IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-00977-COA THOMAS PUSTAY A/K/A THOMAS STEPHEN PUSTAY A/K/A THOMAS STEPHAN PUSTAY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/11/2007 TRIAL JUDGE: HON. STEPHEN B. SIMPSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNTS I AND II, GRATIFICATION OF LUST, AND SENTENCED TO FIFTEEN YEARS ON EACH COUNT; COUNTS III AND V, SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN BUT UNDER SIXTEEN YEARS OF AGE, AND SENTENCED TO TW ENTY-FIVE YEARS ON EACH COUNT; AND COUNT VI, SEXUAL BATTERY OF A CHILD UNDER EIGHTEEN YEARS OF AGE, AND SENTENCED TO TW ENTYFIVE YEARS, W I TH THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, AND W ITH THE SENTENCES IN ALL OTHER COUNTS TO RUN CONCURRENTLY W ITH ONE ANOTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 10/04/2016MOTION FOR REHEARING FILED:

MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. CARLTON, J., FOR THE COURT : ¶1. Thom as Pustay a

ppeals his conviction of two c ounts of the crim e of touching a child
f or a lustf u l purpose and t hree counts of the crim e of s exual battery

. Af ter our review of the record, we f

ind no error by the trial court

. As a result, we af f irm Pustay ’s conviction and

sentence. FACTS ¶2. On May 11, 2 005, Jane, 1 Pustay ’s biological niece and his adopted daughter, reported alleged sexua l abuse by h e r f ather to an o f

f icial at her school. At the tim e she r eported the abuse, Jane w as in the eleventh g rade. 2 Jane t hen m et with Pass Christian Police Chief John
D u b u isson and Assistant Chief Tom Ruspoli. Jane inf orm ed t hem that Pustay , who w a s a chief investigator with the Pass Christian Police Departm ent, began inappropriately touching her around the f

if t h grade. The touching escalated into sexual intercourse that lasted f rom the sixth grade to the eleventh grade, or two weeks prior to her report. ¶3. Chief Dubuisson and Assistant Chief Ruspoli also i nterviewed two of Jane’s f riends,
A s h l e y S t ephens and M a gan H elveston. Ashley told the police that Jane cam e to school upset, and Ashley encouraged J ane to tell the school of f icer about Pustay ’s a

b use. A f t er speaking with J ane and her f riends, Chief Dubuisson and Assistant C hief Ruspoli determ ined

1 D u e t o th e n atu re o f th e crim es an d th e ag e o f th e v ictim , w e u s e a f i ctitio u s n am e.

2 Jan e w a s eig h t een an d in th e tw elf t h g rad e w h e n th e trial o ccu rred

. 2the alleged acts occurred outside o f the city and turned t he investigation over t o Investigator

Caroly n P rendergast with the Harrison County Sherif f ’s Of f i ce. ¶4. Investigator Prendergast t ransported Jane to the Child A d v o c a c y Center, where an advocate interviewed her while I n v e s tigator P rendergast watched f rom a s eparate room . Investigators also transported Jane to Mem orial Hospital f or evaluation, but due to the length of tim e between the l ast reported sexual e n counter and t he exam ination, a rape kit was not perf orm ed. ¶5. On the sam e day as J ane’s r eport, Investigator Prendergast interviewed K aren Pustay , Jane’s adoptive m other a nd Pustay ’s wif e , who told investi g a t ors that Pustay adm itted the sexual a buse to her. Jane was then rem oved f rom the hom e and placed in f o ster care. W hile in f oster care, Jane attem

pted t o have the charges dropped b ut ref u sed to adm it the allegations were f alse. ¶6. A Harrison County grand jury indicted Pustay on February 6, 2006. Af ter a trial held

on May 7, 2007, the jury f ound P ustay guilty of f

ive of the six counts i n the indictm ent. On May 2 1, 2007, the trial court sentenced Pustay to serve a total of f orty y ears in the custody of the Mississippi D e p a r tm ent of Corrections (MDOC). On May 25, 2007, Pustay tim ely
f iled a m otion f

or a new trial or, in the alternative, a judgm e nt n otwithstanding the verdict (JNOV). A y ear later, on May 16, 2008, P ustay f iled a pro se m otion to dism iss. Then, f ive
y ears later, on February

25, 2013, Pustay

f iled a pro se m o tion f

or a new trial. ¶7. The trial court judge who p resided over Pustay ’s trial f a iled t o r u l e o n his posttrial

m otion s . A f

ter waiting six y ears to receive a r uling o n his p osttrial m otions, Pustay f iled a

3pro se petition f or m andam

us with the Missi s s i p p i S u p r em e Court on June 10, 2013, to require the trial court to r ender a decision. O n J une 25, 2 013, the Clerk of the Mississippi Suprem e Court i ssued a l etter t o the trial-court judge now a ssigned to the case, w ho had been appointed to the position af ter the trial, and asked f

or a response. On July 25, 2013, the trialcourt judge entered an order deny ing Pustay ’ s p osttrial m otions. Pustay t hen f iled his pro se notice of appeal. ¶8. On appeal, Pustay asserts thirteen separate assignm ents of error. W e h ave edited and reordered the issues f

o r clarity : (1) whether the trial court erred in a llowing t he State to treat its own witness as h ostile and establish its case through im peached testim ony ; (2) whether the trial court erred in lim iting Pustay ’s cross-exam ination of a S tate’s witness; (3) whether the trial court im

properly lim ited Pustay ’s testim ony ; (4) w hether the trial court erred in deny ing Pustay ’s m otion t o r eview the records of r elevant y outh-court proceed ings; (5) whether Pustay ’s indictm ent was insuf f icient and vague, rendering it d ef ective; (6) whether the trial court erred in its Batson analy sis and in placing jurors stricken by Pustay b ack onto the jury ; (7) whether t he trial c ourt erred in adm itting irrelevant and p rejudicial evidence of Pustay ’s character in violation of M ississippi Rule of Evidence 404(b); (8) whether the trial

court erred in excluding relevant and probative evidence under Mississippi Rule of Evidence 412; (9) whether the tr i a l c o u r t erred in adm itting im proper lay -opinion t estim o ny ; (10) whether P ustay r eceived constitutionally inef f e ctive assistance of counsel, which resulted in prejudice; (11) whether the lesser-included count of Count II, lustf ul touching, m erged with
Count V I, sexual b a ttery ; (12) whether the evidence was suf f icient or whether the verdicts

4were supported by the weight of t he evidence; and (13) whether cum ulati v e e r r o r r equires reversal.
DISCUSSION
I. Whether the trial c ourt erred in a llow ing the State t o t reat its ow n w itness as hostile and e s tablish its case through im peached testim ony . ¶9. Pustay claim s the t rial cour t c o mmi t t e d r e v e r s i b l e e r r o r d u r i n g t h e S t a t e’s interrogation of Karen. Specif i cally , Pusta y c laim s t hat it w as e rror f or the trial court to adm it K aren’s recorded statem ent to police of f icers as part of t he S tate’s im peachm ent of her testim o ny . ¶10. The standard of review f o r “a trial court’s adm ission or exclusion o f evidence is abuse of discretion.” Carothers v. State , 1 52 So. 3d 277, 2 81-82 (¶14) (Miss. 2 0 1 4 ) ( c iting Osborne v. State , 54 So. 3 d 841, 845 (¶12) ( Miss. 2011)). “Our trial judges are well-suited

to m ake t h ese calls” as to t he adm ission or exclusion of prior i nconsistent statem ents as im p eachm ent evidence. Id. at 284 (¶21). ¶11. The State called Karen to testif y . Her direct exam ination began as f ollows: Q. Ma’am , if y ou could, please state and spell y our nam e f or the record.
A. It’s Karen Pustay

. . . . Q. Ma’am , d i d y our husband ever a dm it to y o u t h a t h e mo l e s t e d y o u r daughter?
A. No. Q. Did y our husband ever adm it to y ou that he sexually penetra t e d y o ur daughter?

5A. No.

Q. M a ’ a m , did y our husband ever adm it to y o u that h e mo l e s t e d y o u r daughter?
A. No. Q. Ma’am , do y our recall giving two statem ents to— A. Yes, I did. And—

. . . . Q. Ma’am , d o y o u recall gi v i n g a t a p e d s t a tem ent t o law enf orcem ent of f icers?
A. Yes. Q. And y ou gave that on two dif f erent occasions; is that correct?
A. No. It was one day

. Q. But two dif

f erent sessions; is that correct?
A. Yes. Q. You recall that. W ould it ref resh y our r ecollection if I showed y ou y our statem ents?
A. I know what I said. Q. W hat did y ou say

at that tim e , m a’am ?
A. I said that he told m e he m olested her, but I lied. Q. Ma’am , y ou’re say ing y ou lied to the police of f i cers?
A. Yes, I did. Yes. I’m sorry I did it. I’m

asham ed that I did it. But I was af raid. They had m e locked in a little room , and I was af raid they weren’t g oing to let m e go. And I t h o u g h t if she told t hem that he m o lested her, and she loved him —

6At this point in the exam ination, the State o bjected on the g rounds t hat Karen’s answer was

not responsive. The State then asked perm ission to treat Karen as a h ostile witness and ask leading q uestions. The d ef

ense objected, but the trial c ourt granted t he State’s request on the grounds of

Karen’s “recantation under oath.” ¶12. The S tate then continued its exam ination with questions abo u t K a r en, her husband, her f am ily , and other personal m atters: Q. And how m any hours a week would y o u say t he def endant is a l one with [ Jane]?
A. W as? Q. Uh-huh.
A. He worked too. A couple of hours. Q. Ma' am , isn’t it true y ou told police of f icers, “Quite a f

ew? ” [ The State then objected that the Karen’s answer was unresponsive and the trial court ordered Karen to respond to the questions.] Q. So, m a’am , isn' t it true when y ou were talking to the p olice of f i cers y ou told them , “Quite a f

ew? ”
A. I t old y ou I lied to them about m ost of t he stuf f I s a i d

. I w a s scared. I wanted them

to let m e go. They w ouldn' t let m e go. Q. So y ou’re say ing y ou lied when y ou told them , “Quite a f ew? ”
A. Yes. Q. Is it f

air to say y ou’re a liar?
A. I lied about that. I told y ou I was scared. Q. Are y o u

scared now?

7A. No. I’m under oath. I have to tell y o u the truth.

. . . . Q. Isn’t it t rue, m a’am , that just p rior to her reporting t he s exual abuse, y ou described y our relationship with her as pretty strained?
A. Yes. Q. But y ou told police of f icers y ou’d been talking a lot m ore and getting along better recently ?
A. I had been try i ng to get along with her a lot better. Q. So that part of

what y ou told the police of f i cers was true?
A. Yes. Q. And isn’t it true y o u told them

that y o u had been f

r iends?
A. W e hadn’t r eally b ecom e f rie n d s . S h e s t i l l d i d n ’ t t r u s t me. She wouldn’t tell m e hardly

any t hing about her lif

e. Q. Okay

. So when y ou tol d p o l i c e o f f icers y o u’d becom e f

riends, y ou were ly ing in regard to that?
A. She still didn’t trust m e, no. Q. So, ma ’ a m, when y ou told the p olice of f icers y ou’d becom e f

riends, were y ou telling the truth or ly i ng to them ?
A. I lied to them

.

. . . . Q. Ma’am , y ou just told this j ury that when y ou told the po l i c e o f f i c ers y ou-all had becom e f

riends y ou were ly ing?
A. Yes. Q. S o w h e n y o u l ied to the police and y o u told them that y o u - a l l h a d becom e f riends, but y our relationship was strained; is that correct?

8A. Our relationship was alway s strained.

Q. O k a y . A n d w h e n the p olice of f i cer asked y ou, “Do y o u t h i n k i t ’ s because of

the m olestation,” what did y ou tell the police of f icer?
A. I don’t rem em

ber what I told them

. Q. W ould it ref

r esh y our recollection if

I showed y ou y our statem ent?

. . . . Q. Ma’am , I ' m showing y ou y our statem ent to law e n f orcem ent of

f icers where t he of

f icer a sked y ou, “Do y ou think i t’s because of m olestation, or do y ou t hink there’s o ther issues? ” And tell the jur y w h a t y ou told them

. THE COURT: You m ay read it, m a’am

. A. (Reading) I think probably I’d say , I think probably , I put a lot of blam e on her f or that, what I thought was going o n between the two. I thought they were t oo close, and I resented it. I think probably t hat is w hat it was, it was m ore m y

f ault than her f

ault. Q. And didn’t y ou accuse her of being too close with y our husband?
A. Accuse her? Q. Yes, m a’am

. A. No. Q. Did y ou e v e r y e l l a t them both f or being too close, f

or being together all the tim e?
A. I said they spent too m uch tim e together, y eah, because he took her to school every day

. He brought her hom e . They spent tim e i n his of f ice together. Q. You weren’t upset about that?
A. I think I was kind of jealous. He was alway s jealous o f m e and m y s on

9too.

Q. M a ’ a m, d o y o u r e me mb e r y o u r t aped statem ent

. . . [ w]hen th e investigator said, “Did y ou ever accuse her of any thing t hat y ou recall[ ? ]” [ T ]ell t he jury what y ou s a i d a t t h a t tim e . It’s right here, m a ’am

. A. (Reading) Okay

. I w as ma d a t o n e t i m e a n d y elled at both of them to—they was too close and they should, y ou know, not be together all the tim e. I don’t know if

I ever accused her, though. Q. Ma’am, i s n ’ t i t t r u e y o u t o l d p o lice of f icers y our m arriage to the def e ndant had been strained?
A. Yes. Q. And why

was that, m a’am ?
A. Because we weren’t together too m u ch any m ore. He was alway s g one to work. Q. Ma’am , isn’t it true that y ou told law enf orceme n t o f

f icers w hen y ou were explaining why y our m arriage was strained, it’s because once y ou f ound out what they were d oing, y ou’d g e t m ad at him because he’d give her a lot of

attention? He has all along. Isn’t that what y ou said?
A. He’s alway s give n h e r a l o t o f attention. But like I told y ou bef ore, I lied about m ost of that. I was try ing t o get out of that r oom . They k ept m e l ocked in there. They told m e i t was f or m y protection, a nd they wanted m e to and they knew that he had m o lested her, and they w anted m e to tell them

.

. . . . Q. And isn’t it true y ou said y o u w e r e j u s t s o n a i v e , y ou were just so stupid, y o u should have realized what was happening?
A. I told y ou I lied about all this stuf f because I was scared. Q. Ma’am , y ou’re telling m e y ou lied about a l l o f i t, but y ou’re say ing som e of i t is the truth and som e of it isn’t. W e’re try ing to f ind out f or the jury what y ou told [ that] is the truth and what y ou told that’s not.

1 0A. Most of it w as not t he truth. I was very scared. I w anted t o get out of there. Then, Karen was asked about and testif ied in detail about the interrogation. ¶13. At this point in her e xam ination, the trial court judge stopped t he direct exam ination. The trial court judge advised Karen that her testim o ny could subject her to prosecution f or perjury and that “ the Court thinks y ou have the right to the assistance of a lawy er at this t im e and that if y o u continue to answer these questions without the assistance of a lawy er, y ou do so at y our own peril.” The t rial-court judge concluded with: “I’m suggesting to y ou that if
y ou f eel like y ou nee d [ a lawy er] or y ou f eel like y o u need to invoke y our right to rem ain silent, y o u have the right to do so.” ¶14. Karen’s testim ony continued: Q. Ma’am , i sn’t it true that he adm i tted t o y ou he was having sex with y our daughter?
A. No. Q. Ma’am , I’m

ref erring to—
A. I know the statem ent. THE COURT: J u s t a mi n u t e . M s . Pustay , let him f inish his q u e s t i o n , please. [ W ITNESS]: I don’t want to read any m ore f rom the statem ent. THE COURT: You don’t have that option, m a’am

. [ W ITNESS]: It' s not true. THE COURT: Answer his questions, please.

