty of possession of child pornography , the jury h ad to f ind that Donaldson “possess[ e d]

. . . any . . . visual depiction o f an actual child engaging in sexually explicit conduct.” Miss. Code Ann. § 97-5-33(5). In child pornography cases, possession

m ay be either actual or constructive. United States v. Terrell , 7 00 F. 3 d 755, 765 (5th Cir. 2012). ¶18. Here, the Cy

ber Crim e Unit discovered that a person using the i nternet protocol (IP) address 68.222. 6 9

. 5 3 d ownloaded a large num ber of suspected child pornography f iles. Three of the f

i l es were exam i ned and determ ined to be child pornography

. A s ubpoena was issued t o AT&T, and it determ ined t hat the I P address w as assigned t o Donaldson at his address in Pearl, Mississippi. ¶19. Af ter the execution of the search warrant, Inv estigator T urnage reviewed the evidence seized to conf

irm that child pornography w as on o n e o f D o naldson’s laptops. During a f orensic exam ination of Laptop 1 i n the Cy ber Crim e Unit’s lab, I nvestigator Turnage f ound

6a total of 157 c hild p ornography videos and 16 child pornography i m ages. S am ples of these f iles were shown to the jury

. ¶20. D o n a l d s o n a rgued there was no evidence that he knowingly possessed t h e c h i l d pornography f

iles. M iss. Code A nn. § 97-5-33(5). Regardless, Investigator T u rnage f ound

a m ajority of the f

i les in a f older titled “save” and another f older ti t l e d “m y pictures” that contained cell-phone i m ages depicting Don a l d s on and people known to associate with Donaldson. Both f

olders were located inside another f older titled “bin,” which was placed outside the user account. On the m orning the search wa r r a n t w a s executed, child pornography f

iles were accessed between 6 :01 a.m . and 6:38 a .m ., while inve s t igators conducted surveillance of Donaldson’s house and Donaldson was the only person inside. ¶21. We f

i nd that a r ational trier of f act c ould have f

ound the e ssential elem e nts of th e crim e bey ond a reasonable doubt. Theref ore, we f ind no m erit to this issue. 3. The State failed to p rove MB was recorded within the two-year statute of limitations. ¶22. Donaldson next claim s that t h e t w o - y e ar statute o f lim i tations f or section 97-29-63 bars the prosecution of C ount II, f i lm ing a person i n violation of their expectation o f privacy

. Section 97-29-63(1)(a) provides as f ollows:
It is a f elony f or any p erson with lewd, licentious or indecent intent to photograph, f

ilm , videotape, record or otherwise re p r o duces t he im age of another person w ithout the perm issi o n of the other person when the other person is located in a p lace where a person would inten d t o b e in a state of und r ess and have a reasonable expectation of p rivacy , including, but not l i mi t e d t o , private dwellings or any f a c ility , . . . used as a restroom , [ or ] bathroom . . . shall be guilty

of a f e l ony . ¶23. The indictm ent c harged Donaldson with s ecretly recording M B o n October 29, 2011.

7He w as a rrested f o r this charge o n Novem

ber 4, 2011. D onaldson argues that MB’s parents testif i ed t hat the video was not created on October 29, 2 011, but was recorded y ears earlier. ¶24. M ississip p i C o d e A n n o tated sectio n 9 9 -1 -5 (S u p p . 2 0 1 3 ) p ro v id es th at “[ a] person shall not be prosecuted f

or any o ther of

f ense not listed in this section unless t he prosecution f or the of f ense is com m enced within two (2) y ears next af ter the com m ission thereof .” Since MB’s parents testif

ied that they

believed the video was f ilm ed m ore than t wo y ears bef ore Novem ber 4, 2011, Donaldson argues that the statute of lim itations bars this prosecution. ¶2 5

. Donaldson addressed this issue in his m otion f or a directed verdict, w hich was denied.
W h en the m otion f

or a directed verdict was m a de, M B’s parents had y et to testif y . In stead , th e o n ly ev id en ce as to th e d ate th e reco rd in g w as created cam e f ro m In v estig ato r T u rn ag e,

w h o t estif

ied th a t th e v id eo w as created o n O cto b e r 2 8 , 2 0 1 1

. ¶26. Donaldson called MB’s parents to t esti f y . M B w as born in 2002. MB’s parents testif i ed that they

believed MB was only

seven or eight y ears old at the tim e the video was recorded. This conf

licts with I nvestigator Turnage’s t estim ony that the video was recorded on October 28, 2011, because MB would have been at least nine y ears old at that tim e. ¶27. A t t h e c l o se of the trial, Donaldson again m a de a m o tion to dism iss C ount II of t h e indictm ent. He argued that the video was created m o re than two y ears b ef ore Novem

ber 4, 2011, and the S tate f

a i l e d t o meet its burden to prove that Donaldson recorded M B within the two-y ear tim e period f or the of f ense. ¶28. A d irected verdict “challenge[ s] the suf f iciency of the evidence presented t o the jury

. ” Goldsmith v. State , 195 So. 3d 207, 212 (¶16) (Miss. Ct. A pp. 2016). To review the denial

8of a m otion f o r a directed verdict, “[ t]his Court will consider the evidence in the light m ost f avorable to the State, g iving the State the b e n e f it of a ll f avorable i nf

erences that m ay reasonably be drawn f

r om the evidence.” Id

. (internal q uotation m arks o m itted). W e have held that “[ i]f any rational trier of f act, when viewing the evidence in the light m ost f avorable

to the State, could have f ound that the e ssential elem ents of t he crim e existed bey ond a reasonable doubt, this Court will af f irm the denial o f a m otion f o r a directed verdict.” Moten

v. State , 20 So. 3d 757, 7 59 ( ¶5) (Miss. Ct. App. 2009). The evidence is deem e d suf f icient i f t h i s Court f

inds that “reasonable, f

air-m inded jurors could have c oncluded that th e def endant was guilty of the accused crim e.” I d

. at 759-60 (¶5). Additionally , w e r ecognize

t h a t “ t h e State bears the b urden to prove that a n of f ense o ccurred within the statute o f lim itations.” Nuckolls v. State , 179 So. 3d 1046, 1051 (¶19) (Miss. 2015). ¶29. Count II of

Donaldson’s indictm ent charged: On or about October 28, 2011,

. . . [ Donaldson] did with lewd, licentious and indecent intent secretly photograph, f ilm , videotape, r ecord and ot h erwise reproduce the im age of another person without the perm ission of such person when s u ch a person was located in a place where a person would intend to be in a state of undress a nd have a r easonable expectation of privacy , including but not l im i ted to a ny f acility , public or private, used as a r estroom or bathroom : n a m ely that [ Donaldson], with lewd, licentious and indecent intent secretly f ilm ed, videotaped, and recorded [ M B] without her perm i ssion when she was located in a bathroom a nd had an expectation of privacy , a ll in violation of [ section] 97-29-63 . . . . ¶30. First, af

ter the State rested, D o n a l d s o n ma d e a m otion f o r a d irected verdict and claim ed t hat the State f

ailed to m e et its burden of proof

. The State responded that as to the elem ents of Count II, there was suf f icient adm i s s i b l e evidence: ( 1) Investigator Turnage “stated that the creation date of said video was October 28th, 2 011,” and “he identif ied that

9[ Donaldson] was the one w ho created that v ideo, that it was m ade in his bathroom located

i n R a nkin County ”; (2) Investigator Turnage’s testim ony also showed that Donaldson recorded and possessed the video; and (3) MB testif ied t hat “she d id not k

now of any video

ever being m a de, that s h e n ever used [ Donaldson’s] com p uter, [ and] t hat she had no knowledge of

any videos.” ¶31. W e f

ind that the jury could have f ound bey ond a reasona b l e d o u b t t h a t Donaldson recorded the video of MB on October 28, 2011, well within t wo y ears of Novem ber 4, 2011. Theref ore, the trial c ourt was not in error when it denied D onaldson’s m otion f or a directed verdict af ter the State’s case-in-chief

. ¶32. Donaldson a lso m oved to dism iss af ter the d e f

e n s e ’ s c ase-in-chief and the State’s rebuttal case. Donaldson argued that MB’s parents testif ied that the video could n o t have been m ade on O ctober 28, 2011 (the date set f orth in the indictm ent as the date of creation); rather, t hey testif

ied that the video m

ust have been m ade in 2009. The S tate argued that there

was evidence to supp o r t a f i n d i ng that Donaldson created the v ideo on O ctober 28, 2011. The court denied the m otion. ¶33. W e em

plo y a “ s u b s t a n t i a l

- e v i dence/m a nif est-error standard” of review to a trial court’s grant o r denial of a m otion to dism iss a n indictm ent. B e a l v
. S t a t e , 8 6 So. 3d 887, 8 9 1 ( ¶ 9 ) ( M i s s . 2012). W e review de novo any challenges to t he legal suf f iciency of an indictm ent. Id

. ¶34. Donaldson claim s that the “creation” date does not m ean the video was recorded on that date. He asserts that the only evidence adm itted about MB’s age at the tim e the video

1 0was f

ilm ed or recorded c learly indicates that t he v ideo c o u l d h ave been recorded prior to Novem ber 2009. MB’s f

ather testif

ied that, at the tim e t he video was m ade, MB “ h a d h er baby teeth” and “ was seven or eight” y ears o ld. He said that the video w as n ot m ade in 2011. Instead, he believed t he video was m ade w hen MB was y ounger. However, MB’s f ather

c larif ied that he was “not positive on the age stuf f

. ” MB’s m o ther a lso test i f i e d t h a t M B appeared to be seven or eight y ears old in the video. MB was seven y ears old in 2009 and eight y ears old in 2010. ¶35. Investigator Turnage testif ied that the video was created on O c t o b e r 2 8 , 2 011. He explained the dif

f erence between creation and a c c e ss dates. He then clarif ied that the recording of M B was m a de on the evening of O ctober 28, 2011. On that d ay , Dona l d s o n saved the video to his hard drive. ¶36. We f

i n d there was substantial evidence in t he record to support the d e n i a l o f t h e

m otion to dism i ss. Theref ore, we f ind no m erit to this issue.
4. The jury in s t r u c tions on Count II failed to require jurors to find the essential element of intent. ¶37. Donaldson f

urther argues that Instruction S-2A, the instruction on Count II, om i tted the e lem ent of “intent” f

rom the charge of secretly recording MB w ith “lewd, l icentious and indecent intent.” Donaldson m a intains that this om i ssion constitutes reversible error. 2 ¶38. “Jury instructions are g e nerally within the discretion of the trial court[ ,] and the settled

