IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-00256-COA MARCUS McCAMMON A/K/A MARCUS WADE McCAMMON A/K/A MARCUS W. McCAMMON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/31/2017 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KELLY GUNTER W ILLIAMS KENNETH BRUCE DAVIS DAVID L. VALENTINE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW

W YATT W ALTON DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/04/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ. J. WILSON, P.J., FOR THE COURT: ¶1. Following a jury trial in the Madison County Circuit Court, M arcus McCam m on was convicted of the sexual battery of a seven-y e ar-old girl (LAV). The circuit court sentenced him to serve thirty y ears in the custody o f t he Departm ent of Corr e c tions, with ten y ears suspended and f

ive y ears of p ost-release supervision. On appeal, M cCam m on raises a total of e ight issues. He arg u e s t h a t the trial judge erred by e xcluding his e xpert witnesses and
L A V ’ s me n t a l h ealth records. He argues that the t rial judge erred by adm itting his twostatem ents to law enf o rcem ent o f

f icers, evidence of his “ prior bad acts,” and LAV’s hearsay

statem ents to a neighbor. He a lso argues that a juror should have been excused f or cause and that h e w as entitled to additional jury instructions. Finally , he challenges the suf f iciency and weight of the evidence. W e f

i nd no reversible error and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In Novem

ber 2 016, Shay

netel Robinson was at h e r m o t h e r ’s house in the e v ening af ter work. Robinson’s m other and y ounger s ister, neighbor Ivy Fulton, a n d Fulton’s granddaughter (LAV) were a ll in the living room . LAV lived with Fulton at this tim e. The kids were play ing on t he f loor while Fulton and Robinson’s m other c h a t t e d nearby

. Robinson sat down to play with the kids, and she overheard Fulton say that LAV had been “acting out” recently

. Robinson h ad only known LAV f or three or f

our m onths. S he knew LAV because LAV and Robinson’s sister were f riends and schoolm ates. ¶3. Robinson asked LAV what was going o n and whether there w as any t hing she wanted

to t alk a bout that she was n ot c om f ortable discussing with her grandm other. L AV said y es,

so R obinson took L AV to a b edroom to c onti n u e t h e ir conversation. LAV then told
R o b i n s o n t hat at som e p o int she had asked Marcus McCam m on—Fulton’s live- i n boy f riend—if he wanted a m assage, and McCam m on told her that he wanted her to m assage his penis. LAV told Robinson that she had n ot told any one else a bout the incident because she was scared of what m ight happen and that she m ight get in trouble. LAV told Robinson that McCam m on said he would leave Fulton if she told any one what had happened. ¶4. LAV asked R obinson t o t e l l F u l t o n . F ulton was a lone when Robinson and LAV

2returned t o the living room . Robinson started to tell Fulton that LAV had asked McCam m on

if he wanted a m assage, and F ulton interrupted h er and stated that it was norm al f or LAV to of f er shoulder m assages. Robinson then told Fulton the whole story

. ¶5. On Novem

ber 17, 2016, Fulton and LAV conf r onted McCam m on about the abuse at their hom e. During t he conf rontation, LAV called 911 and told the d i s p a t c h er that McCam m on had abused her. ¶6. Of f icer Ry an W igley of t he Madison Police Departm e n t received a c all f r om another of f icer w ho had responded to LAV’s 911 call. T he responding of f icer tol d Wi g l e y that McCam m on was still present at the hom e. W igley asked w hether McCam m on w anted to tell his side of the story , a nd McCammo n s a i d that h e did. So W igley m et McCam m on at the Madison Police Departm ent f or an interview. ¶7. A video of the interview w as adm itted i nto evidence at t rial and published to the jury

. McCam m on told W igley that the g arage of his h ouse h ad a seating area with chairs and a TV where McCam m on went to sm oke. McCam m on said that one n ight he woke up in the chair

to f i nd LAV m assaging his penis. McCam m on told W igley that his penis w as in h is pants. McCam m on never told a ny one about the incident. McCam m o n also said that LAV liked to give m en m assages and t o bounce on their laps. McCam m on said he thought that LAV got sexual excitem ent f

rom i t. McCam m on indicated t h at LAV m ight have been a victim of sexual abuse previously , and he suggested t hat W igley ask Fulton about it. However, Fulton later told W igley

that she “didn’t know any thing” about a previous incident. ¶8. Af ter inte r v i e w i n g M c C a m m on, W igley asked the Children’s Advocacy Center to

3conduct a f orensic i n t e rview w ith LAV. W igley testif ied t hat f orensic interviewers have been t rained to interview children who have a lleged phy sical or se x u a l a buse. W igley observed the interview but did not participate. ¶9. Af ter the f orensic interview, McCam m on was charged with sexual battery

. He was arrested and brought t o the police departm ent f or a second interview, which was also recorded. He w as inf

orm ed of his Miran d

a r i g h t s , a n d he signed a w aiver of those rights.
In the second interview, M c Cam m on c hanged his story

. He n ow claim ed that he was asleep in a chair in the garage a nd woke t o f ind LAV rubbing his penis on her m outh. H e also said that L AV had a bottle of lotion with her. McCam m on said that Fulton w as not hom e at the tim e, and LAV’s y ounger brother was i n s i de the house watching television. McCam m on told

no one a bout the incident. W igley showed McCam m on a photograph of the garage and asked

to i dentif y the chair w here the encounter occurred. McCam m on ident i f i e d t he sam e chair that LAV identif

ied as the location of

the assault. ¶10. LAV testif

i ed at trial that she was born in January 2008 a nd t hat McCam m on sexually abused h er m

ultiple tim es w hen she was seven y e ars o l d

. LAV stated that she and her
y ounger brothe r were living with Fulton and McCam m on at the tim e . She stated that McCam m on m oved out a f ter “he did sexual abuse to [ her].” The prosecutor asked LAV to explain what she m eant. LAV testif ied McCam m on m ade her p erf o rm oral sex on him while they were in the garage a nd Fulton was out shopping. LAV stated she was seven y ears old at the tim e and that she did not tell any one. That was the f irst tim e it happened. ¶11. LAV testif

ied that McCam m on sexually a bused her again. The seco n d i nstance of

4abuse was sim ilar to the f irst—McCam m on again m ade h er p erf orm oral sex on him in the
garage while her grandm other was out—except that McCam m on e j aculated (“som et hing white cam e out”). This occurred during s um m e r b r e a k w h e n LAV was seven y ears old. McCam m on told L AV that his sem en was “baby m edicine” and that s he needed t o “drink it.” LAV e xplained how the sem en l ooked (“white a nd thick”) and tasted (“salty ”). She did not know what it was. Again, LAV did not tell any o ne. ¶12. L A V t e s t i f

i e d t h a t M c C a m m on m ade her perf o rm oral sex o n h im again, o n a subsequent occasion, until he ejaculated. L AV testif ied that M cCam m o n was again sitting in “ his chair” in the garage and that he “al w a y s ” sat there. On t his occasion, McCam m on also perf orm ed oral sex on LAV. ¶13. LAV also testif

i ed to a sim ilar instance of abuse that took place inside the hom e on

a c ouch. LAV was unsure whether the incident o n the c o uch was the third or f ourth tim e that McCam m on abused her. LAV adm itted that she had f o rgotten to m ention the couch on direct exami n a t i o n . S h e explained, “ I’m a kid. I f orget stuf f .” She a lso stated that she had “pra c t i c e d a n d p racticed” w ith the prosecutor, who “ took notes” during their f irst conversation and “trie[ d] to correct” LAV w hen she m issp o k e . LAV s tated she had not “practiced” her testim ony with Fulton or any one other than the prosecutor. ¶14. LAV decided to t ell Robinson about t he abuse because she “couldn ’ t t ake it any m ore.” She also testif

ied that the “only reason” she did not tell any one so o n er was because McCam m on had “ threatened he would kill [ her], and he owned ten guns in the house.” LAV testif i ed that she was scared of McCam m on.