1 1Q. W hat did y o u say when the o f f icer said, “Did he a d mi t t o t h e f i r s t tim e? ” It’s right here, m a’am . You can read that to the jury

. A. I know I said that, but it’s not true. Q. Ladies and gentlem en—or, m a’am , tell t he jury what y o u told the police of f icers.
A. (Reading) Yeah. I think he said h e did m olest her. He rubbed on her, is what he told m e. I said it’s not true. Q. That’s not what y ou s a i d at that tim e, m a’am

. Read y our t ranscript to the jury

.

. . . . A. (Reading) Yeah. I t h i n k h e d id say he did m olest h er. Rubbed on her, is what he told m e. Q. Ma’am , isn’t it true y ou said, “He said h e did m o lest h er. He rubbed on her, is what he told m e? ”

. . . . A. I just to l d y o u I l ied. That statem ent is m ostly all a lie. I was upset. I was scared. I wanted out of there. Just m ade m e believe if I supported her, they ’d let m e go hom e. ¶15. The State th e n c a l l e d O f f i c e r R o n P u l l e n with the Harrison County Sherif f ’s Departm ent. Of

f icer Pullen was present during the interrogation of Karen. The State asked Of f icer Pullen about the i nterrogation. Then, the State of f ered t he audio recording of Karen’s f irst interrogation by the sherif f ’s departm e n t. P ustay ’s counsel objected on the grounds of
f oundation, hearsay , and relevance in addition to h is continu i n g o b j ections to the State’s im p roper im peachm ent. T he trial-court judge then said: “W hat h e a r s a y ? This is a taped

statem ent between y ou, Of f icer Pullen and Ms. Pustay .”

1 2¶16. Mississippi R u l e o f Evidence 613(b) provides that “[ e]xtrinsic e vidence of a witness’s prior inconsistent statem ent is adm issible o nl y i f t h e witness is g iven an opportunity to explain or d eny the [ inconsistent] statem ent.” 3 Here, the State m et this p r e d i c a te f or adm ission of the pretria l s t a tem ent into evidence pursuant t o Rule 613(b). 4 If a witness provides “an unequivocal or o bliging adm ission of t he prior state me n t , ” this m a y indeed render t he statem e nt “consistent, hence inadm issible under R ule 613(b).” U

nited States v. Meza , 701 F.3d 411, 426 (5th Cir. 2012). In this case, however, Karen did not adm it to all the v arious f

actual assertions contained in her pretrial statem ents and her supposed ad m i s s ion

was m ore of an explanation. Instead, in her testim ony , she explained and claim ed that in her pretrial statem ents, she lied som e out of f ear, told the t ruth som e, and e v en f orgot som e of the inf orm ation she provided to police in her pretrial statem ents. For exam ple, she testif

ied that she could n ot rem em

ber what she told police a

bout whether h er m arital relationship was strained due to her husband’s alleged m olestation. ¶17. In the f

ace of Karen’s unexpected testim ony that som e parts of h er pretrial statem e nts

were true and som e w ere not, the trial court a l l o w e d t h e State to cross-exam ine Karen in order to determ ine which of her pretrial statem ents s h e w a s claim ing at trial c onstituted a lie. The trial court also allowed the State to cross-exam ine her a s to her assertion and explanation that her pretrial state me n t s were involuntary and given only o ut of her alleged f ear and

3 S ee a lso F .R

. E . 6 1 3 (b ).

4 C o n trary to t h e sp ecially co n cu rrin g o p in io n , th is m a j o rity o p i n io n ad d resses th e ad m issib ility o f O f

f icer P u llen ’s testim o n y an d th e tap ed in terv iew b etw een O f f icer P u l len an d K a ren . 1 3duress. Her testim ony a t trial directly co n t r a d i c t e d the f acts and circum stances of voluntariness docum ented in her p retrial s tatem ents. Hence, Of f i cer Pullen’s testim ony and the taped statem ent constituted adm issible im peachm ent evidence. 5 ¶18. “[ A] prior statem ent i s inconsistent if under a ny rational theory its introduction m ight lead to a conclusion dif

f e rent f rom the witness’s te s t i mo n y . ” E v erett v. S tate , 835 So. 2d 118, 122 (¶11) (Miss. Ct. App. 2003). The Mississippi Suprem e Court has stated that “if the prior statem ent has a r easonable tendency to discredit t he witness’s testim o ny then the

statem ent is considered inconsistent.” Id

. ( c i ting Ratcliff v. State , 752 So. 2d 435, 439 (¶18) (Miss. Ct. App. 1999)). To be inconsistent, there m ust be a contradiction in f

act between the pretrial statem ent and the trial testim ony . Ratcliff , 752 So. 2d at 439 (¶17). ¶19. As stated, K aren unexpectedly t estif ied at trial that during her p retrial interviews, she told police what they wanted her to say out of f ear. Karen’s trial testim ony f urther asserted that she was f

earf ul of police because she thought that they w ould put her i n j ail. However,

our r eview o f the record shows t h a t h er pretrial statem ents ref lect no f ear, t hreats, or any reluctance on h er part to provide i nf orm ation. Her p r e t r i a l s t atem ents also ref lect that she was no stranger to law-enf orcem ent of

f icers and that her husband, Pustay , had been a lawenf orcem ent o f

f icer at the Pass C hristian P o lice D epartm ent f or t wenty -three y ears. Karen’s f irst interview was conducted by Of f icer Kevin Fay ard and Investigator Prendergast. The interview began at 3:52 p.m . and ende d a t 4 : 3 4 p .m . A t the conclusion o f t his interview,
Karen engaged in conversation with dif f erent of f i c e r s , Of f icer Pullen and Major W ay ne

5 S ee S m ith v. S t a te , 2 5 S o . 3 d 2 6 4 , 2 7 2 -7 3 (¶¶2 3 -2 8 ) (M iss. 2 0 0 9 ).

1 4Pay

ne, wherein she volunteered additional inf orm ation regarding the m olestation allegation. ¶20. T h e s e c o n d i n terview was conducted by Of f icer Pullen to capture the additiona l inf orm ation that Karen revealed in conversation with them

. The pretrial s tatem ents provided by Karen ref

lect no threats, r eluctance on her part, o r f ear that the o f

f icers would put her in jail, instead of l etting h e r leave. Her pretrial statem ents even show that s h e p l anned to conf ront her husband f

a ce-to-f ace that evening when they both got hom e f

rom work. ¶21. R e g a

r d i n g i m p eachm ent of Karen’s trial testim ony a b out the tim ing o f h e r

c o o p e r a t i o n and r eport, the pretrial statem ents ref lect that she told police that she did not com e f orward

to report the m olestation earlier because “[ she] was so af raid that nobody would believe what [ she] said about any

thing.” The pretrial statem ents also show that the of f icers thanked Karen f or her cooperation and expressed th e i r a p p r eciation f or her truthf

u lness. A dditionally , during t he second interview, the of f icers asked Karen if there was a n y thing else s he f

elt like she wanted to say so that s he would not have to com e back f or a nother interview, and the pretrial statem ents s h o w t hat the of f i cers i nf orm ed Karen that they would take h er hom e when the paperwork w as com plete. A review of the record shows that the pretrial statem ents directly contradict h er allegations of f ear she asserted in her trial testim ony , and the pretrial

statem ents also c ontradict her purported reasoning f or the m aking and tim i ng of the report. 6 ¶22. In a n analogous case, Meza , 701 F.3d at 426, the U nited States Court of Appeals f o r the Fif th Circuit explained that Federal Rule o f Evidence 613(b) requires “ that a witness have the chance either to e xplain or to deny the inconsistent statem e nt bef ore extrinsic proof is

6 S ee U n ited S ta tes v. S tro t

h er , 4 9 F .3 d 8 6 9 , 8 7 5 -7 6 (¶¶1 6 -1 8 ) (2 d C ir. 1 9 9 5 ).

1 5allowed.” In Meza , a witness s i m i l arly c laim ed that he provided a f alse pretrial statem ent that incrim inated the def endant because he (the witness) was scared. T he Fif th C i r c uit explained that “[ t]he f

ram e rs of Rule 613(b) w ere prudent, theref ore, not to t

urn adm issibility strictly on whether and how litigants later cha r a c t erize the variability of explanations and den i a l s . ” T h e court i n Meza also acknowledged that a f ailure to rem em

ber is not an adm ission of the prior i nconsistency and, depending on the f acts of the particular case, is not

a b ar to adm ission of the extrinsic evidence of t he prior inconsistent statem ent. 7 Id

. at 427. The c o urt in Meza f

ound n o error in the adm ission into eviden c e f or the purpose of im p eachm ent of the witness’s pretrial statem ent that incrim i nated the def endant given by the witness purportedly

out of f ear. Id . at 426, 429. ¶23. Sim ilarly , in em

bracing a good-f

aith standard f

or trial courts t o apply in Mississippi in determ ining the adm issibility of prior inconsistent statem ents used to im peach a witness, the Carothers court stated the f ollowing:
W e agree with this r easoning. T he good-f a i th standard strikes a b etter balance between t he truth-f

inding process at trial and ensuring a f air trial f or the parties concerned. W hile the elem ents of surprise and/or un expected h ostility are (and rem ain) an acceptable basis f or allowing a party

to im peach its own witness, they a re not required f

or purposes of Rule 607. W e hold that, to prevent abuse of Rule 607, im

peachm ent should not be allowed where t he t rial court f inds the purported purpose of im

peachm ent f

or of f ering t he s t atem ent(s) is in bad f aith, or i s subterf

u ge to m a sk t he true purpose o f of f ering t he statem e nt(s) to prove the m atter asserted. See, e.g., State v. Hunt , 3 78 S.E.2d 754, 758 (1989) (citing [ United States v .] DeLillo , 620 F.2d 939[ , 9 46-47 (2d Cir. 1980)]; [ U nited States v. ] W

ebster , 734 F .2d 1191[ , 1193 (7th Cir. 1984)]). Our trial judges are well-suited to m ake these c alls. To the e xtent that W ilkins [ v
. State , 603 So. 2d

7 U n i ted S ta tes v. M

eza , 7 0 1 F .3 d 4 1 1 , 4 2 6 (5 th C ir. 2 0 1 2 ) ; s ee a lso U n ited S ta tes v. S ea le , 6 0 0 F .3 d 4 9 3 (5 th C ir. 2 0 1 0 ); U n ited S ta t es v. D evin e , 9 3 4 F .2 d 1 3 2 5 , 1 3 4 4 (5 th C ir. 1 9 9 1 ). 1 6309, 322 (Miss. 1992),] holds otherwise, it is overruled.

Carothers , 152 So. 3d at 284 (¶21). 8 ¶24. Pustay clai ms t h a t t h e p r o s e c u t or f ailed to assert that the State was surprised by
Karen’s testim ony , and thus f ailed to establish an evidentiary f oundation f

o r t he adm ission of Karen’s inconsistent statem ents. However, pursuant t o the M ississippi Suprem e Court’s decision in Carothers , 9 any party m ay introduce u nsworn pretrial inconsistent statem ents by

8 I n C a r o t h ers , th e su p rem e co u rt d i scu ssed th e S ev en th C i rcu it C o u rt o f A p p eals case o f U n ited S ta tes v. Web ster , 7 3 4 F .2 d 1 1 9 1 , 1 1 9 3 (7 th C i r. 1 9 8 4 ):
A r g u m e n t sim ilar to Wilk i n s’s ratio n ale w as p resen ted to th e S ev en th C ircu it C o u rt o f A p p e als in Web ster

. R ej ectin g it, Ju d g e P o s n e r , w ritin g f o r th e Web ster co u r t, ex p lain ed as f

o llo w s: Web ster [ (th e d ef

e n d an t)] u rg es u s . . . t o g o b e y o n d th e g o o d -f aith stan d a rd an d h o ld th a t t h e g o v ern m en t m ay n o t im p each a w i tn ess w ith h is p r io r in co n sisten t statem en ts u n l ess it is su r p rised an d h arm ed b y th e w itn e ss’s t estim o n y . B u t w e th in k it w o u ld b e a m istak e to g raf t su ch a req u irem en t to R u le 6 0 7 , ev en if s u ch a g raf

t w o u ld b e w ith in th e p o w er o f j u d i cial in terp retatio n o f t h e ru l e. S u p p o se th e g o v ern m en t called an ad v e rse w itn ess th at it th o u g h t w o u l d g iv e ev id en c e b o th h e l p f u l an d h arm f

u l to it, b u t it also th o u g h t th at th e h arm f u l asp ect co u ld b e n u llif

ied b y in tro d u cin g th e w i tn ess’[ s] p rio r in co n sisten t statem en t. A s t h ere w o u ld b e n o elem en t o f su rp rise,

. . . th e in tro d u ctio n o f th e p rio r statem en ts [ w o u ld b e f o rb id d en ] ; y et w e a re at a l o s s to u n d erstan d w h y th e g o v e r n m e n t sh o u ld b e p u t to th e ch o ice b etw een th e S cy lla o f f o rg o in g im

p each m en t an d th e C h ary b d is o f n o t callin g at all a w itn ess f ro m w h o m it ex p ects to e licit g en u in ely h e l p f u l ev id en ce. T h e g o o d -f

aith stan d ard strik es a b etter b alan ce. Web ster , 7 3 4 F .2 d at 1 1 9 3

. 9 We reco g n i ze t h at alth o u g h P u stay ’s case w as tried in 2 0 0 7 , th e relev a n t M ississip p i au th o rity o n im

p each m en t o f testim o n y is C a ro th ers , 1 5 2 S o . 3 d 2 7 7

. A lth o u g h th e su p r em e co u rt issu e d its o p in io n in C a ro th e rs sev en y ears af

ter P u stay ’s co n v ictio n an d sen ten ce, w e 1 7the p arty ’ s own w itness f or the purpose of im

peachm ent without having to show surprise or unexpected hostility f

or purposes of the rule, unless the trial c o u r t f i nds bad f

aith or subterf uge. Id

. 1 0 In this case, the record shows that Karen’s testim ony was an unexpected

sur p r i s e , a n d t h e record ref lects that the trial court f

o und no bad f

aith or subterf

uge in the State’s purpose of

of f ering the statem ents f

o r im peachm ent. In Carothers , the Mississippi Suprem e Court clearly f

ound that the trial courts possessed t h e discretion to m ake such

ap p ly its h o ld in g retro activ ely to th e p resen t case. S ee C a rr v. S ta t e , 1 7 8 S o . 3 d 3 2 0 , 3 2 2 (¶9 ) (M iss. 2 0 1 5 ); T

h o m p so n v. C ity o

f V icksb u rg , 8 1 3 S o . 2 d 7 1 7 , 7 2 1 (¶1 6 ) (M iss. 2 0 0 2 ) (“[ N ] ew ly en u n ciated r

u les o f law are ap p l ied retro activ ely to cases th at are p en d in g trial o r th at a re o n ap p eal, an d n o t f in al at th e tim e o f

th e en u n ciatio n .”); see a lso B ea rd v. B a n ks , 5 4 2 U .S

. 4 0 6 , 4 1 1 ( 2 0 0 4 ) (S tate co n v ictio n s are f in al “f o r p u rp o ses o f r etro activ ity an aly sis w h en th e a v ailab ility o f d irect ap p eal t o th e state co u rts h as b e e n ex h au sted an d t h e tim e f o r f ilin g a p etitio n f

o r a w r it o f certio rari h as elap sed o r a tim e ly f iled p etitio n h as b een f

in ally d en ied

. ”)

10 In Carothers , 152 So. 3 d at 282 (¶15), the Mississippi S u p r e m e C o u rt held as f ollows: Rule 607 provides that “[ t]he credibility of a witness m ay be attacked by any party , including the party calling him .” U nder this r ule, a party m ay introduce f or im peachm ent purposes unsworn pretrial inconsistent stat e me n t s by the party ' s own w itness. W

ilkins , [ 603 So. 2 d at 322]. Generally , b ecause such statem ents are f

raught with hearsay problem s, they m ay be introduced at trial only f or im peachm ent purposes, not a s substantive evidence. Id

. W hile Rule 607 m akes no m ention of it, this Court' s precedent requires that “bef ore a p arty will be authorized to introduce f or im peachm e n t purposes an unsworn p retrial inconsistent statem ent of his own witness,” there m ust b e a s h o wing of “surprise” by the w i t n e s s' s testim ony “or unexpected hostility ” f rom the witness. Id

. T h o u g h m ost other jurisdictions no longer require s uch a showing, prim arily b ecause they regard the requirem ent a s a n u n necessary rem nant o f the com m on-law voucher rule, w h ich Rule 607 purportedly was enacted to do a way with, Mississippi does, f o r r e a s o n s expressed by the W ilkins [ c]ourt. According to W ilkins , “if there is in f

act no s urprise, the only p o s s i ble m otive f

or a ttem pting to im

peach one’s own witness is t o g e t otherwise inadm issible testim ony into evidence.” Id

. at 321.