2 D o n ald so n also arg u es th at h is p ro p o s ed j u ry in stru ctio n f o r C o u n t II, j u ry in stru ctio n A D -1 4 , p ro p erly i n c lu d ed t h e w o r d “in ten t ” an d w a s e rro n eo u sly w ith d raw n . H o w ev er, th e tran scrip t ref lects th at D o n al ds on w i t

h dr e w t he i n stru ctio n . T h e su p rem e co u rt h as h e l d th at “[ a] d ef

en d an t can n o t co m

p lain o n ap p eal o f a lleg e d erro r s in v ited o r in d u ced b y h i m self .” C a s to n v. S ta te , 8 2 3 S o . 2 d 4 7 3 , 5 0 2 (¶1 0 1 ) (M i ss. 2 0 0 2 ). 1 1standard of review is abuse of discretion.” M

oody v. State , 202 So. 3d 1235, 1236-37 (¶7) (Miss. 2 016). W hen we review a challenge to a jury instruction on a ppeal, w e r ead the jury instructions “as a w hole to determ ine if the jury w as properly instructed.” W indless v. State , 185 So. 3d 956, 960 (¶8) (Miss. 2015). The suprem e court has held that no reversible error will be f

ound when the jury instructions “taken as a whole f airly

— a l though not perf ectly —announce the applicable prim ary rules of law[ .]” Moody , 202 So. 3d at 1237 (¶7). ¶39. “[ T]he State is r e s p o n s i b l e f o r making sure the jury is instructed on the essential elem ents of the crim e.” Harrell v. State , 134 So. 3d 266, 2 7 0 ( ¶ 1 4) (Miss. 2014). “[ I]t is alway s and in every case r eversible error f or the c ourts of Mississippi to deny an a ccused the right to have a jury decide guilt as to each and every elem ent.” Id . at 275 (¶30). ¶40. Donaldson was indicted under section 97-29-63

. T h i s s tatute lists f our elem ents to the crim e of

f ilm ing a person in violation of expectation of

privacy : (1) intent—lewd, l i c entious or indecent intent; (2) act—secretly photographing, f

ilm ing, videotaping, recording or o t herwise; (3) l ack of consent—without t h e perm ission of the victim ; and (4) protected location—when such a p e r son is located in a place where a person w ould intend to be i n a state of undress and have a reasonable expectation of privacy , including, but not lim ited to, private dwellings or a ny f acility , p ublic or private, used as a restroom [ or] bathroom [ .]” Gilmer v. State , 955 So. 2d 829, 834 (¶11) (Miss. 2007). ¶41. At the jury instruction conf erence, the State’s proposed jury instruction S-2 read: If y ou f ind f rom the evidence in this case bey o nd a reasonable doubt that: 1. Michael Donaldson, on or about October 28, 2011, in Rankin County , Mississippi and within the jurisdiction of this Court; 2. Did with lewd, licentious and indecent intent;

1 23. Secretly ph o tograph, f ilm , videotape, record or otherwise reproduce the im age of another person; 4. W ithout the perm ission of such person;
5. W hen such a person was lo c a t e d i n a p l a c e w h e re a person would intend t o be in a state of u ndress and have a reasonable expectation of privacy , including but not lim ited to any f acility , public or private, used as a restroom

or bathroom ; 6. Nam e ly , that Michael Donaldson, with lewd, licentious, and indecent intent secretly f

ilm ed, videotaped or recorded M.B. without her perm i ssion when she was located in a bathroom a n d h ad an expectation of privacy

. The n i t i s y our sworn duty to f ind Michael Donaldson GUILTY of photographing or f

i l mi n g another without perm i ssion where there is expectation of

privacy , in Count II. If the prosecut i o n h as f

ailed to prove any one or m ore of the above listed elem e nts bey ond a reasonable d oubt, then it i s y our sworn duty to f ind Michael Donaldson NOT GUILTY in Count II. ¶42. The court i nstructed the parties t o m odif y proposed instruction S-2 to i ncorporate the wording f rom paragraph six into the other paragraphs, and to change the w ord “ person” to “MB.” The trial court then renam ed the m odif ied jury instruction “S-2A.” Instruction S-2A provided, in pertinent part, as f ollows: If y ou f ind f rom the evidence in this case bey o nd a reasonable doubt that: 1. Michael Donaldson, on or about October 28, 2011, in Rankin County , Mississippi, and within the jurisdiction of this Court; 2. Did with lewd, licentious and indecent; 3. Secretly photograph, f ilm , videotape, record o r o t h erwise reproduce the im age of MB;

1 34. W ithout the perm ission of MB;

5. W hen MB was l ocated in a place where a person would intend to b e in a state of undress and have a reasonable expect a t i o n of privacy , including but not lim ited to any f acility , p ublic or private, used as a restroom or bathroom ; Then it is y our s worn duty to f i n d M i chael Donaldson GUILTY of photographing or f

i lm i ng another without perm ission w h e r e t here is expectation of

privacy , in Court II. If the prosecution has f

ailed to prove any one o r m ore of the above listed elem e nts bey ond a reasonable doubt, then it is y our sworn d uty to f ind Michael Donaldson NOT GUILTY in Count II. The word “intent” was inadvertently om itted f rom paragraph two in the m odif ication. ¶43. However, D onaldson did not object t o j u r y i n s t ruction S -2A a t trial. “Ordinarily , f ailure to object to a given instruction at trial results in a procedural bar on appeal, unless its granting am ounts to p lain error.” Berry v. State , 728 So. 2d 568, 571 (¶6) (Miss. 1999). In Berry , the supreme court h eld that granting a jury instruction t hat did not f ully instruct the jury on the elem ents of the crim e am ounted to plain error, even where the def endant f ailed

to o bject t o t h e i n s t r u ction at trial. Id

. (citing Hunter v. State , 684 So. 2 d 625, 636 (Miss. 1996), f or the propos i t i o n t h a t “[ f ]ailure to subm it to the jury t he e ssential elem ents of the crim e i s ‘f

u ndam ental’ error”). The Berry c o u rt determ ined that since “ r eading the instructions as a whole did n ot cure the error resulting f rom t he im

proper instruction,” the case required reversal. Id . at (¶9). ¶44. “To determ i ne if plain error has occurred, t his Court m ust determ i ne if the trial court has deviated f

rom a l egal rule, whether that error is plain, clear or obvious, and whether the

error has p rejudiced the outcom e of the trial.” Brown v
. S t a t e , 75 So. 3d 5 73, 577 (¶16)

1 4(Miss. Ct. App. 2011).

¶45. Although jury i nstruction S-2A om itted t he word “intent,” we f ind that t he instruction still properly described the ty pe of intent required under section 97-29-63. Additionally , we f ind that t he j ury instructions as a whole f a irly announce the law and theref o re cured any error caused by the om i ssion of the word “intent” f rom j ury instruction S-2A. Moody , 202 So. 3d at 1237 (¶7). During closing argum ents, Donaldson’s counsel argued that the State

m ust prove that Donaldson f ilm ed MB with “lewd, licentious, and indecent intent.” W e f ind no error in this issue.
5. The denial o

f D onaldson’s request f or a circumstantial evidence instruction on Count I warrants a new trial. ¶46. Donaldson a r g u e s t h a t the court erred i n deny ing his request f or a circum stantial evidence jury instruction and a two-theory jury i nstruction. A t the jury instruc t i on conf erence, Donaldson asked f o r a circum stantial evidence instruction (Instruction D-7): The court instructs the jury that if the S tate has rel i e d on circum s t antial evidence to establish its theory of g uilt of the def e ndant, Michael D onaldson, then the evidence f

or the State m

ust be so strong as t o establish the guilt of the def endant, not o nly bey ond a reasonable doubt, but the evidence m ust be so strong as to e xclude every other reasonable hy pothesis other than t hat of guilt. ¶47. D o naldson argued that because no o ne w itnessed him in direct possession o f c h i l d pornography , the State’s case was based purely on circum stantial e vidence. The State noted that t he jury heard testim ony that Donaldson accessed the child p o r n o g r a p h y f iles on the

m orning of the s earch, t o w hich Donaldson’s counsel responded, “[ n]obody s aw him .” The

court then stated: “I’m not so sure that s im ply because nobody s aw him me a n s it’s a circum stantial evidence ca s e . [ Donaldson] was at the house. There’s no testim ony that

1 5any

body else was there. There’s testim ony the com puter was accessed then.” The trial court determ ined that “[ i]t seem s like . . . that’s direct evidence,” and denied the instruction. ¶48. Donaldson claim s that since he did not conf ess to any crim es and the State f

ailed to present direct evidence of h is g uilt, he was e ntitled t o receive a circum stantial evidence jury instruction. Donaldson m aintains that h e presented e vidence t o show that his hom e W i-Fi connection was not s ecure and could have been accessed by som eo n e o u t s i de t he house. Indeed, Donaldson testif

ied that he allowed a neighbor to use his W i-Fi. ¶49. Circum stantial evidence is def ined as “evidence which, w i t h o u t g o i n g directly to
prove the existence of a f act, gives ri s e to a logical i nf erence that s uch f

act does exist.” Burleso n , 1 6 6 So. 3 d at 509 (¶29). I n contrast, direct e vidence “m ust d irectly and not by inf erence im

plicate the accused[ ,] a n d not just show that there has b een a crim e.” Id

. “[ E]xam p les o f direct evidence i n c l u d e a n adm ission or c onf ession by the def

endant t o a signif icant elem e nt of the o f

f ense, or e y ewitness testim o ny to t he gravam en[ , or s u bstantial point or essence,] of the o f f ense charged.” I

d

. (internal q

uotation m arks om itted). “W here the State is without a conf ession and wholly without ey ewitness testim ony to the gravam en of the of f ense charged, the d ef

endant is entitled to an instruction requiring the jury to exclude
every other reasonable hy pothe s i s other than that of guilt bef ore a conviction can be had.” Id . (internal quotation m arks om itted). ¶50. The evidence established that som eone accessed c hild pornography on Donaldson’s

com puter on the m orning the search warrant was executed. The evidence established that Donaldson was alone in h is house at the tim e the child pornography was accessed. The jury

