        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-KA-00538-COA

MARTIN BLAKE PUGH A/K/A MARTIN B.                                          APPELLANT
PUGH A/K/A BLAKE PUGH A/K/A MARTIN
PUGH

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         03/31/2017
TRIAL JUDGE:                              HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:                DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JOHN T. LAMAR JR.
                                          TAYLOR A. HECK
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY:                        JOHN W. CHAMPION
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED: 09/18/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    This case involves the alleged sexual battery of an unconscious seventeen-year-old

girl by three young men, one of whom recorded a portion of the sexual conduct on Snapchat.

Martin Blake Pugh, Jayland Christipher Brittmon, and Matthew Anderson Craddock were

indicted on the charges of conspiracy to commit sexual battery and sexual battery of an

incapacitated person. Craddock was further indicted on the charge of depicting a child under

the age of eighteen years engaging in sexual conduct.

¶2.    Brittmon subsequently pleaded guilty to the conspiracy charge and to the reduced
charge of simple assault. Craddock pleaded guilty to aggravated assault. Pugh proceeded

to trial and was found guilty of both conspiracy to commit sexual battery and sexual battery

of an incapacitated person.

¶3.    Pugh was sentenced to serve one year in the custody of the Mississippi Department

of Corrections (MDOC), with six months suspended, followed by four years and six months

of post-release supervision on the conspiracy charge, and one year in the custody of the

MDOC, with one year suspended, on the sexual battery charge, to run concurrently with the

sentence for conspiracy. He was ordered to pay $200 restitution to the District Attorney;

$1,763 restitution to the DeSoto County Circuit Court Clerk; a $500 fine; $100 to the Crime

Victim Compensation Fund; and all court costs. Pugh was further ordered to register as a sex

offender upon his release from incarceration.

¶4.    Pugh now appeals and argues: (1) the circuit court erroneously admitted into evidence

the Snapchat video as well as various text-message conversations among the parties, (2) there

is insufficient evidence to support his conviction of conspiracy to commit sexual battery, and

(3) the numerous evidentiary errors amount to cumulative error and mandate reversal. We

find no error and affirm.

                                          FACTS

¶5.    On April 5, 2015, at approximately 3:00 a.m., Drew Kazemba received a Snapchat

video from Craddock that showed “two guys having sex with a girl [who] looked

unconscious, and it was a black guy and then there was a white guy on the other end having




                                              2
oral sex with her.”1 Kazemba saved the video because the girl looked unconscious. He

showed the video to his mother and ultimately turned the video in to Marshall County law

enforcement.

¶6.    At trial, Kazemba testified that Craddock admitted to being one of the guys in the

video and identified the unconscious-looking girl as Gina Warren.2 The Snapchat video was

offered and admitted into evidence as Exhibit 1, with no objection by Pugh.

¶7.    Following Kazemba’s testimony, Brittmon testified regarding the events of the night.

Brittmon explained that on the night of Saturday, April 4, 2015, he, along with Pugh,

Craddock, Kate Hill, and Blake Conner, went to a party in Byhalia. Gina, Brittmon’s close

friend, was also at the party and, according to Brittmon, spent most of the time flirting with

Conner. Brittmon stated he did not see Gina flirt with Pugh or Craddock.

¶8.    Later that night, Gina asked Brittmon for a ride to Hannah Ferguson’s house.

Brittmon, Pugh, Craddock, Hill, Conner, and Gina subsequently left the party around

midnight. Brittmon testified that at the time they left the party, Gina was “pretty drunk.”

They dropped Hill off at her house and decided to go to Waffle House to eat. However,

Brittmon explained that once they arrived at Waffle House, they “decided not [to eat] after

[they] had to help [Gina] inside — [s]he couldn’t make it alone to the restroom, so [they]

decided just to leave.” However, they did not take Gina to Hannah Ferguson’s house

“[b]ecause at one point [Gina] stated she didn’t want to go, and then [they] figured it would


       1
       The record shows Brittmon is a black male born in 1995; Pugh and Craddock are
both white males, born in 1996, and in 1998, respectively.
       2
           For privacy purposes, we substitute a fictitious name for the minor victim.

                                               3
be easier for [them] to just go to [Brittmon’s] house and not to worry about it.”

