        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-01207-COA

MICHAEL DONALDSON A/K/A MICHAEL                                           APPELLANT
PAUL DONALDSON A/K/A MIKE DONALDSON

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                         02/02/2015
TRIAL JUDGE:                              HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JULIE ANN EPPS
                                          CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY:                        MICHAEL GUEST
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED: 06/19/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Michael Donaldson was convicted of possession of child pornography and filming a

person in violation of expectation of privacy. We find no error and affirm.

                                         FACTS

¶2.   During an investigation for child pornography, the Mississippi Attorney General’s

Cyber Crime Unit (the “Cyber Crime Unit”), through Investigator Kyle Moore, obtained a

warrant to search Donaldson’s residence. Investigators seized over thirty items of digital

evidence; these items included a Dell laptop that was found on the toilet in the master
bathroom (“Laptop 1”) and a Dell laptop that was found in Donaldson’s work vehicle

(“Laptop 2”).

¶3.    The Cyber Crime Unit determined that the laptops contained over one hundred child

pornography videos and images. On Laptop 1, they discovered a folder that contained three

videos and one JPEG image. Investigator Joseph Turnage, of the Cyber Crime Unit, testified

that two of the videos depicted Donaldson turning the webcam software on and off.

¶4.    The third video depicted Donaldson in his bathroom; he turned on the webcam, put

it on the floor, and pointed the camera at the toilet. He then pretended to flush the toilet and

opened the bathroom door. It also included an audio recording of his conversation with MB,

who was a fourteen year old girl at the time of trial.1 MB then entered the bathroom, and

Donaldson instructed her not to touch the laptop. Donaldson said that he was downloading

something from the internet and that the bathroom was the only place in the house where it

could download. The bathroom door then closed. The video then shows MB pull her pants

down, and the webcam captures her genitalia as she used the bathroom. The video ended

with a conversation between Donaldson and MB about the toilet paper, and MB said that she

could not flush the toilet. Donaldson told MB not to worry. After she pulled her pants up,

MB exited the bathroom. Donaldson immediately entered the bathroom, flushed the toilet,

picked up the laptop, and stopped the webcam recording.

¶5.    Investigator Turnage testified that MB did not touch the laptop. When Donaldson

picked up the laptop, the video showed “a brightness on [Donaldson’s] face” from the



       1
           We use initials to protect the minor’s identity.

                                                2
computer screen. Investigator Turnage testified that this indicated that Donaldson had

minimized the webcam before MB entered the bathroom, so that she could not see that the

laptop was recording her.

¶6.    Donaldson was indicted for possession of child pornography, a violation of

Mississippi Code Annotated section 97-5-33(5) (Supp. 2013) (Count I), and filming a person

in violation of expectation of privacy, a violation of Mississippi Code Annotated section 97-

29-63 (Supp. 2015) (Count II). The jury found Donaldson guilty of both counts.

¶7.    Donaldson was sentenced, on Count I, to serve forty years in the custody of the

Mississippi Department of Corrections, with ten years suspended and five years of supervised

probation. On Count II, Donaldson was sentenced to serve five years, and the sentence was

to run consecutively to his sentence for Count I. Donaldson was also ordered to pay a

$50,000 fine within ninety days of release, $1,000 to the Children’s Trust Fund, and $1,000

to the Victim’s Compensation Fund.

¶8.    Donaldson’s motion for a judgment notwithstanding the verdict (JNOV), or in the

alternative, a new trial was denied. Donaldson now appeals.

                                        ANALYSIS

       1.     The trial court committed reversible error to preclude Donaldson
              from testifying as an expert witness.

¶9.    Donaldson first argues the trial court erred when it ruled that he could not testify as

an expert in computer forensics or in any computer field. Donaldson wanted to testify as an

expert to contest the State’s expert witnesses who offered testimony that Donaldson placed

the pornographic images on his computer.


                                              3
¶10.   “This Court uses an abuse of discretion standard for decisions to exclude expert

testimony.” T.L. Wallace Constr., Inc. v. McArthur, Thames, Slay, & Dews PLLC, 234 So.

3d 312, 329 (¶64) (Miss. 2017). “This Court will not reverse the decision of the trial judge

unless that decision ‘was arbitrary and clearly erroneous, amounting to an abuse of

discretion.’” Id. at 332 (¶76).

¶11.   Rule 702 of the Mississippi Rules of Evidence provides:

       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if:

       (a)    the expert’s scientific, technical, or other specialized knowledge will
              help the trier of fact to understand the evidence or to determine a fact
              in issue;

       (b)    the testimony is based on sufficient facts or data;

       (c)    the testimony is the product of reliable principles and methods; and

       (d)    the expert has reliably applied the principles and methods to the facts
              of the case.

Mississippi courts apply “the federal standard established in Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) to the admissibility of expert

testimony pursuant to Rule 702.” T.L. Wallace Constr., Inc., 234 So. 3d at 333 (¶78).