1 6saw the v i deo of MB u sing the bathroom

. It showed Donaldson s etting up the c om puter bef ore MB entered, and then shows Donaldson entering the bathroom again af ter MB exited.
W e f ind no abuse of discretion in the denial of jury instruction D-7. ¶51. Donaldson then submi t t e d h i s t w o - t h e o r y c i r c u ms t a n t i a l e v i d ence instruction, Instruction D-8: The court instructs the jury that i f there be a f act or circum stance in this case which is susceptible of two interpretations, one f avorable a n d the other unf avorable t o the d ef

endant, Michael D onaldson, and if a f t er considering all the other f

acts and circum stances there is reasonable d o ubt regarding the correct interpretation, then y ou, the jury , m ust resolve such doubt in f avor of the accused, and place upon such f act or circum stance t he interpretation m ost f avorable to the def

endant. Af ter the State objected, the trial c ourt denied the i nstruction. The c ourt explained, “I think it gets to a circum stantial evidence case, and it’s an attem pt to def ine reasonable doubt.” ¶52. T h e suprem e court has held that “where t he case is based o n purely ci r c u ms t a n t i a l evidence, that the def

endant i s entitled to a two-t h eory i nstruction, as well as the general circum stantial-evidence i nstruction.” Goff v. S tate , 14 So. 3d 625, 660 (¶151) (Miss. 2009).
In Johnson v. State , 2 3 5 So. 3d 1404, 1412-13 (¶24) (Miss. 2017), the suprem e court recently cl a r i f i e d t h a t “ i n o rder to receive the two-theory , special, c ircum stantial-evidence instruction,

two reasonable hy

potheses or theories m

ust be presented to the jury : one theory showing how the e vidence illustrates the def e ndant’s in n o c e n c e and the other theory showing h ow the sam e evidence illustrates the def e ndant’s guilt.” (citing McInnis v. State , 61 S o. 3 d 872, 875 (Miss. 2011)). ¶53. The State presented the video that showed Donaldson in possession of the l aptop just

1 7bef

ore r ecording MB. There was also evidence t hat Donaldson was a lone at the house at the tim e child pornography

was accessed on his c om puter. Theref

ore, we f i nd that the State’s

case was not based on purely c ircum stantial evidence. Accordingly , Donaldson was not entitled to a two-theory

jury instruction. W e f

i nd no error in the denial of Instruction D-8. 6. The court committed reversible error by not excluding evidence about images on the cell phone. ¶54. D o naldson next argues that it was error to allow testim ony about im ages o b t a i n e d f rom his cell phone. Donaldson claim s that he was prejudiced by the State’s f ailure to tim ely provide the cell phone evidence and, as a result, the adm ission of t he testim ony regarding the cell phone evidence am ounted to reversible error. ¶55. “A trial court’s decision to adm it evidence

. . . is reviewed on appeal f or an abuse of discretion.” Jones v. State , 918 So. 2d 1220, 1223 (¶9) (Miss. 2005). “Unless we can saf ely
say that the trial court abused its judicial discretion in allowing or disallowing evidence so

as t o prejudice

. . . the accused in a crim inal case, we will a f f irm the trial court’s r

uling.” Id

. ¶56. I nvestigator Turnage testif ied abo u t t h e e x e c u t i o n o f t h e s e a r c h w a r r a n t o f Donaldson’s residence. Don a l d s o n ’ s Blackberry cell phone w as seized, and Investigator
T u r n a g e w a s able to link the cell phone to som e of the im age f iles f ound o n Laptop 1. Specif ically , Investigator T urnage explained that he f ound a f older on Laptop 1 containing im a ges of Donaldson, as well as im ages of people who were known to associate with Donaldson, and these im ages were taken with the cell phone. ¶57. Donaldson argued that the d ef ense had not r eceived any i nf orm ation during discovery about a cell phone or any im ages taken with the cell phone. The State assured the c ourt that

1 8it would not se e k t o a dm it into e vidence any pictures taken with the cell phone, a nd that it

w a s o n l y o f

f ering the t estim ony about the cell phone to show o wnership or control. Donaldson responded that he w as not given an opportunity to inspect the cell p hone during discovery

. The State argued that Donaldson cam e to the Cy ber Crim e Uni t ’ s of

f ice during the d iscovery period a nd had f ull access to the evidence in the m atter. However, Donaldson

st a t e d t h a t w h e n h e “ asked [ the AG’s of f i ce] f or any thing on his cell phone,

. . . he was denied the right to exam ine his cell phone.” ¶58. D o n a l d son also i nf orm ed the court that when h e asked if h e c o u l d e x a mi n e t h e pictures contained on his cell phone, the State responded that they “cannot i m a ge a cell phone

or a Blackberry .” Donaldson then argued that he f elt “am bushed” by the State’s testim ony regarding the c ell-phone im ages, because the def ense was unaware of

the existence of

any pictures t aken by Donaldson’s c ell phone on the h ard drive o f L aptop 1. The court ordered the State t o allow Donald s o n t o exam ine the cell p hone “under t he conditions that won’t destroy the evidence on the p hone.” Donaldson c laim s the State f a i led to provide him with the cell-phone evidence until later that sam e day , af ter court had adjourned. ¶59. Unif

orm Rule of Circuit and County

Court Practice 9.04(I) states: If during the course of trial, the p r o s e c u t i o n attem pts to introduce evidence which has n ot been tim ely disclosed to the def ense as r equired by these r ules, and the d ef

ense objects to the introduction f or that reason, the court shall act as f ollows: 1. Grant the def

ense a reasonable oppor t u n i t y t o . . . exam ine the n ewly produced docum ents, photographs or other evidence; and 2. If , af ter such opportunity , the def ense claim s unf

air surprise or undue prejudice a n d s e eks a continuance o r m istrial, the court shall, in the

1 9interest of justic e and absent unusual circum stances, exclude the evidence or gra n t a continuance f or a period of tim e reasonably necessary f or the def ense to m eet the non-disclosed evidence or grant a m i strial. ¶60. In W

illiams v. State , 991 So. 2d 593, 600 (¶22) (Miss. 2008), W illiam s argued that the

court erred by adm itting an audiotape into evidence that the State f ailed to d isclo s e b e f

ore trial. The def

ense objected t o the adm ission of t he audiotape based o n the f ailure to tim ely disclose it during discovery

. Id

. at (¶23). The suprem e court recognized that Rule 9.04(I)(1)

“ r e q uires the court to grant the def ense an opportunity t o e x am ine the new ev i d e n c e . ”
W illiams , 991 So. 2d at 601 (¶27). The court f ound that def

ense counsel was provided the opportunity to listen to the tape and “allowed suf f icient tim e to i nterview t he witness called to present the tape.” Id

. ¶61. The court a lso explained that “[ i]n order f or the r equirem e nts of Rule 9.04(I)(2) to be invoked, the def

ense m ust (1) af ter such an opportunity , claim unf air s urprise and (2) seek

a continuance or m istrial.” Id

. at (¶28). Further, although W illiam s claim ed unf air surprise and r equested a r ecess, the court concluded t hat “he f ailed to seek a continuance or m istrial.” Id

. at (¶30). As a result, the court held that “[ d]ef ense counsel

. . . theref

ore waived arguing this issue on appeal.” Id

. ¶62. Here, Donaldson o b jected to the adm ission of any evidence regarding t he cell phone due to t he State’s f

ailure to tim ely d isclose the cell phone o r i t s s t ored im ages during discovery

. The court ordered the St a t e to allow t he def ense to e xam ine the cell phone. Addit i o n a l l y , the record indicates that Donaldson him self cross-exam ined Investigator Turnage and did not request a continuance or a m istrial. Moreover, the State did not of f er

2 0the contents of the cell phone into evidence. As a result, Donaldson has not shown that he

was prejudiced by the decision to allow evidence regarding the im ages f ound on h is cell phone. W e theref

ore f i nd no error in this issue.
7. The court erred in not allowing the d efense access to the original hard drive. ¶63. Donaldson next claim s the trial court erred when it did n o t a l l o w t h e d e f ense an opportunity to exam ine the original hard drives f rom his laptops. D onaldson m aintains that his def ense depended on s howing that the hard drives seized f rom his hom e had been altered, and that the pornography was added af t er the hard drives were in the State’s c u s t o d y . Donaldson asserts that this evidence would have s upported h is claim that the f iles were put on the disk af

ter the com

puter was seized. ¶64. On October 1 9 , 2012, Donaldson f iled a m otion f

o r d iscovery that requested, am ong other things, “that the original of the com puters(s)

. . . be t u r n e d o v e r t o an independent expert to be hired by [ the d]ef endant f or the purpose of i nspecting a nd analy zing said evidence.” Af

ter a hearing on the m atter, the trial court denied the request. 3 ¶65. On March 17, 2014, D onaldson f i led a mo t i on to dism iss or suppress evidence and alleged a n irregular ch e c k i n and check out o f the State’s evidence, Laptop 1, and irregularities in the collection and preservation of the alleged evidence f

ound on Laptop 1. At the hearing on this m otion, Donaldson m a d e an ore tenus m otion to exam ine Laptop 1 and