¶9.    When they got to Brittmon’s house, Conner got in his car and left. Brittmon stated

that they “[had] to pretty much help [Gina] inside” as she was “still in the same condition.”

Once inside Brittmon’s house, Brittmon, Pugh, Craddock, and Gina went to Brittmon’s

bedroom. Although they were going to send Gina upstairs, Gina “jumped in bed and got

undressed.” Brittmon and Pugh then got in the bed with Gina. Craddock was on the floor

or in an adjoining bathroom.

¶10.   According to Brittmon, Gina unbuckled Pugh’s pants and began performing oral sex

on him. Brittmon was about to tell them to get out when Gina grabbed his hand and stuck

it in her pants. Brittmon stated they all “start[ed] messing around” and “pretty much all three

had sex with [Gina] at some point throughout the night.” Brittmon explained that Craddock

got involved “randomly throughout the escapade.” Brittmon had sex with Gina first, then

Pugh, then Craddock, and then Brittmon had sex with Gina again for a second time. The

Snapchat video, previously admitted into evidence, was then published to the jury.

¶11.   Following publication of the video, Brittmon testified that there was no break in the

time period while the three men were having sex with Gina. Instead, “[i]t happen[ed] all at

the same time.”

¶12.   Brittmon further testified that he recalled seeing a flashlight but did not realize that

it was a Snapchat video. Brittmon learned of the Snapchat video “[o]nce everything [w]as

finished” and he checked his phone. Brittmon agreed that the video was received shortly

after the incident occurred.



                                              4
¶13.   Following the incident, Brittmon and Pugh took Craddock home. Brittmon testified

that they discussed the video at one point but did not talk about it a lot. However, Brittmon

stated that Pugh was aware of the video at that time. After Brittmon and Pugh dropped off

Craddock, they returned to Brittmon’s house and went to sleep.

¶14.   The next morning, Gina woke up and asked why her clothes were off. Brittmon told

her that she had gotten hot. Neither Brittmon nor Pugh advised Gina that they had had sex.

¶15.   Several hours later, Gina texted Brittmon and the following conversation occurred:3

       Gina:         Hey! Thanks [f]or letting me crash at your house.

       Brittmon:     [H]aha no problem. [B]ut I gotta tell you somethin[g].. we kinda
                     had sex last night and I feel so bad about it. I wouldn’t have
                     done it but you kept grabbin at my wang lol[.] I wanted to tell
                     you this morning but you didn’t remember and that made me
                     feel even worse. [B]ut you deserve to know the truth.

       Gina:         You’re not joking are you?

       Brittmon:     [U]nfortunately I’m not[.]

       Gina:         Shit happens don’t worry about it[.]

       Brittmon:     [C]ool beans[.]

       Gina:         [Brittmon,] are you sure you aren’t just making this up because
                     I swear to God I got there[,] threw up[,] and went to bed[?]

       Brittmon:     Why would I make this up haha[?]

       Gina:         Idk a joke[.]

       Brittmon:     [L]ol[,] no as much as I wish it was[.]



       3
         The text-message conversation was offered and admitted into evidence as Exhibit
2, with no objection by Pugh.

                                             5
¶16.   Gina again texted Brittmon on Monday, April 6, 2015, and asked about the Snapchat

video. Their conversation was as follows:4

       Gina:         [Brittmon,] wtf is this[?]

       Brittmon:     [Craddock] probably made up a story cus that did not happen.

       Gina:         Was he even at your house?? Hannah [F]erguson apparently
                     said there is a video of me or something but I don’t believe it[.]
                     I know you wouldn’t let something like this happen to me
                     [Brittmon]. I’m already disappointed with me and you because
                     obviously I was plastered[,] but if this shit is true I’m probably
                     going to be pissed[.]

       Brittmon:     [Y]eah that dickhead walked in with his [message was cutoff.]

Brittmon explained that he told Gina that Craddock walked in on them while they were

having sex and took a video on his phone.

¶17.   Following his text-message conversation with Gina, Brittmon texted Craddock and

Pugh and advised that people were aware of the Snapchat video. The following group

discussion occurred:5

       Brittmon:     CRADDOCK[,] WHY DOES [GINA] KNOW ABOUT THE
                     SNAPCHAT YOU FUCKIN IDIOT[?] YOU ARE GETTING
                     YOUR ASS BEAT[.]