¶12.   Rule 702 requires the trial court to consider six principles necessary to admit expert

witness testimony. First, the court must determine that the witness intends to offer “expert”

testimony. M.R.E. 701 & 702. Second, the witness must be “qualified as an expert by

knowledge, skill, experience, training, or education.” M.R.E. 702. Third, the court must

determine that the expert testimony must “help the trier of fact to understand the evidence



                                             4
or to determine a fact in issue.” M.R.E. 702(a). Fourth, the court must determine that the

expert’s “testimony is based on sufficient facts or data.” M.R.E. 702(b). Fifth, the court

must determine that the expert’s “testimony is the product of reliable principles and

methods.” M.R.E. 702(c). And, sixth, the court must determine that “the expert has reliably

applied the principles and methods to the facts of the case.” M.R.E. 702(d).

¶13.   Here, the trial court held a Daubert hearing and considered whether Donaldson would

be allowed to testify as an expert witness. The trial court found two reasons to exclude

Donaldson’s testimony.

¶14.   First, Donaldson would not be allowed to testify as an expert witness because his

counsel failed to comply with the discovery requirements. Donaldson’s counsel did not

provide the proper designation of an expert witness to identify Donaldson or disclose the

opinions, reports, and statements that he might offer at trial. Bowie v. Montfort Jones Mem’l

Hosp., 861 So. 2d 1037, 1042 (¶14) (Miss. 2003). We find no abuse of discretion and no

reversible error in this ruling.

¶15.   Nevertheless, the second reason the court gave to exclude Donaldson’s expert

testimony was that he was not “qualified” as an expert witness. Because we hold the first

reason was sufficient to exclude Donaldson as an expert witness, it is not necessary to

address the second reason. Therefore, we find no error in the exclusion of Donaldson’s

testimony as an expert witness.

       2.      The evidence was insufficient to support the verdict on Count I –
               possession of child pornography.

¶16.   Donaldson next argues that there was insufficient evidence to support the verdict on

                                             5
Count I, possession of child pornography. In the review of the sufficiency of the evidence,

this Court “view[s] the evidence in the light most favorable to the [State]” and asks whether

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Harris v. State, 107 So. 3d 1075, 1077-78 (¶10) (Miss. Ct. App. 2013)

(citation omitted). This Court “accept[s] all credible evidence consistent with guilt as true

and give[s] the State the benefit of all favorable inferences reasonably drawn from the

evidence.” Moore v. State, 160 So. 3d 728, 735 (¶31) (Miss. Ct. App. 2015) (internal

quotation marks omitted).

¶17.     To find Donaldson guilty of possession of child pornography, the jury had to find that

Donaldson “possess[ed] . . . any . . . visual depiction of an actual child engaging in sexually

explicit conduct.” Miss. Code Ann. § 97-5-33(5). In child pornography cases, possession

may be either actual or constructive. United States v. Terrell, 700 F.3d 755, 765 (5th Cir.

2012).

¶18.     Here, the Cyber Crime Unit discovered that a person using the internet protocol (IP)

address 68.222.69.53 downloaded a large number of suspected child pornography files.

Three of the files were examined and determined to be child pornography. A subpoena was

issued to AT&T, and it determined that the IP address was assigned to Donaldson at his

address in Pearl, Mississippi.

¶19.     After the execution of the search warrant, Investigator Turnage reviewed the evidence

seized to confirm that child pornography was on one of Donaldson’s laptops. During a

forensic examination of Laptop 1 in the Cyber Crime Unit’s lab, Investigator Turnage found



                                               6
a total of 157 child pornography videos and 16 child pornography images. Samples of these

files were shown to the jury.

¶20.   Donaldson argued there was no evidence that he knowingly possessed the child

pornography files. Miss. Code Ann. § 97-5-33(5). Regardless, Investigator Turnage found

a majority of the files in a folder titled “save” and another folder titled “my pictures” that

contained cell-phone images depicting Donaldson and people known to associate with

Donaldson. Both folders were located inside another folder titled “bin,” which was placed

outside the user account.       On the morning the search warrant was executed, child

pornography files were accessed between 6:01 a.m. and 6:38 a.m., while investigators

conducted surveillance of Donaldson’s house and Donaldson was the only person inside.

¶21.   We find that a rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Therefore, we find no merit to this issue.

       3.     The State failed to prove MB was recorded within the two-year statute
              of limitations.

¶22.   Donaldson next claims that the two-year statute of limitations for section 97-29-63

bars the prosecution of Count II, filming a person in violation of their expectation of privacy.

Section 97-29-63(1)(a) provides as follows:

       It is a felony for any person with lewd, licentious or indecent intent to
       photograph, film, videotape, record or otherwise reproduces the image of
       another person without the permission of the other person when the other
       person is located in a place where a person would intend to be in a state of
       undress and have a reasonable expectation of privacy, including, but not
       limited to, private dwellings or any facility, . . . used as a restroom, [or]
       bathroom . . . shall be guilty of a felony.

¶23.   The indictment charged Donaldson with secretly recording MB on October 29, 2011.

                                               7
He was arrested for this charge on November 4, 2011. Donaldson argues that MB’s parents

testified that the video was not created on October 29, 2011, but was recorded years earlier.