5¶15. On cross-exam ination, LAV testif ied that she knew the d if

f erence b etween the truth and a lie a nd that she had gotten in trouble bef ore f or not telling the truth. LAV testif ied that she called 911 t o report McCam m on “[ b]ecause [ s h e] couldn’t take it. He did som ething
wrong, and he needed t o pay the price.” LAV also testif i ed that she h ad been af

raid that no one would believe her because she was just “ a kid.” LAV denied that she had been in any

sort of serious trouble the day

that she disclosed the abuse to Robinson. She adm itted that she had stolen a check f

rom Fulton and that Fulton had said she “could go t o jail f or that.”
But LAV stated that Fulton got her check back a n d that it was no longer a n issue. She denied that the check had any

thing to do with her decision to disclose the abuse. 1 ¶16. McCam m on testif ied in his def

ense. He m et F ulton in O ct o b e r 2011 and m oved in with her in March 2 0 12. Som e tim e i n 2013, LAV cam e t o l ive w i th them

. McCam m on testif i ed that he had no iss u e s w i t h L A V at the beginning. At som e point, LAV started having w eekend visits with her m other. McCam m o n claim ed that LAV would return f rom those visits “with a dif

f erent attitude” and that she becam e “hatef ul” toward him

. ¶17. McCam m on claim ed that h e was intoxicated during his f i rst interview with W igley

. He claim ed that he “hardly rem em ber[ ed]” that interview. He adm itting telling W igley that LAV h ad been rubbing his penis through his p ants. He a l so adm itted t hat he told of f icers in his s econd interview t h at he w oke to f ind LAV rubbing his penis on her lips. He said that his second v ersion of events was the truth. He clai m ed that h e did n ot of f er a com plete

1 L A V h a d s t o l e n th e ch eck b ecau se sh e w an ted to b u y a p ain tin g f ro m an o th er stu d e n t f o r f iv e d o llars, b u t s h e d id n o t h av e f i v e d o llars. S h e th o u g h t sh e co u ld p ay f o r it w i th o n e o f

F u lto n ’s ch eck s. 6account during his f i rst interview because he was i ntoxicated. McCam m o n d enied that he ever sexually

abused LAV. ¶18. McCa m mo n t estif ied that he had only one encounter w ith LAV that was sexual in

nature. H e testif

ied that h e f

e ll a sl e e p i n h i s chair in t he garage. He c laim ed that LAV unzipped his b lue jeans, rem oved his penis f rom his brief s, and then put h er lips on it—all while he was asleep. McCam m on testif ied that LAV would have been about seven y ears old

at t he tim e this incident occurred. McCam m on stated that he had b een asleep f or about two hours when it occurred, that LAV’s brother was insid e the house watching t elevision, and that Fulton was out shopping. ¶19. McCam m on testif ied that h e im m e diately m ade LAV stop and told her n ever to d o it again. He said that he did not tell Fulton because “there was too m uch g oing on,” and he “didn’t want to m ake nothing n o m ore worse.” M cCam m on t e s t i f i e d that Fulton never disciplined L AV and that he did n ot think she would d i s c i p line her even f or behavior like this. McCam m on related a prior incident when, according t o h im , Fulton had not disciplined LAV af ter she had “m ooned” him

. ¶20. McCam m on testif

ied that the sam e day LAV disclosed t he alleged abuse to Robinson, she had gotten in trouble f or stealing a check f

rom Fulton a nd g ivi n g it to a f riend on the school bus. Fulton went to the school and conf r onted LAV about it. ¶21. M c C a mm on d enied LAV’s allegation that he ask e d h e r t o ma s s a g e h i s p e n i s . McCam m on t e stif

ied that LAV liked giving m assages and that she u sually gave them on shoulders or legs. He had g otten a s houlder m assage f rom her b e f

o r e . McCam m on

7s u ggested that som eone m ust have abused LAV in l ight o f her knowledge of seme n . However, he denied that he was the abuser. ¶22. The jury

f ound McCam m on guilty

of sexual battery , and the court sentenced him to

serve thirty y ears in custody of the Departm ent of Corrections, with ten y ears suspended and f ive y ears of post-release supervision. McCam m o n f ile d a m otion f

or j udgm ent notwithstanding the verdict or a new trial, which was denied, and a notice of appeal. ANALYSIS ¶23. As discussed in the introduction to this opinion, Mc C a mmo n r a i s e s eight issues on appeal. W e address each of his claim s in turn below.
I. McCam m on’s Proposed Ex perts ¶24. McCam m on of

f e red two experts, Dr. C harles H. Heller and Dr. Stanley G. Sm ith, to support h is theory of def

ense, w hich essentially was that LAV had f abricated her allegations because s he was a troubled c hild. The trial j udge concluded that neither expert’s testim ony would be helpf

ul to the jury ; theref

ore, the judge excluded their testim ony . ¶25. Pursuant to Mississippi Rule of Evidence 702, the trial judge m ust act “as gatekeeper

on questions of adm issibility of expert testim ony . ” Miss. Transp. Comm’n v. McLemore , 863 So. 2d 31, 40 ( ¶ 25) (Miss. 2003). “The proponent of exp e r t t e s tim ony m ust show by a preponderance of the evidence t hat the expert is qualif i e d , t hat he possesses scientif ic knowledge that will assist the jury , and that his testim o ny is b ased on suf f icient f acts and data and reliable principles and m ethods, reliably applied to t he f acts of the case.” B r o w n v. Prof’l Bldg. Servs. Inc. , 284 So. 3d 754, 761-62 (¶30) (Miss. Ct. App. 2017), a ff’d , 252 So.

83d 23 (Miss. 2018). The trial judge “m ust consider whether the expert opinion is based on scientif ic knowledge (reliability ) and whether the expert opinion will assist the trier of f act to understand or determ ine a f act in issue (relevance).” Edmonds v. State , 955 So. 2d 787, 791 (¶5) (Miss. 2007) (em phasis added)

. “To be relevant, the evidence m u st ‘f it’ the case by being ‘suf

f iciently tied t o the f

acts of the case that it will aid t he jury in resolving a f actual dispute.’” Corrothers v. State , 148 So. 3d 278, 294 (¶24) (Miss. 2014) (quoting Daubert v. Merrell Dow Pharms. Inc. , 509 U.S. 579, 591 (1993)). ¶26. “[ T]he adm i ssion o f e xpert testim ony is w ithin the sound discretion of the trial judge.”
McLemore , 863 So. 2d at 34 (¶4). Thus, we m u st a f f irm the trial judge’s r

uling unless it was an abuse of

discretion. I

d. A. Dr. Charles Heller ¶27. M c C a mmo n t e n d ered Dr. Heller as an expert in “com m o n areas in c h il d a b u s e evaluations and in the assessm ent o f alleged child sex abuse”; “ problem s of f alse allegations and child witnesses”; and “ e a r l y c h i l dhood neglect and abandonm ent by p arents on children’s
psy c h e and behavior.” McCam m o n intended to introduce LAV’s m edical and m ental health records into evidence through Heller’s testim o ny . ¶28. Heller would have testif i ed about the com m on errors in child sex-abuse evaluations and assessm ents. Specif ic to this case, he would have testif ied that t here was a l a c k o f evidence to corroborate LAV’s allegation; that the f orensic interviewer did not ask LAV the “right” questi o n s , d i d n ot look f or corroborating d etails, and d id not look at L AV’s “total history ” ; and that there was “poor correlation between exam iners” LAV m e t with.

9¶29. Generally , Heller opined a bout f alse allegation rates and the reasons that a child m ight

m ake a f alse allegation of abuse. Heller testif ied during a Daubert hearing that c hildren are suggestible and som etim es m a ke f alse allegations against others in t he h opes of diverting attention f

rom (and avoiding punishm ent f o r) their own behavi o r . Heller said that he saw

som e “red f

lags” in LAV’s story , nam ely , variations in her accounts of details of the abuse. Heller stated that a c hild will som etim es add details to her story in an ef f ort t o m ake it m ore believable to adults. Heller did not opine that LAV was ly i ng. He could not say whether the changes indicated lies or just a developm ent of m em o ry . ¶30. Heller also wanted to testif y a bout the “risk f

actors” associated wi t h c h i l d r e n who

m ake f alse sex a buse allegations. Specif i c to this c ase, h e wanted to testif y that LAV’s neglect and abandonm ent by her biological parents m ay have had a negativ e e f f e c t on her
psy c h e and behavior. To support this theory , Heller pointed to the f act that LAV’s m other

was a d rug a ddict who abandoned LAV and later gave custody to F ulton, that LAV’s f ather

was out of the picture, that LAV h ad no good m ale paternal im age, and t hat L AV had been exposed to dom estic violence in the past. Again, Heller could not say that LAV was ly ing about t he alleged a

buse in this case or that she was a pathological liar. He sim ply wanted to suggest that these issues were “risk f actors.” ¶31. H e l l e r s t a t e d t hat h e could not testif y that LAV was ly ing because he h a d n o t

exam ined her personally

. He did b e lieve t hat she was at a greater r isk of m aking f alse allegations due to her past. But he could only answer general questions about children who lie. In order to prepare f or his te s t i mo n y , H eller had reviewed LAV’s m ental health and

1 0m edical records f rom the previous f

ive y ears, which included records f r om the University of Mississippi Medical Center ( UMMC), Region 8 Mental Health Services, and Catholic Charities Counseling Services. He also reviewed LAV’s statem ents and f orensic interview, her school records, and other discovery

. ¶32. Heller’s u ltim a te opinion was that if at least one “red f

l ag” or indicator was present in a child’s his t o r y , t h e c h i l d would be a t a higher risk of m aking a f alse allegation of sex abuse than in a case where no red f lags were present. ¶33. The trial judge ruled t hat Heller was “a qualif ied expert probably

in som e t hing” but that H e l l e r w o u l d not be allowed to t estif y . The judge reasoned that if an expert cannot testif y that because a def

endant has certain q

ualities, the def

endant is g uilty , then an expert could not s ay that b e cause a victim had certain qualities, the victim m ust be ly i ng. The judge explained that he had reached this decision b ecause Heller’s testim ony was all too “general” and that Heller’s general opinions about children a n d their propensity t o lie would not assist the j ury . Thus, the trial j udge excluded Heller’s opinion as not relevant to t h e i ssue of whether McCam m on com m itted sexual battery

. The judge went on to state that even if the opinion was relevant, then the p robative v alue of that opinion would b e substant i a l l y outweighed by

its prejudicial ef

f ect, resulting in conf

usion to the jury

. ¶34. W e f

ind no abuse o f discretion in t h e t r i a l j u dge’s e xclusion of Heller’s proposed testim o ny . Heller identif i ed possible “red f

lags” with LAV that, in his opinion, m ight indicate she was a t “risk” f or m aking a f

alse report. H owever, he could n ot opine that her

statem ents or dem eanor during her f orensic interview were inconsistent with a child who had

1 1in f

a c t been abused. M oreover, any inconsistencies in the details of LAV’s statem ents or her

a lleged m otivation to divert attention f rom her own bad b ehavior are ordinary credi b i l i t y issues that can and s hould be presented to a jury without expert testim ony . As t he standard jury i nstruction puts it, jurors can use their own com m on s ense and s ound, honest j udgm ent
to assess a wit n e s s ’ s c r e d i b ility

. There is no need f or a n expert to catalogue alleged inconsistencies in the witness’s statem ents or her alleged m o tives to lie.