       Craddock:     How does she know?? I didn’t tell anyone[.]

       Brittmon:     [Y]our stupid sent it to people and they fuckin talk you dumb
                     piece of shit[.] [S]omeone mentioned the snap[.] [F]uck you


       4
        The text messages were offered and admitted into evidence as Exhibit 3, with no
objection from Pugh.
       5
         The group discussion was admitted into evidence as Exhibit 4. The pages of Exhibit
4 appear to be out of order. We include the text-message conversation in the order it appears
in the record.

                                             6
            [Craddock;] we ain’t even cool[.] I told her u walked in while
            me and her were fuckin just [to] fuck with me and got it on
            snap[;] that’s it[.]

Craddock:   [redacted for the jury]

Brittmon:   [A]lready did ya fuck[.] [W]ho the fuck did you send it too[?]

Craddock:   I don’t think [Gina] knows. And hold on let me look[.]

Brittmon:   I hate you[.]

Craddock:   No you don’t.

Brittmon:   [N]o seriously[,] fuck you[.]

Craddock:   I didn’t know anyone would talk bruh.

Brittmon:   [I]t’s high school that’s all you motherfuckers do[.]

Craddock:   I don’t.

Brittmon:   [C]all [Gina] right now and tell her y[ou] made that up . . .
            otherwise ur cut off[.]

Pugh:       God damn kid fucking grow up[.]

Brittmon:   [redacted for the jury]

Craddock:   Wth[.] Hold on I’m texting [Gina.]

Brittmon:   [Y]ou wouldn’t be chill either if you were me ya douche. [T]ell
            your friends to SHUT THE FUCK UP.

Craddock:   She said “Okay thank you so much [Craddock] I appreciate it.”
            It’s fine.

Brittmon:   [Y]ou think this is gonna be the end of it?

Craddock:   It better be or [w]hoever ran their mouth will get their ass
            kicked[.]



                                      7
Brittmon:   [T]ell her you had your dick out or some bull shit[.]

Craddock:   No I can’t change the story.

Brittmon:   [C]us so many people know obviously dick face[.]

Craddock:   Then she’ll know something’s up.

Brittmon:   [W]hat is she saying to you[?]

Craddock:   [redacted for the jury]

Brittmon:   [redacted for the jury]

Brittmon:   [T]ell everyone you told to shut the fuck up right now or ur
            dead[.]

Craddock:    I did. I only sent it to my close “friends” so I must have some
            fake friends[.] Deny it[.]

Brittmon:   [I]dk yet bruh no reply[.] [Pugh is gonna call Hannah and tell
            her the story that he [t]old [Gina.]

Craddock:   But what is Hannah gonna do[?]

Brittmon:   [O]h tell her parents . . . some shit we don’t need[.] [M]y phones
            on 2%[.]

Craddock:   [Gina] doesn’t believe them. And I promise if I found out who
            ran their mouth I’ll tell [you all] and we can jump them[.]

Brittmon:   I’m not tryna beat somebodies ass, I want you to find out and
            tell them to shut their fucking mouths. [H]ow many people did
            you send this to[,] like goddamnit kid.

Craddock:   7. And they are all “close” to me but not[.]

Craddock:   She read?

Brittmon:   [H]er receipt ain’t on so idk[.]

Craddock:   I gotcha. I think we will be okay[.]

                                      8
       Brittmon:     I’m just tryna put it behind me[.]

       Craddock:     Me too[.]

       Brittmon:     [UR] not allowed to be on snapchat around me[.]

       Craddock:     I have [a]nd I think [Gina] [i]s taking care of Hannah[.]

       Brittmon:     I texted Hannah myself and sent some bullshit[.]

       Craddock:     Stick to the I walked in[.]

       Brittmon:     [D]uh[.]

       Craddock:     Tell me what she says[.] What did she say to you?

¶18.   Brittmon testified that following the group discussion, he thought they were in the

clear. However, he was subsequently contacted by a police officer and interviewed.