¶24.   Mississippi Code Annotated section 99-1-5 (Supp. 2013) provides that “[a] person

shall not be prosecuted for any other offense not listed in this section unless the prosecution

for the offense is commenced within two (2) years next after the commission thereof.” Since

MB’s parents testified that they believed the video was filmed more than two years before

November 4, 2011, Donaldson argues that the statute of limitations bars this prosecution.

¶25.   Donaldson addressed this issue in his motion for a directed verdict, which was denied.

When the motion for a directed verdict was made, MB’s parents had yet to testify. Instead,

the only evidence as to the date the recording was created came from Investigator Turnage,

who testified that the video was created on October 28, 2011.

¶26.   Donaldson called MB’s parents to testify. MB was born in 2002. MB’s parents

testified that they believed MB was only seven or eight years old at the time the video was

recorded. This conflicts with Investigator Turnage’s testimony that the video was recorded

on October 28, 2011, because MB would have been at least nine years old at that time.

¶27.   At the close of the trial, Donaldson again made a motion to dismiss Count II of the

indictment. He argued that the video was created more than two years before November 4,

2011, and the State failed to meet its burden to prove that Donaldson recorded MB within

the two-year time period for the offense.

¶28.   A directed verdict “challenge[s] the sufficiency of the evidence presented to the jury.”

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



                                              8
of a motion for a directed verdict, “[t]his Court will consider the evidence in the light most

favorable to the State, giving the State the benefit of all favorable inferences that may

reasonably be drawn from the evidence.” Id. (internal quotation marks omitted). We have

held that “[i]f any rational trier of fact, when viewing the evidence in the light most favorable

to the State, could have found that the essential elements of the crime existed beyond a

reasonable doubt, this Court will affirm the denial of a motion for a directed verdict.” Moten

v. State, 20 So. 3d 757, 759 (¶5) (Miss. Ct. App. 2009). The evidence is deemed sufficient

if this Court finds that “reasonable, fair-minded jurors could have concluded that the

defendant was guilty of the accused crime.” Id. at 759-60 (¶5). Additionally, we recognize

that “the State bears the burden to prove that an offense occurred within the statute of

limitations.” Nuckolls v. State, 179 So. 3d 1046, 1051 (¶19) (Miss. 2015).

¶29.   Count II of Donaldson’s indictment charged:

       On or about October 28, 2011, . . . [Donaldson] did with lewd, licentious and
       indecent intent secretly photograph, film, videotape, record and otherwise
       reproduce the image of another person without the permission of such person
       when such a person was located in a place where a person would intend to be
       in a state of undress and have a reasonable expectation of privacy, including
       but not limited to any facility, public or private, used as a restroom or
       bathroom: namely that [Donaldson], with lewd, licentious and indecent intent
       secretly filmed, videotaped, and recorded [MB] without her permission when
       she was located in a bathroom and had an expectation of privacy, all in
       violation of [section] 97-29-63 . . . .

¶30.   First, after the State rested, Donaldson made a motion for a directed verdict and

claimed that the State failed to meet its burden of proof. The State responded that as to the

elements of Count II, there was sufficient admissible evidence: (1) Investigator Turnage

“stated that the creation date of said video was October 28th, 2011,” and “he identified that

                                               9
[Donaldson] was the one who created that video, that it was made in his bathroom located

in Rankin County”; (2) Investigator Turnage’s testimony also showed that Donaldson

recorded and possessed the video; and (3) MB testified that “she did not know of any video

ever being made, that she never used [Donaldson’s] computer, [and] that she had no

knowledge of any videos.”

¶31.   We find that the jury could have found beyond a reasonable doubt that Donaldson

recorded the video of MB on October 28, 2011, well within two years of November 4, 2011.

Therefore, the trial court was not in error when it denied Donaldson’s motion for a directed

verdict after the State’s case-in-chief.

¶32.   Donaldson also moved to dismiss after the defense’s case-in-chief and the State’s

rebuttal case. Donaldson argued that MB’s parents testified that the video could not have

been made on October 28, 2011 (the date set forth in the indictment as the date of creation);

rather, they testified that the video must have been made in 2009. The State argued that there

was evidence to support a finding that Donaldson created the video on October 28, 2011.

The court denied the motion.

¶33.   We employ a “substantial-evidence/manifest-error standard” of review to a trial

court’s grant or denial of a motion to dismiss an indictment. Beal v. State, 86 So. 3d 887,

891 (¶9) (Miss. 2012). We review de novo any challenges to the legal sufficiency of an

indictment. Id.

¶34.   Donaldson claims that the “creation” date does not mean the video was recorded on

that date. He asserts that the only evidence admitted about MB’s age at the time the video



                                             10
was filmed or recorded clearly indicates that the video could have been recorded prior to

November 2009. MB’s father testified that, at the time the video was made, MB “had her

baby teeth” and “was seven or eight” years old. He said that the video was not made in 2011.

Instead, he believed the video was made when MB was younger. However, MB’s father

clarified that he was “not positive on the age stuff.” MB’s mother also testified that MB

appeared to be seven or eight years old in the video. MB was seven years old in 2009 and

eight years old in 2010.