B. Dr. Stanley Sm ith ¶35. McCam m on o f

f e r e d D r . Sm ith as an expert in n euroscience and child sexual abuse and how the brain f

unctions and develops in relation to sexual abuse—both f or perpetrators and f or victim s. As with H eller, the trial judge recognized t hat Sm i th was “a qualif i ed expert probably in som ething.” ¶36. During a Daubert hearing, Sm ith testif ied that he had conducted a f orensic interview and a range of t ests o n McCam m on. One test supposedly indicated that McCam m on had “high t raditional m oral values.” Another test supposedly s howed that McCam m o n was not

a psy chopath o r pedophile as def ined by the Diagno s tic a nd Statistical Manual of Mental Disorders (D S M )

. S m ith contended that McCam m on did not have any of the DSM-listed characteristics of a p e dophile. Sm ith also testif ied t hat m ost pedophiles have brain dam age
to the p ref

rontal cortex, but a scan of McCam m on’s brain revealed n o such dam a g e. Sm ith also did a test called the Abel Assessm ent f o r Sexual Interest. S m ith said the results of this

test indicated that McCammo n h a d none of the “classic” pedophilic or child sexual abuse indicators. In f

act, Sm ith testif

ied that the test indicated that there was an “extrem ely low

1 2probability ” t h a t McCam m on was a pedophile. Sm ith’s ultim ate opinion was that

McCam m on does not have the characteristics of a pedophile. However, we note t hat, aside f rom the brain scan, Sm ith’s various t ests consisted prim a rily of a s king McCam m on questions. McCam m on assured Sm ith that he had good m oral values and n o sexual interest in children. ¶37. Th e t r i a l j u d g e e x c l u d e d S mi t h ’ s proposed testim ony af ter concluding that his

m ethods w ere not widely accepted or r eliable. The trial judge also concluded that McCam m on’s general c haracteristics w ere not relevant to whether h e did or did not com m it the specif ic abuse alleged in this c ase. He also concluded t hat the risk of conf using the jury substantially

outweighed the probative value, if any , of Sm ith’s testim ony . ¶38. This Court considered a sim ilar i ssue in Earnest v. State , 805 So. 2d 599 (Miss. Ct. App. 2002), where t he def ense of f ered expert opinion testim ony f r om two doctors af

ter they had e valuated the def

endant and conducted a battery of tests on h im

. Id. at 606 (¶22). The experts in Earnest wanted t o of f er the opinion that E arnest did n ot f it the prof i le of a sexual of f ender. Id. at (¶24). The trial judge determ i ned that those opinions w ould not assis t the jury in determ ining whether Earnest com m itted the sexual of f ense, s p ecif

ically because there

was “no scientif

ically acceptable prof

ile of a sex of

f e n der.” Id. W e af

f irm ed the trial judge’s exclusion of

this expert testim ony . Id. ¶39. W e reach the sam e r esult her e . T h e t r i al judge e xcluded S m ith’s testim ony af ter

c o n c l u d i ng that Sm i th’s opinion relied on McCam m on’s general characteristics and t ha t those characteristics were not relevant to whether he actually com m itted the crim e f or which

1 3he was charged. Based on t he testim ony presented to the trial judge, we cannot say that this

was an abuse of

discretion.
II. LAV’s Mental Health and Medical Records ¶40. On appeal, McCam m on argues that the t rial judge abused his discretion by excluding LAV’s records f

rom U MMC, R egion 8, and Catholic Charities. He a rgues t hat the exclusion of the records denied him the right to present his def ense t o t he j ury because this evidence

was r elevant to LAV’s credibility , m otives to lie, and “red f lags” related to her parents’ drug use, et cetera. ¶41. W e review the exclusion or adm ission of evidence f or an abuse of discretion. Collins

v. State , 172 So. 3d 7 24, 738-39 (¶14) (Mi s s . 2 0 15). “A crim inal def e ndant is entitled to present his def

ense to the f

inder of f a ct, a n d i t is f

u ndam entally unf

air to deny the jury the opportunity to consider t he def endant’s def

ense where there is te s t i mo n y t o support the theory .” Edmonds v. State , 955 So. 2d 787, 798 (¶29) (Miss. 2007); see also Philip Morris USA v
. W illiams , 549 U

. S

. 3 4 6 , 3 5 3 ( 2007) (“[ T]he D ue P rocess Clause prohibits a State f rom punishing an individual without f irst providing that individual with an opportunity to present e very available def ense.” (quotation m arks om itted)). “W hile a def endant is entitled

to present his def

ense, the r ight is not without its lim itations, as all evidence a dm itted in support of the d ef

endant’s theory of the case m ust com port w i t h t h e Mississippi Rules of Evidence.” Scott v. State , 231 So. 3d 1024, 1031 ( ¶ 1 2 ) ( M i s s . Ct. App. 2016) ( quotation

m arks om itted), aff’d by an evenly divided Court , 231 So. 3d 995 (Miss. 2017). ¶42. A f t e r t h e S t a t e r e sted its case-in-chief , McCam m on inf

orm e d the c ou r t t h a t h e

1 4intended t o call Zakia Sim pson, a counselor f

rom Catholic Chariti e s , t o t estif y about inconsistencies in LAV’s statem ents du r i n g c ounseling and other inf orm ation in her counseling records. McCam m on argued that Sim pso n ’s t estim o ny and LAV’s counseling

re c o r d s w ere relevant to LAV’s credibility

. The judge asked whether M cCam m on was
attem pting to im

p each LAV’s testim ony with prior inconsistent statem e n ts, and counsel indicated t hat he w as. The judge stated that such im p eachm ent would be im

proper because LAV had not been given an opportunity to explain or deny such statem ent s . S e e M

. R

. E. 613(b). McCam m on then asserted that Sim pson’s testim ony and LAV’s counseling records

were r elevant and a dm issible f or additional r e a s o n s. However, the State objected to the testim o ny and records. The judge then allowed McCam m on to prof f er Sim pson’s testim ony and any allegedly relevant r ecords. Following a lengthy prof f er, the judge excluded the testim o ny and prof f ered docum ents, providing a specif ic ruling as to each exhibit. ¶43. On appeal, McCam m o n g enerally a s serts that the trial judge abused his discretion by excluding prof

f e red exhibits “D3 through D11” because the r ecords allegedly “docum ent a lengthy history o f exposure to drug use, neglect and abandonm ent by h er natural parents, as well as the resulting behavioral problem s and m e ntal health issues, i ncluding m anipulative behaviors that support [ h is] theory of def ense that [ LAV] f

abricate d t h e a l l egation against him .” Prof

f ered exhibits D3 through D9 are records of Catholic Charities. Prof f ered exhibits D10 and D11 are r ecords of U MMC and Region 8 that w ere not m entioned during Sim pson’s testim o ny . W e will address the Catholic Charities records f irst. ¶44. A f

ew of the Catholic Charities records brief ly allude to the f

a cts t hat LAV’s parents

1 5neglected her and her brother and abused drugs bef o re LAV went to live with Fulton. The d o c u me n t s provide f

ew details. Assum ing that LAV’s statem e nts to t he counselor were adm issible as statem ents m ade f or the purpose of m e dical d iagnosis o r treatm ent, s ee M.R.E. 803(4), the trial judge did not abuse his discretion by excluding t he records as irr e l e v ant. M.R.E. 402 (“Irrelevant evidence is not adm issible.”). LAV’s parents ’ d r u g a b use and neglect did not involve any thing of a sexual nature and occurred about two y ears prior to the sexual abuse at issue in this case. ¶45. Two other docum ents described counseling sessions with LAV a nd Fulton in which the counselor perceived a nd n oted that LAV was being m anipulative. Sim pson testif

ied that
“m ost kids” exhibit sim ilar b ehavior , a n d s h e could not r ecall the details of the issues discussed during the sessions. These notes do n o t suggest that LAV f abricated her allegations against McCam m on in order t o m anipulate any one. W e cannot say that the trial judge abused his discretion by ruling that the notes were irrelevant. M.R.E. 402. ¶46. In addition, the statem ents are hearsay and are not within Rule 803(4)’s exception f or
statem ents m a de f

or the purpose of m edical diagnosis or treatm ent. The relevant statem ents

were not m ade by LAV or F ulton to the counselor f o r t he purpose of diagnosis or t reatm ent. Rather, they were the counselor’s own opinions or i m p ressions of LAV’s behavior during this session, which are inadm issible hearsay

. In re E.G. , 191 So. 3d 763, 772-73 (¶¶29-31) (Miss. C t. App. 2 0 16) (holding t hat a p atient’s statem ents to a psy c hologist f or the purpose of evaluation and treatm ent m ight be adm i ssible under Rule 803(4), but the psy chologist’s own im p ressions and opinions of the patient were not).