Brittmon stated he initially told the police officer “a story about how [he] wasn’t originally

aware of Snapchat, and then how [Craddock] just came in at some point and filmed [him]

having sex with [Gina].” Brittmon admitted to the officer that he, Craddock, and Pugh all

had sex with Gina, but he maintained that Gina initiated it. When asked by the officer why

Gina looked unconscious in the video, Brittmon advised, “because she was fucked up.”

¶19.   Importantly, Brittmon testified that he did not believe Gina was competent enough to

give consent. Brittmon acknowledged that in the Snapchat video, Gina was not reaching for

Craddock’s penis or trying to put his penis in her mouth. Instead, Craddock was holding his

own penis and trying to put his penis in Gina’s mouth. Brittmon stated Gina was not pushing

Craddock’s penis away because “[s]he was in a state of mind not able to properly respond.”

¶20.   The State’s last witness was Gina. Gina testified that she had never met Pugh before



                                              9
that night but that he was dating one of her friends, Hill. Gina further testified that although

she and Brittmon were friends, she had never had a sexual relationship with him and did not

desire to have one. Gina admitted that she drank at the party and stated she felt drunk and

woozy in the car after the party. Gina testified that the last thing she remembers from that

night was throwing up in a dark bathroom in an unknown location. She had no recollection

of going to Waffle House.

¶21.   Gina first learned of the Snapchat video from a friend. Gina stated that Brittmon,

Pugh, and Craddock subsequently contacted her. She explained that Brittmon did not tell her

that she had had sex with Pugh or Craddock, Pugh told her that she was “being flirty” but did

not advise that they had had sex, and Craddock did not advise her that they had had sex.

¶22.   Gina denied initiating sex with Brittmon, Pugh, or Craddock. She said that Brittmon,

Pugh, and Craddock told her that “it could go away if [she] said it was consensual.”

¶23.   Hill testified on behalf of Pugh and stated that on the night in question, Gina was

“drinking excessively” at the party, and referred to Gina as a “lightweight.” Hill explained

that the group left the party no later than 2:30 a.m. because she had to be home around 3:00

a.m. According to Hill, Gina appeared to be okay at the party and seemed coherent during

the car ride after the party. Hill stated she had no concerns for Gina’s safety. However, Hill

acknowledged that after the party, she was dropped off first and did not know what

subsequently happened.

¶24.   Pugh testified in his own defense and admitted that he got drunk at the party. He

further admitted that he and Gina had sex for “a couple of minutes” right after she performed



                                              10
oral sex on him. Specifically, Pugh explained that Brittmon had sex with Gina first while

Gina performed oral sex on him, then he had sex with Gina. Afterwards, Pugh got on the

floor and went to bed.

¶25.   Pugh recalled seeing Craddock in Brittmon’s bedroom that night, but stated he did not

know about the Snapchat video until they turned the lights on and he checked his phone.

Pugh acknowledged that Gina was “drunk” and “acting wild” but stated at no time while at

Brittmon’s house or before did Gina seem to be incoherent.

¶26.   Following his convictions and sentence, Pugh filed a motion for a judgment

notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court

denied. Pugh timely appealed.

                                          ANALYSIS

       I.      Admission of Evidence

¶27.   Pugh first argues the circuit court erred in its admission of the Snapchat video and the

various text-message conversations among the parties.               We separately address each

evidentiary issue, but we note that the standard of review is the same.

¶28.   “The admission or suppression of evidence is within the sound discretion of the

[circuit court] and will not be reversed unless there is an abuse of that discretion.” Sturkey

v. State, 946 So. 2d 790, 794 (¶11) (Miss. Ct. App. 2006). “We will only reverse under that

standard if the admission of the evidence results in prejudice or harm to the opposing party,

or if it adversely affects a substantial right of the party.” Id.

               a.     Snapchat Video



                                               11
¶29.   Pugh asserts “[t]he Snapchat video was inadmissible for multiple reasons.” However,

we find this issue is procedurally barred. Pugh did not object to the admission of the

Snapchat video at trial. “[F]ailure to make a contemporaneous objection waives an issue for

purposes of appeal.” Boyd v. State, 175 So. 3d 1, 4 (¶13) (Miss. 2015). Because Pugh did

not object to the admission into evidence of the Snapchat video, he is procedurally barred

from raising its admission as an issue on appeal.