3 M ississip p i C o d e A n n o tated sectio n 9 9 -1 -2 9 (1 ) m an d ate s th at “[ i] n an y crim i n al p r o c eed in g , e v id en ce th at co n stitu tes ch ild p o rn o g rap h y . . . sh all r em ain in th e care , cu sto d y , an d co n tro l o f eith er th e p ro secu tio n o r th e co u rt.” H o w ev er, s ectio n 9 9 -1 -2 9 d o es allo w f o r th e d ef

en d an t , t h e d ef

e n d an t’s atto rn ey , an d th e d ef en d an t’s e x p ert to in sp ect, v iew , an d ex am in e th e p ro p erty at a g o v ern m en t

f acility

. 2 1its c ontents. The court s aid, “I’ll deal with that [ m otion] when we get f i nished with this one.” ¶66. The r ecord d oes not ref lect a ruling on D o n a l d s o n ’ s o r e t enus m otion. T he State
argues t hat since the def

ense f a iled to obtain a ruling on i ts request to exam ine Laptop 1 and its contents, Donaldson abandoned his m otion. ¶67. Rule 2.04 of the Unif orm R ules o f Circuit and County Court Practice p rovides: “It is the duty of the m ovant, when a m otion or other pleading is f iled,

. . . to pursue said m otion

to hearing a nd d e cision b y t h e c o u r t. Failure to pursue a pretrial m otion to hearing and decision bef

ore trial i s d eem ed an abandonm ent of that m o tion[ .]” “ [ I]t is the responsibility of the m ovant to obtain a ruling f rom the court on m otions

. . . and f ailure to do so c onstitutes a waiver.” Smith v. State , 986 So. 2d 290, 296 (¶16) (Miss. 2008). If a party f ails to bring

an issue bef

ore the trial court, the issue is “ d eem ed waived and m ay not be raised f or the f irst tim e on a ppeal.” Id

. In Smit h , 9 8 6 So. 2d 290, 296 (¶17), the suprem e court f ound “no record of a ruling by the t r i a l court on [ the def endant’s] m o tion f

o r severance nor any evidence that the m otion was noticed f or hearing by the d e f

e n d ant.” T he c ourt held that “[ b]y f ailing to pursue a hearing o r ruling on the m otion f r om the trial court, [ the def endant] ef f ectively abandoned the m otion and waived this issue f or appeal.” Id

. ¶68. Donaldson claim s that the court did a ddress his request to view t he o riginal hard d rive when it denied the m otion to dism iss. The court explained, with regard to Laptop 1 , “there’s just no evidence that there’s any i rregularities or a ny thing t hat’s been tam

pered with or that has bee n c h a nged or altered in any way .” Donaldson argues that since the court f ound no evidence t o show tam

pering, “then it f

ollows that the request to view the hard drive because

2 2of

tam pering in the court’s view also lacked evidentiary support” and was denied. ¶69. We f

ind no o rder that denied Donaldson’s m otion to exam ine L a p t o p 1 a n d i t s
contents. Donaldson also went to the Cy ber Crim e Unit’s of

f ice bef ore trial and was allowed

to exam ine the State’s evidence. Theref ore, we f ind Donaldson waived this issue. 8. The judge who issued the search warrant was not fair and impartial. ¶70. Donaldson raises three issues of judicial mi s c o n d u c t a g a i nst t hree judges. First, Donaldson m akes a claim against the judge w ho issued t h e s e a r c h w a rrant. H e claim s the search w arrant was n o t issued by a f air and i m p artial judge and was theref ore in violation of his right against unreasonable searches and seizures and due process. ¶71. In 2011, Donaldson lived w ith his brother, John. The Cy ber Crim e Unit was issued a search warrant signed by a Rankin County judge (“the issuing judge”). ¶72. A c c o r d i n g t o D o n a ldson, in 2004 or 2005, J ohn’s girlf riend, a Rankin C o u n t y

em ploy e e, was working with the court sy stem

. During t his sam e tim e - f ram e, t h e issuing judge was invo l v ed in a relationship with a wom an who was also a county em ploy ee. Donaldson claim s that the i ssuing judge and the wom a n w ould visit John’s residence along with John’s girlf

r i end, 4 and John obtained com prom ising photographs of the issuing judge and the wom an. To recover the com prom ising photographs, Donaldson cl a i ms t h a t the issuing judge conspired with the Cy ber Crim e U n it to i ssue a search warrant f or child pornography

at John’s residence. ¶73. Based on this cla i m, D o n a l dson f iled a m otion to dism i ss the indictm ent or, in the

4 T h ere is n o alleg atio n th at D o n ald so n w as also p resen t w h ile th e issu in g j u d g e w as p resen t in Jo h n ’s resid e n ce. 2 3alternative, to suppress the evidence obtained as a result of the search warrant. H e argued

that t he search warrant signed by the i ssuing j udge w as def ective because h e was not a f air and unbiased m agistrate. Donaldson asked that the evidence obtained by the Cy b er Crim e Unit as a result of the search warrant be suppressed, which w o uld result i n the dism issal of the charges. A hearing on the mo t i o n w as h eld on M arch 28, 2013. Circuit Judge John
Em f inger was assigned the case and conducted the hearing. 5 ¶74. Investigator Moore testif ied that the Cy

ber Crim e Unit has sof

tware that w i ll identif

y when possible and known c hild-pornography m edia f iles are being shared. H e testif ied that this investigation began when the sof tware a lerted that child pornograp h y had been downloaded by a user with the IP address 68.222.69.53. A subpoena to AT&T determ ined the phy sical location of

this IP address was located in Rankin County

. 6

5 A t a p re - t r i al h earin g h eld o n A u g u st 1 4 , 2 0 1 3 , th e trial co u rt o b serv ed th at th e d ef en se c o u n sel f

iled a mo t i o n to su p p ress th e ev id en ce o b t ain ed p u rsu an t to t h e search w a rran t o n A u g u st 9 , 2 0 1 3

. T h e trial co u rt stated , “I’v e alre a d y h e a r d t h e m o tio n [ to ] su p p ress th e search w arran t” o n M arch 2 8 , 2 0 1 3

. D ef e n se co u n sel c larif

i ed th at th e M arch 2 8 , 2 0 1 3 h earin g w as o n ly o n th e m o tio n to d ism iss th e search w arran t , an d n o t th e m o tio n to su p p ress th e ev i d en ce. T h e trial co u rt th en ru led th at th e m o tio n to su p p ress th e ev id en ce w a s n o t t im ely f

iled , an d th u s “d eem ed w aiv ed an d ab an d o n ed .” T h e t rial co u rt also rev iew ed th e tran scrip t f

ro m th e M arch 2 8 , 2 0 1 3 h earin g an d in f o r m ed d e f e n s e c o u n sel, “It ap p ears th at I ru led o n th at an d d en i ed th e m o tio n t o d ism iss an d th e m o tio n to su p p ress ev id e n c e .” O u r rev iew o f th e r eco rd also sh o w s th at d u rin g th e M arch 2 8 , 2 0 1 3 h earin g , th e tri a l c o u rt stated , “T h e n ex t m o tio n th at I see in th e f ile i s a [ m ] o tio n to [ d ] ism iss an d a [ m ] o tio n to [ s] u p p r ess [ e ] v id e n ce.”

6 A t th e p re-trial h earin g , In v e stig ato r H o u sto n testif ied ab o u t th e s earch w arran t req u est. H e ex p lain ed th at h e w as w o rk in g an u n d erco v er in v estig atio n o f co m p u ters th at ad v ertised ch ild s ex u a l ab u se im ag es o n lin e, an d h e w as ab le to id en tif y an IP ad d ress th at h ad ad v ertised sev eral k n o w n ch ild sex u al ab u se im ag es. In v estig ato r H o u sto n testif ied th at h e v erif i ed th ree o f th e im ag es as c h ild p o rn o g rap h y . In v estig ato r H o u sto n t h e n su b p o en aed A T &T to o b tain th e IP ad d ress th a t w as assig n ed to L ap to p 1 at th e p articu lar d a te an d t im e th at t h e ch ild p o rn o g rap h y im a g es w e re av ailab le f o r d o w n lo ad

. H e said th at th e resp o n se 2 4¶75. Based on this inf orm ation, the Cy

ber Crim e Unit contacted the Rankin C ounty Circuit Clerk’s of

f ice and asked if a judge was available t o consider issuing a search w a rrant. Investiga t o r M o o re testif i ed that he w as advised that t he i ssuing judge was available. Investigator Moore then appeared bef ore the issuing judge. He p resent e d t he underly ing f acts and circum stances a nd a n af f idavit to the issuing judge. He also reque s t e d a s e arch

warrant f or Donaldson’s residence. Investigator M oore testif ied that t he s earch warrant only

nam ed M ichael Donaldson as a suspect. He f urther t estif

ied that Jo h n ’ s n a me was not

m entioned to or considered by the issuing judge. In f act, I n v e s tigator Moore testif ied that he was not even aware of John’s existence or that Michael Donaldson had a brother. ¶76. The issuing judge also testif ied. The i s s u i n g judge testif i ed that he reviewed the search warrant d ocum e nts presented by Investigator Moore, and determ ined that p r o b a b le

cause existed to is sue the search warrant of D onaldson’s residence. Based on this inf orm ation, the issuing judge s igned the search warrant. T he issuing judge also testif ied that he did n ot kno w M i c hael Donaldson and stated that if he had “known any thing about Donaldson[ ,]” he “would n ot have entertained [ t he] warrant or . . . signed [ i t.]” T he issuing judge w as asked if he knew J ohn Donaldson, and he responded that he had r ecently learned that a m an he knew a s “John” was related t o M ichael D onaldson. However, the issuing judge said that, at the tim e the search warrant was issued, he “couldn’t have told y ou [ John’s] last

nam e with a g un to [ his] h e ad.” The issuing judge explained th a t h e “ j u s t k n ew him as John.” T he issuing judge f urther testif

ied that he knew “John” as a person who had worked

id en t if ied an IP ad d ress th at w as assig n ed to D o n ald so n . 2 5as a prison trusty in the cou r t h o u s e , h e k n ew that John and John’s girlf riend had been in a relationship, and he did not approve of the relationship. ¶77. The issuing judge was also asked if he had ever visited the residence w here John lived with h i s g i rlf

riend. The State objected on t he grounds of relevance a n d argued, “I don’t see how t his relates to w hether or not there was s u f f icient p robable cause f

or t h e w a r r a n t and whe t h e r [ t h e ] judge used his neutral and detached f u nction as the m agistrate to sign a warrant.” Judge Em f

inger sustained the objection. ¶78. The issuing judge was then asked if h e had ever m et the wom an a t the residence where John lived with his girlf

riend. The State again objected a s to r elevance, and Judge Em f inger held that the objection would be sustained unless def ense c ounsel could e xplain to the court “what the relevance would be to this search warrant.” Def ense counsel explained that he was try ing to s how that the issuing judge was not a neutral and detached m agistrate because of the relationship between John and his girlf riend, and his relationship with the wom an. ¶79. Judge Em f

inger then c onsidered the underly i ng f acts a nd circum stances to s upport the search warrant. He ruled that the f acts and circum s tances f

aile d t o identif

y J ohn as being involved in the c hild p ornography investigation. He also determ i ned that the search warrant

was signed in 2011, a nd the allegations about the issuing judge were f r om 2004 and 2005. Thus, Judge Em f

inger ultim ately concluded that “[ the i ssuing judge’s] relationship with [ the

wom an] or [ John’s girlf

r iend], or even the knowledge of John

. . . i s [ n o t ] relevant where none of that is shown on this search warrant.” ¶80. Donaldson’s counsel then insisted t hat whether the issuing judge had been to John and