1 8determ inations on the adm issibility of such im peachm ent evidence. Id

. ¶25. Additionally , in Franklin v. State , 72 So. 3d 1129, 1138 (¶40) (Miss. Ct. App. 2011), this Court held t hat the trial c ourt properly adm itted a w itness’s prior inconsistent statem ent asserting that the def

endant m ade a serious threat to the victim on the night the victim

was shot. In Franklin , the statem ent conf l i c t e d w i t h the witness' s trial testim o ny that the def endant' s threat was m ade i n je s t

. Id. The Franklin decision f ound that the prior inconsistent statem e nt was properly adm itted into evidence by the trial court a s im peachm ent evidence, and not a s substantive evidence of the def endant' s g uilt. Id

. As a r esult, this Court ruled that the prior inconsistent statem ent was adm issible in a prosecution f or depraved-heart

m urder, even though t h e w i t n e ss was called b y t he State to t estif y . Id

. 11 Additionally , in Moffett v. State , 456 So. 2d 714, 720- 2 1 ( M i s s . 1 984), a witness’s prior inconsistent

statem ent was used to place Mof f ett at the crim e s cene at the tim e of the m urder where the witness provided Mof

f ett with an inconsistent alibi def ense at trial. ¶26. Like Franklin , in the instant case, the record ref lects no f inding by the trial court of bad f aith or s ubterf

uge. A l t e r n a t i vely , evidence in the record supports the trial court’s f inding that Karen’s prior statem ents constituted perm issible i m p each me nt evidence and

were relevant a nd probative o f the veracity of her trial testim ony an d a l s o of the circum stances she a lleged surrounded her inconsi s t e n t p r etrial statem e nts. A s discussed,
Karen alleged and explained that s he m ade her p retrial inconsistent statem e nts due to threats and f ea r . T he Mississippi Suprem e Court noted in Carothers that “[ o ]ur trial j udges are

11 S ee M .R .E . 6 1 3 (b ). 1 9w e l l

- s u i t e d to m ake these c alls” as to the adm ission o r e xclusion of prior inconsiste n t

statem ents as im

peachm ent evidence. Carothers , 152 S o. 3d at 284 (¶21). The Carothers court clarif

ied that “[ t]o the extent that W ilkins holds otherwise, it is overruled.” Id

. ¶27. T h e e v i d e n c e i n the record supports the trial court’s exercise of discr e t i o n a n d supports the t r ial court’s f inding that Karen’s prior inconsistent statem ents w ere indeed relevant and probative o f not only the truthf ulness and veracity of her trial testim ony but also

r e l e v a n t a n d probative to her alleged circum stances of f ear a nd duress surrounding her pretrial s tatem ents. See id. Moreover, the record ref lects n o f indings by the trial court that the im p e a c h me n t evidence w as adm itted as a subterf uge or in bad f

aith. Since the record ref lects suf f icient evidence supporting the trial court’s decision to adm i t Karen’s pretrial inconsistent statem ents as im peachm ent evidence, t he record t heref ore ref l ects no abuse of discretion in the trial court’s decision to a d m it such statem ents into e v i d e n c e a t trial. A review of applicable j urisprudence ref lects t hat a tria l c o urt possesses considerable discretion in t h e a d mi ssion of im

peachm ent evidence. Further, “[ a]bsent an abuse of discretion, the trial court' s decision on whether to adm it evidence or exclude it will not be disturbed on appeal. Further, such error w ill warra n t r eversal only when the a b use of d iscretion has resulted in prejudice to the a c c u s e d

. ” G unn v. State , 174 So. 3d 848, 858 ( ¶27) (Miss. Ct. App. 2014). ¶28. P u s t a y also asserts that the lim i ting instruction provided b y the trial court f ail e d t o elim inate or m itigate any p rejudice resulting f rom t he im

p eachm ent e vidence. T h e record ref lec t s t h a t t h e trial court t hen asked t he d ef e n se counsel to prepare a def e nse i nstruction

2 0providing that “the tape that’s adm itted as Exhibit 4 is not of f ered f or substantive evidence but f or the purposes of im

peachm ent[ .]” Af

ter trial, during the j ury -instruction conf erence, the def ense counsel inf

orm ed t he trial court that he di d n o t currently have the lim iting instruction, but hoped to soon. T he State did h a v e a l i m iting instruction prepared, and subm itted it to the trial court, which the trial court gave to the jury as instruction C-15. ¶29. Instruction C-15 stated: The Court instructs the Jury that the t aped statem ent entered into evidence of Karen Pustay m a y be used f or the l im ited purpose of c o n s i d e ring the truthf ulness of Karen Pustay ’s in court testim ony and not f or the substance of her out of court statem e nt. The def ense counsel objected to the instruction, asserting that the trial court needed to add another sentence stating: “[ N]or c ould it be considered f or the purposes o f determ ining the innocence or g uilt of

” Pustay

. However, the d ef ense counsel adm i tted that he agreed with the f irst part of instr u c t i o n C

- 15, that the State could im peach K aren with her recorded

statem ents on the issue of the truthf ulness of her testim ony

in court. ¶30. Sin c e w e h a v e determ ined that the trial court properly f ound that Karen’s recorded

statem ents to police of

f icers were a dm i ssible because they were relevant t o her claim that her prior statem ents were m ade under duress or coerced, we f ind no reversible error in the trial
court’s decision declining to a dd Pus t a y ’ s s u g gested language to the lim i ting instruction. This issue lacks m erit.
II. W h e t h e r t h e t r i a l c o u r t e r r e d i n l i m i t i n g P u s t a y ’ s cross-ex am ination of a State w itness. ¶31. Pustay next argues t he trial court im properly lim i ted his cross-exam ination of Karen,

2 1which prevented him f rom prof f ering alternative reasons f or his controlling b ehavior toward
Jane. The State counters that Pustay attem p ted to elicit irrelevant character e vidence, which

rem ained inadm issible on cross-exam ination. ¶32. W e recognize that “[ a] trial court has great latitude in [ the] a d m ission or exclusion of evidence where the question is one of m a teriality or relevancy , a n d its decision should only be r eversed where this discretion is abused.” W atkins v. State , 29 So. 3d 807, 8 10 (¶7) (Miss. Ct. App. 2009) (quoting Blocker v. State , 809 So. 2d 640, 645 (¶20) (Miss. 2002)). ¶33. Pustay claim s that the trial court erred in lim i ting the f ollowing cross-exam ination of
Karen: Q. Now, y ou testif i ed o n direct exam ination that he would bring [ Jane] to the police station because he distrusted her; is that correct?
A. Yes. Q. W hy

is it he distrusted her?
A. Because [ Jane]— [ STATE]: Object, Your Honor.
THE COURT: Sustained. [ DEFENSE]: May I— THE COURT: Com e up. Com e up. (BENCH CONFERENCE NOT REPORTED).
Af ter t his exchange, Pustay ’s counsel started another line of questioning wi t h o u t f urther inquiry into this m atter. The r ecord ref lects that Pustay provi d e d n o prof f er f or the record as to what evidence he sought to elicit or f or what purpose.

2 2¶34. P u s t a y a r g u e s the trial court im properly lim ited his right to cross-exam i n a t i o n o f
Karen and cites to Mississippi R ule of Evidenc e 611(b), w h ich provides t hat “[ t ]he court

m ay not lim it cross-exam ination to the subject m atter of the direct exam ination and m atters af f ecting the witness' s credibility .” Pustay , however, d id not attem pt to a t tack the credibility of K aren. Rather, Pustay ’s questioning appeared to question Jane’s c haracter. Evidence of

a victim ’s character is ordinarily “irrelevant” a n d inadm issible. M.R.E. 404(a) & cm t. W hile Rule 611(b) “allows wide-open cross-exam ination so long as the m a tter p robed is relevant,”
Zoerner v. State , 725 So. 2d 811, 813 (Miss. 1998) , e v i dence of a victim ’ s character is ordinarily “irrelevant” and inadm issible. See Barber v. S t a t e , 1 4 3 S o. 3d 5 86, 593 (¶23) (Miss. Ct. App. 2013); M.R.E. 404(a) & cm t. ¶35. A d d i t i o n a l l y , as stated, the def ense f ailed to m ake a prof

f er regarding K a r e n ’ s testim o ny on this m atter. Although a bench conf e rence o ccurred, the record does not include those proceedings. “The suprem e court has held that ‘a trial court will not be reversed f or lim iting cross-exam ination where no prof f er was m ade of the testim ony nor was a statem ent dictated i nto the r ecord to indicate what was p r o p o s e d t o b e shown by the exam i nation.’”
W atkins , 29 S o . 3d at 8 10 (¶7) (quoting Blocker , 8 09 S o. 2d at 645 (¶20)). Theref ore, the trial court did not abuse its discretion in sustaining t he S tate’s objection. This issue is without

m erit.
III. Whether the trial court im properly lim i ted Pustay ’s testim o ny . ¶36. Pustay next asserts the trial court im properly lim ited his def

ense by not allowing h im

to explain why he disciplined J a ne af t er the State i ntroduced evidence about h is aggressive

2 3behavior t oward her. T he record ref lects t h a t w h e n Pustay testif ied o n his own behalf

, he

attem pted to explain that he disciplined Jane because s he f requently lied. The State objected to this line of

questioning, which the trial court sustained. ¶37. “The standard of review governing the adm ission or exclusion of evidence is abuse of discretion.” W

illiams v. State , 991 So. 2 d 593, 597 (¶8) (Miss. 2 008) (citation om itted). “Thus, ‘a trial j udge e njoy s a great deal of discretion as to the relevancy and adm i ssibility of evidence. Unless the judge a buses this discretion so as to be prejudicial to the accused, the
Court will not reverse this ruling. ’ ” I d

. ( q u oting Shaw v. State , 915 So. 2d 442, 445 (¶8) (Miss. 2005)). ¶38. Pustay claim s t he trial court im properly restricted his t estim ony when i t sustained the
State’s objections af

ter Pustay attem

pted to e xplain h is reasons f or disciplining J ane. The
f ollowing questioning occurred on redirect exam ination: Q. Now, concerning [ Jan e ] a n d s o m e of the things she w ould do around the house, som e of these ty pical—how was s h e w h en she cam e to be truthf ul to y o u and Karen? [ STATE]: Objection, Your Honor.
THE COURT: T h a t ’ s i m p r o p e r r e d i r e c t , M r . R a f f e r t y [ ( d e f e n s e counsel)]. [ DEFENSE]: Your Honor, the y a s k e d a b o u t t h e d i scipline, ty pical teenage stuf

f . Counsel got into that, Your Honor, a n d I should have a right to f

ollow-up on it.
THE COURT: I’ll let y ou explore it to an extent. Q. W ould y o u please explain to the jury

. A. [ Jane] lied to us a lot. Som e big lies, som e sm all lies.

2 4THE COURT: T h a t ’ s s u s t a i n e d , M r . R a f f e r t y . T h a t ’ s o u t s i d e t h e purview of

discipline. Q. Did y o u

have to discipline her af

ter these, these lies?
A. Yes, I did. [ STATE]: Objection, Your Honor.
THE COURT: Sustained, Mr. Raf f e r ty

. ¶39. Pustay contends the State portray ed him a s a p h y s i c a lly abusive parent, which he could not def

end against w hen the trial court prevented his t estim ony o n t h e m atter. Yet
P u s t a y f ails to show how testif

y ing about Jane’s alleged untruthf ul b ehavior served t o rehabilitate his character. ¶40. In h is appellate brief , Pustay cites Terry v. State , 718 So. 2 d 1115, 1121 (¶28) (Miss. 1998), f or the proposition that “[ a] crim inal def endant is entitled to present his def ense to the
f inder of f act, and it is f

undam entally unf

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

ense where there is testim ony to support the theory .” Id

. (citing Keys v. State , 635 So. 2d 845, 848-49 ( Mis s . 1 9 9 4 ) )

. I n Terry , Kay Terry a rgued the trial court erred in lim iting her def

ense b y excluding evidence that another p erson s t ole t h e mo n ey she was accused of em

bezzling. Id

. at 1122 (¶30). This exclusion, Terry a rgued, prevented evidence of an alternative theory of the crim e, which was critical to her def ense. I d

. at 1121-22 (¶¶26, 30). T h e s u prem e court r eversed and rem anded T erry ’s case b ecause the trial court im p roperly excluded evidence of T erry ’s theory of t he case. Id

. a t 1126 (¶51). However, in the present case, we f

ind that Pustay f

ailed to prove that his t estim ony about J ane’s untruthf ul

2 5behavior was relevant or was in the f urtherance of

his def ense. ¶41. W e f

urther f ind that Pustay f

ailed to s h o w h o w t h e s e c o mme nts c onf orm ed with proper redirect. “The scope of redirect exam ination, while largely within the discretion of the trial court, is lim ited to m atters brought out during cross-exam ination.” Lloyd v. State , 755 So. 2d 12 , 1 4 ( ¶ 9 ) ( M i ss. Ct. App. 1999) (citing Blue v
. State , 674 S o. 2d 1184, 1212 (Miss. 1996)). The transcript ref lects that the State did not r aise the issue of Jane’s character
f or truthf ulness during its cross-exam ination. Further, Pustay did not properly attem pt to im p each J ane’s c h a r a c ter f

or truthf ulness in accordance with the rules of evidence. See
M.R.E. 608 ( party can only attack witness’s c h aracter f or truthf ulness or untruthf

u lness using opinion and reputat i o n e v i d e nce). Theref ore, we f ind that the t rial court did not abuse its discretion in precluding Pustay ’s testim ony of Jane’s character.
IV. Whether the trial court erred i n deny ing Pustay ’s m o tion to review records of relevant y outh-court proceedings. ¶42. Pustay contends th e t r i a l c o u r t e r r e d w h en it d enied his request f or transcripts of certain y o uth-court proceedings regarding Jane. Pustay asserts that the trial court f ailed to suf f i ciently evaluate the transcript bef ore deny ing his m o tion. Pustay f urther claim s the trial

court f ailed to com

pel the State to provide any y outh-court records that the State possessed. The State argues t hat t he trial court m ade a f inding i n the record that the y outh-court records

were m erely cum

ulative, and the trial court prohibited either party f rom using evidence f

rom the y outh-court proceedings at trial. ¶43. Mississippi Code Annotated section 43-21-261 (Rev. 2 015) lim i ts the d isclosure of
y outh-court proceedings. S ection 43-21-261(c) contem plates the disclosure of certain