¶30.   Notwithstanding the procedural bar, we find this issue is meritless. Pugh first argues

the video was not authenticated. Mississippi Rule of Evidence 901(a) provides for the

authentication of evidence as a condition precedent to admission. Pursuant to Rule 901(a),

“[t]o satisfy the requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.”

¶31.   Here, the record shows Kazemba reviewed the Snapchat video prior to taking the

witness stand and testified that the video fairly and accurately represented what he received

from Craddock. Kazemba testified that Craddock was one of his Snapchat contacts and

explained how he was able to save the video upon receipt. Kazemba further testified that

Craddock and Gina were two of the individuals in the video and that Gina “looked

unconscious.”

¶32.   Additionally, both Brittmon and Pugh admitted to having sex with Gina and testified

that they received the Snapchat video from Craddock shortly after the incident occurred when

they checked their phones. Moreover, Brittmon testified that he remembered seeing a



                                             12
flashlight while he was having sex with Gina, but he did not realize it was a Snapchat video.

¶33.   Overall, we find the State produced sufficient evidence to support a finding that the

Snapchat video admitted into evidence at trial was what the State claimed it was—that is, a

Snapchat video from Craddock depicting the alleged sexual battery of Gina. Accordingly,

the Snapchat video was properly authenticated.

¶34.   Pugh next argues the video was irrelevant because the State never established a

timeline or when Craddock recorded the video. Under Mississippi Rule of Evidence 401,

evidence is relevant if “it has any tendency to make a fact more or less probable than it would

be without the evidence; and the fact is of consequence in determining the case.” “Rule 401

is construed broadly in favor of admitting evidence with even slight probative value.” Ross

v. State, 954 So. 2d 968, 993 (¶44) (Miss. 2007).

¶35.   Here, the video is relevant because it shows Gina’s condition during the incident and

corroborates the State’s testimony regarding the incident. Pugh asserts “the State only

narrowed the timeline . . . to sometime between shortly after midnight and 3 a.m.” and notes

that “in a case where the charge is sexual battery of an incapacitated person, even seconds

make a huge difference when determining whether someone is incapacitated or not.”

However, such assertion does not affect the relevancy of the video. Pugh’s argument

regarding the three-hour time frame was addressed during trial and was for the jury to

consider and resolve.6

¶36.   Pugh last argues “any probative value the video had was substantially outweighed by

       6
         We note that Pugh’s witness, Hill, testified that they left the party no later than 2:30
a.m., thereby narrowing the timeline.

                                               13
the danger of unfair prejudice and/or misleading the jury.” Mississippi Rule of Evidence 403

is considered the ultimate filter through which all evidence must pass. Palmer v. State, 939

So. 2d 792, 795 (¶10) (Miss. 2006). Under Rule 403, relevant evidence may be excluded “if

its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”

¶37.   Pugh claims “the jury certainly could have gone into deliberations with the

(mis)understanding that [he] was one of the males in the video and/or that the video was

taken during the time period that [he] had sexual contact with Gina.” However, Kazemba

testified that the video showed “two guys having sex with [Gina] . . . a black guy and . . . a

white guy.” As previously noted, Brittmon is a black male. Although Craddock and Pugh

are both white males, Kazemba testified that Craddock, not Pugh, was in the video. Thus,

the testimony makes clear that Pugh was not in the video.

¶38.   Regardless, Pugh admitted to having sex with Gina that night, and the testimony

shows that Pugh had sex with Gina at or around the same time as Brittmon and Craddock.

Simply because Pugh was not actually recorded and/or depicted in the Snapchat video is of

no consequence.

¶39.   We find the Snapchat video was “in some way related or linked to the crime charged.”

See Goree v. State, 748 So. 2d 829, 838 (¶19) (Miss. Ct. App. 1999) (When determining

whether the probative value of evidence is substantially outweighed by the danger of unfair

prejudice to the defendant, “[t]he key issue remains whether [the evidence] was in some way



                                              14
related or linked to the crime charged.”). As a result, its admission did not violate Rule 403.