2 6John’s girlf riend’s residence was relevant because it would show that the issuing judge knew John’s last n am e was Donaldson. Judge Em f inger a l l o w e d c ounsel to continue with his questioning

. The issuing judge was then asked if he had ever been to John and his girlf riend’s residence a nd he answered, “Absolu t e ly

. And as soon as I saw that they were co-habitating, I quit going there. I was very uncomf o r t a b l e with that.” T he issuing judge

was t hen asked his purpose in going there; the State o bjected, and Judge Em f i nger sustained the objection. ¶81. John testif

i ed that, approxim ately two weeks bef ore the search warrant was issued, he had a telephone conversation with Jo h n ’ s g i r lf riend. They discussed the c om prom ising photographs of the issuing judge a nd the wom an. John said that h is girlf riend asked him if he still had the photographs, and he told her that he did. John testif i ed that when h e told his girlf riend that he had not destroy ed the photographs like she thought h e had, that she becam e angry and “pretty

m uch hung up on [ him ].” ¶82. Additionally , J ohn testif ied that during the execution of t he search warrant, the Cy ber Crim e Unit seized the com p u ters that contained the photographs of the issuing j udge and the

wom an. J ohn f

urther testif

ied that he live d w i t h M i chael when t he search warrant was executed, but h e was not at the h o u s e during the search. A ccording to John, m ost of his

com puter equipm ent was taken during the search. ¶83. Af ter D onaldson’s counsel asked John about the relationship betwe e n t h e i s s u i n g judge and the wom an, the S tate obje c ted on the grounds o f relevance. Judge Em f inger sustained the objection. Thereaf ter, Donaldson’s counsel a s k e d t o prof f er w hat John’s

2 7testim o ny

would be and Judge Em f inger ref used to allow the prof

f er. ¶84. During her testim ony , John’s girlf riend denied c alling John a pproxim a tely two weeks bef ore N ovem

b e r 3, 2011. She d enied that she asked John to give her all of t he photographs that he h a d t a k e n o f the issuing judge and the wom an. John’s girlf riend said that the conversation about the pictures h appened “m onths a n d m onths prior to that.” She also denied that she threatened John that his probation would be revoked i f h e didn’t turn over the photographs. However, John’s girlf riend adm itted that she thought she had threatened John with probation-revocation because he blackm ailed her over the photographs. W hen asked if the issuing judge a nd the wom an ever visited her h om e, t he State objected t o the relevancy of the q uestion. Donaldson’s counsel e x p l a i n e d t hat the question was f o r im peachm ent
purposes, but Judge Em f inger s u stain ed the objection. John’s girlf riend d id testif

y that although she introduced John to the issuing j udge, she did n ot believe that she had m entioned John’s last nam e to h im

. To her knowledge, John’s girlf riend said that the i ssuing judge had

never m et Michael Donaldson. At the conclusion o f her testim ony , def

ense counsel asked f or perm ission to prof

f er that if he had been a

b le to “ask t hose questions that were sustained

as to rele v a n c e , ” h e w ould have been better able to show t hat the issuing judge was not detached a nd neutral. Judge Em f inger ruled t h a t h e would let def ense counsel m ake an argum ent at the conclusion o f the h earing, but he would not let def ense counsel “prof

f er into the record questions [ he] didn’t ask.” ¶85. Judge Em f

inger denied the m otion to dism iss the indictm ent or, in the alternative, to
suppress e vidence. He f

ound that Donaldson f

ailed to present any evidence “to show that

2 8[ the issuing judge] was any th i n g l e ss than a neutral and detached m agistrate.” Further, he ruled that “there was never any testim ony or evidence presented that [ the issuing judge] in
any way knew that [ John] was in any way c o nnected to [ Michael Donaldson] or that [ John] had a ny thing to do with [ Michael Donaldson’s] residence

. . . at t he tim e o f the issuance of this search warrant.” Judge Em f i nger also concluded that Donaldson had f ailed to present evidence “that would indicate in any shape, f orm , or f ashion that [ the issuing judge] had any way to connect

. . . the p r obable cause in this warrant to the person he k new as John and

. . . any relationship, a ccording to [ Joh n ’ s ] testim ony , e xisted in 2004 and 2005. This warrant

was issued i n 2011.” Judge Em f inger additionally stated, “there’s been absolutely no proof bef ore this [ c]ourt that [ the wom an] had h a d any conversations with [ the issuing judge] concerning those photographs or pictures.” Thus, Judge Em f inger f ound t hat t he s e a rch warrant “was properly

issued.” ¶86. In C

ole v
. S tate , 915 So. 2d 481, 483 (¶9) (Miss. C t. App. 2005), this Court f ound no

error where an appellant claim ed that t he search warrant was not issued by a detached and neutral m ag i s t

r a t e . There, the judge who signed the search warrant acknowledged that Cole’s

current gi r l f

r i e n d w as his e x-girlf

riend, and the judge adm itted that he had previously contacted his ex-girlf

riend to warn her that the appellant was a “drug kingpin.” Id

. at (¶7). This Court ruled that “[ g]iven these circum stances, it c ertainly w ould have b e e n p r e f erred that s om e other judge a

pprove the search warrant.” Id

. This Court acknowledged t h a t a suppression hearing o n the i ssue o f the search w a r rant was later held b ef ore a n eutral and d etached m a gistrate, who “f ound that a s uf

f i cient evidentiary f

oundation existed to hav e

2 9justif

i ed issuance of the search warrant.” Id

. a t (¶8). This Court also “reviewed t he af f idavit f or a search warrant and the record of the s uppression hearing” and determ ined “that there

was put f o rth suf f i cient inf orm ation which would j ustif y the issuance o f a s earch warrant.” Id

. at (¶9). Thus, i n C

ole , this Court determ i n e d t h a t t h ere would be no constitutional violation where am

ple probable cause exists. See also United States v. Heffington , 952 F.2d 275 , 2 7 9

- 8 0 (9th Cir. 1 991) (“[ T]he trial court applied the harm less error analy sis to appellant' s neutral and detached m agistrate claim because f rom all the f

acts bef ore the court it was clear that any

m a gistrate would have f

ound probable cause f

or a warrant.”) ¶87. “It is well-settled that an individual issuing a warrant m ust b e a detached and neutral

m agistrate.” M

itchell v. State , 931 So. 2d 639, 642 ( ¶7) (Miss. Ct. App. 2006) (f i rst citing Johnson v. United S

tates , 333 U.S. 10, 14 (1948); t hen citing McCommon v. S tate , 467 So. 2d 940, 942 (Miss. 1985)). “On r eview of a challenge t o the issuance of a search warrant, this Court will af

f irm if there was a substantial b asis f or the conclusion that probable cause existed.” Batiste v. State , 121 So. 3d 808, 859 (¶129) (Miss. 2013). ¶88. Here, w e f

i n d n o e v i d e n c e to establish t hat t he issuing judge knew that John was Michael Donaldson’s brother or that John li v e d w i t h M i chael. The search warrant only

m entioned the nam e of Michael D o n a l dson. Additionally , John’s girlf riend testif

ied that although she d id t alk to J ohn a bout returning the p ictures of the judge and t h e wom an, the conversation occurred “m o nths and m onths” prior t o the issuance o f t he s earch warrant. Donaldson of

f ered no e vide n ce that John’s girlf riend had ever talked to the issuing judge about the pictures.

3 0¶89. Based on our review of the record, we f ind t hat there was a suf

f i cient evidentiary basis to justif y the issuance of

the search warrant. Theref ore, we f ind no m erit to this issue. 9. The judge assigned to the case should have recused. ¶90. Next, Donaldson c l a i ms J u dge Em f inger should have recused. Since this case was originally assigned to him , Judge Em f inger p resided o n a ll pre-trial m atters. A m onth bef ore the scheduled trial, D onaldson f iled a m otion to r ecuse Judge Em f inger. The m otion asked that the case be reassigned to Rankin County Senior Circuit Judge W illiam Chapm an. Eight day s b ef ore tri a l , Judge Chapm an entered an order that reassigned the case as requested. Judge Chapm an presided over the trial. ¶91. Despite being granted the r equested relief , Donaldson argues that, because of Judge
Em f inger’s s ubstantial involvem ent in the c a s e , J u d g e E m f i n g e r ’ s d e c i s i o ns should have been reviewed a new by Judge Chapm an. Hence, Donaldson s ay s that he should have been given another o p p ortunity to present evidence and have Judge Chapm an rule on the m otion to
suppress. Donaldson also attacks the order granting t h e State’s m otion i n lim i ne, which prohibited Donaldson f

rom introducing evidence regarding
any testim ony , asking any questions of witnesses or m aking a n y r em a r ks at any point during this trial, in the presence of the jury , concerning any f acts or evidence re g a

r d i n g t h e a l l e g e d fr i e n d s h ip and relationship between [ the issuing judge, the wom a n] or [ John’s girlf riend]; any ref

erence to a lleged p ictures of [ the issuing j udge, the w om an] or [ John’s g irlf r iend]; o r any f

a cts or evidence concerning the relationship between John Donaldson and [ the wom an]. ¶92. Donaldson claim s J udge Em f i nger s h o u l d h ave recused him self prior to ruling on these “ c r itical m o tions” b ecause his daughter was em ploy ed by in the Public Integrity Division of the Attorney General’s of f ice a t the t im e of t rial. A ccording to Donaldson, the