¶35.   Investigator Turnage testified that the video was created on October 28, 2011. He

explained the difference between creation and access dates. He then clarified that the

recording of MB was made on the evening of October 28, 2011. On that day, Donaldson

saved the video to his hard drive.

¶36.   We find there was substantial evidence in the record to support the denial of the

motion to dismiss. Therefore, we find no merit to this issue.

       4.     The jury instructions on Count II failed to require jurors to find the
              essential element of intent.

¶37.   Donaldson further argues that Instruction S-2A, the instruction on Count II, omitted

the element of “intent” from the charge of secretly recording MB with “lewd, licentious and

indecent intent.” Donaldson maintains that this omission constitutes reversible error.2

¶38.   “Jury instructions are generally within the discretion of the trial court[,] and the settled

       2
          Donaldson also argues that his proposed jury instruction for Count II, jury
instruction AD-14, properly included the word “intent” and was erroneously withdrawn.
However, the transcript reflects that Donaldson withdrew the instruction. The supreme court
has held that “[a] defendant cannot complain on appeal of alleged errors invited or induced
by himself.” Caston v. State, 823 So. 2d 473, 502 (¶101) (Miss. 2002).

                                               11
standard of review is abuse of discretion.” Moody v. State, 202 So. 3d 1235, 1236-37 (¶7)

(Miss. 2016). When we review a challenge to a jury instruction on appeal, we read the jury

instructions “as a whole to determine if the jury was properly instructed.” Windless v. State,

185 So. 3d 956, 960 (¶8) (Miss. 2015). The supreme court has held that no reversible error

will be found when the jury instructions “taken as a whole fairly—although not

perfectly—announce the applicable primary rules of law[.]” Moody, 202 So. 3d at 1237 (¶7).

¶39.   “[T]he State is responsible for making sure the jury is instructed on the essential

elements of the crime.” Harrell v. State, 134 So. 3d 266, 270 (¶14) (Miss. 2014). “[I]t is

always and in every case reversible error for the courts of Mississippi to deny an accused the

right to have a jury decide guilt as to each and every element.” Id. at 275 (¶30).

¶40.   Donaldson was indicted under section 97-29-63. This statute lists four elements to

the crime of filming a person in violation of expectation of privacy:

       (1) intent—lewd, licentious or indecent intent; (2) act—secretly
       photographing, filming, videotaping, recording or otherwise; (3) lack of
       consent—without the permission of the victim; and (4) protected
       location—when such a person is located in a place where a person would
       intend to be in a state of undress and have a reasonable expectation of privacy,
       including, but not limited to, private dwellings or any facility, public or
       private, used as a restroom [or] bathroom[.]”

Gilmer v. State, 955 So. 2d 829, 834 (¶11) (Miss. 2007).

¶41.   At the jury instruction conference, the State’s proposed jury instruction S-2 read:

       If you find from the evidence in this case beyond a reasonable doubt that:

       1.     Michael Donaldson, on or about October 28, 2011, in Rankin County,
              Mississippi and within the jurisdiction of this Court;

       2.     Did with lewd, licentious and indecent intent;

                                             12
       3.     Secretly photograph, film, videotape, record or otherwise reproduce the
              image of another person;

       4.     Without the permission of such person;

       5.     When such a person was located in a place where a person would
              intend to be in a state of undress and have a reasonable expectation of
              privacy, including but not limited to any facility, public or private, used
              as a restroom or bathroom;

       6.     Namely, that Michael Donaldson, with lewd, licentious, and indecent
              intent secretly filmed, videotaped or recorded M.B. without her
              permission when she was located in a bathroom and had an expectation
              of privacy.

       Then it is your sworn duty to find Michael Donaldson GUILTY of
       photographing or filming another without permission where there is
       expectation of privacy, in Count II.

       If the prosecution has failed to prove any one or more of the above listed
       elements beyond a reasonable doubt, then it is your sworn duty to find Michael
       Donaldson NOT GUILTY in Count II.

¶42.   The court instructed the parties to modify proposed instruction S-2 to incorporate the

wording from paragraph six into the other paragraphs, and to change the word “person” to

“MB.” The trial court then renamed the modified jury instruction “S-2A.” Instruction S-2A

provided, in pertinent part, as follows:

       If you find from the evidence in this case beyond a reasonable doubt that:

       1.     Michael Donaldson, on or about October 28, 2011, in Rankin County,
              Mississippi, and within the jurisdiction of this Court;

       2.     Did with lewd, licentious and indecent;

       3.     Secretly photograph, film, videotape, record or otherwise reproduce the
              image of MB;



                                              13
       4.      Without the permission of MB;

       5.      When MB was located in a place where a person would intend to be in
               a state of undress and have a reasonable expectation of privacy,
               including but not limited to any facility, public or private, used as a
               restroom or bathroom;

       Then it is your sworn duty to find Michael Donaldson GUILTY of
       photographing or filming another without permission where there is
       expectation of privacy, in Court II.

       If the prosecution has failed to prove any one or more of the above listed
       elements beyond a reasonable doubt, then it is your sworn duty to find Michael
       Donaldson NOT GUILTY in Count II.

