IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00700-COA MATTHEW EDWARD PIERCE A/K/A MATTHEW PIERCE A/K/A MATTHEW E. PIERCE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/18/2016 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: ROBERT B. MCDUFF JACOB W AYNE HOW ARD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 01/30/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. Matthew Edward Pierce was c onvicted of photographing, taping, or f ilm ing a person in violation of an expectation of p r ivacy pursuant to Mississippi Code Annotated section 97- 29-63 (Rev. 2014) and sentenced t o a term of f ive y ears i n the custody of the Mississippi Departm ent of Corrections, with t hree y ears suspended, leaving two y ears of incarceration, and three y ears of supervised p r obation. Pierce was required to r egister as a s e x o f f ender. He now appeals. Because we f ind reversible error, we reverse and rem and.FACTS

¶2. S.A. 1 f

irst began seeing P ierce, a licensed m a s s a ge therapist, when he worked f or a chiropractor in Long Beach, Mississippi. W hen Pierce opened his own pra c t i ce, S.A. f ollowed him . S.A. was a client of Pierce’s f

or a total of

two and a half y ears. ¶3. On October 2, 2014, S.A. a ttended a scheduled appointm ent with Pierce. W hen she arrived at the venue f

or her appointm ent, Pierce lef t t he room , a nd S.A. undressed f rom the waist up, a s she norm ally did f o r h er m assage appointm ents. Pierce returned and perf orm ed S.A.’s m assage. U p o n com pletion of the m assage, Pierce again lef t the room to give S.A. privacy t o re-dress. As S.A. was dressing, s he noticed that Pierce’s iPhone was p ropped up against the b acksplash of a c ounter opposite th e t a ble where the m assage had taken place. The phone’s cam era was f a cing where she w as standing and g etting r e-dressed. Concerned that Pierce m ight have been videotaping her while she undressed or r e-dressed, S.A. picked
up the phone and saw that i t had indeed been videotaping. S.A. stopped the v ideotaping and

sent the vi d e o to herself in a text m essage. W hen P ierce returned to t he room , S.A. conf ronted h im about the video. Pierce denied t hat h e had intended t o f i l m h e r . S

. A. reported the incident to Detective Brad Gross with the Long Beach Police Departm ent, and Pierce was subsequently arrested on October 3, 2014. ¶4. On January 20, 2 0 15, a gra n d j u r y of the First Judicial D i strict of Harrison County indicted Pierce f

or secretly v ideotaping S .A in violation o f section 97-29-63. Pierce’s trial

1 T h e v ictim ’ s in itials w i ll b e u sed th ro u g h o u t th i s o p in io n to p ro tect h e r p riv acy . 2was held in H arrison C ounty Circuit Court on April 5 and 6, 2016. Three witnesses testif ied: S.A., Detective G ross, and Pierce. Prior to opening statem ents, the State orally m oved “to either close the courtroom to the general public during t h e victim ’s testim ony or in the alternative, when we do play the video to at l east turn t h e T V a w ay f rom the general audience,” because the video depicted S.A. while s he was undressed. T he State m aintained that a surprisingly large n um ber of people had s hown up to watch the trial who had not been present at previous p roceedings, and t hat it wished to “ l i mi t the num ber of people that actually see this video and see her naked.” The def ense objected. The trial c ourt granted the State’s m otion and closed t he c ourtroom f or the entirety of S.A.’s testim ony , noting that over thirty people had shown up f

or the trial who had not been present at previous proceedings, and that the m ajority

of the audience was sitting on the def ense’s side of

the courtroom

. ¶5. Af ter all three o f the witnesses testif i ed, the trial court issued i t s jury instructions. Pierce proposed Instruction D-2a, which provided the f ollowing: The [ c]ourt instructs the jury that if y ou f i nd that the cell-phone v i d e o was created as the result of accident and without unlawf ul i n t e n t , then y ou shall f ind t h e Def

e ndant, Matthew Pierce, Not Guilty of Secretly Photographing, Taping, or Film ing [ S.A.], in a state of undress, without her perm ission and in violation of her expectation of privacy as charged i n the indictm ent, and return y our verdict as f

ollo w s : “ We , t he Jury , f

i nd the Def

endant, Matthew Pierce, Not g uilty of

Secretly Photographing, Taping, or Film ing a person, in a state of undress, without her perm ission in violation of her expectation of privacy as charged in the indictm ent, by reason of accident. The State objected and the trial court denied the instruction, f i nding t hat t he instruction did

not properly state the charge, nor did it properly state the f orm of the v erdict. Furt h e r , the