1 6¶47. Finally , to the extent that McCam m on intended to u se LAV’s counseling records to

im p each her testim ony with prior inconsistent statem e nts, the trial judge c orrectly ruled that the r e c o rds were not adm issible f or that p urpose because McCam m on m ade no attem pt to conf ront LAV with any of the statem ents while she was on the s tand. M.R.E. 613(b); Blake

v. State , 256 So. 3d 1161, 1166 (¶22) (Miss. 2018). Nor did M cCam m on attem pt to recall LAV f or that purpose. See Portis v. State , 245 So. 3 d 457, 471 (¶34) (Miss. 2018) (holding that the trial court did not a buse its d iscretion by not allowing the def endant t o recall a witness to conf

ront her with a prior statem ent because the d ef endant “had not attem

pted to
enter the statem ent into evidence during [ the witness’s prior] cross-exam ination, nor had [ he] subpoenaed [ the witness] to testif y in his case in chief

” ). ¶48. W e now address prof f ered def ense exhibits D10, whi c h c o n s i s t s o f 1 0 9 p ages of LAV’s records f

rom Region 8, and D11, which consists of 3 06 pages of LAV’s records f rom UMMC. Prior to trial, the State f iled a m otion in lim ine to exclude any evidence of LAV’s parents’ drug abuse a nd neglect of LAV and any evidence of LAV’s prior m ental health issues. LAV’s r ecords f

rom Region 8 and UMMC a ppare n t l y w e r e s ubm itted to the trial judge f or review in connection with the State’s m otion. McCam m on opposed the St a t e ’s

m otion and argued that the records were relevant to LAV’s credibility and propensity to lie. However, during a pretrial m otion hearing, the trial judge stated that he w ould grant t he State’s m o tion i n lim ine because h e f o u n d t hat LAV’s parents’ d rug a b use and neglect of LAV and LAV’ s p r i o r mental h ealth issues were not relevant. The j udge also n oted that there was nothing in t he records to suggest that LAV had a n y s ort of prior sexual knowledge

1 7(which could have supported McCam m on’s versions of events). However, t he ju dge

specif ically stated that he was not prohibiting McCam m o n f rom calling witnesses (such as Fulton) who could testif

y as to LAV’s character f

or untruthf

ulness. See M.R.E. 608. Finally , the judge ultim ately

stated that he could not f oreclose all possible uses of the records: I will take that up at trial, but I will say in a general sense I don’t believe the wholesale adm ission of a victim ’s, q uote, m edical record s i s necessarily appropriate, and y ’all will have t o ma k e an argum ent a s to the reasons those things should be adm itted when I get to that point in trial. McCam m on did not of

f er specif ic records f

rom D10 o r D11 during the trial. Rather, McCam m on prof

f e red D10 and D11 in their entirety af ter the jury h ad already re t i r e d to deliberate, and the trial judge allowed the records to be m arked f or identif ication. ¶49. W e f

ind no abuse of discretion in the t rial judge’s pretrial ruling that the “wholesale adm ission” of LAV’s m ental h ealth records was not appropriate. The judge did not abuse his discretion by f

inding that LAV ’ s p arents’ drug abuse and neglect of LAV and LAV’s general m ental health history were not relevant to the sexual abuse at issue in the trial. ¶50. As we stated above, “a def e ndant is e ntitled to p resent his def e nse,” but that “right is

not without its lim itations, as all evidence adm itted in support of the def e ndant’s theory of the case m

ust com port with the Mississippi Rules of Evidence.” Scott , 231 So. 3d at 1031 (¶12) (quotation m arks om itted). The trial judge i n this case did n ot abuse his discretion by excluding LAV’s counseling and m edical records pursuant to the Rules of Evidence.
III. McCam m on’s Statem ents to Law Enforcem ent ¶51. McCam m on m ade two statem ents to l aw e n f orcem ent, one prior to his a rrest and one af ter his arrest. The trial judge d e n i ed McCam m on’s pretrial m otion to suppress the
1 8statem ents. McCam m o n argues that the t rial judge erred because b oth statem ents were

obtained in violation of

his Fif th Am endm e nt right to rem ain silent. ¶52. W e will n ot r everse the trial court’s ruling on a m otion to suppress unless the ruling

was m anif

estly w rong , b a s e d o n an incorrect legal standard, or a gainst t he overwhelm ing weight of the evidence. Keller v. State , 138 So. 3d 817, 835 (¶16) (Miss. 2014). The trial judge “sits as t he f

a ct-f i nder when determ ining the issue of whether a n accused’s [ statem ent] has been intelligently , knowingly and voluntarily given.” Id. (quoting Glasper v. State , 914 So. 2d 708, 716 (¶21) (Miss. 2005)). ¶53. M iranda w arnings advising a suspect of his right to rem ain silent a n d r i g h t t o a n attorney “m

ust be given before a suspect is subjected t o custodial i nterrogation

. ” Batiste v. State , 121 So. 3d 808, 857 (¶121) ( Miss. 2013) (em phasis added). “‘Custodial i nterrogation’

m eans the suspec t i s b o t h in custody and undergoing interrogation.” I d. at 857-58 (¶121).
A suspect is “in custody ” i f , under all the circum stances, a “ reasonable person” would believe that his “ability to f reely leave” has been “restricted.” Culp v. State , 933 S o. 2d 264, 273 (¶19) (Miss. 2005). “[ T] h e i n itial determ ination of custody depends on the objective circum stances of the i n t e rrogation, not on the subjective views harbored by either the interrogating of

f icers o r the person b e i n g questioned.” Stansbury v. California , 511 U.S. 318, 323 ( 1994). W e c onsider the totality of the relevant circum stances, including the t im e and place of the interview, who is present, whether of f icers u se f

orce or phy s ical restraints, the length of t he interview and nature of th e questions, whether the suspect cam e to the authorities voluntarily , and what the suspect was t old about the situation. H unt v. State , 687

1 9So. 2d 1154, 1160 (Miss. 1996). I f the objective circum stances of the encounter i ndicate that

a suspect is not “in custody ,” no Miranda warnings are required. ¶54. In addition, a suspect who is “in custody ” m a y waive h is Miranda “rights, provided the w aiver is m ade v oluntarily , k nowingly and intelligently .” Miranda v. Arizona , 384 U.S. 436, 444 ( 1966). “The voluntariness of a waiver, o r o f a conf ession, is a f

actual inquiry that

m ust be determ ined by the trial judge f rom the totality of the circum stances.” Pinter v. State , 221 So. 3 d 378, 387 (¶21) (Miss. 2017) (quoting H ouston v. State , 170 So. 3d 542, 545 (¶12) (Miss. Ct. App. 2014)).

A. The First Interview ¶55. On Novem

ber 17, 2016, the night that law e n f orcem ent f

irst received a report about the abuse, a Madison police of f icer went to Fulton’s hom e. McCam m on told the o f f icer that he would like to go to t he police station to give his side o f the story

. M cCam m on told the of f icer that “he didn’t f

eel com f o r table driving b ecause he had h ad a beer,” so McCam m on rode with the of

f icer to the police station. ¶56. W h en Investigator W igley arrived at the police station, M cCam m on w as waiting in the break r oom . W igley asked McCam m on if he would like to tell his side of the s tory , and McCam m on agreed. T hey went into an interview r oom , and their conv ersation was recorded. McCam m on was n ot handcuf f ed o r restrained. In f

act, W igley clearly advised McCam m on that he was f

r ee to leave, and W i gley conf i rm ed that McCam m on had com e to the sta t i on voluntarily

. McCam m on t o l d Wi g l e y t hat he “f elt like” h e was under arrest. But W igley again told McCam m on that he was not under arrest and could leave at any tim e.

2 0¶57. W i gley asked McCam m on why LAV would accuse him of sexual abuse. McCam m on

stated that he thought som eone else m ight have abused LAV in the past. McCam m on stated that LAV liked t o m assage m en on their shoulders, legs, and back. H e t old W igley that one night he h ad been sleeping i n a chair in t he garage when he woke u p to LAV m a ssaging his penis through his pants. He asked what she was doing, a nd she did not respond but lef t the garage. McCam m on said he did not tell Fulton about what had happened. He alleged that LAV got “sexual excitem ent” f rom m assaging m en and sitting o n their laps. He stated that LAV h ad never touched his penis bef o r e o r s i n c e the one incident in the garage, and he denied ever touching LAV inappropriately

. ¶58. A fter McCam m on gave his statem ent, W igley explained that McCam m on would h a v e
to f i nd som ewhere else to s tay while the Departm ent o f Child Protective Services c onducted its i nvestigation. McCam m on asked what was the next step, and W igley explained that LAV would h ave a f

orensic i nterview b ef

ore any t h i n g else h appened. McCam m o n told W igley that he had been given a ride to the police station, a n d W igley s aid that an o f f icer would take him back to his hom e so that he could get his vehicle. ¶59. It is clear f

rom the v ideo of this interview t hat it was not a “ c ustodial interrogation.” McCam m on asked t o give his s i de of the story , and he w ent to the police station voluntarily

. He was told m ore than once that he was not in custody a n d that he was f ree t o l eave, and he did in f act leave the station that night without being placed under arrest. McCam m on was
not placed under any phy s ical restraints, an d Wi g l e y asked him open-ended q uestions that allowed him t o tell his side of the story

. In short, the trial judge did not err by f inding that

2 1McCam m on was n o t “in custody ” based on t he objective t otality of the circum stances.