The word “intent” was inadvertently omitted from paragraph two in the modification.

¶43.   However, Donaldson did not object to jury instruction S-2A at trial. “Ordinarily,

failure to object to a given instruction at trial results in a procedural bar on appeal, unless its

granting amounts to plain error.” Berry v. State, 728 So. 2d 568, 571 (¶6) (Miss. 1999). In

Berry, the supreme court held that granting a jury instruction that did not fully instruct the

jury on the elements of the crime amounted to plain error, even where the defendant failed

to object to the instruction at trial. Id. (citing Hunter v. State, 684 So. 2d 625, 636 (Miss.

1996), for the proposition that “[f]ailure to submit to the jury the essential elements of the

crime is ‘fundamental’ error”). The Berry court determined that since “reading the

instructions as a whole did not cure the error resulting from the improper instruction,” the

case required reversal. Id. at (¶9).

¶44.   “To determine if plain error has occurred, this Court must determine if the trial court

has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the

error has prejudiced the outcome of the trial.” Brown v. State, 75 So. 3d 573, 577 (¶16)

                                                14
(Miss. Ct. App. 2011).

¶45.   Although jury instruction S-2A omitted the word “intent,” we find that the instruction

still properly described the type of intent required under section 97-29-63. Additionally, we

find that the jury instructions as a whole fairly announce the law and therefore cured any

error caused by the omission of the word “intent” from jury instruction S-2A. Moody, 202

So. 3d at 1237 (¶7). During closing arguments, Donaldson’s counsel argued that the State

must prove that Donaldson filmed MB with “lewd, licentious, and indecent intent.” We find

no error in this issue.

       5.      The denial of Donaldson’s request for a circumstantial evidence
               instruction on Count I warrants a new trial.

¶46.   Donaldson argues that the court erred in denying his request for a circumstantial

evidence jury instruction and a two-theory jury instruction.          At the jury instruction

conference, Donaldson asked for a circumstantial evidence instruction (Instruction D-7):

       The court instructs the jury that if the State has relied on circumstantial
       evidence to establish its theory of guilt of the defendant, Michael Donaldson,
       then the evidence for the State must be so strong as to establish the guilt of the
       defendant, not only beyond a reasonable doubt, but the evidence must be so
       strong as to exclude every other reasonable hypothesis other than that of guilt.

¶47.   Donaldson argued that because no one witnessed him in direct possession of child

pornography, the State’s case was based purely on circumstantial evidence. The State noted

that the jury heard testimony that Donaldson accessed the child pornography files on the

morning of the search, to which Donaldson’s counsel responded, “[n]obody saw him.” The

court then stated: “I’m not so sure that simply because nobody saw him means it’s a

circumstantial evidence case. [Donaldson] was at the house. There’s no testimony that

                                              15
anybody else was there. There’s testimony the computer was accessed then.” The trial court

determined that “[i]t seems like . . . that’s direct evidence,” and denied the instruction.

¶48.   Donaldson claims that since he did not confess to any crimes and the State failed to

present direct evidence of his guilt, he was entitled to receive a circumstantial evidence jury

instruction. Donaldson maintains that he presented evidence to show that his home Wi-Fi

connection was not secure and could have been accessed by someone outside the house.

Indeed, Donaldson testified that he allowed a neighbor to use his Wi-Fi.

¶49.   Circumstantial evidence is defined as “evidence which, without going directly to

prove the existence of a fact, gives rise to a logical inference that such fact does exist.”

Burleson, 166 So. 3d at 509 (¶29). In contrast, direct evidence “must directly and not by

inference implicate the accused[,] and not just show that there has been a crime.” Id.

“[E]xamples of direct evidence include an admission or confession by the defendant to a

significant element of the offense, or eyewitness testimony to the gravamen[, or substantial

point or essence,] of the offense charged.” Id. (internal quotation marks omitted). “Where

the State is without a confession and wholly without eyewitness testimony to the gravamen

of the offense charged, the defendant is entitled to an instruction requiring the jury to exclude

every other reasonable hypothesis other than that of guilt before a conviction can be had.”

Id. (internal quotation marks omitted).

¶50.   The evidence established that someone accessed child pornography on Donaldson’s

computer on the morning the search warrant was executed. The evidence established that

Donaldson was alone in his house at the time the child pornography was accessed. The jury



                                               16
saw the video of MB using the bathroom. It showed Donaldson setting up the computer

before MB entered, and then shows Donaldson entering the bathroom again after MB exited.

We find no abuse of discretion in the denial of jury instruction D-7.

¶51.   Donaldson then submitted his two-theory circumstantial evidence instruction,

Instruction D-8:

       The court instructs the jury that if there be a fact or circumstance in this case
       which is susceptible of two interpretations, one favorable and the other
       unfavorable to the defendant, Michael Donaldson, and if after considering all
       the other facts and circumstances there is reasonable doubt regarding the
       correct interpretation, then you, the jury, must resolve such doubt in favor of
       the accused, and place upon such fact or circumstance the interpretation most
       favorable to the defendant.