3trial judge stated, “I’m not aware that accident is a def ense, p er se, . . . to this ty

pe of charge”; however, the court provided: “ If y ou guy s c an f ind [ an instruction] that has to do with accidents specif

ic to this ty

p e [ of ] charge, then I’m m ore than happy to consider i t.” Further, the court held that the e xclusion of the def e ns e ’ s p r o p o s ed instruction did not prohibit def en s e counsel “f

rom a rguing that t here was no intent because t hat is in the elem ents instruction.” ¶6. The jury began i ts deliberations, a n d s o o n af ter sent a note (1) requesting the def inition of “lewd, licentious or i ndecent i ntent”; (2) asking, “If S.A. saw c am era [ sic] does that c hange ‘expectation of privacy ’[ ? ]”; and (3) a sking, “If it was by accident[ ,] is it sam e
t h ing sam e [ sic] as knowing or is it lewd, licentious or indecent intent[ ? ]” No f urthe r instruction w as given to the jury

. The jury next s e n t a n o te stating that it was d eadlocked. Af ter f urther deliberation, the jury f inally f ound Pierce guilty

of the charge against him

. ¶7. Pierce f

iled a m o tion f

or a new trial o r a judgm e n t no t w i t hstanding the verdict (JNOV), which the trial court denied, leading to this appeal. DISCUSSION 1. W hether the trial c ourt erred in closing the courtroom during the victim’s testimony ¶8. The Sixth Am endm ent to the United S tates Constitution and Article 3, S ection 26 of the Mississippi Constitution both provide t he accused in a crim inal prosecution the right to

a p u blic trial. “However, that right is not absolute, b ut instead m ust be balanced against other interests essential to the adm inistration of justice.” Tillman v. State , 947 S o. 2d 993, 995 (¶7)
4(Miss. Ct. App. 2006). The Mississippi Constitution explicitly authorizes the exclusion of the public i n certain instances, including “pr o s e c u tions f or rape, adultery , f

ornication, sodom y , or crim es against nature.” M i s s . C o n s t

. art. 3, § 26. The United S tates Suprem e Court i n W

aller v. G eorgia , 467 U.S. 39, 4 8 ( 1984), established a test f or determ ining whether a def

endant’s right to a public trial i s outweighed b y other c onsiderations, holding: [ T ] h e party seeking to close the hearing m ust advance an overriding interes t that i s likely

to be prejudiced, the closure m u st be no broader than necessary to protect t hat interest, the trial court m ust consider reasonable alternatives to closing the proceeding, and it m ust m ake f

i ndings adequ a t e to support the closure. The Mississippi Suprem e Court adopted t he “ W aller test” in Gannett River States Publishing Co. v. Hand , 571 So. 2d 941, 945 (Miss. 1990). ¶9. Pierce argues that the trial court’s rem edy o f c l o s i ng the courtroom to the public during S.A.’s entire testim ony was broader than necessary in light o f t h e f a c t t h a t it could have j ust turned t he t elevision a way f rom the general audience. Pierce m aintains that closing the courtroom to the public resulted in a violation of Pierce’s right t o a public trial under both the Federal and State Constitutions. ¶10. In response, the State m aintains that the trial court did not err in excluding the public because it properly c onsidered the requisite f actors prior to deciding to close the courtroom , and that Pierce’s right t o a p ublic trial was theref ore not violated. Further, em b racing the trial judge’s observations, the State m aintains that there was no m ore appropriate rem edy to be taken than t o close t he courtroom to the p ub l i c during her entire t estim o ny . T he court