3 1Cy

ber Crim e Unit of the Public Integrity Division prosecuted the case. ¶93. Donaldson f

urther claim s that Judge Em f inger should have recused him self prior to ruling on his m otions because Judge Em f i nger worked in close proxim ity with the issuing judge. Donaldson argued: The Rankin C ou n ty Courthouse is a relatively sm all place, and i t is com m onplace f

or judges and other court personnel i n the sam e courthouse to m eet with one another, f

o rm ally and inf

o rm ally , f or m any r easons. It is likely that those judges socialize w ith one a nother and court personnel at court o r bar events, or privately

. L ogically , people who see each other regularly over tim e develop prof

essional respect, appreciation and f riendships f

or one another. Consequently , a reasonably well-inf orm e d person m ight harbor a r easonable dou bt about a judge’s c apacity f or im partiality when i t c om es to judging the credibility of those with whom he has enjoy ed such r elationships. W here, as here, the case involves a f ello w j u dge and court p ersonnel a s witnesses, and the judge is called upon to judge their credibility about possible m isconduct, then a judge should recuse him self

. ¶94. Donaldson c i t e s C a n o n ( 3 )(E) of the Mississippi Code of Judicial Conduct, which requires a judge to “disqualif y [ him self

] in proceedings in which [ his] im p artiality m ight be questioned by a reasonable person knowing a ll the circum stances” including, but n ot lim ited to, where a “person within the third degree of relationship” of the judge is acting as a lawy er in t he proceeding or is “known by the judge t o h a v e an interest that could be substantially af f ected by the outcom e of

the proceeding.” ¶95. “[ A] judge’s im

partiality is presum ed, and the presum ption m ust be overcom e by the appellant in order f

or appellate courts to f

ind m anif est error.” W

est v. State , 131 So. 3d 583, 586-87 (¶10) (Miss. Ct. A pp. 2013). “Mere spec u l a t i o n i s insuf f icient to raise r easonable doubt as to the validity of the presum ption t hat t he trial j udge w as qualif ied and unbiased.”

3 2Jackson v. State , 962 So. 2d 649, 663 (¶31) (Miss. Ct. App. 2007).

¶96. Canon 3 r equires that we apply an objective standard o f review to determ ine whether

a judge should have disqualif i ed hi ms e l f f

r o m hearing a case. W

e s t , 131 So. 3d at 586-87 ( ¶ 1 0 ). “A j udge is required to disqualif y him self if a reasonable person, knowing all the circum stances, would harbor d oubts about his im partiality .” I

d

. “The decision to recuse or
not to recuse is o n e l e f

t t o t h e sound discretion of the trial judge, s o long as he applies the correct legal standards and is consistent in the application.” Id

. ¶97. On January 8, 2 015, Donaldson f iled the m otion to recus e J u d g e E mf i n g er. He claim ed this was af

ter he discovered t h a t Judge Em f inger’s d aughter w as em

ploy ed as a Special Assistant Attorney General in the Public Integrity Division. 7 Donaldson asked that Judge Em f

inger “either recuse him self f r om f urther participation in this action, o r re[ ]assign

t h i s action t o . . . [ Judge] Chapm an.” By order d ated January 12, 2 015, J udg e C h a p ma n reassigned the case to him s elf

. ¶98. During the trial, Donaldson asked Judge Chapm an t o r evisit the order that granted the

m otion in lim ine a nd p revented Donaldson f rom calling the issuing judge a s a witness at trial. Judge Chapm an declined and ruled:
I have reviewed and s tud i e d t h [ e ] t ranscripts. A nd it seem s to m e that what was bef ore Judge Em f

i nger was, as m

uch of any

t hing, a suppression hearing relative to the issuance of t h e warrant with the allegations that [ t he issuing judge] was n ot a neutral and detached m a gistrate. And Judge Em f inger considered all of

that.

7 Donaldson additionally asserted that Judge Em f inger’s daughter also wor k e d a s a sum m er intern f

or the Rankin County District A ttorney ’s of f ice f r om May 2004 until August 2012. 3 3. . . .

I can say , based on what I have bef ore m e, I would have ruled exactly the way [ Judge Em f

i nger] ruled. I think he w as correct i n that r uling in t hat it was reasonable f

or that warrant to be executed. And the evidence turned up during that search warrant d o esn' t give the [ c]ourt any indi c a t i o n that any thing im p roper had gone on. ¶99. The State a rgues that this issue was waived. Donaldson knew, or reasonably should have known, that Judge E m f inger and the issuing judge were colleagues w hen he f iled his

m otion to dism iss or, in the alternative, suppress evidence. Rule 1.15 of the Unif orm Rules of Circuit and County

Court provides:
A m otion seeking recusal

. . . shall, in the f irst instance, be f

iled with the judge who is the subject of the m otion within 30 day s f ollowing notif

ication to the parties o f t h e n a me o f the judge assigned to the case; or, if i t is based upon f acts which could not r easonably have been known t o the f ili n g p arty within such tim e , it shall be f

i led within 3 0 day s af

t er the f iling party could reasonably discover the f

a cts underly ing the grounds asserted. The m otion t o recuse was f i led two y ears af

ter the m o tion to dism iss. W e agree; Donaldson’s

m otion f or recusal of

Judge Em f

i nger was not tim ely

f iled and was waived. ¶100. Notwithstanding the w aiver, Donaldson “has not pointed t o a n y s p e c if ic rulings which indicate that [ Judge Em f

inger] was biased or unqualif ied” to rule on his m otions. Jackson v. State , 1 So. 3d 921, 927 (¶18) (Miss. Ct. App. 2008). W e f ind no m erit to this issue. 10. The

judge who reassigned the case to h imself should have a lso recused. ¶101. Donaldson also claim s that Judge Chapm an should have recused. On A pril 25, 2016, Donaldson f

iled a m otion to recuse Judge Chapm an. This m otion was f iled m ore than one
y ear af ter his p ost-trial m o t ions but prior to a ruling on the m otions. Donaldson claim ed that “[ b]ecause the allegations contained herein cast doubt on the integrity o f persons who have

3 4past and pres ent a ssociations with courthouse personnel, [ Judge Chapm an] should recuse

[ him ]self f

rom any f urther proceedings a nd request the [ s]uprem e [ c ]ourt to appoint a special judge[ .]” Judge Chapm a n denied the m o tion by order dated July

22, 2016. ¶102. Rule 1.15 of

the Unif orm Circuit and County C ourt Rules clearly requires a m otion

to recuse be f

iled within thirty day s. Here, D onaldson f iled this m otion f

or recusal well outside of the thirty -day

requirem ent. ¶103. Donaldson does not appeal the denial of the m otion f or recusal. Instead, Donaldson claim s that Judge C hapm an should have “voluntarily recused him self f rom this case prior to trial and prior to hearing the post-trial m otions.” Since Judge Chapm an, like Judge Em f inger,

w a s a c o l l eague of the issuing judge, the wom an, and John’s girlf riend, Donaldson claims that Judge C hapm an should have volunta r i ly r ecused h im self to avoid the a ppearance of im p ropriety . Since this argum ent was previously m ade regarding Judge Em f inger, there is

no question that Donaldson could have m ade this assertion in a t i me l y manner af ter Judge Chapm an reassigned the case to him self

. ¶104. W e conclude that Donaldson’s m otion f or recusal of Judge Chapm an was n ot tim ely f iled a nd w a s w a i v e d. Notwithstanding the waiver, we also f ind that Donaldson “has not pointed t o any specif

ic rulings which indicate that [ J udge Chapm a n] was b iased or unqualif ied” to rule on his m o t ions. Jackson , 1 So. 3d a t 927 (¶18). W e f ind no m erit to this issue. 11. The c o u rt committed reversible e rror by improperly precluding

Donaldson from presenting a defense. ¶105. Donaldson next argues the circuit court im properly precluded him f

rom presenting a

3 5def

ense in various way s . “A crim inal def endant is entitled to p resent his def e n se to the f

inder of f a ct, and it is f

undam e ntally unf

air to deny the jury t he op p o r t u n i t y t o consider the def endant’s def

ense where there is testim ony t o support the theory .” Clark v. State , 40 So. 3d 531, 5 42 (¶30) ( Mi s s . 2010). However, “all evidence adm itted in s upport of the def endant’s t h e o r y o f the c ase m ust com port with t he Mississippi Rules of Evidence.” Id

. “The relevancy and adm issibility of e v i d ence are l argely within the discretion of the trial court[ .]” Id. at 543 (¶30). W e separately address each claim

.