Theref ore, McCam m on was not en t i t l e d t o M iranda warnings p rior t o or during his initial interview, and the trial judge did not err by adm i tting the recorded interview into e vidence. 2

B. The Second Interview ¶60. McCam m on was a rrested on N o v e mb e r 3 0 , 2 0 1 6 , and taken again to the police station. He was taken to an interview room , and Of f icer C ooley read him his M iranda rights. The recording of the interview s hows Cooley explaining each right t o M c C am m on, one at

a tim e. M cCam m on was given a w ritten M iranda waiver, and he initialed next to each right af ter Cooley explained i t t o h i m . McCam m on a sked Cooley questions, and Cooley f ully explained that by signing the waiver f orm , M cCam m on was agreeing to speak w ith of f icers and w aive his rights to rem ain silent and to h ave an attorney present. F inally , McCam m on signed the waiver f

orm . Of f icers then questioned him

. During this i nterview, McCam m on told of f icers that h e was asleep in a chair i n t he garage and awoke to LAV putting her lips on his penis. ¶61. T h e t r i a l j u d ge f

ound that McCam m on knowingly , intelligently , and volun t a r i l y waived his rights. Theref ore, the judge denied McCam m on’s m otion to suppress the second

2 M c C a mm o n m ak es a b rief arg u m en t t h a t h i s in itial statem en t w a s in v o lu n tar y b ecau se h e w as in to x icated

. “In to x icatio n d o es n o t au to ma t i c ally ren d er a co n f essio n in v o l u n tary ,” b u t th e t rial co u rt m ay co n sid er “th e d eg ree o f i n to x i catio n ” as p art o f its v o lu n tarin ess in q u i ry . T a ylo r v. S ta te , 9 4 S o . 3 d 2 9 8 , 3 0 9 (¶3 0 ) (M iss. C t. A p p . 2 0 1 1 ) (q u o t i n g M

o r ris v. S ta te , 9 1 3 S o . 2 d 4 3 2 , 4 3 4 (¶7 ) (M iss. C t. A p p . 2 0 0 5 )). M c C am m o n ask ed f o r a rid e to th e p o l ice statio n b ecau se h e “h a d h a d a b eer.” H o w e v e r, Wig ley an d an o th er o f

f icer testif ied th at th ey d id n o t obs e rv e an y sig n s t h a t M c C am m o n w as in to x icated , an d th e v id eo o f th e i n t erv iew co rro b o rates th eir testim o n y . T h e trial j u d g e d id n o t clearly err b y f in d in g th at M cC a m m o n ’s statem e n t w as v o lu n tary

. 2 2statem ent, and the recorded statem ent was adm itted into evidence. On a ppeal, McCam m on argues that h is s econd statem ent w as “tainted” and inadm issible be c a u s e o f f icers f ailed to read him his Miranda rights prior to his f irst statem ent. This argum ent f ails because we have already held that no Miranda warnings were required prior to the f irst statem ent. ¶62. McCam m on also argues that h is Miranda waiver was inef f e c t i v e because of

f icers
“m ade no ef

f ort to ensure t hat [ he] understood the rights listed o n the waiver.” However, as discussed above, the video of the interview contradicts this claim

. Cooley went through the waiver c aref

ully and ans w e r ed McCam m on’s questions clearly

. The trial judge did not clearly err by

f inding that McCam m on executed a valid waiver. ¶63. McCam m on also argues t hat the Miranda warnings bef ore his second statem ent were inef f ective because he was intoxicated at the tim e. However, the of f i cers testif

ied that they

saw no signs of intoxication, and McCam m on did not tell the of f icers during the interview that he had been drinking. The t rial judge also reviewed t he video of t he interview and saw

no indication of intoxication. Again, the trial judge did not clearly err b y f i n d i n g that McCam m on was not intoxicated and that his waiver and statem ent were voluntary

.

C. Authentication ¶64. McCam m on also b r i e fl y a r g u e s that the State f

ailed t o properly authenticate the videos of his statem e n t s b ef

o re they w ere adm itted into evidence. However, McCam m on f ails to explain how the State f

ailed to authenticate the videos. ¶65. Under Mississippi Rule of Evidence 901, the a uthentication requirem ent is satisf ied when the p roponent produces “evidence suf f i cient t o support a f

i nding that the item is what

2 3the proponent claim s it is.” M.R.E. 901(a). A recording m ay be authenticated “ b y testim ony

f rom som eone f

am iliar with and with knowledge of t h e contents o f the

. . . recording.”
W ilson v. State , 267 So. 3d 2 64, 270 (¶27) (Miss. 2019) (citing M.R.E. 901(b)(1)). Once a proponent has m ade this p r im a f acie showing of authenticity , “the evidence goes to the jury and it is the jury who w i l l u l tim ately determ ine the authenticity o f the evidence, not the court.” Sewell v. State , 721 So. 3d 129, 140 (¶60) (Miss. 1998). ¶66. Of f icer W igley w as present f o r both interviews with McCam m on. He testif ied as to how the recordings were m ade and burned t o d iscs. He a lso testif ied that the videos were f

air and accurate recordin g s o f t he interviews. The trial court did not abuse its discretion in f inding that the videos were properly authenticated.
IV. Other Bad Acts Evidence ¶67. M c C a mmo n n e xt argues t hat the State s hould not have b een allowed t o intro d u c e evidence of three o t her sexual acts McCam m on allegedly perf orm ed on LAV that were not the subject of t he ind i c t m ent. He argues that LAV’s testim ony did not distinguish the indicted act f

rom the other acts. This, he s ay s, put him in the position of having t o def end him self against all acts, not just the one in the indictm e n t. ¶68. McCam m on’s i ndictm e nt a lleged that “on or about and b etween t he dates of June 1, 2015, t hrough or until Septem ber 1 , 2015

. . . [ McCam m on]

. . . did willf ully , unlawf

ully and f eloniously engage in sexual battery , . . . by having [ LAV], a f em ale ch i l d w h o se age was under f ourteen (14) y ears . . . perf orm f ellatio while t he said [ LAV] was 24 m onths or m ore
y ounger than [ McCam m on].” Prior to t rial, the State f i led a notice of i ts i ntent to introduce

2 4three other incidents of sexual abuse under Mississippi Rule of Evidence 4 04(b) t o show the

“lustf ul, lascivious nature” of

McCam m on toward LAV. At a hearing, t he State e xplained that LAV would testif

y to f our sexual acts by McCam m on: once w hen McCam m on told her

to m assage his penis; once when he perf orm ed cunnilingus on h er; once when she touched his penis; and the indicted act, when she perf o rm ed f ellatio on him

. ¶69. The trial judge ruled that the evidence was rel e v a n t a n d adm issible f o r a perm itted
purpose under Rule 404(b) and that the probative value of the evidence was not substantially outweighed by a ny prejudice to McCam m on. However, the judge also stated that he would give a lim iting instruction regarding the evidence of unindicted acts. He g ave the i nstruction (S-3) af ter the close of the evidence, along with a l l other jury i nstructions, at McCam m on’s request. The instruction generally tracked the instruction given in Gore v. State , 37 So. 3d 1178, 1184 (¶14) (Miss. 2010), and read as f ollows: The Court instructs the jury that acts testif ied t o by [ LAV] are a c ts relating to charges f or w h i c h t h e def

endant is not presently on trial and are to be considered o nly f

or the lim ited purpose of showing proof o f m otive, intent, or absence of m istake o r accident. Y ou cannot and m u st not sim

ply inf er that the def endant acted in conf

orm ity with his previous a cts and that he i s t h e ref ore guilty of the charge f

or which he is presently

on trial. ¶70. In a crim i nal c a s e , e v i d e n c e o f o ther crim es c om m itted by the def endant “is not adm issible to prove [ the def e ndant’s] characte r i n o r d er t o show t hat