5noted that the lay out of the courtroom prevented turning the television t o only s how the jury ,

and to exclude t he public upon of f ering the video into evidence w o u ld result in abruptly halting S.A.’s testim ony

to allow f

or a “m ass exodus,” thereby d rawing attention to S.A.’s
upcom ing testim ony and to the v i deo. The State cites Tillman , 947 So. 2d at 996 (¶10), in which t his Co u r t a l l owed t he exclusion o f the public where the crim e at i ssue was not one specif ically enum erated in Article 3 , S e c t i o n 2 6 o f the Mississippi Constitution, but was a crim e “ of the ty

pe f or which t he p rovision was designed.” The State presents the proposition f rom T illman that “public exclusion m ay be appropr i a t e t o the extent necessary to avoid

em barrassm ent or em otional disturbance to a witness which m i ght result f rom that witness giving t estim ony in a particular case.” Id

. at 996 ( ¶10) ( quoting Lee v
. State , 529 So. 2d 181, 183 (Miss. 1988)). ¶11. W e understand that this case involves a sensitive topic, and we do not m ake light of the f act that the inciden t c a u s ed S.A. som e em barrassm e nt, w hich she h ad to continue to endure throughout the trial. H owever, a def endant is constitutionally entitled to a p ublic trial f or whatever heinous act of which he m ay

be accused. Theref

o re, the courts m

ust perf orm

a sensitive balance in protecting a victim f r om unnecessary em

b arrassm e nt while, at the sam e tim e, com ply ing with a def

endant’s right to a public trial. H ere, we f ind that the trial court, in executing that balance, erred in excluding t he public during S.A.’s entire testim ony . S.A.’s testim o ny was relatively

lengthy in com parison to t he other witnesses w ho testif ied during the trial. The o n ly reason o f f ered by the prosecution and c ited by the trial c ourt f or closing

6the courtroom to the public was that the video would be shown during S.A.’s testim ony ,

showing h er undressed f

rom the waist up. The video lasted only o ne m inute and f o u rteen seconds. W e f

ail to see why i t w a s n e c e s sary to e x clude the public f or S.A.’s entire testim o ny , m e rely

to show a video lasting a little over one m inute. ¶12. In any event, accepting the c ourt’s statem e nt a s accurate—as we m ust—that it was not f easible to turn the t elevision s creen away f rom the general public, we see no logical reason why the closing of the courtroom could not have been d elay ed u ntil the c onclusion of all of the testim onies o f witnesses of f ered by the State and the video shown to the jury just bef ore the State rested its case. T he video speaks f or i tself , and there was no rational reason or need

to show it at the tim e of S.A.’s testim ony . Her testim ony was not needed t o explain any thing

on the video. Norm ally , a break generally occurs at the conclusion of the State’s c ase so that the court can entertain m otions outside the p resence of t he j ury . So it would have been an orderly p r o c edure to close t he courtroom —and a llow the j ury to view the video—bef ore sending t hem to the jury room t o allow the court t o consider whatever m ot i o n s ma y h a v e been of f ered b y the def

ense. Closing the court r o o m at that tim e to show the video would have prevented the disruptive “m ass exodus” d uring S.A.’s testim ony about which the court

was concerned, but, at t he sam e tim e, would have allowed P ierce to have a f ully public trial

to which he was constitutionally entitled. Adopting this procedure a l so would have served the interest of

not subjecting S.A. to u nnecessary em barrassm ent or em otional disturbance by not allowing the public t o view the video. However, t he court’s decision to close the

7courtroom during S .A.’s entire testim ony was o verly b road a n d v i o l a tive of Pierce’s

c onstitutional right to a public trial. W hile “m o st constitutional errors can b e harm l e s s , ” certain errors will be deem ed “ ‘structural’ and thus subject to a utom atic reversal.” Neder v. United States , 527 U.S. 1, 8 (1999). One such constitutional error is the denial of a public trial. Id