A. Testimony Regarding Conspiracy Theory ¶106. Donaldson f

irst claim s the court e r r e d i n g r a n t i n g t h e State’s m otion in lim ine

r e g a r ding his c onspiracy theory

. He contends the court “precluded him f rom prese n t i n g evidence r egarding the relationship between [ t he issuing judge], [ J ohn’s girlf riend ] , [ the

wom an], and [ John] Donaldson, and any r e f e r e n ce t o the pictures possessed by [ John].” Donaldson a sse r t s t hat “[ w]ithout proof of h is conspiracy theory , [ he] was lef t without a def ense and was u nab l e t o e f f ectively cross-exam i ne the witnesses a nd dem onstrate their untruthf ulness.” He f

urthe r a s s e rts that “[ s]uch evidence m ight have created a r easonable doubt about whether [ h e] knowingly and intentionally

possessed the im a ges.” ¶107. W e review a trial court’s d e c i s i o n t o a d m i t o r e x clude evidence f o r an abuse of discretion. Evans v. State , 25 So. 3d 1054, 1057 (¶6) (Miss. 2010). “[ A] m otion in lim ine should be granted only

if : (1) the m aterial or evidence in question will be inadm issible at a trial under the rules of evidence; and (2) the m ere of f e r, ref erence, or statem ents m ade during trial concerning the m aterial will tend to prejudice the jury

. ” Id

. “Bef ore granting a m otion

3 6in l im i ne, cour t s m u s t be certain that such action will not unduly restrict opposing party ’s

presentation of its c ase.” W hittley v. City of

Meridian , 530 So. 2d 1341, 1344 (Miss. 1988). ¶108. During the hearing o n the m otion in lim ine, the court asked Donaldson’s counsel how the iss u i n g j u d ge’s t estim ony was relevant to the charges. Def ense counsel responded, “Motive. Motive

. . . to do m y c l i e n t harm when he’s done n othing.” D ef ense counsel f urther stated that the i ssuing judge’s testim ony was relevant t o p rove t h a t : ( 1) the issuing judge knew John, (2) th e issuing judge had an i nappropriate relationship with the wom an, and (3) the m otive f

or the c hild pornography investigation was to retrieve the incrim inating pictures. Def

ense co u n s e l a d v i s ed that John would t estif y t hat “when [ he] r ef

used to give [ John’s girlf

riend] those p ictures, j ust two weeks bef ore [ Donaldson] w as arrested, that there was a conspiracy

then set up to get with the Cy ber Crim e Unit, the investigators there, and

to o b t a i n a s e arch w arrant to get those pictures u nder the guise o f him having child pornography .” ¶109. However, the S t a t e o f f e r ed testim ony that the child pornography investigation was initiated solely by the Cy b e r C r i m e Unit and that no one in t he Unit had t alked to any law enf orcem ent of

f icers or j udges, or to the district attorney ’s o f f ice i n Rankin County , about the investigation b ef

ore the Novem

ber 4, 2011 search warrant was obtained a n d e xecuted. ¶110. T h e t r i a l court g ranted the m otion i n l im ine and determ ined that s uch e vidence h a d

no relevance to Donaldson’s i nvestigation f or possession o f c hild p ornography

. W e f ind no abuse of discretion in the t r i al c ourt’s decision to grant the S tate’s m otion in lim ine. Accordingly , we f

ind no m erit to this issue.

3 7B. Cross-examination Regarding Time Stamps

¶111. Donaldson next argues the trial court lim i ted his cross-exam ination regarding the tim e
stam ps. Donaldson asserts he “attem pted t o show t hat t he State had m isinterpreted the tim es” and that “the f

iles were actually a ccessed at a pproxim a tely 11:00 a.m . local tim e when the State had sole custody of the hard drive rather t han 6:00 a.m . when, according to the State’s theory , [ he] had sole access.” ¶112. W e review a trial c o u r t ’ s l im itations on cross-exam ination f or abuse o f

discretion.
A n t h o n y v
. S t a t e , 108 So. 3d 394, 397 ( ¶5) (Miss. 2013). “ W e w ill af f irm the trial court’s exercise of

discretion unless the ruling resulted in prejudice to the accused.” I d

. ¶113. During Investigator Turnage’s cross - e x a mi n a t i o n , D o n a l d son a ttem p ted to show Investigator Turnage his laptop and XW ave sof tware t o prove that I nvestigator T urnage was

m isinterpreting the tim e stam p s . T h e S t a te objected, and the trial court sustained the objection, inf

orm ing Donaldson: “[ t]hat would be y ou testif y i n g , and y ou’ve already testif i ed.” Donaldson’s counsel explained, “ [ n ]o, y our Honor, h e w ants to

. . . show him an

exam ple.” T he court asked Investigator Turnage if he was conf u sed b y Donaldson’s line of questioning, and I nvestigator Turnage r e s p o n d e d t hat he was not. The court then stated: “[ h]e doesn’t need t o be shown any thing.” Thereaf

ter, Investigator Turnage testif ied that the tim e stam ps ref erred to universal tim e and not local tim e. ¶114. Im portantly , the record ref

lect s t h a t despite not being allowed t o show Investigator Turnage a n exam

ple f rom his laptop and XW ave s of tware, Donaldson was still able to crossexam ine Investigator Turnage regarding the d ate that t he IP a d dress of Laptop 1 was assigned

3 8to Donaldson. W e f ind no abuse of

discretion or reversible error. C. Exclusion of Documents ¶115. Donaldson next argues that the trial court erroneously e xcluded docum ents f rom the National Institute of Standards and Technology Inf o rm ation Technology Laboratory and the U.S. Departm ent of Justice’s web s i t e s , along with approxim ately f orty docum ent f

iles. Donaldson c laim s these docum ents would have cast doubt on Investigators Houston’s and Turnage’s testim onies that no two f iles have the sam e “hash value.” ¶116. On cross-exam ination, Investigator H ouston was asked if he was “f a m iliar with th[ e] docum ent released by the Nation a l I n s t i tute o n S tandards of Technology .” The State objected to the adm ission of this docum ent based on authentication. D onaldson argued that because there was a governm ent seal on the docum ent, the d ocum ent was self -authenticating. However, the trial court s u s t a i n e d t h e objection and explained: “There’s a dif f erence between

a s elf -authenticating docum e nt that has s om e sort o f c ertif i cation credentials. This has none. It’s paper printed o f

f the internet.” Donaldson then asked Investigator Houston if he could identif y the docum ent, to which Investigator Houston responded that he could not. ¶117. Despite the exclusion of the docum ent, Donaldson was a llowed to show Investigator
Hous t o n a d em onstration that h e had prepared about “hash values.” Donaldson crossexam ined Investigator Houston about the dem o nstration: Q. Do those two dif

f erent f iles have the sam e hash value?

. . . . A. Yeah. . . . Yes, those are the sam e hash values.

3 9Q. From two dif f erent f iles? A. Yes, sir. Those are two dif f erent f iles with dif

f erent f ile extensions.

. . . . Q. Is that the f

irst tim e y ou’ve witnessed t wo f iles having the sam e – two dif f e rent f iles having the sam e hash value? A. Yes, sir. ¶118. Addit i o n a l l y , d

u r i ng Investigator Turnage’s cross-exam ination, Donaldson attem pted

to i ntroduce a docum ent f rom the U.S. Departm ent of Justice’s website. T he State objected

on the g rounds of “ lack of f oundation, a

uthentication, hearsay , and relev a n c e . ” T he trial

court s ustained the objection, and explained that the docum ent “does not have the indicia of

t r ustworthiness in the s ense of there’s just n o c ertif i cation[ .]” However, Dona l d s o n questioned Investigator Turnage regarding the contents of the docum ent: Q: And did the hashes alway s m atch in this case related to [ Laptop 1]? A: Yes. Q: Th e y d i d ? H a v e y ou read the article f rom the Departm ent of

Justice where the last six sectors or eight sectors of a disc are not i m a ged using FTK? A: I’ve heard

. . . t h a t a r g u me nt brought u p bef ore, but it’s not any

thing that IACIS had told us or put out that it s houldn’t be used. And the FBI cart lab still uses the FTK sof tware im ager, the sam e FTK sof t ware t hat I use to do the exam ination nationwide. So i f t h ere’s a problem with FTK, when I see hash v alues not m atch, t hen I’m not going to u se FTK any m ore, o r w h e n t he FBI say s t hat they ’re through w ith i t, because there’s a problem

with it, then I’m

going to be through with it. ¶119. Thus, the record indicates that, despite the exclusion o f t h e d o c u m e nts f rom the National Institute of Standards and Technology Inf o rm ation Technology Laboratory and the

4 0U.S. Departm ent o f Justice’s w ebsites, Donaldson was s till able to cross-exam ine t he State’s

e x p ert witnesses about the c ontents of the docum ents and p resent his theory of d e f e n s e . Indeed, t he record ref

lects th a t Donaldson questioned t he investigators r egarding the docum ents and was not deprived of a m e aningf

ul opportunity to present his def ense. ¶120. Donaldson also claim s the circuit c ourt erroneously excluded “an additional 40 f iles dem onstrating that the im ages wer e d i f f e r e nt although the hash values were the sam e.” However, Mississippi Rule of Evidence 403 allows the ci r cuit c ourt to “exclude relevant

e v i d e n c e i f its probative v alue is substantially outweighed by a danger of

. . . needlessly
p resenting cum

ulative evidence.” Because the docum ents were cum ulative to t h e f

i l e s Donaldson had already p r esented, we do not f i nd the trial c ourt abused its discretion i n excluding the docum ents. Thus, we f ind no reversible error or m erit to this issue. 12. The court erred in not severing the counts

. ¶121. Donaldson f

urther argues that t he trial court erred in deny i ng his m otion to sever the

two counts of the indictm ent. Donaldson asserts the two indicted of f enses were not part of the sam e schem e or plan and were not interwoven. ¶122. W e em

ploy a n abuse-of

-discretion standard when reviewing a trial c o urt’s denial of

a m otion t o sever a m

ulti-count indictm ent. Singleton v. S t a t e , 151 So. 3d 1046, 1049-50 (¶14) (Miss. Ct. App. 2014). W hen the def endant f i l e s a mo t i o n to sever t he counts i n an indictm ent, “the State bears th e b u r d e n of m a king out a prim a f a cie case showing the of f enses charged are within the language of the s tatute.” Id

. at (¶15). If the State m eets this burden, “the def

endant m ay thereaf

ter rebut the State’s case b y showing the of

f enses were

4 1separate and distinct acts or transactions.” Id

. “[ T]he t rial court m ust conduct a h earing to determ ine whether or not to sever the counts.” Id . at (¶16). “[ T]his Court gives def erence to the trial court’s f

indings, unless an abuse of discretion occurred.” Id

. ¶123. Pursuant to Mississippi Code Annotated section 99-7-2(1) (Rev. 2015):
Two (2) or m ore of

f enses w hich are triable in the sam e court m ay be charged in the sam e indictm ent with a separate count f or e a ch o f

f e nse if : (a) the of f enses are based o n the sam e act or transaction; or (b) the of f enses are based on two (2) or m ore acts o r transactions connected together or constituting parts of a com m on schem e or plan.
In Corley v. St a t e , 584 So. 2d 769, 772 (Miss. 1991), the suprem e court ruled t here were three issues to consider: (1) w hether the t im e period b etween the occurrences is i nsignif icant; (2) w hether the evidence proving each count w ould be adm issible to prove each of the other counts; (3) and whether the crim es are interwoven. The court reasoned that:
W e recognize that if the trial court f inds that t he of

f enses stem f

rom separate and distinct acts or transactions, in som e cases the State still m ay be allowed to i ntroduce e vidence of the other of f ense(s) under Rule 404(b)[ .] W hether the evidence would be adm issible under this rule has n o bearing on whet her the trial court should allow a m ulti-count indictm e nt. Corley , 584 So. 2d at 772 n.1. ¶124. At the m otion hearing, Donaldson claim ed that the i n d i c t e d o f f e n s e s w e r e two separate crim e s because the of f enses were not com m i tted on the sam e day