. . . [ he] acted in accordance with [ h i s] character” by com m itting the crim e alleged in t he indictm ent. M.R.E. 404(b)(1). However, s u ch “evidence m ay be adm issible f or another p urpose, such as proving

m otive, opportunity , intent, preparation, plan, knowl e dge, identity , absence of m istake, or la c k of accident.” M.R.E. 4 04(b)(2). If the evidence is of f ered f or a perm i ssible (non2 5character) purpose, it still “m u s t pas s t h r ough the ultim ate f ilter o f [ Rule] 403.” W

hite v. State , 842 So. 2d 5 65, 574 (¶27) (Miss. 2003). Under Rule 403, the evidence should be excluded if its probative value is “substantially outweighed by a danger of one or m ore of the f ollowing: unf

air prejudice, c onf

using the issues, m isleading the jury , undue delay , wasting tim e, or needlessly p resenting cum ulative evidence.” M.R.E. 403. Apply ing Rules 403 and 404(b), o ur Suprem e Court “has repeatedly held that ‘evidence of prior sexual acts between the accused and the v i ctim is adm issible to show the accused’s lustf ul, lascivious disposition toward the particular victim , especially in circum stances where the victim is under the age of consent.’” Caldwell v
. State , 6 So. 3d 1076, 1078 (¶6) (Miss. 2009) (quoting W alker v. State , 878 So. 2d 913, 915 (¶14) (Miss. 2004)). ¶71. LAV testif

ied that when she was seven y ears old, McCam m on m ade her perf orm oral

sex on him while they w ere i n t he garage a n d her g randm other was o ut shopping. LAV said that he m ade her perf

orm oral sex on him a second tim e, except this tim e, McCam m on ejaculated. Again, they were in the garage, a nd her grandm other was away . LAV said it was

sum m ertim e, and she was seven y ears old. LAV testif i ed about a third assault, again where McCam m on m a de her perf orm oral sex o n him

. LAV testif ied t hat the f

ourth and f

inal assault occurred when McCam m on perf orm ed oral sex on her and again m ade her perf orm

o r a l s e x on him

. On either the third or f ourth assault, LAV and McCam m on were in t h e house on the couch, not in the garage. ¶72. As stated above, under Mississippi Suprem e Court precedent, evidence of the other

acts of sexual abuse perpetrated by McCam m on against LAV was admi s s i b l e u n der Rule

2 6404(b) to prove his “lustf ul, lascivious disposition toward [ L AV].” Caldwell , 6 S o . 3 d a t 1078 (¶6). However, McCam m o n argues that all f o u r alleged acts w ere sim i lar, that the lim iting instruction f

ailed to distinguish the i ndicted a ct f rom the unindicted incidents, 3 and that the prejudicial value of the evidence substantially outweighed its probative value. ¶73. McCam m on is correct that “evidence of prior bad acts m ust be clearly distinguished f rom evide n c e of substantive guilt so as to m ake clear t he lim ited purpose f or which i t is of f ered.” Id. a t 1079 (¶8). “However, when Rule 404(b) evidence is presented and the trial

court f ails to distinguish i t f

rom evidence of substantive guilt, harm less e rror will n ot warrant

revers a l

. ” Id. at ( ¶9). Such an error “is harm less when the sam e result would have been reached had error not existed.” Id. (quotation m arks om itted). ¶74. McCam m on was indicted f or having LAV perf

o rm f ellatio on him s om etim e between
June 1 and Septem

ber 1, 2015 , when LAV was seven y e ars old. Prior to trial, the State identif ied the i ndicted act a s the second o f t h e f our incidents of sexual abuse. At trial, the State questioned L AV specif ically about whether the secon d i n c i d ent occurred d uring the school y ear o r during sum m er b r eak, and LAV responded, “It was all during sum m er break.” LAV also testif

ied that she was s even when the f irst incident occurred, but s he did not testif y specif ically about the tim ing of the other incidents. ¶75. Sim ilar to C

aldwell , t he evidence was presented at trial in this case in a m anner that lef t t he j ury with relatively little basis f or distinguish i n g t h e substantive evidence of guilt

3 We ad d ress M cC a m m o n ’ s ch allen g e to th e i n stru ctio n an d d e n i al o f h is p ro p o sed in stru ctio n in P art V II, in

fra

. 2 7f

rom the Rule 404(b) evidence. However, like the Suprem e Court in Caldwell , w e conclude that the error in this case was harm less. This is not a case in which the victim ’ s allegations

were bolstered by the testim ony o f additional victim s w ho a ccused the def endant of having abused them t oo. Rather, LAV was the only accuser in the c a se, and the jury clearly f ound her testim ony t hat McCam m on abused her to be credible. As in Caldwell , the adm ission of Rule 4 04(b ) evidence was proper, and any f ailure to “clearly d istinguish[ ]” it f rom the substantive evidence of McCam m on’s guilt was harm less. Id. at (¶¶8-9).
V. Tender Years Hearsay ¶76. M c C am m on next argues that the trial judge e r red by allowing Robinson t o t e s t i f y regarding hearsay s tatem e nts ma d e b y L AV. He argues that the trial judge m isapplied Mississippi Rule of E viden c e 8 0 3 ( 2 5 ), the t ender y ears e xception to t he hearsay rule, by f ind i n g t h a t Robinson’s testim ony was reliable and that LAV had no m otive to lie to Robinson. ¶77. W e review the adm ission of evidence under the tender y ears exception f or an abuse of discretion. Friday v
. State , 217 So. 3d 759, 7 6 4 ( ¶ 1 8 ) (Miss. Ct. App. 2017). Rule 803(25) p r ovides that “[ a ] statem ent by a child o f tender y ears d escribing any acts of sexual contact with or by another is adm issible if : (a) the court—af

ter a hearing outside the jury ’s presence—determ ines that the statem ent’s tim e, content, and circum stances provide substantial indicia o f reliability ; and (b) t he child either (i) testif i es; or (ii) is unavailable as

a witness, and other evidence corroborates t he act.” There is no dispute that LAV is a child of tender y ears. See Veasley v. State , 735 So. 2d 432, 436 (¶16) (Miss. 1999) (“[ T]here is a

2 8rebuttable presum ption that a child under the age of twelve is of tender y ears.”). McCam m on challenges only the trial court’s f inding that t h e circum stances of LAV’s statem ent to Robinson “provide substantial indicia of reliability

. ” ¶78. The com m ent to Rule 803(25) p r o v i d e s a l i s t o f f actors that a trial judge should consider when determ ining reliability of the child’s hearsay

statem e n t. They

are: (1) whether there is an apparent m otive on d e clarant’s part to lie; (2) the general character of t he declarant; (3) whether m ore t han one person heard the statem ents; (4) whether the statem ents were m ade spo n t aneously ; (5) the tim ing of the declarations; (6) the relationship between the declarant and the witness; (7) t he possibility of the declarant’s f a u lty recollection is rem ote; (8) certaint y t h a t t h e statem ents were m ade; (9) the credibility of the person testif y ing about the statem ents; (10) the age or m aturity of the declarant; (11) whether s uggestive techniques were used in eliciting the statem ent; and (12) whether the d e clarant’s age, knowledge, and experience m a ke it u nlikely t hat the declarant f

abricated.
M.R.E. 803(25) advisory c om m ittee note. A f inding o f substantial in d i c i a of reliability should be m ade on t he record, id. , and the trial j udge in this case m ade detailed on-the-record f indings. On ap p e a l , McCam m on asserts that the t rial judge “erred by not e ngaging in a

m eaningf ul analy sis of

the [ tender y ears] f

actors.” However, that sim ply is not true. ¶79. At the pretrial tender y ears hearing, Robinson testif ied that LAV disclosed the abuse

to her clearly and directly

. R obinson denied t elling LAV w hat to say or prom pting her in any way . R obinson explained t h a t s h e h a d k nown LAV f o r only a f

ew m onths when the disclosure occurred. Robinson had overheard LAV’s grandm other, Fulton, discussing som e behavioral i ssues with L AV. R o b i nson did not really know what w a s going on with LAV

or even if LAV had any

t hing in particular to share. Robinson asked LAV what was going

on and if she wanted to talk about it. LAV said y es, and they went i nto Robinson’s bedroom , 2 9alone. LAV disclosed the abuse to Robinson.

¶80. Charlene Barnette testif ied in a hearing about her f orensic interview w ith LAV. 4 LAV disclosed the sexual abuse to Barnette and had specif ic, sensory details, including what the

sem en tasted and looked like. Barnette testif ied that this a d ded credence to LAV’s story and that LAV did not seem like she had been “coached.” Barnette said that she h ad no opinion about w hether LAV was ly ing or about her character in general. She said that LAV seem ed

em barrassed a nd scared during the interview. Barnette said she was not concerned about the delay in LAV’s disclosure and that she had seen delay s bef ore. ¶81. Fulton testif

ied at the hearing that LAV was sm art and articulate and generally did not get in trouble at school. Fulton stated that LAV w a s not in trouble when she disclosed the sexual abuse. Fulton explained that LAV had t aken a check f r om Fulton’s p u r s e to pay a classm ate f

or a painting she wanted to buy but t hat Fulton had conf ronted her over it, and the

m atter had b een settled. Fulton s aid that like m a ny children, LAV som etim es t old “white lies.” ¶82. The trial judge also viewed a video of LAV’s f o rensic i nterview. He also considered Dr. Heller’s pretrial testim ony about som e o f LAV’s prior m ental health issues and f am ily history

. T he judge t hen ruled that the testim ony was adm issible. His ruling f rom the bench
spans roughly nine pag e s o f t he t ranscript and addresses each of t he twelve f actors listed above. McCam m on takes issue with the trial judge’s f indings on alm ost every

f a ctor.