. (citing W

aller , 467 U.S. 39). As such, we reverse and rem and. ¶13. The dissent takes issue with our holding as it relates t o the closing of the courtroom and relies on Tillman to s upport its argum ent tha t t h e t rial court was justif ied in excluding the public f

rom t he entirety of S .A.’s testim ony . However, there a re two notable distinctions between Tillman and this case. First, t h e v ictim in Tillman was a teenager at the tim e that she testif ied. W hile the record i n this case makes no m e n tion of S .A.’s age, there is no evidence t o suggest that she was not an adult at the tim e that the incident o ccurred. Second, the victim in Tillman testif ied to “acts of sexual p enetration, m ore specif ically , oral sex and digital penetration, as well a s acts of f ondling.” T

i l l m a n , 947 So. 2d a t 9 95 (¶9). Again, without dim inishing t he severity of the def endant’s alleged intrusion upon S .A.’s p rivacy , the

current case di f

f e r s f rom Tillman. W hile t he crim es i n Tillman did not f a ll within the category enum erated in Article 3, Section 26, t his Court f ound t hat, given the nature and substance of the m inor’s allegations, they w ere o f the ty pe that this provision was designed

to address. S.A.’s testim ony , describing what o c c u r r e d as a result of her encounter with Pierce, shares no parallel with the testim ony o f the m inor victim in Tillman , describing her encounter with the def

endant there.

8¶14. Finally , the dissent m a intains that this issue is im proper f or our consideration, because (1) Pierce never asked the trial judge to only c lose the courtroom during the tim e the video

was s hown, and (2) Pierce f ailed t o of f er alternatives t o closing the courtroom during S.A.’s entire testim ony . First, this issue is properly b ef o re us because it was preserved at trial when Pierce’s counsel objected to the closing of the courtroom

. Second, we a re unaware of any caselaw requiring Pierce t o have provided alternatives t o closing the courtroom

. The burden

to assure that a d e f

endant i s convicted w ithout transgressing constitutional saf e g uards and protections lies with the State, and m ore specif ically the trial court, not the def endant. ¶15. In P resley v. Georgia , 558 U. S. 209, 214 (2010), t he United States S uprem e Court clearly held, as a m atter of f ederal constitutional law, t h a t “ t r ial courts are r equired to consider a lternatives to closure even when they are n ot offered by the parties .” (E mp h a sis added). According to t he Suprem e Court, the obligation “to take every reasonable m easure
to accom m odate public attendance at crim inal trials” rests on the trial court, not the parties. Id. at 215. To t his extent, United States Suprem e Court precedent preem p ts our n orm al rule that a n issue is waived if

it is not presented t o the trial court f o r decision. See post at (¶30) (dissenting op.). ¶16. The United States Suprem e Court has also held, as a m atter of f ederal constitutional law, that a violation of the right to a public trial i s “a structural error, i .e. , an error entitling the def endant to a utom atic reversal w ithout any inquiry into prejudice.” W eaver v. Massachusetts , 137 S. Ct. 1899, 1905 (2017). In Presley , the Suprem e Court h eld that it was

9reversible error to exclude the “ lone courtroom observer,” the d ef endant’s uncle, f

rom jury voir dire—even though t he c ourtroom was not closed during a ny part of the presentation of evidence. See Presley , 558 U.S. at 210, 216. ¶17. “[ T]his Court is under a uthority of the United States Suprem e Court.

. . . [ A] decision of the United States Suprem e C ourt

. . . i s binding on t he tribunals and citizens of the respective states in com

parable c ases.” Bolton v. City o f Greenville , 253 Miss. 656, 666, 178 So. 2d 667, 672 (1965). ¶18. Apply ing these d ecisions of the United States Suprem e Court requires this Court to

reverse and rem and this case f or a new trial. O n rem and, the court m ay close the courtroom to the public but only

while the video at issue is being play ed, as there is nothing about the

content of S.A.’s testim ony that warrants the closing of the courtroom during her testim ony . Notwithstanding what we have said earlier concerning when the courtroom could have been closed, we want to be clear that nothing contained in t h i s o p i n ion shall be interpreted as dictating the tim ing of

the closing of the courtroom , except as to when the video is play ed. 2. W hether t he trial c ourt erred in denying the defense’s jury instruction ¶19. “Jury instructions are within the discretion of the trial court[ ,] and the settled standard of review is abuse of discretion.” W atkins v. S

tate , 101 So. 3d 628, 633 (¶16) (Miss. 2012) (citation om itted). W hen reviewing a challenge t o jury instructions, this Court will read the instructions that were given a s a whole to determ ine whether the instructions f airly announced t he law and did not create an injustice against the d ef endant. Crook v. State , 105

1 0So. 3d 353, 358 (¶13) (Miss. Ct. App. 2012).