2 6records to specif ic entities such as other courts and court p ersonnel. This s ection does not, however, exp l i c itly allow the unrestricted disclosure of y outh-court records to p arties not

enum erated in the statute, such as a def endant in a separate crim inal p roceeding, like Pustay , seeking to use y outh-court records to d iscredit a witness. T hough t he statute rem ains silent

on this particular scenario, the suprem e c ourt has held that a c r im inal d ef en d ant m ay gain

access t o y outh-court records in lim ited circum s tances. In re J.E. , 726 So. 2d 5 47, 553 (¶23) (Miss. 1998). ¶44. In In re J.E. , the suprem e court addressed the i ssue o f a d e f e n d a n t who sought disclosure of the y outh-court records o f a m inor, who accused h im of sexual battery , in order

to p repare his def

ense. Id

. at 549 ( ¶6). The s uprem e c o urt adopted the standard provided in
P e n nsylvania v. Ritchie , 480 U .S. 39, 58 (1987), which allowed a trial c ourt to r e v i e w
y outh-court records in cam era t o determ ine if t he def e ndant was entitle d t o a ny evidence
f r om those proceedings. In re J.E. , 726 So. 2d at 553 (¶23). I f the trial c o u r t f o u n d inf orm ation relevant to the def ense, the trial court would then disclose t hat inf orm ation. Id

. This lim ited review, h owever, precluded f ull access to a l l of the y outh-court proceedings by the def e ndant; thus, the def

endant’s constituti o n a l right to conf rontation a n d the victim ’s statutory right to privacy rem a ined intact. Id

. ¶45. Under the f

ram ework adopted b y the suprem e court, we f ind that t he record supports

a showing that the trial court herein indeed r eviewed the y outh-court transcript. In ruling on Pustay ’s m otion, the trial court stated that th e t r a n s c ript of the y o uth-court proceedings “should rem ain conf

idential given the cum

u lative nature of the testim ony to other discovery

2 7received by [ Pustay ].” Theref ore, the trial court s atisf

ied t he requirem ents set f orth in In re J.E. a nd did not abuse its discretion. ¶46. Pustay also asserts the State possessed the y outh-court transcript but f ailed to disclose the transcript in discovery

. The State, however, contends it neither possessed the transcript nor used the transcript at trial. P ustay cites a m otion f or expenses f

or obtaining the y outhcourt transcript by the State f rom March 6, 2007, and an order granting pay m ent of expenses f rom March 19, 2007, as evidence the State had the transcript. ¶47. Regardless, Pustay f ails to articulate any reason t hat entitled him to a c o p y o f the transcript. The trial c ourt reviewed the transcript and f ailed to f ind any necessary disclosures. Further, the trial court f

ound the State did not withhold any evidence d uring discovery , and the State declined to introduce any portion of the t ranscript at trial. Theref o re, Pustay did not suf f e r any prejudice by

not receiving the transcript. This issue is without m erit.
V. Whether Pustay ’s indic t m e n t w a s i n s u f f i c i e n t a n d v a g ue, rendering it defective. ¶48. Pustay a rgues the dates of the alleged conduct in his i ndictm ent l acked specif icity , and the t rial court should have dism i ssed the i ndictm ent f o r vagueness. The State contends Pustay w aived his o b

j ection to the indictm ent by not raising t he issue at t rial, and, the procedural bar notwithstanding, Pustay ’s claim lacks m e rit. ¶49. In exam ining the procedural bar prof f ered b y the State, we recognize that an appellate

court m ay not a ddress an issue on appeal n ot raised at trial. Davis v
. State , 6 60 So. 2d 1228, 1246 (Miss. 1995) (“[ E]rror not raised at trial o r i n post-trial m otions m ay not be reviewed

on appeal.”). However, the State inacc u r a t e ly argues that Pustay f ailed t o assert this issue

2 8at trial. The record ref l ects that on Decem

ber 7, 2006, Pustay indeed f i l ed a m otion to dism iss the indictm e nt as “ vague, lacking in specif icity concerning the dates and f acts of the

case, and

. . . n o t c om

ply [ ing] with the Unif

orm Rules of C ircuit and County Court Practice[ ].” The trial court dism i ssed this m otion as part of a n order dism issing several of Pustay ’s pretrial m otions on April 24, 2007. W e thus f ind that Pustay suf

f iciently raised the issue below. ¶50. Turning t o address t he m e rits of Pustay ’s claim , we acknowledge that the question of “[ w]hether an indictm ent i s def ective is a q

uestion of law, a nd we review such questions of law under a de n ovo s tandard.” Payton v. State , 41 So. 3d 7 1 3 , 7 1 7 (¶11) (Miss. Ct. App. 2009). “[ T]he purpose of the indictm ent is t o provide the a c cused reasonable notice of the charges against him s o that he m ay prepare an adequate def ense.” W arren v. S tate , 187 So. 3d 616, 621 (¶10) (Miss. 2 016). Sim ilarly , Unif orm Circuit and County Court R u l e 7.06

m andates that an indictm e nt “f ully n otif y the d ef endant of the nature a nd c a u se of the accusation.” Further, an indictm ent m ust contain “[ t]he date and, if applicable, the tim e at which the of

f e nse was alleged to have been com m itted.” URCCC 7.06(5). ¶51. Pustay ’s indictm ent reads in relevant part as f ollows:
COUNT I

. . . . [ O]n or between August, 1998, to May , 1999, being at the tim e in question over the age of e i g h t e e n ( 1 8) y ears, f or the purpose of g ratif

y ing his lus t o r i n d ulging his depraved licentious sexual desires, [ Pustay ] did u nlawf ully , wilf ully and f e l oniously handle, touch or r ub with his hands, the vagi n a o f [ J a n e ] , a child who was at t he t im e in question under the age of

sixteen (16) y e ars[

. ]

2 9. . . . COUNT II

. . . . [ O]n or between August, 2004, to April, 2005, being at the tim e in question over the age o f e ighteen y ears, f or the purpose of gratif y ing his lust or indulging h is depraved licentious sexual desires, [ Pustay ] did unlawf

ully , wilf ully and f eloniously handle, touch or rub with his hands, the vagina of [ Jane], a child who was at the t im e in question not the spouse of the said T h om as Stephan Pustay and under th e a g e o f e ighteen (18) y ears, while Thom as Stephan Pustay occupied a p osition of trust or a u thority , to-wit: parent[ .]

. . . . COUNT III 12

. . . . [ O]n or between August, 2001, and May , 2002, being at the tim e in question thirty -six (36) or m ore m onths o lder than [ Jane], [ Pustay ] d i d wilf

ully , p urposely , unlawf

ully and f eloniously com m it S exual Battery upon [ Jane], a child who was at the tim e i n question at least f ourteen (14) but under sixteen (16) y ears of age, by engaging in the a c t of sexual penetration, to-wit: by

inserting his penis into the vagina of the said [ Jane.]

. . . .

1 2 T h o u g h P u stay r aised a g en eral o b j e ctio n to t h e sp ecif

icity o f th e d ates in h is in d ictm en t, h e d id n o t sp ecif i cally ad d ress th e tim e p erio d in C o u n t I II. In C o u n t III, th e in d ictm en t ch arg ed P u stay w ith sex u al b attery o f a m in o r b etw een th e ag es o f f o u rteen an d six teen b etw ee n A u g u st 2 0 0 1 a n d M ay 2 0 0 2

. Y et d u rin g th e m a j o rity o f th e tim e p erio d alleg ed in C o u n t III, Jan e w as th irteen y ears o l d

. H o w ev er, “[ a] t rial j u d g e can n o t b e p u t in erro r o n a m atter w h ich w as n o t p resen ted to h im f o r d ecisio n .” R e

yn o ld s v. S ta te , 9 1 3 S o . 2 d 2 9 0 , 2 9 9 -3 0 0 ( ¶3 7 ) (M iss. 2 0 0 5 ). F u r th er, th e p lain -erro r d o ctrin e d o es n o t ap p ly

. S ee F l o r a v. S ta te , 9 2 5 S o . 2 d 7 9 7 , 8 1 1 (¶4 2 ) (M iss. 2 0 0 6 ) (“T h e p lain erro r ru le w ill o n ly b e ap p lied w h en a d ef

en d a n t’s su b sta

nt i ve o r funda m e n tal rig h ts are af f ected .”). T h eref

o re, th is issu e is w ith o u t m erit. 3 0COUNT IV

. . . . [ O]n or between August, 2002, and May , 2003, being at the tim e in question thirty -six (36) or m ore m onths o lder than [ Jane], [ Pustay ] d i d wilf

ully , p urposely , unlawf

ully and f eloniou s l y com m it S exual Battery upon [ Jane], a child who was at the tim e in question at least f ourteen (14) but older si x t e e n ( 1 6 ) y ears o f age, by engaging in t he act o f sexual penetration, to-wit: by

inserting his penis into the vagina of the said [ Jane.]

. . . . COUNT V

. . . . [ O]n or between August, 2003[ , ] and May 17, 2004, being at the tim e i n question thirty -six (36) or m ore m onths o lder than [ Jane], [ P ustay ] did wilf

ully , purposely , unlawf

ully and f eloniously com m i t S exua l Battery upon [ Jane], a child who was at the tim e in question at least f ourteen (14) but under sixteen (16) y ears of age, by engaging in the a c t of sexual penetration, to-wit: by

inserting his penis into the vagina of the said [ Jane.]

. . . . COUNT VI

. . . . [ O]n or between August, 2004, to April, 2005, [ Pustay ] d i d wilf

ully , p urposel y , unlawf

ully a nd f e loniously com m it S exual Battery u p o n [ Jane], a child w ho was at the tim e in question under eighteen (18) y ears of age, by engaging in the act o f sexual penetrati o n , to-wit: by inserting his penis into the vagina of the s aid [ Jane], while

. . . Pustay occupied a position of

trust or authority , to-wit: parent[ .] Each count i n the indictm ent spans a tim e of approxim ately nine to ten m onths corresponding

3 1to each s chool y ear that Jane alleged the m isconduct occurred. Jane reiterated at trial several

tim es in her testim ony t hat she could not rem em ber d ates well, but could narrow down each of Pustay ’s acts to specif

ic school y ears. ¶52. Pustay asserts the tim e f ram e f or each count f

ailed to f u lly notif y him of the charges

or allow h im to p r epare an adequate def ense due to t he tim e -specif ic nature of each charge. The suprem e court has held “that a specif ic date in a child sexual abuse case is not required

so long as the def

endant is ‘ f

ully and f airly advised of t he charge against him.’” Brown v. State , 983 So. 2d 1059, 1063 (¶14) (Miss. Ct. App. 2008) (quoting Eakes v. State , 665 So. 2d 852, 860 (Miss. 1995)). ¶53. Pustay relies on Moses v. State , 795 S o. 2d 569, 570 (¶¶2, 8) (Miss. C t. App. 2001),

to support his p o sition. In Moses , the indic t ment c h arged W illie W a lter Moses with twenty

- two crim es against t w o s e p a rate victim s o ver a t hirty -nine-m onth tim e period. Id

. This Court reversed Moses’s conviction and f ound that t he indictm ent on m ultiple charges in t he sam e indictm ent, f

or the sam e tim e span, and with i dentical l anguage, precluded Moses f rom preparing a n adequate def ense. Id

. at 572 (¶¶16-17). This Court added that the State possessed adequate k

nowledge to narrow the d a t e s i n the indictm ent but did not, which prejudiced Moses. Id . at (¶16). ¶54. In Brown , h o w e v e r , T h o m a s L e e B r o w n a s s e r t ed his i ndictm ent lacked date specif icity when t he indictm ent c harged him with the f ondling of a child between January 1, 2004, and January 31, 2004. Brown , 983 So. 2d at 1062 (¶11). Like Pustay , Brown relied on Moses

. This Court i n Brown f

ound that, u nlike in Moses , the State could not n arrow down the dates

3 2in t he indictm ent. Id

. at 1063 (¶13). Accordingly , this Court f ound t h e i n d i c tm ent was suf f i cient and af

f irm ed Brown’s conviction. Id . at 1063-64 (¶15). ¶55. As in Brown , the record bef ore us f ails to indicate the State possessed any knowledge

t o n arrow down the tim e period f or the charges against Pustay

. Further, each count in the indictm ent contained separate date ranges and dif f erent l an g u age. Though two counts overlap in dates, the counts were separate crim es. ¶56. Af ter our review of the indictm ent a nd relevant caselaw, we f ind the l anguage of the indictm ent suf

f icient to p ut Pustay on n otice of the charges against him

. W e f urther f ind that Pustay suf f ered no prejudice in preparing an adequate def ense. This issue lacks m erit.
VI. Whether trial cour t e r r e d i n i t s B a t s o n analy s is and in placing jurors stricken by Pustay back onto the jury . ¶57. P u s t a y next argues that t he trial court erred in placing two v enire persons str u c k b y def ense counsel back on t he jury

. Pustay m aintains that his counsel’ s e xplanations f or striking these jurors were gender neutral and related to venire responses, em ploy m ent, and dem eanor. ¶58. “This Court af

f o rds great def

erence to a trial-court ruling o n a Batson 13 challenge .” Hughes v. State , 90 S o. 3d 613, 6 26 (¶38) (Miss. 2012). In W alker v. State , 815 So. 2d 1209,
1215 (¶12) (Miss. 2 002), the suprem e court s t a t e d t h a t “determ ination of discrim inatory intent will likely turn on a trial judge' s evaluation of a presenter' s credibility and whether an explanation should b e believed.” The W alker court explained that “[ o]ne of t he reasons the trial court is af

f orded such d e f

e r e n c e w h en a Batson challenge is raised is because the

13 B a tso n v. K

en tu cky , 4 7 6 U .S . 7 9 (1 9 8 6 ).