After the State objected, the trial court denied the instruction. The court explained, “I think

it gets to a circumstantial evidence case, and it’s an attempt to define reasonable doubt.”

¶52.   The supreme court has held that “where the case is based on purely circumstantial

evidence, that the defendant is entitled to a two-theory instruction, as well as the general

circumstantial-evidence instruction.” Goff v. State, 14 So. 3d 625, 660 (¶151) (Miss. 2009).

In Johnson v. State, 235 So. 3d 1404, 1412-13 (¶24) (Miss. 2017), the supreme court recently

clarified that “in order to receive the two-theory, special, circumstantial-evidence instruction,

two reasonable hypotheses or theories must be presented to the jury: one theory showing how

the evidence illustrates the defendant’s innocence and the other theory showing how the same

evidence illustrates the defendant’s guilt.” (citing McInnis v. State, 61 So. 3d 872, 875 (Miss.

2011)).

¶53.   The State presented the video that showed Donaldson in possession of the laptop just



                                               17
before recording MB. There was also evidence that Donaldson was alone at the house at the

time child pornography was accessed on his computer. Therefore, we find that the State’s

case was not based on purely circumstantial evidence. Accordingly, Donaldson was not

entitled to a two-theory jury instruction. We find no error in the denial of Instruction D-8.

       6.      The court committed reversible error by not excluding evidence about
               images on the cell phone.

¶54.   Donaldson next argues that it was error to allow testimony about images obtained

from his cell phone. Donaldson claims that he was prejudiced by the State’s failure to timely

provide the cell phone evidence and, as a result, the admission of the testimony regarding the

cell phone evidence amounted to reversible error.

¶55.   “A trial court’s decision to admit evidence . . . is reviewed on appeal for an abuse of

discretion.” Jones v. State, 918 So. 2d 1220, 1223 (¶9) (Miss. 2005). “Unless we can safely

say that the trial court abused its judicial discretion in allowing or disallowing evidence so

as to prejudice . . . the accused in a criminal case, we will affirm the trial court’s ruling.” Id.

¶56.   Investigator Turnage testified about the execution of the search warrant of

Donaldson’s residence. Donaldson’s Blackberry cell phone was seized, and Investigator

Turnage was able to link the cell phone to some of the image files found on Laptop 1.

Specifically, Investigator Turnage explained that he found a folder on Laptop 1 containing

images of Donaldson, as well as images of people who were known to associate with

Donaldson, and these images were taken with the cell phone.

¶57.   Donaldson argued that the defense had not received any information during discovery

about a cell phone or any images taken with the cell phone. The State assured the court that

                                                18
it would not seek to admit into evidence any pictures taken with the cell phone, and that it

was only offering the testimony about the cell phone to show ownership or control.

Donaldson responded that he was not given an opportunity to inspect the cell phone during

discovery. The State argued that Donaldson came to the Cyber Crime Unit’s office during

the discovery period and had full access to the evidence in the matter. However, Donaldson

stated that when he “asked [the AG’s office] for anything on his cell phone, . . . he was

denied the right to examine his cell phone.”

¶58.   Donaldson also informed the court that when he asked if he could examine the

pictures contained on his cell phone, the State responded that they “cannot image a cell phone

or a Blackberry.” Donaldson then argued that he felt “ambushed” by the State’s testimony

regarding the cell-phone images, because the defense was unaware of the existence of any

pictures taken by Donaldson’s cell phone on the hard drive of Laptop 1. The court ordered

the State to allow Donaldson to examine the cell phone “under the conditions that won’t

destroy the evidence on the phone.” Donaldson claims the State failed to provide him with

the cell-phone evidence until later that same day, after court had adjourned.

¶59.   Uniform Rule of Circuit and County Court Practice 9.04(I) states:

       If during the course of trial, the prosecution attempts to introduce evidence
       which has not been timely disclosed to the defense as required by these rules,
       and the defense objects to the introduction for that reason, the court shall act
       as follows:

       1.     Grant the defense a reasonable opportunity to . . . examine the newly
              produced documents, photographs or other evidence; and

       2.     If, after such opportunity, the defense claims unfair surprise or undue
              prejudice and seeks a continuance or mistrial, the court shall, in the

                                               19
              interest of justice and absent unusual circumstances, exclude the
              evidence or grant a continuance for a period of time reasonably
              necessary for the defense to meet the non-disclosed evidence or grant
              a mistrial.

¶60.   In Williams v. State, 991 So. 2d 593, 600 (¶22) (Miss. 2008), Williams argued that the

court erred by admitting an audiotape into evidence that the State failed to disclose before

trial. The defense objected to the admission of the audiotape based on the failure to timely

disclose it during discovery. Id. at (¶23). The supreme court recognized that Rule 9.04(I)(1)

“requires the court to grant the defense an opportunity to examine the new evidence.”

Williams, 991 So. 2d at 601 (¶27). The court found that defense counsel was provided the

opportunity to listen to the tape and “allowed sufficient time to interview the witness called

to present the tape.” Id.