¶20. Pierce arg u e s t h a t the trial court erred when it denied h is proposed jury i nstruction inf orm ing jurors that t hey m

ust acquit him if they c oncluded t hat his actions were accidental.
He m aintains that this instruction was put f orward a s part of his def

ense theory

. In support of his argum ent, Pierce asserts that the Mississippi S uprem e Court has consistently reversed convictions in which the t rial cour t d e c l i ned to give an accident instruction w hen accident

was the theory of the def

ense, citing Brown v. State , 39 So. 3 d 890, 900 (¶38) (Miss. 2010); Chinn v. State , 9 58 So. 2d 1223, 1226-27 (¶¶17-18) ( Miss. 2007); and Triplett v. State , 666 So. 2 d 1356, 1361-62 (Miss. 1995). Pierce points out that, although m ost cases regarding accident involve hom icide, this Court has also held that the p rinciple applies to non-hom icide

cases. See McTiller v. S

tate , 113 So. 3d 1284, 1291 (¶19) ( Miss. Ct. A pp. 2013) (where this Court reversed a circuit court o n the basis that it d id not properly instruct the jury on accident in an aggravated-assault case). In response, the State m aintains that t he i nstructions given f airly inf orm ed jurors that, i n order to convict Pierce, they had to f ind t h a t h e a cted “with l e w d , l i c e n t i o u s o r i n d e c e n t i n t e n t ” w hen he “secretly photograph[ ed], f ilm [ ed], videotape[ d ] , record[ ed] or otherwise reproduce[ d] the im age of [ S.A.]” w i thout her perm ission, when she “was located in a place where a person would intend to be in a state of u ndress and have a reasonable expectation of privacy .” ¶21. W e agree with Pierce and f ind pursuant to a long line of Mississippi cases holding that def endants are e ntitled to j ury instructions on t heir theory of def ense—som e o f which are

1 1cited by Pierce and d iscussed earlier—that t he trial c ourt erred in deny ing his proposed jury

instruction r egarding accident. A s noted, the State argues that the circuit court did not err in ref using to give Pierce’s accident instruction because, g i v e n the wording o f t he elem ent instruction, the j ury had to f i nd that Pierce acted “with l ewd, l icentious or indecent intent.”
An extrapolation f

rom this a rgum ent is that the jury w as pr operly instructed because subsum ed in its guilty verdict is a f inding that Pierce did not accidentally t urn on the videorecording m echanism

. However, the f allacy of this argum ent i s that a reasonable f inding by the jury with respect to one option given d oes not prove that another option should not have been given, even i f it ultim ately would have been rejected by t he j ury . In other words, the f act that the jury was g iven an elem ent instruction does not prove that an accident i nstruction should not have been given. W hether the court properly ref used an instruction is determ ined by an exam ination of t he f acts a n d t he instructions that were given, in accordance with exis t i n g p r e c e d e nt, not by an interpretation of the jury ’s im plicit f i nding as a result of an instruction that was given. Here, the sole t heory of Pierce’s def ense was that the videotaping had occurred b y accident, a s he testif ied that h e h ad b rought the phone into the room to keep tim e and m

ust have accidently turned it on w hile h e had oil on his f ingers. As such, we f

ind that Pierce was entitled to an accident instruction. In light of our caselaw, the trial court’s exclusion of such an i nstruction constitutes reversible error. Thus, f or both of the f

oregoing

reasons, we reverse the circuit court’s judgm ent and rem and the case f o r f urther proceedings consistent with this opinion.