4 T h e S tate in i t i a l l y p lan n ed to in tro d u ce all o r p art o f L A V ’s f o ren sic in terv iew at trial. H o w ev er, th e S tate u l tim ately d ecid ed n o t t o in tro d u ce th e v id eo , an d B arn ette d id n o t testif y at trial. 3 0A. Motive to Lie

¶83. On appeal, McCam m on argues that LAV had a strong m otive t o l ie because she had recently been in trouble f or s t e a l i n g a check. H e also argues t hat her prior m ental health issues and issues with h er parents are “indicators” of “an increased risk of a f alse allegation.” However, based on Fult o n ’s testim ony , the trial j udge f ound that the issue with t he stolen check “had b een resolved.” T he judge f ound that LAV had no m otive to lie, and t hat f inding is supported by substantial evidence.

B. General Character ¶84. McCam m on argues that LAV’s couns e l i n g a n d m e d i c a l r ecords e vince behavior
p r o b l e ms that go to h er “character.” Fulton, however, testif ied that LAV was generall y a good child who had experienced a troubled hom e l if e. The trial judge f

o und that there was nothing in LAV’s school records to contradict Fulton’s testim ony . W e cannot say that the trial judge clearly

erred. C. Whether More Than One Person Heard the Statem ent ¶85. Only Robinson heard LAV’s initial disclosure of sexual abuse. The trial judge noted this f a ct i n his ruling. On appeal, McCam m on asserts that LAV’s later statem e nts to others (Fulton, l aw enf

o rcem e nt, the f

orensic i nterviewer, and counselors) dif f ered f rom her initial disclosure to Robinson. However, he does not identif y any s p e c i f

i c i nconsistencies, and LAV’s version of events rem a ined generally consistent f rom her initial dis closure through trial—despite the f

act that LAV was only

nine or ten y ears old throughout the ordeal.
D. Whether the Statem e n t w as Spontaneous

3 1¶86. T h e t r i a l j u dge f

o und t hat LAV’s statem ent to Robinson was relatively “spontaneo u s , ” though R obinson did f

irst a sk L AV whether there was any thing that she wanted to talk about that she did not f

eel c om f ortable telling her grandm other. McCam m on argues t hat Robinson “prodded LAV to talk,” but the trial judge did not clearly err in f inding otherwise.
E. Tim ing of the Declarations ¶87. LAV f

irst disclosed the a

buse m ore than a y ear af

ter it occurred. This concerned the trial judge, but Barnette testif ied that such a delay was not unusual. The judge f ound that this f actor did not w e i g h f

o r o r against allowing the testim ony . W e f ind no error or abuse of discretion in the judge’s consideration of this f actor. F. Relationship Betw een Declarant and Witness ¶88. McCam m on argues that LAV’s statem e nt to Robinson is less reliable because LAV had k nown R obinson f

or only t wo to f

our m onths at the tim e. However, the trial judge f ound that Robinson had com e t o be “ a trusted acquaintance o f [ L AV]” a nd that t here w as nothing about t heir r elationship that would underm ine t he reliability of L AV’s statem ent. W e again f ind no error or abuse of

discretion. G. Possibility of Faulty Recollection by Declarant ¶89. McCam m on argues that LAV gave inconsistent accounts of the abuse. However, the trial j udge f

ound, with substantial support in t he record, that LAV’s stateme n t s were generally consistent over tim e. H. Credibility of the Witness (Robinson) ¶90. McCam m on alleges that Robinson was not a credible witness because she “clearly ”

3 2dem onstrated “anim osity ” t oward him

. He also asserts R obinson “m isrepresented f acts,” but he f ails t o identif

y a ny m isrepresentations. He also asserts that she “changed her a ccount,” but he does not say how. T he trial judge f o und that Robinson w as a cred i b l e w i t n e s s, and McCam m on points to nothing in the record to contradict that assessm ent.

I. Additional Factors ¶91. W i th respect to f

actors (8), (10), (11), and (12), McCam m on either does n ot take issue with the trial judge’s f

indings or sim

ply incorporates by ref

erence h is prior argum ents. On these i ssues, t he trial judge f ound that there was no dispute that LAV m a d e a statem ent to Robinson, that LAV was appropriately m ature f or a child her a ge, that Robinson did not use suggestive techniques, and that LAV’s disclosures were consistent w ith a child dis c losing

a f irst-tim e s exual experience. The judge f ound these f

actors weighed in f

avor of adm itting LAV’s statem ent to R o binson. The judge’s f indings on t hese issues are also supported by substantial evidence. ¶92. I n s u mma ry , the trial judge f ollowed Rule 803(25) by conducting a n e v i d e n t i a r y hearing outside the presence of t he jury and by m aking specif ic f indings on the record. The judge’s f indings are supported by substantial evidence, a nd he d id not abuse his discretion by adm itting the evidence.
VI. Prospective Juror 26 ¶93. McCam m on argues t hat the t r i al judge erred by deny ing his f o r-cause challenge to “Juror 26.” During voir dire, def ense counsel asked the jury pool if any o f them , their f am ily

m em bers, or their close f

riends had been the victim of any ty pe of sexual harassm ent. Juror

3 326 revealed during a bench conf erence that a f

am i ly m em

ber had “ made s exual a dvances” against her then-eleven-y ear-old daughter, but no charges were f iled. Def ense counsel asked
Juror 26 whether t hat e xperience w ould af f ect her ability t o be f

air and im partial, and Juror 26 stated that it would not. McCam m on later challenged Juror 2 6 f or cause, but the trial judge denied the challenge because Juror 26 had st a t e d clearly t hat she c ould be f air and i mp a r t ial. Later in the jury selection process, McCam m on did not u se a perem p t o r y challenge to strike J uror 26, although he still had two challenges r em a i ning. The trial judge asked, “Just to m ake sure I u nderstand, y ou’re going to accept a j uror t h a t y ou wanted the Court to strike f

o r cause? ” Counsel f

or M cCam m on answered, “That’s c o r r e c t , Your Hono r . ” A s a result, Juror 26 was seated o n t he jury

. During oral argum ent in this Court, McCam m on’s counsel stated t hat they accepted Juror 26 because t hey were m ore c oncerned about other potential jurors af ter Juror 26. ¶94. O n appeal, McCam m on sim ply asserts that the trial judge should have d i s b e l i e v e d
Juror 26’s assurance that she could be f air and im partial. There is no basis in the record or the law f or this argum ent. A juror m ay be rem oved f or cause if a circum stance “ e xists that would likely

af f ect his . . . im

partiality at trial.” P atton v
. State , 248 S o. 3d 763, 767 (¶30) (Miss. 2 018) (quoting Evans v. State , 725 So. 2d 613, 653 ( Miss. 1997)). But “[ w]hether a potential juror can be f

air a nd im partial i s a judicial question reserved f or the trial judge and will not be disturbed unless clearly wrong.” Id. Moreover, “when a prospective juror assures the court that, despite the circum stance that raises s o m e question as to his qualif ication, this will not af

f ect his verdict, this prom ise is entitled to considerable def erence.” S

cott v. Ball ,

3 4595 So. 2d 848, 850 (Miss. 1 9 92). In t h is c a se, the trial judge did n ot abuse his discretion

by a ccepting J u r o r 26’s prom ise to be f air and i m

partial. Id. (“[ W ]e will not on appeal second guess [ the t rial judge’s d e n i a l o f a challenge f or cause] in the absence of a record showing a clear abuse of

discretion.”). This issue is without m erit.
VII. Jury Instructions ¶95. McCam m on argues that the trial judge erred by deny ing thre e o f h i s p r o posed jury instructions. W e r eview t he d enial of a jury i nstruction f or an abuse o f discretion. Thompson

v. State , 230 S o . 3 d 1 0 4 4 , 1052 (¶24) (Miss. Ct. App. 2 017), cert. denied , 229 So. 3d 121 (Miss. 2017). “Jury instructions m ust be read as a whole

. . . .” Davis v. S tate , 18 So. 3d 842, 847 (¶14) (Miss. 2009). The “ instructions m ust f airly a nnounce the law of the case and not
create an injustice against the def endant.” Id. “This rule is sum m ed up as f ollows:

. . . if all instructions t aken as a whole f airly , but not necessarily perf e ctly , a nnounce the a

pplicable rules of law, no error results.” Id. (quotation m arks om itted). A. Reasonable Doubt (D-3) ¶96. McCam m on’s proposed instruction D-3 read: The C ourt i nstructs the jury that y ou are bound, in deliberating upon this case, to g ive the def

endant the benef

it of any reasonable doubt o f t h e d e f e n d ant’s guilt that arises out of the evidence or want of evidence in this c ase. There is alway s a reasonable d oubt of the def e ndant’s guilt when the evidence sim ply m akes i t probable that the def endant is guilty

. Mere probability of guilt will never warrant y ou t o convict the def endant. It is only

when, af t er exam ining the evidence on the w h o l e , y ou are able to s a y on y our oaths, bey ond a reasonable doubt, that the def endant is guilty , that the law will perm it y o u to f ind [ him ] guilty