¶61.   The court also explained that “[i]n order for the requirements of Rule 9.04(I)(2) to be

invoked, the defense must (1) after such an opportunity, claim unfair surprise and (2) seek

a continuance or mistrial.” Id. at (¶28). Further, although Williams claimed unfair surprise

and requested a recess, the court concluded that “he failed to seek a continuance or mistrial.”

Id. at (¶30). As a result, the court held that “[d]efense counsel . . . therefore waived arguing

this issue on appeal.” Id.

¶62.   Here, Donaldson objected to the admission of any evidence regarding the cell phone

due to the State’s failure to timely disclose the cell phone or its stored images during

discovery. The court ordered the State to allow the defense to examine the cell phone.

Additionally, the record indicates that Donaldson himself cross-examined Investigator

Turnage and did not request a continuance or a mistrial. Moreover, the State did not offer

                                              20
the contents of the cell phone into evidence. As a result, Donaldson has not shown that he

was prejudiced by the decision to allow evidence regarding the images found on his cell

phone. We therefore find no error in this issue.

       7.     The court erred in not allowing the defense access to the original hard
              drive.

¶63.   Donaldson next claims the trial court erred when it did not allow the defense an

opportunity to examine the original hard drives from his laptops. Donaldson maintains that

his defense depended on showing that the hard drives seized from his home had been altered,

and that the pornography was added after the hard drives were in the State’s custody.

Donaldson asserts that this evidence would have supported his claim that the files were put

on the disk after the computer was seized.

¶64.   On October 19, 2012, Donaldson filed a motion for discovery that requested, among

other things, “that the original of the computers(s) . . . be turned over to an independent

expert to be hired by [the d]efendant for the purpose of inspecting and analyzing said

evidence.” After a hearing on the matter, the trial court denied the request.3

¶65.   On March 17, 2014, Donaldson filed a motion to dismiss or suppress evidence and

alleged an irregular check in and check out of the State’s evidence, Laptop 1, and

irregularities in the collection and preservation of the alleged evidence found on Laptop 1.

At the hearing on this motion, Donaldson made an ore tenus motion to examine Laptop 1 and

       3
        Mississippi Code Annotated section 99-1-29(1) mandates that “[i]n any criminal
proceeding, evidence that constitutes child pornography . . . shall remain in the care,
custody, and control of either the prosecution or the court.” However, section 99-1-29 does
allow for the defendant, the defendant’s attorney, and the defendant’s expert to inspect,
view, and examine the property at a government facility.

                                             21
its contents. The court said, “I’ll deal with that [motion] when we get finished with this one.”

¶66.   The record does not reflect a ruling on Donaldson’s ore tenus motion. The State

argues that since the defense failed to obtain a ruling on its request to examine Laptop 1 and

its contents, Donaldson abandoned his motion.

¶67.   Rule 2.04 of the Uniform Rules of Circuit and County Court Practice provides: “It

is the duty of the movant, when a motion or other pleading is filed, . . . to pursue said motion

to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and

decision before trial is deemed an abandonment of that motion[.]” “[I]t is the responsibility

of the movant to obtain a ruling from the court on motions . . . and failure to do so constitutes

a waiver.” Smith v. State, 986 So. 2d 290, 296 (¶16) (Miss. 2008). If a party fails to bring

an issue before the trial court, the issue is “deemed waived and may not be raised for the first

time on appeal.” Id. In Smith, 986 So. 2d 290, 296 (¶17), the supreme court found “no

record of a ruling by the trial court on [the defendant’s] motion for severance nor any

evidence that the motion was noticed for hearing by the defendant.” The court held that

“[b]y failing to pursue a hearing or ruling on the motion from the trial court, [the defendant]

effectively abandoned the motion and waived this issue for appeal.” Id.

¶68.   Donaldson claims that the court did address his request to view the original hard drive

when it denied the motion to dismiss. The court explained, with regard to Laptop 1, “there’s

just no evidence that there’s any irregularities or anything that’s been tampered with or that

has been changed or altered in any way.” Donaldson argues that since the court found no

evidence to show tampering, “then it follows that the request to view the hard drive because



                                               22
of tampering in the court’s view also lacked evidentiary support” and was denied.

¶69.   We find no order that denied Donaldson’s motion to examine Laptop 1 and its

contents. Donaldson also went to the Cyber Crime Unit’s office before trial and was allowed

to examine the State’s evidence. Therefore, we find Donaldson waived this issue.

       8.     The judge who issued the search warrant was not fair and impartial.

¶70.   Donaldson raises three issues of judicial misconduct against three judges. First,

Donaldson makes a claim against the judge who issued the search warrant. He claims the

search warrant was not issued by a fair and impartial judge and was therefore in violation of

his right against unreasonable searches and seizures and due process.

¶71.   In 2011, Donaldson lived with his brother, John. The Cyber Crime Unit was issued

a search warrant signed by a Rankin County judge (“the issuing judge”).

¶72.   According to Donaldson, in 2004 or 2005, John’s girlfriend, a Rankin County

employee, was working with the court system. During this same time-frame, the issuing

judge was involved in a relationship with a woman who was also a county employee.