3 3dem eanor of the attorney m aking the challenge is o f ten the best evidenc e o n the issue of [ g e n der] neutrality .” Id

. Accordingly , we r ecognize that “[ o]n appellate review, the t r i a l
court' s decision is accorded g reat d ef erence a nd will be reversed only when such decision is clearly erroneous” o r against the overwhelm ing weight of the evidence. Id .; Hughes , 90 So. 3d at 626 (¶38). ¶59. I n B a t

s o n v
. K e n t u c k y , 4 76 U.S. 79 (1986), the United States Supreme C o u r t

“ established that the Equal P rotection Clause of the United States Constitution p r o h i b i t s racial discrim ination through the use of perem ptory challenges.” Hughes , 90 So. 3d at 625 (¶35). T he United S tates Suprem e Court extended this rule to state that a party likewise m ay
not base a perem

ptory challenge on gender. Id .; s ee J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 129 (1994). These cases provided a three-step inquiry that the trial court m ust f ollow

to determ ine w hether there is a discrim inatory r eason f or a perem

ptory challenge. Hughes , 90 So. 3d at 625 (¶35) (citing Pitchford v. State , 45 So. 3d 216, 224 (Miss. 2010)). First, the party objecting to the perem p tory strike of a potential j u r o r m ust m ake a p rim a f

acie showing t hat [ gender] was the criterion f or the strike. Second, u p o n such a showing, the burden shif ts to the [ other party ] to articulate a [ g ender]-neutral reason f or excluding that particular juror. Finally , af ter a [ gender]-neutral explanation has b e e n o f f ered the trial court m

ust determ ine whether the o b j e c ting party has m e t its burden t o prove t hat there h as been purposef

u l discrim ination in the exercise of the perem ptory strike , i.e., that the reason given was a pretext f or discrim ination. Id . at 625-26 (¶35). ¶60. The Hughes court provided that “[ a] prim a f acie case can be s hown by dem onstrating that the percentage of perem ptory strikes exercised on m em bers of the protected class was signif icantly higher than the percentage of m em bers of the protected class i n the venire.” Id

.
3 4at 626. Af te r a p r i ma f

a cie case has been m ade, t he party m ust present gender-neutral

reasons f or the perem

ptory s trikes. Chamberlin v. State , 989 So. 2d 320, 337 (¶57) (Miss. 2008). The suprem e court has e xpla i n e d t h a t i n order to b e deem ed gender n eutral, “[ t]he

reasons need not b e persuasive, or even plausible; so long as the reasons are not inherently discrim inatory [ .]” I

d

. ¶61. Regarding the third s te p , t h e s u p r e m e c ourt provided that the party opposing the strikes “m ay attemp t to r ef ute t he other party ' s race/gender-neutral reason by showing that the reason was a pretext f

o r discrim ination.” Hughes , 90 So. 3 d at 6 26 (¶37). In Hughes , the
suprem e court identif

ied f ive “indicia of pretext” that m ay contradict a gender-neutral reason f or a strike: (1) disparate t reatm ent, that i s, the p resence of unchallenged j uror s o f t h e opposite race who share t he characteristic given a s the basis f or the c hallenge; (2) the f ailure to voir dire as to the characteristic c ited; (3) the characteristic cited is unrelated to the f a cts of the case; ( 4 ) lack o f record support f or the stated reason; and (5) group-based traits. Id

. However, the suprem e court cautioned: “ W here m ultiple reasons l ead to a perem ptory

s t r i k e, the f

act t hat other jurors m ay have som e of t he individual characteristic s o f t h e challenged juror does not d em onstrate that the reasons assigned a re pretextual.” Id

. (quoting Lynch v. State , 877 So. 2d 1254, 1274 (Miss. 2004)). ¶62. The record ref

lects that of its f

irst eight perem

ptory strikes, t h e d e f

e n s e struck six

wom en during the jury -selection process, and only accepted two f em ales. The State objected pursuant to Batson , asserting t hat the def ense was striking wom en f rom the jury . The trial

court r esponded that it would not require a gender-neutral r e a s o n f rom the def

ense f or

3 5striking the venire persons a t that tim e . A f t e r d e f e n se counsel used i ts ninth perem ptory strike o n a f

e m ale, t he S tate a gain objected. The trial court asked the d ef ense to provide the

court w ith a gender-neutral r eason f or striking this prospective ju r or. T he def ense replied that this juror w orked f

or the school district a n d t h at “people with us thought [ during voir dire] she gave a [ nonverbal] reaction that she couldn’t be f air.” W hen press e d t o s p e c i f y what kind of t he reaction this p r o s pective juror e xhibited, and what her responses were, def ense counsel sim

ply stated, “W e j ust saw the t hings w e s aw,” and argued that there were

m ore w om en than m en on the jury panels collectively

. The def ense f in a lly stated that the gender-neutral reason f

o r striking the prospective juror w a s t h a t she worked f o r a school distric t a nd that the def

ense m ade som e observations a bout her reactions d

uring voir dire. The trial court t hen overruled t he S t a t e ’s objection and allowed the perem ptory strike to stand. ¶63. The def

ense then used its n ext strike on y et another wom an, w hich the S tate f ollowed with an objection. The trial court requested the def ense to provide a gender-neutral reason f or the strike. The def

ens e responded that the p rospective juror was a sixty -two-y ear old hom em aker and that they had questioned her on the i ssue of “whether

. . . s he could believe

a child v ersus not.” W h en questioned regarding the prospective juror’s response, the def ense adm itted that she did n ot provide a response. The def ense then e x plained that “ there’s better jurors down the panel.” T he trial court ruled that the def ense’s reason w as insuf

f icient and seated the prospective juror on the jury

. ¶64. The def

ense then used its tenth perem ptory strike on the next juror, a f em ale. W hen

3 6the trial court asked f or a g ender-neutral reason f or the perem

ptory st r i k e , t h e def

ense responded, “Better jurors, y o ur Honor.” The trial court then asked the def ense counsel: [ Do] y ou think that

. . . af ter the c ourt’s a l r eady determ ined that there’s a pattern of using perem

ptory challenges based on gender,

. . . [ y ou] can strike another f em a le t o get t o a better juror with n o more reason than that, with nothing objectionable a

bout [ the prospective juror]? I just want the appellate court to know, y ou know, the basis of y our challenge. The def ense responded that the prospective j uror did n ot stand o ut and did not a n swer a lot of questions. T he def

ense also explained that “ w e don’t believe we are striking wom en f or the sole sake of

striking w om en” and argued that “we just f eel t here’s better jurors com ing
up f or the def ense perspective based on the f act that this is an accountant, she’s 50 y ears old. Based on that, Your Honor, we’re using a perem ptory challenge.” T he trial court granted the
State’s o bjection and seated the prospective juror on the jury

. Pustay ’s jury was u ltim ately

com posed of f our wom en and eight m e n, with two m ale alternates. ¶65. The d ef

ense objected to the trial court granting the State’ s mo t i o n to o verrule the def ense’s perem

ptory challenges and m oved to “quash the whole veni r e , ” asking f or a

m istrial. The trial court overruled the def ense’s m otion. ¶66. As stated, o n appellate review, the trial court is accorded great def erence when ruling

on a Batson challenge. Hughes , 9 0 So. 3d at 6 26 ( ¶38). T his Court will reverse a trial
court’s ruling only when it is clearly erroneous o r against the overwhelm in g w e i g h t of the evidence. Id .; Hughes , 90 So. 3d at 626 (¶38). The record ref l ects that the trial court herein observed a pattern by the def ense of using perem

ptory strikes based on g ender and required the def ense to p r o v i d e gender-neutral reasons f or its strikes. The trial court f ound the

3 7def

ense’s explanations insuf

f icient, and as a result, seated the two f em a l es o n the jury

. Af

ter

our review of the transcript, w e f ind that the t rial court d id not err in deny ing two of Pustay ’s
perem ptory strikes against f

em ales.
VII. W h e t h e r t h e t r i a l cou r t e r r e d i n a d mi t t i n g i r r e l e v a n t a n d prejudicial evidence of Pust ay ’s character in violation of Rule 404(b). ¶67. Pustay argues that the trial court erred in allowing Jane an d M a g a n t o t e s tif y about Pustay ’s a ggressive behavior toward Jane. Pus t a y a sserts that their testim ony constituted irrelevant a n d p r e

j u d icial character evidence that violated Mississippi Rule of Evidence 404(b). Pustay also argues the trial court f ailed to a ppropriately consider the evidence under Rule 403. ¶68. W e review t h e a d mi s s i o n o r e x c lusion of evidence under an abuse-of

- discretion standard. Hargett v. State , 62 So. 3 d 9 5 0 , 9 52 ( ¶7) (Miss. 2011) (citation om itted). Furtherm o re, “[ a] tria l j udge enjoy s a great deal of discretion as to t he relevancy and adm issibility of evidence. U nless the judge abuses this d iscretion s o as to be prejudicial to the accused, the C ourt will not reverse this r uling.” Id

. at 9 52-53 (¶7) (quoting Price v. State , 898 So. 2d 641, 653 (¶29) (Miss. 2005)). ¶69. Rule 404(b) provides: Evidence of a crim e, wrong, or other act is not a dm issible to prove a person’s c h a r a c t e r in order to show that on a particular occasion the person a c ted in accordance with t h e c h a r a cter.

. . . This evidence m ay be a d m issible f or another p urpose, s u c h a s p r o v i n g m o t i v e , opportunity , intent, p reparation, plan, knowledge, identity , absence of m istake, or lack of

accident.
“As there exists an inherent danger of prejudicial ef f ect in the use of o ther[ -]acts e vidence,

3 8the 404(b) exception f o r which the crim e is i ntroduced m ust be a m aterial i ssue in the case. Moreover, its probative value m u st not be substantially o u t w e i ghed by the prejudicial ef f ect.” Leedom v. State , 796 So. 2d 1010, 1015 (¶15) (Miss. 2001); M.R.E. 403. ¶70. The p rejudicial evidence Pustay com plains of f irst arose when Pustay

cross-exam ined
Jane regarding any p hy sical abuse. The transcript ref lects that on cross-exam ination, def ense counsel asked: Q. Did any one else ever see any bruises?
A. You m e an— Q. Other than y ou. A. People would see them

. I m ean, they were never r eally m a j o r l ike on m y legs o r on m y arm s, nothing like that. The abuse w o u l d o nly be if he w ould choke m e and push m e a gainst the wall or slap m e or hit m e. It was never beating m e with [ s i c] any thing like that. Q. And y our teachers never saw these bruises on y ou?
A. They saw a couple o f bruises som etim es, but they never would expect m y f ather to do it. And when they asked m e, I would just tell m e [ sic] I hurt m y self

play i ng outside or som ething. Q. So t he tea c h e r ’ s q u e s t i o n ed y ou, but y ou weren’t honest w ith them about how it happened?

. . . A. No, I didn’t tell them what was really

going on. ¶71. The def

e nse counsel clearly elicited th e t e s t i mo n y c o n c e r n i n g P u stay ’s alleged phy sical abuse of Jane. Theref ore, Pustay introduced this evidence, not the State. Further, the line of questioning appears to attack Jane’s credibility b y d e m onstrating previous instances w here she lied to school of f i cials rather than disparaging Pustay ’ s character. The

3 9trial court told def ense counsel: “I’m not s ure I’ve ever been f aced with som e o ne try ing to attack the victim ’s c redibility by putting in evidence o f an a ssault b y t h e def endant, but if that’s what y ou want to do, . . . I’m going to allow it.” ¶72. The t ranscript does not ref lect any Rule 403 t e s t p e r f o r me d by t he trial court to determ ine whether the probative value of the testim o ny

that Pustay

phy sically a

bused Jane

was not substantially o u tweighed by the prejudicial e f f ect of the testim ony . See Leedom , 796
So. 2d at 1015 (¶15). However, “[ i]t is well-settled that a def endant who ‘opens the door’

to a particular i ssue runs the risk that collateral, irrelevant, or otherwise d am aging evidence

m ay com e in on cross-exam ination.” Martin v. State , 9 70 So. 2d 723, 725-26 (¶11) (Miss. 2007) (citation o m itted). “A def endant cannot com

plain on appeal concerning evidence that he him self brought out a t trial.” Id

. (citing Fleming v. State , 604 So. 2d 280, 289 (Miss. 1992)). Thus, Pustay

cannot now claim the trial court erroneously adm itted the evidence. ¶73. Magan also testif

ied about her observations o f Pustay ’s phy sical a ggression w i t h J a ne. Magan testif

ied: “ He would, y ou know, push her against the car and choke h er if they were arguing, or just basically m anhandle her

. . . . It was aggression.” Pustay f a iled to object to this portion of Magan’s testim ony . “The general rule is t hat a f ailu r e to object with specif icity in the trial court

. . . results in a waiver of review by this Court.” Stevens v. State , 4 5 8 S o . 2 d 7 26, 730 (Miss. 1984). Regardless of any waiver, Pustay ’s f ailure to object precluded the trial court f rom considering the adm issibility of the evidence. ¶74. Pustay o n l y o b

j e c t e d w h e n the State cross-exam i ned him

. The S tate questioned Pustay regarding an online blog com m ent he posted about a f ight between J ane and Magan.

4 0The State asked:

Q. H a v e y o u e v e r g o t t e n i n v o l v e d w i t h s p a ts between her a nd he r girlf riends?
A. Not directly involved between the two of them

. I did put a com m ent on m y web blog, excuse m e , about the spat. . . . Q. And is that when y o u p u t o n t h ere, y ou’ll f ind out what kind o f

an asshole I can be? [ DEFENSE]: Objection, Y o u r H o n o r . T h a t ’ s t o t a l l y i mproper and

irrelevant to the issues at hand and what cam e out during direct exam ination, Your Honor, a nd d uring this whole trial.
THE COURT: Overruled. A g a i n , c r o s s - e x a mi n a t i o n i s n o t lim ited to

direct exam ination, Mr. Raf f erty

. [ DEFENSE]: But, Y our Honor, there’s no f oundation f

or him to even ask that question.
THE COURT: Overruled. [ THE STATE]: I’ll m ove on, Your Honor. THE COURT: O v e r r u l e d

. I f h e d i d n ’ t put i t on there, h e c a n s a y h e

didn’t. On redirect, Pustay did not deny the blog post. ¶75. Pustay f

ailed to a ssert that the blog-post entry constituted im p roper character

e v i d e n c e under Rule 404(b). F urther, Pustay opened the door to the l ine of ques t i o n i n g a b o u t his aggressive behavior toward J ane. Theref ore, we cannot say the trial court erred in adm itting evidence of Pustay ’ s aggressive character. This issue is without m erit.
VIII. Whether the trial court erred in ex cluding r elevant and probative evidence under Rule 412.