¶40.   Overall, we find the Snapchat video was properly authenticated and relevant, and its

probative value was not substantially outweighed by the danger of unfair prejudice or

misleading the jury. Accordingly, the circuit court did not abuse its discretion in the

admission of the Snapchat video.

              b.      Text-message Conversations Between Brittmon and Gina

¶41.   Exhibits 2 and 3 are text-message conversations between Brittmon and Gina sent and

received April 5th and 6th, after the incident occurred. Pugh argues “Exhibits 2 and 3 are

classic examples of hearsay for which the State provided no exception.” As with the

Snapchat video, Pugh failed to object to the admission of Exhibits 2 and 3 at trial. Thus,

Pugh’s claim regarding the admissibility of the exhibits is procedurally barred. Boyd, 175

So. 3d at 4 (¶13).

¶42.   Regardless of the procedural bar, we do not find that any prejudice or harm resulted

from the admission of Exhibits 2 and 3. Sturkey, 946 So. 2d at 794 (¶11). Both Brittmon and

Gina testified at trial and advised the jury about what happened that night, the condition Gina

was in at the time, and the discovery of the Snapchat video. Exhibits 2 and 3 do not provide

new or additional information. Instead, the same information included in the exhibits was

offered through Brittmon and Gina’s testimony. Thus, any error in the admission of Exhibits

2 and 3 was harmless. See Reynolds v. State, 136 So. 3d 452, 459 (¶22) (Miss. Ct. App.

2014) (finding that there was no hearsay issue, but if there was, any error would be harmless,

since the witness testified to the same event at trial).



                                               15
              c.      Text-message Conversation Among Brittmon, Craddock, and
                      Pugh

¶43.   Exhibit 4 is thirteen pages of text messages among Brittmon, Craddock, and Pugh sent

and received after the incident occurred. Pugh claims Exhibit 4 is inadmissible hearsay and

should have been excluded.

¶44.   The State offered Exhibit 4 in support of the conspiracy charge. Prior to trial, Pugh

objected to the admission of Exhibit 4 “based on the fact that [Craddock] ha[d] previously

pled guilty to aggravated assault and, therefore, . . . is not a true coconspirator and [Exhibit

4] would be hearsay as [it] relates to [Craddock].” The circuit court overruled the objection

at that time but advised defense counsel that it would revisit the issue when the evidence was

offered. When the State sought to admit Exhibit 4 at trial, defense counsel objected based

“on [the] previous objection.” The circuit court allowed the State to develop the evidence

outside the presence of the jury. Thereafter, the circuit court overruled the objection.

¶45.   On appeal, Pugh does not reassert that Craddock was not a true coconspirator in light

of his guilty plea. Instead, Pugh now claims the circuit court failed to follow the requisite

procedure for the admission of a coconspirator’s testimony. However, Pugh did not raise this

issue prior to or during trial, and he did not include this issue in his posttrial motions.

¶46.   “Issues raised for the first time on appeal are procedurally barred from review as they

have not first been addressed by the [circuit] court.” Jackson v. State, 856 So. 2d 412, 415

(¶12) (Miss. Ct. App. 2003). “As an appellate court, we cannot find that a [circuit court]

committed reversible error on a matter not brought before [it] to consider.” Id. Moreover,

an objection cannot be enlarged on appeal to include an omission not objected to at trial.

                                              16
McGarrh v. State, 249 Miss. 247, 276, 148 So. 2d 494, 506 (1963). Because Pugh’s

argument on appeal differs from the objection raised at trial, we find it to be procedurally

barred.

¶47.   Notwithstanding the procedural bar, we find Exhibit 4 is admissible under Mississippi

Rule of Evidence 801. Pursuant to Rule 801(c), a hearsay statement is one that “(1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers

in evidence to prove the truth of the matter asserted in the statement.”             However,

“[s]tatements made after the completed act pertaining to a coverup of that act” are admissible

under Rule 801(d)(2)(E). Williamson v. State, 512 So. 2d 868, 879 (Miss. 1987), overruled

on other grounds by Hansen v. State, 592 So. 2d 114, 134 (Miss. 1991).