. You m i ght be able to say that y ou b elieve [ him ] to be guilty , and y et, if y ou are not able to say on y our oaths, bey ond reasonable doubt, t hat [ he] is guilty , it is y our sworn duty to f ind the def

e ndant “Not Guilty

. ”

3 5The State objected t o D-3 as an attem pt to def ine reasonable doubt, and the judge ref used the instruction on those grounds. ¶97. “[ The Mississippi Suprem e] Court has l ong held that a def inition of reasonable doubt is not a proper i nstruction f or the jury ; reasonable doubt def ines itself

. ” Fulgham v. State , 46 So. 3d 315, 3 3 2 (¶46) ( Miss. 2010) (quotation m arks om itted). In Fulgham , the Court held that the trial j udge did not abuse his discretion by deny ing this sam e instruction because it im properly attem

pted t o def

ine reasonable doubt. Id. a t (¶¶44, 46). This Court f ollowed Fulgham and af

f irm ed the denial of

the sam e i nstruction in T hompson , 230 So. 3 d at 1052 (¶¶25-26). The jury instructions in the pre s e n t c ase clearly instructed the j urors that McCam m on was presum ed innocent, that the State bore the burden of proving each elem ent of the crim e bey ond a reasonable doubt, that their verdict s hould b e “not guilty ” if the State “f ailed to prove any one or m ore of the

. . . elem ents bey ond a reasonable doubt,” and that McCam m on was not r equired to prove his innocence. T hese instructions f airly stated the law and caused no injustice. A ccordingly , the trial judge did not abuse his discretion by ref using D-3.
B. Reasonable Doubt (D-4) ¶98. McCam m on’s p roposed instruction D-4 read, “The Court i n s t r u c t s t h e j ury that a reasonable doubt m ay a rise f rom the whole of the evidence, the conf lict of t he evidence, the lack of evidence, or the insuf f i ciency of the evidence; but however i t arises, if it arises, it is
y our sworn duty to f

ind the def

e ndant ‘Not Guilty

. ’” The trial judge denied the i nstruction because he concluded that i t was “an attem pt to either tell the j ury how to deliberate or def ine

3 6reasonable doubt.”

¶99. In Thompson , 230 So. 3d at 1052-53 (¶¶27-31), we also held that the trial judge did

not abuse his discretion by deny i ng this sam e instruction. Thompson f ollowed our Suprem e Court’s decision in Roby v. State , 183 So. 3d 857, 874 (¶69) (Miss. 2016), which held that

a trial judge did not abuse his discretion b y d e n y ing the sam e instruction because the requirem ent of proof bey ond a reasonable doubt was f a irly c o vered by t h e c o urt’s general instructions. Likewise, t he trial judge in this c ase did n ot abuse his d iscretion by deny ing McCam m on’s proposed instruction D-4.

C. Other Acts (D-5) ¶100. McCam m on’s proposed instruction D-5 read: The Court instructs t he Jury that the t estim ony of other acts as to a child which are not the s u

bject of the Indictm ent being charged in this case is not evidence that t he Def

en d a n t a c t ually com m itted the crim e charged herein or that the Def endant has a certain character and h e a c ted in conf orm i ty therewith. Rather, the evidence, if proven bey o nd a reasonable doubt, m ay be c onsidered, if y ou so d e t e r mi ne, as to t he Def e ndant’s m otive, opportunity , intent, preparation, and or plan to com m it the act f or which he stands charged. The Stat e argued at trial that D-5 was conf using because it suggested that the “other acts”

r e lated to another child. The S tate also argued that D-5 was an i ncorrect statem e n t o f l a w because it said the “other acts” h ad to b e proven bey ond a reasonable doubt. The trial judge ref used D-5 and gave S-3 instead. ¶101. Instruction S-3, which i s quoted above, s ee supra ¶69, is the sam e instruction that our Suprem e Court f

o und to be suf

f i cient in Gore , 37 So. 3d at 1184, 1187 (¶¶14, 21). In discussing t his issue above, we ha v e a lready concluded that the State’s evidence and the

3 7instructions should have m ade m ore clear w hich instance of sexual abuse was the subject of

the indictm ent in this case. C aldwell , 6 So. 3d at 1079 (¶8). However, consistent with the Suprem e Court’s decision in Caldwell , we have also c oncluded that the error in t his regard is harm l ess. I

d

. at (¶9). For t he sam e reasons, we conclude that any def iciency in the jury instruction was harm less error.
VIII. Sufficiency and Weight of the Evidence ¶102. F i n a l l y , McCam m o n argues that his conviction should be reverse d a n d r e n d e r e d because t here is insuf

f icient evidence to support it or, a lternatively , that he is entitled to a

new trial because the jury ’s v erdict is ag a i n s t the overwhelm ing weight of the e vidence. McCam m on raises t hese i ssues together under a single argum ent heading. W e recognize that these are distinct issues, see, e.g. , Thomas v
. State , 48 So. 3d 460, 469 ( ¶20) (Miss. 2010), but they can be addressed together in this case. ¶103. W h en w e address a challenge to the suf f iciency of the e vidence, all credible evidence of guilt m ust be taken a s true, and the State i s entitled t o all reasonable inf e rences that m ay be drawn theref

rom . Haynes v. State , 250 So. 3d 1 2 4 1 , 1 2 4 4 ( ¶6) (Miss. 2018). W e will

reverse and render if the evidence is such that r e a s o n a b l e jurors could not have f ound the def endant guilty bey o nd a reasonable doubt. Id. But we m ust af f irm the c onviction if “any rational trier of f

act could have f

o und the essential elem e nts of t he crim e bey ond a r easonable doubt.” Id. (quoting Shelton v. State , 214 So. 3d 250, 256 (¶29) (Miss. 2017)). ¶104. W e review the denial of a m otion f o r a new trial f

or an abuse of discretion. Little v. State , 233 So. 3d 28 8 , 2 9 2 (¶21) (Miss. 2017). W e “view the evidence in the light m ost

3 8f

avorable to t h e v e rdict and disturb the verdict only when i t i s so c ontrary to the overwhelm ing w ei g h t o f t he evidence t hat to allow it to stand would sanction an unconscionable injustice.” Id. at 289 (¶1). W e do not “assum e[ ] the role of juror on appeal.
W e do not reweigh evidence. W e do not assess the witnesses’ credibility

. A nd we do n ot resolve conf

licts between evidence. Those decisions belong solely to the jury .” Id. ¶105. “The u ncorroborated testim ony of the victim i n a case such a s t h i s i s s u f f i c ient evidence to convict if a ccepted as true by t he f inder of f act.” Bell v
. State , 835 So. 2d 953, 954, 9 57 (¶2, ¶17) (Miss. Ct. App. 2 0 0 3 ) (af f irm ing convictions f

or s exual battery and

attem pted sexual battery of eight-y ear-old girls). “The testim ony o f a single uncorroborated witness is suf

f icient to sustain a conviction, even [ if there is] m ore than one person testif y ing

to t he contrary .” W

illiams v. State , 512 So. 2d 666, 670-71 (Miss. 1987) (citations om itted) (af f irm ing the denial of

the def endant’s new trial m otion). “Unless testim ony necessary to support the jury ’ s verdict i s so im plausible or so substantially im peached a s to be u nworthy of b elief , the jury ’s decisions in such m atters is bey ond the authority o f a reviewing court to disturb.” Brown v. State , 7 64 So. 2d 463, 467 (¶9) (Miss. Ct. App. 2 000); see also Vaughn

v. State , 759 So. 2 d 1 0 9 2 , 1 099 (Miss. 1999) ( holding t hat the State presented suf f icient evidence to sustain a c onviction f or s e x u a l battery o f a child because “[ t]he testim ony is conf licting, but [ the victim ’ s testim ony had] not been absolutely discredited or contra d icted,” and “the jury

is tasked to pull truth f

rom the conf l icting m orass”). ¶106. In this case, the evidence was suf f icient to sustain the convi c t i o n , a n d t h e jury ’s verdict was not contrary to the over w h e l mi n g weight of the evidence. The jury heard the

3 9testim o nies of LAV and McCam m on and also watched McCam m o n’s two statem ents to law

enf orcem ent. LAV’s testim o ny was not so im plausible, im

peached, o r contradicted as to be unworthy of belief

. Indeed, McCam m on adm i tted to a sexual encounter with LAV, but he claim ed t hat the seven-y ear- o ld began perf orm ing oral sex on him while he slept. Furtherm o re, while McCam m on points to inconsistencies in the details o f LAV’s statem ents and testim ony , her basic account of the sexual abuse rem ained consistent o ver t im e. W e also

note that McCam m on’s version of events changed signif icantly b etween his f

irst and second interviews w ith law enf

o rcem ent. Based on the evide n c e p r esented at trial, the jury was entitled to credit LAV’s testim ony that McCam m on s exually abused her. The jury was not

r e quired to accept McCam m o n’s claim that LAV perf orm ed the act on him , u nso l i c i t e d , while he slept. CONCLUSION ¶107. McCam m on’s conviction and sentence are A FFIRMED

. BARNES, C . J . , C A R L T O N , P . J . , G R E E N L E E , W E S T B R OOKS, LAWRENCE, McCARTY AND C . W ILSON, JJ., CONCUR. TINDELL AND McDONALD, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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