4 1¶76. Next, Pustay argues t he trial court erred in excluding evidence of Jane’s past sexual behavior and prior f

a lse alle g a t i o n s of sexual a ssault under Mississippi R ules of Evidence 412(b)(2)(A) and (b)(2)(C). ¶77. As stated, “[ t]his Court r eviews the rulings of t he t rial court adm itting or excluding

e vidence f

or abuse of discretion.” Aguilar v. S tate , 955 So. 2d 3 86, 392 (¶1 9 ) ( M i s s . C t

. App. 2006) (citing Ladnier v. State , 878 So. 2 d 926, 933 (¶27) (Miss. 2004)). “An error in the adm ission or exclusion o f evidence is n ot g rounds f or reversal unless t he error af f ected a substantial right of

a party .” Id

. ; M.R.E. 103(a). ¶78. Mississippi Rule of Evidence 412(a) states, in p art: “The f ollowing is n ot adm issible in a c rim inal case involving an alleged sexual of f ense: ( 1 ) r e p u t ation or opinion evidence of a victim ’s past s exual behavior; and ( 2) evidence of a v ictim ’s p ast s exual behavior other than reputation or opinion, except under subdivisions (b) and (c).” “[ Rule 412] is designed

to prevent the introduction o f i rrelevant evidence of the victim ’s past sexual behavior to conf use and inf

lam e the j ury into try ing the victim rather t han the def endant.” Blackmon v. S t ate , 803 So. 2d 1253, 1 258 ( ¶25) (Miss. Ct. App. 2002) (citing Hughes v. State , 7 3 5 S o . 2d 238, 273 (¶153) (Miss. 1999)). ¶79. Rule 412(b) provides certain e xceptions t o t h e p r o h i b i tion in Rule 412(a). Rule 412(b)(2)(A) allows t he trial court to adm it “evidence o f : (1) specif

i c instances of a victim ’s past sexual behavior: (A) with a person other than the def endant, if of

f ered by the def

endant

to prove that som eone e lse was the source of se me n , pregnancy , disease, o r injury [ .]” Additionally , Rule 412(b)(2)(C) p erm its evidence of “f alse allegations of s exual of f enses

4 2m ade at any tim e bef ore trial by

the victim .” ¶80. W h en a def

endant of f ers p roof of a victim ’s p ast sexual behavior that purports to m eet

one of the exceptions in Rule 412(2 ) , t he t rial court m ay adm it the e vidence “only if the

court: c onducts a hearing in cham bers to determ ine adm issibility of the evidence

. . . [ and]
f inds that t he probative value of r elevant evidence outweighs the danger of unf a ir prejudice.”
See M.R.E. 412(c)(2)(A) & (D); M.R.E. 403. ¶81. The r e c o r d s h o w s that at a pretrial hearing on Pustay ’s m o tion seeking to present

e v i d ence of Jane’s past sexual behavior under R ule 412(b)(2)(A) and R

ule 412(b)(2)(C) , Pustay attem

pted to show another person whom Jane h ad a sexual relationship with was the

source of sem en f

ound on a towel that Jane claim ed Pustay used af t er sex. Howeve r , in def ense of its m otion, Pustay only prof f ered Jane’s t estim o ny and an inconclusive DNA test

as evidence of sem en on the towel. The trial court deem ed t his evidence insuf f icient to rebut that any sem en on the towel was f rom Pustay

. ¶82. In t his instance, “[ t]he critical question is whether the evidence tends to dem onstrate that another person is the actual source of t he injury , or whether the evidence i s s i mply of f ered to show the prom iscuity or character of the victim .” Blackmon , 803 So. 2d at 1258 (¶26). The trial c ourt herein d eterm ined Jane’s t estim o ny about t he sem e n o n the towel went
to her credibility rather than to prove the source of the sem en u nder Rule 412. Theref ore, the trial court properly excluded the evidence as it tended t o ref lect m ore o n Jane’s character than the source of the sem en. ¶83. The t rial court, however, a llowed Pustay to proceed with a Rule 412 hearing on the

4 3i s sue of prior f alse allegations of sexual a ssault u nder Rule 4 12(b)(2)(C). During t h e hearing, Pustay elicited testim ony f rom Jane r egarding two p rior allegations of sexual assault against two separate individuals, as well as a prior allegation aga i n s t P u s t a y . First, Jane accused a m an nam ed Dam on Dixon of attem pted sexual assault. Jane t estif ied she initially adm itted t he assault happened, then recanted her s tory to Pustay , but m a i ntained the assault happened in her statem e nts to t he a uthorities. The t rial court directly asked Jane whether the assault occurred, and Jane testif ied that it did. ¶84. The t rial court also c onsidered whether Jane m ade a p r e v ious f alse allegation of

sexual assault against a nother police of f icer who worked with Pustay

. Jane testif ied s he never accused t h e o f

f i c e r of a ny s exual assault. Other evidence at the h earing showed that Jane allegedly t old P ustay of the incident, and Pustay reported the allegation to his superiors. The police chief investigated the incident and determ ined no abuse occurred. L as t l y , Jane testif i ed she never previously

lied to a school c ounselor about any alleged s exual abuse by Pustay

. ¶85. In its order deny ing Pustay ’s m otion seeking to introduce e vidence pursuant to Rule 412(b)(2)(b), the trial court recognized that under Rule 412(c)(2)(D), the [ trial court] m

u s t determ ine that the “evidence which the accused seeks to of f er is relevant and that the probative v alue o f such evidence outweighs the danger of unf a ir prejudice.” Such evidence, that of f alse allegations f

or past sexual of f e nses, m ust exist f or such a determ ination to b e m ade

. . . . As to the f irst, there was n o p roof that the com p laining witness made an a llegation of any k ind against Of

f i c e r M i c hael Lally

. Secondly , there is no probative evidence that the allegation of a ttem pted s e x u a l a ssault by Dam on Dickson was f alse. A nd f

i nally , no evidence w as introduced that the comp laining wit n e s s , while an [ eighth] grade student, m ade an allegation of sexual m isconduct against this def endant to a school counselor, rem o v i n g t his

4 4“allegation of an allegation” f

rom the purview of

Rule 412. ¶86. The t rial court determ ined the evidence present e d a t the hearing was insuf f icient to
prove any f

alse allegation occurred. Theref o re, the t rial court correctly f ound the evidence inadm issible under Rule 412(c)(3). This issue is without m e rit.
IX . W h e t her the trial court erred in adm i tting im proper lay -opini o n testim ony . ¶87. Pustay next argues th a t t h e t r i a l c o u r t e r r ed in a l lowing the State to o f f er the lay opinion of Jane’s f

riend, M agan. Megan testif ied that whenever Jane said that she had t o do chores around the house, it m eant that Pustay required Jane to perf orm sexual acts w ith him

. Pustay asserts that since Magan’s opinion “was total conjecture, it was incom petent, prejudicial and inadm issible.” The State counters that M agan d id not of f e r her opinion, but

m erely recounted her f

actual observations o f J ane, which f all outside the scope of l ay -opinion testim o ny . ¶88. Mississippi Rule of Evidence 701 states:
If a witness i s not testif

y ing as an e x pert, testim ony in the f orm of a n opinion is lim ited to one that is: (a) rationally

based on the witness' s perception; (b) hel p f

u l t o c l e a r ly understanding the witness' s t estim ony or to determ ining a f

act in issue; and (c) n o t b a s e d o n s c i e n t i f i c , t e c h n i c a l , o r o t h e r s p e c i a l i z e d knowledge within the scope of Rule 702. ¶89. In the p resent case, the record ref lects that Jane testif

ie d t h a t P u stay m a de her have

sex with him bef

ore she c ould go o ut to places, i ncluding t o Magan’s house. Jane provided

4 5the f

ollowing testim ony

on the def

ense’s cross-exam ination: Q. I s n ’ t i t t r

u e t hat y o u told at least one investigator that y our f rie n d s understood that w hen y ou said y ou h ad chores to do, this m eant y ou had to have sex with y our f

ather?
A. Yes, m a’am

. Q. And so y our f

riends did know that this was going on?
A. One f

riend. It was only one f

riend that I hinted it to. Nobody else ever suspected any

thing. It was just one f

r iend. Q. W as it a hint, or did she know this was going on?
A. She k

new. She t old m e later o n t h a t s h e k new, but I never c am e right out and told her. Q. And this f

riend was Magan?
A. Yes, m a’am

. ¶90. Later in the trial, during the State’s questioning of Magan on the subject, the f ollowing occurred: Q. If I m entioned som ething about doing chores, does that sound f am iliar to y ou?
A. Yes, sir. Q. Can y ou tell t he jury , please, what t h a t m e a n s a s i t r e l a t e s t o this situation? [ DEFENSE]: Your Honor, I’ve g ot to of f er an object i o n . T h i s y o u ng lady now w ill be nothing b ut giving h er o p i n ion as to what’s going on or what s o m eone e lse told her, and Your Honor, that is n ot a f

act. This is s om ething she learned f rom so mebody else, and that’s im proper direct exam i nation. . . .
THE COURT: J u s t a mi n u t e . S t op with the speaking o bjections. It’ s

4 6overruled. I t ’ s her own observations and conclusions she’s drawn on her own, which are subject t o crossexam i nations, Mr. Raf

f erty . Overruled. . . . [ THE STATE]: The tim e s where [ Jane] was all o w e d t o c o me o v e r and spend the night, would she ever say som ething about having to do chores? [ MAGAN]: Yes, sir. Yes, sir. Q. Just tell us what y ou understood that to m ean. A. I understood it to m ean having to do sexual things with her f ather. This was on m y own. It would be at school, and it would be, y ou k now, such a task f or her to com e s tay the night a t m y house. And, y ou k now, I’d wait [ thirty ], [ f

orty

- f ive] m inutes, y ou know af ter I’ve got t e n o f

f the phone with her once we were hom e. ¶91. W e recognize that in order to determ i ne whe t h e r a witness’s testim ony i s properly adm itted as lay -opinion testim o ny , t h e f o l l owing two-part test m ust be m et: “First, the testim o ny m

ust assist the trier of f

act. Second, the opinion m ust be based on the witness[ ’s] f irsthand k

nowledge or ob servation.” Jones v. State , 678 So. 2d 7 07, 710 (Miss. 1996);
M.R.E. 701 cm t. “The second prong of the test is in a ccordance with [ Rule] 602 requiring that a witness who testif

ies a bout a certain m a tter h ave personal knowledge of t hat m atter.” Id .; see also W

alls v. State , 928 So. 2d 922, 926 (¶10) (Miss. Ct. App. 2006). ¶92. Magan testif

ied she cam e to the conclusion about chores on her own. Pustay argues that this m akes Magan’s testim ony regarding chores p ure “conjecture.” However, as stated, the transcript ref

lects t h a t J a n e indicated in her testim ony that she “hinted” to Magan that when she said she had chores t o do, that m eant having sex w ith Pustay

. Jane f urther stated that Magan later told Jane she knew chores m e a nt sex with Pustay

. Theref ore, we f ind that

4 7Magan possessed the requisite f i rsthand knowledge or observations to show she knew Jane’s def inition of chores m eant sex with Pustay

. ¶93. “A lay witness m ay testif y regard i n g a n o p i n i o n t hat is based upon [ her] personal perceptions, and t hat will help the jury f airly resolve a controverted, m aterial f act.” Reynolds

v. State , 136 So. 3d 452, 4 59 (¶23) (Miss. Ct. App. 2014) (citation om itted). Though Magan
pro v i d e d no testim ony that she observed Jane conduct any “chores,” whether of a sexual

nature or not, M agan f

orm ulated an opinion b ased on J a n e ’s hints, as well as other indications in Jane’s behavior. The record shows that Magan testif ied to c l arif

y to the jury about the signals and behaviors s he observed f r om Jane and about aspects of Jane’s behavior that she perceived. Theref ore, we f ind that t he trial court did not err i n allowing Magan’s testim o ny . This issue lacks m erit.
X . Whether Pustay received constitutionally ineffective assistance of counsel, w hich resulted in prejudice. ¶94. Pustay claim s that he was denied ef f ective assistance of counsel, which prejudiced his def ense. ¶95. W e r ecognize that in o r d e r “ [ t ] o p r o v e i n e f f e c t i v e a s s i s tance o f counsel, [ the d e f e ndant] m

ust show t hat: (1) his counsel’s p erf orm ance was def

icient, and (2) thi s def iciency prejudiced his def ense.” Collins v. State , 70 S o. 3d 1 144, 1147 ( ¶16) (Miss. Ct. App. 2011); Strickland v. W ashington , 466 U.S. 668, 6 87 (1984). T h e b urden o f proof rests with P ustay to show both prongs. Jackson v. State , 7 3 S o . 3 d 1176, 1181 (¶19) (Miss. Ct. App. 2 011). A strong presum p tion exists “that a c ounsel’s perf o rm ance f alls within the range of reasonable prof

essional assistance.” Id

. “ To overcom e this presum ption, the def

endant

4 8m

ust s how that there is a r easonable probability that, but f or counsel’s u nprof

essional errors, the result of

the proceeding would have been dif f erent.” Id

. ¶96. In addition, a strong presum ption exists that a n attorney ’s conduct is t he result of trial strategy , which generally i ncludes an attorney ’s decision of whether or not to f ile certain

m otions, call witnesses, ask certain questions, or m ake certain objections. Foreman v. State , 830 So. 2d 1278, 1 280-81 (¶11) (Miss. Ct. A pp. 2002). W e note that a court m ust judge the reasonableness of counsel’s challenged conduct on the f acts of the particular case viewed at the tim e of

counsel’s conduct. S

t rickland , 466 U.S. at 689-90. ¶97. W e also acknowledge that “[ i]t is u n u s u a l f o r t h i s C o u r t t o consider a claim of inef f ec tive assistance of counsel when the claim is m ade on direct appeal because there is usually insuf

f icient evidence within the record t o evaluate the claim .” Shinn v. State , 174 So. 3d 961, 9 65 (¶11) (Miss. Ct. App. 2015) (citing McClendon v. State , 152 So. 3 d 1189, 1191-
92 (¶12) (Miss. Ct. App. 2014)). “W hen a claim of inef f e ctive a ssistance of counsel is raised

on direct appeal, it s h o uld be a ddressed only when (1) the record af f irm atively show[ s] inef f ectiveness of c onstitutional dim ensions, or (2 ) the parties stipulate t hat the record is adequate to allow the appellate c ourt to m ake t he f inding without c on s i d e ration of the
f indings of f

act o f the trial judge.” Collins, 70 So. 3d at 1147-48 (¶17) (citing Colenburg v. State , 735 So.2d 1099, 1101 (¶5) (Miss. Ct. App. 1999)). Accordingly , “[ i]f this Court does

not reverse o n o ther grounds and is unable to conclude that the def endant r eceived inef

f ective assistance of counsel, it s hould a f f irm without prejudice to the def e n dant’s right to raise the inef f ective assistance o f counsel issue via appropriate post-conviction proceedings” Id

. at

4 91148 (¶ 1 7 )

. W e thus r ecognize that “ [ r]eview on d irect appeal of an inef fectiveassistance-of

- counsel claim is conf

ined strictly t o the r ecord.” Id

. Our review of the record ref lects no af

f i rm ative showing of inef

f ectiveness of constitutional dim ensions. However, although the State does not stipulate that the record is com p lete f or purposes of determ ining the com petency of the def ense counsel, Pustay

stipulates that the record is com p lete. ¶98. Pustay com

plains that his counsel im properly introduced , o r o p e n e d t h e d o or to, irrelevant and prejudicial other-allege d

- b a d

- act e v idence, w hich would have been inadm issible u nder Rule 404(b). Pustay claim s that this involved his trial counsel asking
Jane a bout reporting a lleged p hy sical (nonsexual) abuse of Jane by Pustay when she was in the f if t h grade. Pustay m aintains that this questioning allowed Jane t o d escribe that “[ t]he abuse would only be if he would choke m e and push m e against the wall or slap m e or hit

m e.” Pustay argues that the testim ony elicited by his counsel had no role in this case and was inf lam m atory and prejudicial. ¶99. Pustay next asserts that his trial counsel also f ailed to object to Magan’s testim ony that

on occasion Pustay was “very aggressive” with Jane. Magan testif ied that Pustay would, “push [ Jane] up against t he car and choke h e r if they w ere arguing, o r j ust basically

m anhandle her instead of punishing her like she should be punished.” ¶100. Pustay claim s that his trial counsel was “inept” at attem pting t o have exhibit D-2ID, the r eport f

rom Reliagene T echnologies Inc. regarding the towel subm issions, adm itted into evidence without a Mississippi Rule of Evidence 901 s ponsoring witness. Pustay a rgues that

t h is e vidence was clearly exculpatory and adm issible since the towels had been s eized b y

5 0investigators and tested, and also t estif ied a b out at trial. H owever, Pustay asserts t hat his trial counsel f ailed to obtain a proper Rule 901 sponsor f or this crucial evidence. ¶101. Finally , Pustay claim s t hat his trial counsel f a iled to have W illiam Gasparrini, Ph.D., properly served with a trial subpoena. P ustay s t ates that Dr. Gasparr i n i i s a c l inical
psy c h ologist who evaluated Jane. ¶102. W e have p r e v i o u s l y d iscussed the issue of Jane and Magan’s testim ony regarding Pustay ’s phy sical a

buse of Jane and f

ound that th e trial court did not e rr in allowing the testim o ny . As stated, a strong presum ption exists that an attorney ’s conduct is the result of trial strategy , w hich generally includes an attorney ’s decision of whether o r not to f i le certain

m otions, call witnesses, ask certain questions, or m ake certain objections. Foreman , 830 So. 2d at 1281 (¶11). W e f

urther f ind that the record shows that e v en w ithout Jane and Magan’s testim o ny on the issue of Pustay ’s aggression, the State produced e nough test im ony and evidence f

or the j ury to have f

ound Pustay guilty of tw o c o u n t s o f t h e crim e of touching a child f or a lustf ul p u rpose and t hree counts of the crim e of sexual battery