¶48.   Here, the statements included in Exhibit 4 were made after the alleged sexual battery

occurred and pertained to a coverup of that act. At trial, Brittmon acknowledged that during

the text-message conversation, he, Craddock, and Pugh discussed the fact that everyone knew

about the Snapchat video. Importantly, Brittmon acknowledged that they discussed what

they needed to do “to prevent anyone else from finding out about what actually happened that

night.” Brittmon stated that following the group discussion, they thought they were “in the

clear.” As noted in Williamson, one of the objectives of any conspiracy is to avoid arrest and

prosecution. Id. Accordingly, contrary to Pugh’s assertion, the statements included in

Exhibit 4 are not inadmissible hearsay.

              d.      Conner’s Text Message to Gina

¶49.   At trial, Brittmon testified that the group went to Waffle House after they left the



                                              17
party. Brittmon stated they were going to eat, but “decided not to after [they] had to help

[Gina] inside.” Brittmon explained that “[Gina] couldn’t make it alone to the restroom, so

[they] decided just to leave.”

¶50.   During Pugh’s direct testimony, he was questioned about Gina’s condition at Waffle

House. Pugh acknowledged that Gina went to the bathroom, but stated he did not see Gina

stumbling or staggering, and that no one had to help her to the car. With regard to Brittmon’s

testimony, Pugh stated, “until yesterday [when Brittmon testified], that was never — no one

ever said that.”

¶51.   On cross-examination, Pugh again testified that no one ever said Gina had trouble at

Waffle House or needed help to the restroom. The State then asked Pugh, “[s]o is it not true

that Blake Conner texted Gina and said [she] almost passed out when [they] were at Waffle

House?” Defense counsel objected based on hearsay. The circuit court overruled the

objection because Pugh was “on cross-examination.”

¶52.   The State continued its questioning until defense counsel again objected and a bench

conference was held. Following the bench conference, the circuit court sustained the

objection and allowed counsel the opportunity to lay a foundation for the line of questioning.

The State then asked Pugh, “What did you mean on direct when you said no one had ever

said that before?” Pugh explained that “[n]o one’s ever said [Gina] needed help getting out

of Waffle House . . . I’ve talked to Blake Conner . . . [h]e never saw it . . . I’ve never heard

it until yesterday when you asked [Brittmon] about it.” Defense counsel then objected as

follows:



                                              18
       Once again, the initial question was — his initial statement was that nobody
       had ever said anything about [Gina] having to be helped out of Waffle House
       to the car. Now we’re trying to back door into some type of hearsay about the
       alleged text that this individual, that [Pugh] did not see.

The circuit judge responded, “Well, if he doesn’t know, he can certainly say he doesn’t

know. I’ll overrule the objection.” At that point, the State advised it would move on to a

different line of questioning.

¶53.   Pugh argues the State’s reference to Conner’s text message to Gina was inadmissible

hearsay. We disagree. A review of the record shows that the State was not offering the

statement to prove the truth of the matter asserted (i.e. that Gina almost passed out at Waffle

House). Instead, the State referenced Conner’s statement to show that, despite Pugh’s

testimony, someone other than Brittmon had stated that Gina had trouble at Waffle House.

“[S]tatements can be offered solely for the purpose of demonstrating that they were said

. . . .” Fair v. State, 766 So. 2d 787, 791 (¶9) (Miss. Ct. App. 2000) (citing Gayten v. State,

595 So. 2d 409 (Miss. 1992)).

¶54.   Regardless, any error in the admission of the statement was harmless. An error is

considered harmless “if the same result would have been reached had [it] not existed.” White

v. State, 48 So. 3d 454, 458 (¶17) (Miss. 2010). Conner’s text message challenged Pugh’s

testimony that no one ever said Gina had trouble at Waffle House. However, Pugh testified

that Gina was drunk that night; Brittmon testified Gina was drunk at Waffle House, which

was why they left; and Gina testified she was drunk and did not remember going to Waffle

House. Thus, even if the statement was erroneously admitted, such error was harmless as

there was already testimony before the jury regarding Gina’s condition at Waffle House.

                                              19
       II.    Sufficiency of the Evidence of Conspiracy

¶55.   Pugh next argues the State did not present sufficient evidence of a conspiracy. Thus,

Pugh claims the circuit court erred in denying his motion for a JNOV.