1 2¶22. REVERSED AND REMANDED.

FAIR, GREENL E E A N D WESTBROOKS, JJ., CONCUR. LEE, C .J., AND WILSON, J., CONCUR IN PART AND I N T HE R ESULT W I THOUT SEPARATE WRITTEN OPINION. G RIFFIS, P.J., DISSENTS WITH SEPARATE W R I TTEN OPINION, JOINED BY BARNES, CARLTON AND TINDELL, JJ. GRIFFIS, P.J., DISSENTING: ¶23. I respectf

ully dissent. ¶24. This case considers the com pelling interest of the v ictim ’s right of privacy versus the def endant’s right to a public t rial. Pierce was charged with photographing, taping, or f ilm ing S.A. in violation of her privacy pursua n t to M ississippi Code Annotated section 97-29- 6 3 ( 1 )(a) (Rev. 2014). 2 The e vidence of f ered t o prove this crim e was the recording t h a t depicted S.A. “in a state of undress.” This is a sex-crim e case. As such, the courts of this

state attem

pt to protect the victim

f rom public em

b arrassm e nt and hum iliation. ¶25. As to the m ajority ’s recitation of the f acts, I note that the m ajority f ails to m ention that the video shows Pierce setting up the phone c am era just bef ore he exited the room . There was clear evidence to show intent and that it was not an accident.

2 Section 97-29-63(1)(a) (Rev. 2014) p ro v id es: It i s a f e lo n y f o r an y p erso n w ith l ew d , l icen t io u s o r i n d ecen t in t en t to p h o to g rap h , f

ilm , v id eo tap e, reco rd o r o th erw is e r e p r o d u c es th e im ag e o f an o th er p erso n w ith o u t th e p ermi s s i o n o f th e o t h er p erso n w h en th e o th er p erso n is lo cated in a p lace w h ere a p e rso n w o u ld i n t en d to b e in a state o f u n d r e ss an d h av e a reaso n ab le ex p ectatio n o f p riv a c y , in c lu d in g , b u t n o t lim ited to , p riv a t e d w e l lin g s o r an y f acility , p u b lic o r p riv ate, u s ed as a restro o m , b ath ro o m , sh o w er ro o m , tan n in g b o o t h , l o ck er ro o m , f ittin g ro o m , d ressin g ro o m

o r b e d ro o m

sh all b e g u ilty

o f a f elo n y . 1 3¶26. Next, I do not dispute the m ajority ’s legal authority

. However, I com e to a dif f e rent conclusion. In Tillman , this Court cited the sam e legal authority and ruled: Here, the tr i a l c ourt noted that the allegations involved acts of sexual penetration, m ore specif

i cally , oral sex and d igital penetration, as well as acts of f ondling t hat occurred over a period of tim e. The court also recognized the s ensitive nature of the testim ony and the em otional s tate of J.T. d u e t o t h e sexual abuse. Theref

ore, based on Article 3, Section 26, the f a cts o f the case, the age of t he child, and the f am ily dy nam ics (the f

am ilies of J.T. a nd Tillm an were intertwined as m em bers of the f

am ilies w ere related to b oth J.T. and Tillm an), t h e c o u r t f

ound it appropriate to close t he courtroom to every one except necessary c ourt personnel during J.T.’s t estim ony . T he c o urt ruled t hat Tillm an, his attorney , and n ecessary court p e r sonnel would be a llowed to be present during J.T.’s testim ony . Every one else was required to vacate the c o u r t r o om but were allowed to return a t the conclusion of J.T.’s testim on y . W e note that J.T. w as the f i rst witness called to testif y and that the public was allowed to be present in the courtroom f o r the rem ainder of

the trial.
W e f ind that the trial c o u r t ’s actions were s u f f icient to pass the W

aller test. Additionally , Article 3, Section 26 of the M ississippi Constitution gives a judge discretion to close a trial to the public in c ertain instances. W e r ecognize that the crim es Tillm an w as charged w ith com m itting d o n o t f a ll within the category of crim es enum erated in Article 3, Section 26. However, given the nature and substance of