. “The jury determ ines the weight a nd credibility to give witness testim ony and other evidence.” Moore

v. State , 9 3 3 So. 2d 910, 922 (¶43) (Miss. 2006). Jane testif ied in detail about m

ultiple acts of sexual abuse by

Pustay

. ¶103. The transcript also shows that the d ef ense cou n s e l a t t e m

p t e d to have a docum ent adm itted i nto evidence containing the analy sis f rom the f orensic tests perf

orm ed o n a towel that J ane claim ed contained Pustay ’s sem en and pubic hairs. The def e nse counsel attem

pted

to have this evidence adm i tted through the testim ony of I nvestigator Pre n d e r g a s t of the

5 1Harrison County Sherif f ’s Departm ent. The S t a t e objected, arguing that Investigator Prendergast was not the p roper witness to i ntroduce t he results f rom the f o rensic tests. The trial c ourt sustained the State’s objection af ter learning that Investigator Prendergast neither
pre p a r e d t h e r e p o rt nor discussed the report with its author. Later in the trial, the def ense counsel again a ttem

pted to have the f

orensic results adm itted into e vidence, but he adm itted that he d id not h ave a ny one f rom R e l i a G e n e T echnology , the com pany that perf

orm ed the testing, t o testif

y as t o the results in order to prope r l y of f er t he results i nto evidence. The docum ent containing the f orensic test results a

ppears in the record bef

ore us and reveals that

tests f or sem en p erf

orm ed on t h e t o w els resulted in a “negative” f inding f or sem en. Although the trial court did not allow these f indings into e vidence, the trial court did allow the def ense counsel to argue during c losing that t he State did not p ossess any f orensic evidence showing that Pustay had sexual relations with Jane. ¶104. Again, we f

ind that even without presenting the results o f the f orensic testing to the jur y , t h e r e cord shows that the State p roduced enough t estim o ny a n d e vidence f or the jury

to have f ound P ustay guilty of two counts of th e c r i me of touching a child f or a lustf ul
purpose a nd three counts of the crim e of sexual battery

. 14 “The jury determ ines the weight and c redibility to give witness t e s tim o ny and other evidence.” Moore , 933 So. 2d at 922 (¶43). Additionally , the def e nse counsel was allowed to a rgue, and d id so at c losing, that the

14 “In d ecid in g w h eth er th e S tate p resen t ed leg ally su f f i cien t ev id en c e to su p p o r t a j u ry ' s v erd ict, th is C o u r

t m u st d e t e r min e w h eth er, w h en v iew in g th e ev id en ce in th e lig h t mo st f av o rab le to th e S tate, an y ratio n a l j u ro r co u ld h av e f o u n d th at th e S tate h ad p ro v ed each elem en t o f th e crim e ch arg ed b ey o n d a reaso n ab le d o u b t.” G a l lo w a y v. S ta te , 1 2 2 S o . 3 d 6 1 4 , 6 6 5 (¶1 6 8 ) (M iss. 2 0 1 3 ). 5 2State f

ailed to provide “one bit

. . . of phy sical proof ” o f any sexual contact b etween Pustay and Jane. ¶105. R e g a r d i n g P u s t a y ’ s c laim that his def ense counsel f

ailed to have Dr. Gasparri n i subpoenaed, the transcript reveals that def ense c o u n s e l inf

orm ed the trial court that it

attem pted to subpoena Dr. G asparrini on May 9, 2007. 1 5 The def ense counsel explained that the subpoena was served upon Dr. Gasparrini’s receptionist. Dr. G asparrini told the def ense counsel that he w a s n o t a v a i l a b l e to be in court o n M ay 11, 2007, but that h e could in f act
appear on May 14, 2007. The def ense counsel s t ated t hat when he inf orm ed Dr. Gasparrini that hi s attendance was not discretionary , Dr. Gasparrini responded that the d ef ense had im p roperly served t he subpoena upon his receptionist, rather than s erving him directly

. The def ense counsel adm itted that Dr. Gasparrini w a s not personally served w ith the subpoena, but counsel argued t hat ty pically when dealing with prof e ssionals, a subpoena to one of their receptionists has constituted adequate service. ¶106. As stated, Pustay b e ars the burden of proving h ow Dr. Gasparrini’s testim ony would

15 A d d itio n ally , th e reco rd sh o w s th a t th e d ef en se f i led a p retrial m o tio n f

o r t h e d isclo su re o f m ed ical reco rd s f o r Jan e’s p sy ch iatric an d p sy ch o lo g ical h isto ry . T h e d ef en se co u n sel sp ecif

ically ask ed f o r a c o m p lete co p y

o f D r. G asp arrin i’s f

ile o n Jan e. T h e S tate in f o rm ed th e trial c o u rt th at it h ad p ro v id e d th e d e f en s e co u n sel w ith “ev e r

y th in g th at D r. G a sp arrin i p ro d u ced .” Wh en th e trial co u rt a sk ed if D r. G asp arrin i receiv ed an y o f Jan e’s p rio r p sy ch i atric o r p s y ch o lo g ical testin g , th e S tate resp o n d ed , “I d o n ’t k n o w , Y o u r H o n o r. B u t I w o u ld b e v ery d o u b tf u l h av in g d ealt w ith th ese k in d o f cases i n th e p ast. C ertain ly h e w o u l d h a v e in clu d ed th at in h i s o p in io n .” T h e S tate co n f irm ed th at D r. G a s p arrin i d id ad d ress in h is r ep o rt t h at h e rev iew ed Jan e’s h i sto ry . A f ter req u estin g th at th e S tate p ro v id e th e trial co u rt w ith an en tire co p y o f D r. G a s p arrin i’s f ile to rev iew in o rd er to “d eterm in e if t h ere’s an y

th in g in it th at sh o u ld b e d isclo s ed to co u n sel f o r rev iew ,” th e trial co u rt o v erru led P u stay ’ s m o tio n f o r th e d isclo su re o f

D r . G asp a rrin i’s reco rd s. 5 3h a ve changed the outcom e o f the trial. 16 Dr. Gasparrini did not testif y at trial, and Pustay f ailed to a llege in his appellate brief what inf orm ation Dr. Gasparrini m ight have presented

t hrough h is testim ony . A lso, the record ref lects that Pustay d id not request a contin u a n c e based on this m atter. ¶107. Since the record bef o re us does n o t p r o v i d e suf f icient i nf orm ation to perm it us to consider the m erits of Pustay ’s claim f or inef f ective assistance of counsel, this Court would thus have to consider m atters outside of the r ecord in o rder to f ully explore Pustay ’s claim

. See Sharkey v. State , 856 So. 2d 545, 547 (¶9) (Miss. Ct. App. 2003). As a result, we f ind tha t t he “appropriate resolution” of Pustay ’s claim is deny r elief without prejudice, so that Pustay can raise his inef f ective-assistance-of

- counsel issue through appropriate postconviction proceedings, if he so chooses. Id

. X I. Whether Count II, lustful touching, m erged w ith Count VI, s ex ual battery . ¶108. Pustay a ssert s t

h a t t h e g r a t i fi c ation-of

-lust c ount in his indictm ent s hould have m erged with the sexual-battery count since the State presented insuf f icient evidence t o s h ow that gratif ication of lust occurred between August 2004 and A pril 2005. The indictm ent herein charged Pustay with lustf

ul touching between August 2004 and April 2005 as Count II, while
Count VI c harged Pustay with sexual battery f or the sam e tim e period. Pustay cites to Friley

16 U p o n o u r rev iew o f t h e reco rd , w e f in d th at d u rin g th e p retrial m o tio n h e arin g o n th e d ef en se’s m o tio n to o f

f er ev id en ce o f Jan e’s p ast sex u al b eh av io r p u rsu a n t to M ississip p i R u le o f E v id e n ce 4 1 2 , th e p arties d iscu ssed th e issu e o f D r. G asp arrin i ’s testim o n y . T h e tran scr i p t o f th is h earin g sh o w s th at D r. G asp arrin i o p in ed th at Jan e’s b eh av io r w as co n sisten t w ith b ein g sex u ally ab u sed

. W e can n o t say th at th e a d m issio n o f s u ch testim o n y w o u l d h av e ch an g ed th e o u tco m e o f th e trial. 5 4v. State , 879 So. 2 d 1031, 1035 ( ¶18) (Miss. 2004), and claim s t hat when p enetration is

achieved by t ouching a child, g r a t i f i c a tion of l ust is a lesser-included of f ense of sexual battery

. Pustay c ontends this r esulted in two convictions f or the s am e crim e, in violation of his constitutional protection against double jeopardy

. ¶109. Wh i l e t h e r e c o r d d oes indeed ref lect that Pustay objected to the i n d i c t me n t a s def ective i n that it was too vague, am b iguous, a nd lacked specif icity concerning the dates and the f acts of the pa r t icular case, w e cannot f ind t hat Pustay objected to the specif ic issue of whether Count II should have m erged w ith Count VI. Wh en a def endant f ails to object to the f o rm of the indictm ent, the issue is waived on appeal. F ranklin v. State , 766 So. 2d 16,
18 (¶7) (Miss. Ct. App. 2000); see also Jenkins v. State , 101 So. 3d 161, 168 (¶22) (Miss. Ct. App. 2012). “Failure to m ake a contem p oraneo u s o b

j e ction constitutes waiver of the objection and cannot be rai sed f or the f irst tim e on appeal because the trial court is denied the opportunity to consider the issue and possibly rem edy the situation.” C o peland v. Copeland , 904 So. 2d 1 0 6 6 , 1 0 7 3 (¶24) (Miss. 2 004) (citing De La Beckwith v. State , 707
So. 2d 547, 574 ( Miss. 1997)); see also Kirk v. State , 160 S o. 3d 6 85, 693 ( ¶20) ( Miss. 2015). Procedural bar notwithstanding, we turn to address the m erits of this issue. ¶110. Mississippi C ode Annotated section 97-3

- 9 5 ( 2 ) ( R e v . 2 0 1 4) s tates: “[ a] person is guilty of sexual battery if he or she engages i n sexual penetration with a child under the age of eighteen (18) y ears if the person is in a position of trus t or authority o ver the child including without lim itation the child’s . . . parent[ .]” ¶111. In contrast, section 97-5-23(2) states, in part:

5 5Any per son above the age of eighteen (18) y ears, who, f or the purpose of gratif y ing his o r h er lust, o r indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any m em ber thereof

, any child y ounger than him self or herself and under the age of eighteen (18) y ears who i s not such person' s spouse, with or w ithout the child' s c onsent, when t he person occupies a position of trust or authority over the child shall be guilty

of a f e lony

. . . . Miss. Code Ann. § 97-5-23(2) (Rev. 2014). C ount II of Pustay ’s i n d i c t m e n t charged that Pustay “f or the purpose of gratif

y ing his lust o r indulging his d e p raved licentious sexual desires, did unlawf

ully , wilf ully and f eloniously handle, touch o r rub with his h ands, the vagina of [ Jane], a child[ .]” ¶112. Our suprem e court has held that “[ a] j ury m ay convict an a c cused o f a lesser-included of f ense on trial of any indictm ent.” Friley , 879 So. 2d at 1034 (¶13) (citations om itted). The Friley c o urt provided: The test f o r determ ining whether one of f e nse is a l esser-included of f e nse of another is:
W hether applied f

or the benef

it of the state or d ef

ense, in order to authorize such i nstruction the m ore s e r i o us of f ense m ust include all t he elem ents of the l esser of f ense, that is, i t is im possible to com m it the gr e ater of f ense without at t he sam e tim e c om m itting the lesser-included of f ense. Al s o , t

h ere m ust be som e evidence to support the lesser-included of f ense. Id. ¶113. I n F

riley , the suprem e court f

ound that m olestation s erved as a lesser-included of f ense of sexual battery u nder the circum stances of t hat case. I d

. at 1035 ( ¶17). The s uprem e court
exp l a i n e d : “ W e d

r a w a reasonable inf

erence f rom the circum stances that Friley ' s actions were done with the purpose of

gratif y ing his lust.” Id

.

5 6¶114. However, “[ u]nder Mississippi law, sexual battery of a child and unlawf ul touching

are separate and distinct crim inal of f enses. W hile s exual battery of a child requires som e sort of penetration—including f ellatio—unlawf

ul touching does not.” Faulkner v. State , 109 So. 3d 142, 147 (¶20) (Miss. Ct. App. 2013). ¶115. In Faulkner , this Court recognized that t h e F r i ley c o urt’s holding “ is n ot absolute” and did not extend to all cases. Id . at 148 (¶20). “ As our suprem e court recently r ecognized in Tapper , ‘it is possible to com m it an unlawf ul t ouching w i thout c om m itting sexual battery .’” Id

. at (¶21) (quoting Tapper v. State , 47 So. 3d 95, 1 03 (¶30) (Miss. 2010)); see also Jenkins , 101 So. 3d at 168-69 (¶22). Further, “ where suf f icient evidence exists to support separate and dis tinct acts of f

ondling a nd sexual battery , separate indictable charges can properly stand without im

plicating jeopardy issues. This is so even if the crim inal acts are closel y connected or based on a com m on nucleus of f a ct[

. ]” Id

. ¶116. In Faulkner , the def endant ass e r t e d t h a t h i s c o n v i c t i o n s f o r sexual battery

and unlawf ul touching during overlapping tim e p eriods constituted double-jeopardy violations. Faulkner , 109 So. 3d at 147 (¶19). However, the victim s in Faulkner al s o t e s t i f i ed to dif f erent and d i s t i n ct o ccurrences of touching and battery o ver an extended tim e period of

seven y ears. I

d

. at (¶22). This Court f ound t hat a jury c o u l d r e a s o n ably inf er that the dif f erent crim e s could h a v e o ccurred in s eparate instances w ithin t he tim e period of the charges. Id . at (¶24). ¶117. Like Faulkner , i n the case bef ore us, Jane, the victim , testif ied to various incidences of touching and sex over the course of several y ears. As a result, the evidence showed that

5 7separate occurrences o f gratif ication of l u s t and sexual battery by Pustay likely occurred during the sam e tim e period but have occurred during separate instances. Because the jury could hav e r e a s o n a b l y inf erred these two separate c r im es happened during the sam e t im e period, we f

ind that Count II did not m erge with Count VI. This issue lacks m erit.
X II. Whether t he evidence w as sufficient o r w hether t he verdicts w ere supported by the w eight of the evidence. ¶118. Pustay argues that the evidence presented at trial was i nsuf f icient to con v i c t him

of gratif ication of lust and sexual battery

. Pustay f urther claim s that his guilty verdict was not supported by

the weight of

the evidence. ¶119. The suprem e c o u r t h a s a r t i c u l a t e d t h a t when evaluating the suf f iciency of

the evidence, this Court m

ust decide whether it allows a j ury to f ind “bey ond a reasonable doubt that [ the] accused com m itted the act charged, and that he did so under su c h circum stances that every elem ent of the of f ense e xisted; and where the evidence f ails to m eet this test it is insuf f icient to support a conviction.” Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005). “[ T]he relevant question is whether, af ter viewing the evidence in the light m ost f avorable

to the prosecution, any rational trier of f act could have f

ound the essential elem e n t s o f t h e crim e bey ond a reasonable doubt.” Id

. ¶120. Also, “in determ ining whether a jury verdict is against the overwhelm ing weight of the evidence[ ,] this C o u r t mu s t a c cept as t rue the evidence which supports the verdict and will reverse only w hen convinced that the [ trial] court has abused its discretion in f ailing to grant a new trial.” Sanders v. S t ate , 32 So. 3d 1214, 1217 (¶1 0 ) (Miss. C t. App. 2014). “Only in t hose cases whe r e t h e v e r d ict is s o contrary to the overwhelm ing weight of the