¶56.   When “reviewing a case for sufficiency of the evidence, this Court considers each

element of the offense and reviews all of the evidence in the light most favorable to the

verdict.” Lenoir v. State, 224 So. 3d 85, 90 (¶18) (Miss. 2017). “[We] must accept as true

all credible evidence consistent with guilt” and “give the State the benefit of all favorable

inferences that may reasonably be drawn from the evidence.” Id. at 90-91 (¶18) (internal

quotation mark omitted). “[We] may reverse only when, with respect to one or more of the

elements of the offense charged, the evidence so considered is such that reasonable and fair-

minded jurors could only find the accused not guilty.” Id. at 91 (¶18). “Thus, if any rational

trier of fact could have found each and every one of the elements of the crime beyond a

reasonable doubt, when viewing the evidence in the light most favorable to the prosecution,

the verdict must stand.” Id.

¶57.   Under Mississippi Code Annotated section 97-1-1(1)(a) (Rev. 2014), a conspiracy

occurs “[i]f two (2) or more persons conspire . . . [t]o commit a crime . . . .” “An alleged

conspirator’s participation in a conspiracy may be proved entirely by circumstantial

evidence.” Graham v. State, 120 So. 3d 382, 388 (¶19) (Miss. 2013). “However, there must

exist some evidence that a defendant has associated himself with the venture in some fashion,

participated in it as something that he wished to bring about, or sought by his action to make

it succeed.” Id. “[N]o express agreement is required; an agreement can be inferred from the



                                             20
surrounding circumstances, such as the declarations, acts and conduct of the alleged

conspirators.” Id. Even without explicit testimony concerning a conspiracy, the jury can still

infer from the circumstances that a conspiracy existed. Humphrey v. State, 74 So. 3d 923,

926 (¶12) (Miss. Ct. App. 2011).

¶58.   Here, we find sufficient evidence was presented to allow a jury to infer that a

conspiracy existed. Brittmon testified that when he, Pugh, Craddock, and Gina arrived at his

house, they had to help Gina inside due to her condition. At that point, Gina got into

Brittmon’s bed and got undressed. Although there was an empty bedroom upstairs, Brittmon

and Pugh got in the bed with Gina. Craddock was nearby, either on the bedroom floor or in

the adjoining bathroom. Brittmon testified that he, Pugh, and Craddock “pretty much had

sex with [Gina] at some point throughout the night.” Brittmon further testified there was

never a break where they left and came back later. Instead, “[i]t happen[ed] all at the same

time.” The next morning, when Gina asked why her clothes were off, neither Brittmon nor

Pugh advised Gina of the sexual intercourse. Instead, she was told that she had gotten hot.

¶59.   Additionally, the various exhibits, including certain text messages, show Gina’s

surprise when learning of the incident, as well as Brittmon, Pugh, and Craddock’s attempt

to explain and coverup the incident. Notably, Pugh advised Craddock, “if you’re gonna do

shit with us[,] part of that is not broadcasting it to all your dumbass friends that are gonna tell

everyone . . . [y]ou made a young mistake. . . .”7 Moreover, Gina testified that Brittmon,

Pugh, and Craddock told her that if she would say that the sex was consensual, all of this

       7
        This text-message conversation was offered by Pugh and admitted into evidence as
Exhibit 7.

                                                21
would go away.

¶60.   Overall, we find sufficient evidence exists to support Pugh’s conviction of conspiracy

to commit sexual battery. Accordingly, the circuit court did not err in denying Pugh’s motion

for a JNOV.

       III.   Cumulative Error

¶61.   Pugh last argues “the numerous evidentiary errors in this case amount to cumulative

error that mandates reversal.” “The cumulative error doctrine stems from the doctrine of

harmless error, which holds that individual errors, which are not reversible in themselves,

may combine with other errors to make up reversible error, where the cumulative effect of

all errors deprives the defendant of a fundamentally fair trial.” Thompson v. State, 990 So.

2d 265, 270 (¶12) (Miss. Ct. App. 2008).

¶62.   Here, we do not find that Pugh was deprived of a fundamentally fair trial by the

cumulative effect of any individual errors. Accordingly, we affirm the judgment of the

DeSoto County Circuit Court.

¶63.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.




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