. He m aintained that the crim es w ere not interwoven, and argued that “[ t]he only sim ilarity o f t h e charged crim es [ is] that they

are both sex crim es.” ¶125. However, the State argued that the tim e period between t he charges was insignif icant and explained that the possession of child pornography charge was f rom Novem

ber 4, 2011,

4 2and t he video was created on October 28, 2 011. The State f urther a rgued that the evidence

to prove each count would b e adm issible to prove the o ther count. The State m aintained that although the video is a recording where an expectation of privacy existed, it a lso constituted child pornography

. The State explained that it would attem pt to introduce the video of MB
to show ownership and knowledge f or Donaldson’s possession of child pornography charge. Since the com

puter cont a i n i n g c h ild pornography and the video of MB was f ound in Donaldson’s bathroom , the sam e loc a t i o n where he f ilm ed MB, the State argued that the crim es were interwoven. ¶126. The trial court denied the m otion and ruled:
I f ind that the a m ount of tim e, whether i t was October or c l ose or f urther away f rom that, I don’t think that is as s ignif i cant as the f

a ct that the proof would be adm issible on both counts and that even in separate trials[ , ] . . . the evidence would be adm issible as to [ Donaldson] in each trial, both as evidence, as the State has indicated o f each of the counts, but f urther t o show the item s com ing of f the sam e com

puter with the video showing [ Donaldson] in the video w ould tend to show the ownership, knowledge and identity of the person responsible f or possessing the other item s that were c ontained o n the com p uter that were sim ilar in nature. So I believe that under the law this is a proper m u lti-count indictm ent[ .] ¶127. W e f

ind no abuse of discretion. The trial c ourt properly c o nsidered the C orley f actors bef ore deny ing Donaldson’s m o tion to sever. W e f i nd no m erit to this issue. 13. Prosecutorial misconduct occurred during closing arguments. ¶128. Donaldson last a rgues that he was deprived of a f air trial b ecause of the prosecutor’s im p roper and inf

lam m atory com m ents d u r i n g closing argum ents. W hen we review allegations of p rosecutorial m i sconduct d uring closing argum ents, we mu s t determ ine “wheth e r the natural and probable ef f ect of the im

proper argum ent is to create unjust

4 3prejudice against the accused so as to resu l t i n a d e c i s ion inf luenced b y the prejudice so created.” Fortenberry v. State , 191 So. 3d 1 245, 1251 (¶18) (Miss. Ct. App. 2015). “[ A]ny allegedly im

proper prosecutorial com m ent m u st be considered in c o ntext, c o n s i d ering the circum stances of the case[

. ]” Id

. W e recogniz e t h at “[ c]ounsel is allowed considerable latitude in the argum ent of cases.” Id

. The prosecutor “is not lim ited to the f acts i ntroduced into evidence,” a nd “he m a y argue the deductions and conclus i o n s that m ay r easonably be drawn theref

rom .” Id

. ¶129. D o n a l d s o n c l a i m s t he prosecutor im

properly c om m ented on w h a t D o n a l d s o n a l l e g e d l y said when the search warrant was executed. The prosecutor said: And I subm it to y o u the f irst word out of his m outh [ when questioned a t his house at the t im e of the search], or one of them when he was asking questions was, how did y a’ll open m y e ncry p ted f iles? How did y ’all g e t i nto those encry pted f iles? Af ter this com m ent, def

e nse counsel approached the bench and argued, “[ t]hat’s n ot in the record.” The court then instructed the jury , “Ladies and gentlem en, t he jury ’s recollection of the e vidence will control.” D onaldson did not request any a dditional curative instruction.
In addition, prior t o closing argum ents, t he court instr u c t e d the j ury as f ollows: “The [ closing] argum ents, statem ents and rem arks of counsel

. . . are not evidence

. . . . [ The

attorne y s ] , as y ou, will be r ecalling t he evidence that has been presented.

. . . [ I]f their recollection of the evidence dif f ers f rom what y our recollection is, y ou m ust f ollow y our own recollect i o n . If any argum ent, statem ent or rem ark has no basis in the evidence, then y ou should disregard the argum ent, statem ent, or rem ark.” ¶130. “The jury is presum ed to have f ollowed the directions o f t he trial judge.” Catchings

4 4v. State , 39 So. 3d 943, 949 ( ¶ 2 2) (Miss. Ct. App. 2009). “[ W ]hen a jury is properly

instructed that statem ents m ade by counsel are not evidence, reversal is not req u i r e d.” Randall v. State , 806 So. 2d 1 8 5, 2 13 (¶72) (Miss. 2001) (quoting Burns v. State , 729 So. 2d 203, 229 (Miss. 1998)). T h e jury instructions, along with the court’s rem inder that “the jury ’s recollection of the e vidence will control,” w e r e s u f f i c i ent to cure a ny error in the prosecutor’s rem ark. ¶131. Although Donaldson takes issue with additional statem ents m a d e by the prosecutor, he f a iled to object to those stateme n t s . I ndeed, the record reveals no f urther o bjections during the State’s closing argum ent. W h ile “the f ailure to object contem

po r aneously generally waives a claim of prosecutorial m isconduct during closing argum e nt, we will

r e v i e w such a claim i f the prosecutor’s statem ent w as so inf lam m atory that the tria l j u d g e should have objected on his own m otion.” O’Connor v. S tate , 120 So. 3d 390, 3 9 9 ( ¶ 2 6 ) (Miss. 2013). W e do not f ind the prosecutor’s additional statem ents rise to this level. ¶132. Donaldson claim s there was no evidentiary support f or this statem e n t: Y’all heard testim ony not just f rom the def

endant, y ’a l l heard f

rom In v estigator Turnage,

. . . . W ell, y ou know, I couldn’t im age som e of those devices, b ecause they ’re encry pted and y ou didn’t give m e the e ncry ption key

. May be that’s why we didn’t f ind all t he undercover videos, because they ’ re sitting right there. However, the r ecord i ndicates Investigator Turnage testif ied that there were encry

pted f iles

on Donaldson’s com

puters that could not be accessed or im aged. Thus, D onaldson’s claim f ails as there was evidence to support the prosecutor’s com m e n t. ¶133. Donaldson next claim s t h a t t h e prosecutor “expressed h is opinions of Donaldson’s

4 5guilt and placed the prestige o f his of f ice behind t hat o pinion” when i t was said, “If there’s
any d oubt as to what he knew was on his com puter, I guarantee y ou, I assure y ou he did.” “Except to the extent the prosecutor bases any o pinion on the evidence in the case, he m ay
not express his p e rsonal opinion on the m erits o f t he case or the credibility of witnesses.” Stokes v. State , 141 So. 3d 421, 427 (¶ 2 4 ) (Miss. Ct. App. 2013). Y et, this c om m ent was based on t he evidence, as the t e s t i mo n y showed that several child pornography f iles were accessed during a tim e when Donaldson was t he only p erson known to be inside the house. ¶134. Donaldson f

urther claim s the prosecutor “m isstated the e vidence about whether it had proved that the v i deo of MB ha d b e e n r e c orded w ithin t he statute of lim itations.” Specif ically , the prosecutor stated: [ Y]ou heard on October 28th, 2011, f rom I nvestigator Joey Turnag e, o ur f orensic com

puter exam iner. He said that’s when it’s m ade; that’s the creation date. You know, they try to do all the sm o ke and m irrors about, oh, well, it’s m ade bef ore here, or it couldn’t have been m ade then. I subm it to y ’all digital evidence doesn’t l ie. It is what it is. [ T he video o f M B] w as m ade on October 28th, 2011. Donaldson claim s the creation date is not t he date o n which a video was recorded; rather, it is the date that the video is placed on the com puter. However, Investigator Turnage testif ied

at trial t hat based on his f orensic exam ination of

Laptop 1, the video of

MB was f

ilm ed on October 28, 2011. ¶135. Donaldson l ast claim s the prosec u t o r “ i mp r operly vouched f or the integrity of

the prosecution” when he s aid, “I’ll s ubm it t o y ou we don’t bring charges a gains t p e o p le that have even questionable m a terial. These are y oung kids, actual childre n . ” However, Donaldson f

ails to include the prosecutor’s f ull statem ent. The prosecutor said:

4 6[ I]t’s f or y ’ all’s determ ination to dec i de if these im ages a nd videos are child pornography and/or children. The judge told y ou to use y our com m on s e nse. Y’all go back there and look at those pictures, and tell m e if y ’ all don’t think those are children. There’s not even a doubt. No, these aren’t teenagers. Okay ?

. . . I ’ll subm it to y ou we don’t bring charges against people that have even questionable m aterial. These are y oung kids, actual children. C o n sidering the com m ent in c ontext and the circum stances of the case, we do not f ind th e prosecutor’s s tatem ent was prejudicial. There was evidence presented that t h e i m ages contained on Donaldson’s com puter were in f

act im ages of

children. ¶136. “The purpose of a closing a rgum ent is t o f airly sum up the evidence.” Galloway , 122 So. 3d at 643 ( ¶ 72). “The prosecutor m ay com m ent upon any f acts introduced i nto e vidence, and he m ay draw whatever deductions a nd inf erences that seem proper t o him f r o m the f acts.” Id . W e f

ind no m erit to Donaldson’s claim s of prosecutorial m isconduct. ¶137. AFFIRMED. CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., C ONCUR. IRVING, P.J., BARNES AND WESTBROOKS, JJ., C ONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.

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