5 8evidence that to allow it to stand would sanction an unconscionable injustice will this Court

disturb it on appeal.” Id

. “Thus, the scope of review on t his issue i s l i mi t e d i n that all evidence m

ust be construed in the light m o st f a v orable to t he verdict.” Pryer v. State , 958 So. 2d 818, 823 (¶11) (Miss. Ct. App. 2007). ¶121. In s u p p o r t o f h i s a s s e r t i o n , P u s t a y ma intains that Jane’s testim ony was not corroborated by any of the occupants o f the f a m ily h om e. Pustay also m aintains that Jane’s

t e s t i mo n y was im

peached. Pustay f

urther claim s t hat Jane’s behavior af ter the alleged assaults f ailed to “ lend credence to her accusations” since she did n ot im m ediately report the abuse, nor did she show any indiction of traum a. ¶122. T h e t r a n s c r i pt r ef lects that the jury heard detailed testim ony f rom Jane regardin g Pustay ’s s exual a ssault and why she did not im m ediately r e p o r t t he assault to law enf orcem ent. Jane t estif

ied that Pustay b egan touching her i n a s exual nature when she was in the f if t h grade, and t he touching escalated to sexual intercourse by the tim e Jane entered the sixth grade. ¶123. Jane also testif

ied that she did not repor t P u s t a y ’ s a c t i ons “[ b]ecause I guess I was scared because, I m ean, I loved m y dad, and I d idn’t want to g et him in trouble. And really , I didn’t know what w as w rong a t the tim e b ecause I was so y oung.” Jane stated that Pustay told her not to tell any one about his conduct. The jury also heard Jane testif y t hat she never really t rusted any

body

. Jane testif

ied that her f

ather, Pustay , “was the m ain person I trusted, and he had betray ed m y trust.” J ane f u rther testif

i ed that af ter Karen observed Pustay ly ing

on top of her, “[ K aren] wouldn’t talk to m e. S h e pretty m uch hated m e, and we had no

5 9relationship whatsoever.”

¶124. Viewing the evidence presented in the l ight m ost f avorable to the State, we f ind that the testim ony presented at trial was s uf f icient f or a rational juror to have f o und bey o n d a reasonable doubt that the essential elem ents of the crim es of gratif ication of lust and sexual battery were com m itted by Pustay

. See Pryer , 958 So. 2d at 823 (¶11). ¶125. Additionally , we have held that “the unsupported word o f the victim o f a sex crim e is suf f icient to support a guilty verdict where the testim ony is not discredited or contradicted by o ther c redible evidence, especially if the conduct of t he victim is consistent with the conduct of

one w ho has b een victim ized by a sex crim e.” D avis v. State , 878 So. 2d 1020,
1027 ( ¶29) ( Miss. Ct. App. 2004) (citing Cross v
. S t a t e , 759 So. 2d 354, 356 (¶11) (Miss. 1999)). A dditionally , we recognize t h at “[ t]he weight and credibility to be g iven to a witness' s testim o ny ‘are w ithin the sole province of the jury a s f act f i nder.’” Butler v. State , 102 So. 3d 260, 268 ( ¶27) (Miss. 2012) (quoting King v. State , 798 So. 2d 1 258, 1262 (¶14) (Mi s s . 2001)). “[ T he] Court has repeatedly held that ‘ the jury i s the f inal arbiter of a witness’s credibility .’” Howell v
. State , 860 So. 2d 704, 731 (¶92) (Miss. 2003) (quoting
W illiams v. State , 794 So. 2d 1019, 1028 (¶59) (Miss. 2001)). ¶126. Af ter f inding the evidence pres e n t e d a g a i n s t P u s t a y s u ffi c i ent to establish the elem e nts of gratif ication of lust and sexual battery bey ond a reasonable doubt, we f ind that the verdict of t he jury was n o t c o n t r a ry to the overwhelm ing weight of the evidence. W e thus af f irm Pustay ’s conviction.
X III. Whether cum ulative error requires reversal.

6 0¶127. Finally , P ustay s im p ly asks that if t his Court f inds that any t rial e rrors standing alone

are insuf f icient to w arrant a new trial, t hat this Court c o nsid e r w h e t h er the cum ulative prejudicial ef

f ect of these errors would warrant a new trial. ¶128. W e recognize that “ [ e ] r r o r s t h a t do not r equire reversal them selves m ay require reversal if

, when taken cum

u latively , they deny the def endant t he r ight to a f

u n d a mentally
f a i r a n d i mp a r t i al t rial.” Graham v. State , 967 S o. 2d 670, 677-78 (¶34) (Miss. Ct. App. 2007) (citing Byrom v. State , 863 So. 2d 836, 8 47 (¶12) (Miss. 2003)); see also Galloway , 122 So. 3d at 682 (¶247). “In any case in which a court f i nds harm less error o r an error not suf f i cient in itself to warrant dism iss a l, the c o urt m ay , on a case-by -case basis, determ ine

w h e t h e r the errors taken cum

u latively warrant dism issal based on their cu m u l a t i v e p r e j u d i c i a l ef f ect.” Graham , 967 S o. 2d at 678 ( ¶ 34). However, the suprem e court has e xplained that “where no error has occurred, there can be no cum ulative e rror.” C

o r rothers v. State , 148 So. 3d 278, 325 (¶134) (Miss. 2014). ¶129. “Because we have f ound t hat no error oc c u r r e d a t [ P u s t a y ’s] trial, there can be no

cum ulative error.” Id . This issue lacks m erit. ¶130. THE JUDGMENT OF T HE HARRISON COUNTY CIRCUIT COURT , F I R ST J U D I C I A L D I S T R I C T , O F C O N V I C T I O N O F C O U N T S I A N D I I , GR A T IFICATION OF L UST, AND SENTENCE OF FIFTEEN YEARS ON EACH COUNT; COUNTS III A ND V, SEX UAL B ATTERY OF A C H I L D AT LEAST FOURTEEN BUT UNDER S IX TEEN Y EARS OF AGE, AND S ENTENCE OF T W E NTY-FIVE YEARS ON EACH COUNT; AND COUNT VI, SE X U A L B A T T E R Y OF A CHILD U NDER EIGHTEEN Y E A RS O F AGE, AND SENTENCE OF TWENTY-FIVE YEARS, WITH THE SENTENCE IN COUNT I I I TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, AND WITH THE SENTENCES IN ALL OTHER COUNTS TO RUN CONCURRENTLY WITH ONE A N OTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT O F CORRECTIONS, IS A FFIRMED. ALL C OSTS OF THIS APPEAL ARE ASSESSED

6 1TO HARRISON COUNTY.

LEE, C .J., ISHEE, JAMES AND GREENLEE, JJ., CONCUR. B A R NES, FAIR AND WILSON, JJ., C ONCUR IN P ART AN D IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J. AND F AIR, J.; ISHEE AND JAMES, JJ., JOIN IN PART. GRIFFIS, P.J., SPECIALLY CONCURRING: ¶131. I t ake issue w ith the ma j o r i t y ’ s legal a naly sis in I ssue I. The m ajority ’s decision ef f ectively changes t he Mississippi Rule s of Evidence. The taped statem ent is clearly and unequi v o c a l l y h e a rsay , and no hearsay exception will allow t he s tatem ent to b e adm itted. The im peachm ent rules do not trum p the hearsay

rules. As a result, I respectf ully disagree with the m ajority ’s analy sis of this issue, but I join the result.
W hether the trial court erred in allowing the State to treat its o wn witness as hostile and establish its case through impeached testimony. ¶132. In this issue, Pustay claim s that it w a s e r r o r f o r the trial c ourt t o admit Karen’s recorded statement as part of t he State’s im p eachm ent of her testim ony . T he m ajority determ ines “that K aren’s recorded statem ents t o police of fi c e r s w e r e adm i ssible because they

were relevant to her c laim that her prior statem ents w ere m ade under duress or coerced.” I do not f ollow the m ajority ’ s analy sis. There is a dif f erence in allowing the prior statem ent to be used f

o r im p eachm ent and allowing it to be adm itted into evidence. ¶133. The State called Karen to testif y during the its case-in-chief and expected her to testif y that Pustay adm itted that h e had m olested and sexually battered J a ne. She did not testif y consistent with t his expectation. T he State then proceeded to im peach her testim ony . First, the State im

peached her when s h e a d mi tted that she had previously given a statem ent that

6 2was inconsistent with her testim ony at trial. Second, the State im peached her when it used

t he transcript o f her i nterrogation and asked her t o adm i t that she had previously test i f i e d inconsistent with her trial testim ony . Third, the State was allowed to im peach Karen’s trial

t e s t i mo n y when the t rial court allowed the redacted audio recordings of the interrogations into evidence. I am o f the o p i n i o n t h a t the trial court w as incorrect in allowing the audio recordings to be adm i tted into evidence. ¶134. Under Mississippi Rule of Evidence 6 13(a), a witness m ay be im peached by reading

a prior inconsistent statem ent to t h e w i t n e ss and asking the witness whether the statem ent accurately ref

lects what was said on the prior occasion. Johnson v. S tate , 905 So. 2d 1209, 1212 (¶20) (Miss. 2005). However, a party m ay never use h is witness’s prior statem ent in the “guise of im

peachm ent f

o r the prim ary purpose o f p lacing bef ore the jury su b s t antive evidence[ ,] w hich is n ot otherwise adm issible,” in order to a void the hearsay rule. Flowers
v. State , 773 So. 2d 309, 326 (¶58) (Miss. 2000). ¶135. Karen clearly t estif ied that she h ad given two dif f erent versions of w h ether P ustay had

a d m i tted to m olesting Jane. H er adm ission was proper im peachm e n t under Mississip p i R u l e s

o f E v i d e nce 607 and 613. The trial judge was even concerned about her a dm ission o f perjury

. The judge s topped the exam ination and told Karen that she could be prosecuted f or perjury and advised her of

her constitutional rights to counsel and to rem ain silent. ¶136. Despite this adm onition, Karen’s testim ony continued: Q. Ma’am , i sn’t it true that he adm itted to y ou he was having sex with y our daughter?
A. No.

6 3Q. Ma’am , I’m ref erring to—
A. I know the statem ent. THE COURT: Just a m inute. Ms. Pustay , let him f inish his question, please. [ W ITNESS]: I don’t want to read any m ore f rom the statem ent. THE COURT: You don’t have that option, m a’am

. [ W ITNESS]: It' s not true. THE COURT: Answer his questions, please. Q. Wh a t d id y ou say when the of f icer said, “Did he adm it t o t h e f i r s t tim e? ” It’s right here, m a ’am . You can read that to the jury

. A. I know I said that, but it’s not true. Q. Ladies and gentlem en—or, m a’am , tell the jury what y ou t old the police of f icers.
A. (Reading) Y eah. I think he said he d id m olest her. He rubbed on her, is what he told m e. I said it’s not true. Q. That’s not what y ou said at that tim e , m a’am . Read y our transcript to the jury

.

. . . . A. (Reading) Yeah. I think he did say he did m olest her. R ubbed o n her, is what he told m e. Q. Ma’am , isn’t it true y ou said, “He said h e did m o lest h er. He rubbed on her, is what he told m e? ”

. . . . A. I just told y o u I lied. That statem ent is m ostly all a l ie. I w as upset. I was scared. I wanted out of there. Just m a de m e believe if I supported her, they ’d let m e go hom e.

6 4¶137. Then, the State used O f f icer Pullen to s po n s o r t h e a u dio recording of K aren’s f irst interrogation. Pustay ’s counsel objected on th e g r o u n d s of f oundation, h earsay , and relevance in addition to his continuing objections t o the State’s im proper im peachm ent. The trial court responded, “W hat hearsay ? This is a taped statem ent between y ou, Of f i cer Pullen and Ms. P ustay .” The State did not of f er, and the trial court judge did not ask f or, an exception to the hearsay rule t h a t w ould perm it an out-of -court statem ent by a non-party witness to be adm itted. A lso, the trial court did not f ind that it was not of

f ered to prove the truth of the m atter asserted. ¶138. The m ajority does not address this issue. I n d e e d , t h e trial c ourt’s decision that the taped statem ent was not hearsay was i n c o r r e ct. Mississippi R u le of Evidence 801(c) provides that “‘[ h]earsay ’ is a s tateme n t , other than one m ade by the d eclarant while testif y ing at the trial or hearing, of f ered in evidence t o prove the truth of the m atter asserted.”
Karen’s taped s tatem e nts were clearly within t his def in i t i o n . T heref

ore, the t rial court needed to f i nd that the taped statem e nt was either non-hearsay under the def i nition of Rule 801(d)

or an exception to the h earsay rule under Rules 8 0 3 o r 8 0 4 bef ore the statem ent could be play ed f or the jury . The trial court judge listened to the tape, then stated: This tape, the portion that I just heard with the redaction that I’ve ordered, is what I’m going to allow o n the issue of i m peach[ m ent], not only im peaching Ms. P ustay ’s statem ent, but also as to the issue as to whether the statem ent was coerced o r f

o r c e d o r whether s he gave it under duress. It’s adm issible and probative and relevant f

or that purpose. ¶139. The State then of

f ered the audio recording o f the second interrogation. The trial court judge also adm itted it into evidence with sim ilar redactions.

6 5¶140. Both o f t h e s e audio r ecordings were hearsay

. The im peachm ent rules do not allow
f or the adm ission into evidence of a hearsay statem ent, f o r the purpose of

im p eachm ent or otherwise, without the statem ents f a l l i n g within the def

inition of non-hearsay u nder Rule 801(d) or an appropriate exception under Rules 803 or 804. The trial court was i n error to adm it the taped statem ents without a hearsay exception. ¶141. However, I do not f ind t his error to b e reversible e rror. The trial court j udge did give a lim iting instruction to the jury : The Court instructs the jury that the taped statem ent entered into evidence of Karen Pustay m a y be used f or the l im ite d p u r p o s e of considering the truthf ulness o f Karen Pustay ’s in-court testim ony and n ot f or t he s ubstance of her out-of

-court statem ent. The t r i a l judge asked Pustay ’s attorney to draf t a lim iting instruction. Theref ore, it was Pustay ’s obligation to p rof f er a lim iting instruction if he wanted one. Pustay ’s attorney did

not have a lim iting i nstruction ready at the jury instruction conf erence, so t he S tate subm itted

one. The lim iting instruction used was not the best instruction that could have been prepared, but Pustay ’s attorney did not object to it. Theref ore, the language suggested b y Pustay in this appeal could have been word e d b e t t e r , b ut I am n ot of the opinion that the trial judge

com m itted reversible error since P ustay had the opportunity t o o f f er a dif f erent instruction. ¶142. For these reasons, I j oin the m a j o r i ty opinion b ut write separately to address m y dif f erent opinion as to the legal analy sis on t he adm ission of the taped statem ents in Issue I. IRVING, P.J., AND FAIR, J., J OIN THIS O PINION; ISHEE AND J AMES, JJ., JOIN THIS OPINION IN PART.

6 6