J.T.’s allegations, we note that her allegations are of the ty pe contem

plated by this provision and are of the ty pe f or w hich this provision was d esigned. F urtherm ore, the Mississippi Suprem e Court has h eld that “public exclusion m ay b e appropriate to the extent necessary to avoid em barrassm ent or em o t ional disturbance t o a witness which m ight result f rom that witness giving testim ony in a particular c ase.” Lee [ v. State ], 529 So. 2d [ 181,] 183 [ (Miss. 1980)]. This case, which required a teenage girl to testif y to p otentially e m

barrassing or em otionally disturbing f acts of a very sensitive a n d p ersonal nature, clearly f a lls within t he c a tegory of instances in whic h public exclusion is appropriate. This issue is without m erit. Tillman v. State , 947 So. 2d 993, 995-96 (¶¶9-10) (Miss. Ct. App. 2006). ¶27. Further, M ississippi Rule of Evidence 6 11(3) gives the circuit judge the authority and discretion to “exercise r easonable control over the m ode and order of e x am ining witnesses
1 4and pre s e n t i n g e v i dence so as to

. . . protect witnesses f rom harassm e nt or undue

em barrassm ent.” ¶28. H e re, the public viewing of a y oung f em ale victim ’s n aked b reasts is a “ p o t e n t i a l l y

em barrassing or e m o tionally disturbing f act[ ] of a very sensitive and p e rsonal nature.” Tillman , 947 So. 2d at 9 96 (¶10). Likewise, it “f alls within the category o f i n stances in which public exclusion is appropriate.” Id. ¶29. I also cannot agree with Pierce’s argum ent that the trial c ourt’s decision to close the

courtroom to the public d uring S

. A.’s entire testimony was broader than necessary in light of the f act that the trial court could h a v e j u s t t u r n ed the television away f rom the general audience. Based on m

y review o f the transcript , Pierce’s counsel n ever suggested that it would be a n acceptable alternative to “turn the television away f rom the general audience.” The State of

f ered this alternative, and the trial c o urt determ ined i t was n ot f easible. Despite the f act that the m ajority

concludes that a reasonable alternative would have b een to allow the video to be shown a t the e nd of S.A.’s testim ony , this alternative was not p resented to the trial court. Nevertheless, the trial court u sed its d iscretion to exercise reasonable control over the interrogation i n a way that w ould prevent S .A. f rom suf f ering undue em

barrassm ent. M.R.E. 6 11(a). There is nothing in the record that would indicate t hat the t rial court was in error in the decision that this alternative was not f easible. ¶30. In f

act, Pierce’s counsel did not of f er alternatives. Instead, Pierce’s counsel argued that t he audience was entitled to see the video and t hat it was “im portant that [ the video] is

1 5seen by

whoever.” Pierce’s counsel did not ask t he trial judge to only c l ose the courtroom during the tim e t he video was shown. Accordingly , I do not believe that Pierce placed this

m atter b ef

ore the trial judge f

or a decision. “W e will n ot hold a trial court in error on appeal f or a m atter not presente d t o i t f o r decision.” Moffett v
. State , 49 So. 3d 1 073, 1101 (¶91) (Miss. 2010). Since Pierce ’ s c o u n s e l did not o f f er an acceptable alternative, I cannot f ind the trial court in error on this issue. It is certainly not reversible error. ¶31. I recognize the United States Suprem e Court’s ruling in Presley v. Georgia , 558 U.S. 209, 214 (2010), that “trial c ourts are required to consider alternatives to c losure even when they are n ot offered by the parties .” (Em phasis added). According to the circuit judge, she did just that. She considered reasonable a l ternatives and rejected them

. The m ere f act that

new appellate counsel and the judges of this Court can com e up with additional “reasonable alternatives” does not result in reversible error by the trial judge. I am of the opinion that the trial judge com

plied with the requirem ents of Presley

. ¶32. Because I would af f irm the circuit court’s judgm ent, I respectf ully d issent. BARNES, CARLTON AND TINDELL, JJ., JOIN THIS OPINION.

1 6