Donaldson claims that the issuing judge and the woman would visit John’s residence along

with John’s girlfriend,4 and John obtained compromising photographs of the issuing judge

and the woman. To recover the compromising photographs, Donaldson claims that the

issuing judge conspired with the Cyber Crime Unit to issue a search warrant for child

pornography at John’s residence.

¶73.   Based on this claim, Donaldson filed a motion to dismiss the indictment or, in the

       4
        There is no allegation that Donaldson was also present while the issuing judge was
present in John’s residence.

                                             23
alternative, to suppress the evidence obtained as a result of the search warrant. He argued

that the search warrant signed by the issuing judge was defective because he was not a fair

and unbiased magistrate. Donaldson asked that the evidence obtained by the Cyber Crime

Unit as a result of the search warrant be suppressed, which would result in the dismissal of

the charges. A hearing on the motion was held on March 28, 2013. Circuit Judge John

Emfinger was assigned the case and conducted the hearing.5

¶74.   Investigator Moore testified that the Cyber Crime Unit has software that will identify

when possible and known child-pornography media files are being shared. He testified that

this investigation began when the software alerted that child pornography had been

downloaded by a user with the IP address 68.222.69.53. A subpoena to AT&T determined

the physical location of this IP address was located in Rankin County.6


       5
         At a pre-trial hearing held on August 14, 2013, the trial court observed that the
defense counsel filed a motion to suppress the evidence obtained pursuant to the search
warrant on August 9, 2013. The trial court stated, “I’ve already heard the motion [to]
suppress the search warrant” on March 28, 2013. Defense counsel clarified that the March
28, 2013 hearing was only on the motion to dismiss the search warrant, and not the motion
to suppress the evidence. The trial court then ruled that the motion to suppress the evidence
was not timely filed, and thus “deemed waived and abandoned.” The trial court also
reviewed the transcript from the March 28, 2013 hearing and informed defense counsel, “It
appears that I ruled on that and denied the motion to dismiss and the motion to suppress
evidence.” Our review of the record also shows that during the March 28, 2013 hearing, the
trial court stated, “The next motion that I see in the file is a [m]otion to [d]ismiss and a
[m]otion to [s]uppress [e]vidence.”
       6
         At the pre-trial hearing, Investigator Houston testified about the search warrant
request. He explained that he was working an undercover investigation of computers that
advertised child sexual abuse images online, and he was able to identify an IP address that
had advertised several known child sexual abuse images. Investigator Houston testified that
he verified three of the images as child pornography. Investigator Houston then subpoenaed
AT&T to obtain the IP address that was assigned to Laptop 1 at the particular date and time
that the child pornography images were available for download. He said that the response

                                             24
¶75.   Based on this information, the Cyber Crime Unit contacted the Rankin County Circuit

Clerk’s office and asked if a judge was available to consider issuing a search warrant.

Investigator Moore testified that he was advised that the issuing judge was available.

Investigator Moore then appeared before the issuing judge. He presented the underlying

facts and circumstances and an affidavit to the issuing judge. He also requested a search

warrant for Donaldson’s residence. Investigator Moore testified that the search warrant only

named Michael Donaldson as a suspect. He further testified that John’s name was not

mentioned to or considered by the issuing judge. In fact, Investigator Moore testified that

he was not even aware of John’s existence or that Michael Donaldson had a brother.

¶76.   The issuing judge also testified. The issuing judge testified that he reviewed the

search warrant documents presented by Investigator Moore, and determined that probable

cause existed to issue the search warrant of Donaldson’s residence.            Based on this

information, the issuing judge signed the search warrant. The issuing judge also testified that

he did not know Michael Donaldson and stated that if he had “known anything about

Donaldson[,]” he “would not have entertained [the] warrant or . . . signed [it.]” The issuing

judge was asked if he knew John Donaldson, and he responded that he had recently learned

that a man he knew as “John” was related to Michael Donaldson. However, the issuing judge

said that, at the time the search warrant was issued, he “couldn’t have told you [John’s] last

name with a gun to [his] head.” The issuing judge explained that he “just knew him as

John.” The issuing judge further testified that he knew “John” as a person who had worked



identified an IP address that was assigned to Donaldson.

                                              25
as a prison trusty in the courthouse, he knew that John and John’s girlfriend had been in a

relationship, and he did not approve of the relationship.

¶77.   The issuing judge was also asked if he had ever visited the residence where John lived

with his girlfriend. The State objected on the grounds of relevance and argued, “I don’t see

how this relates to whether or not there was sufficient probable cause for the warrant and

whether [the] judge used his neutral and detached function as the magistrate to sign a

warrant.” Judge Emfinger sustained the objection.

¶78.   The issuing judge was then asked if he had ever met the woman at the residence where

John lived with his girlfriend. The State again objected as to relevance, and Judge Emfinger

held that the objection would be sustained unless defense counsel could explain to the court

“what the relevance would be to this search warrant.” Defense counsel explained that he was

trying to show that the issuing judge was not a neutral and detached magistrate because of

the relationship between John and his girlfriend, and his relationship with the woman.

¶79.   Judge Emfinger then considered the underlying facts and circumstances to support the

search warrant. He ruled that the facts and circumstances failed to identify John as being

involved in the child pornography investigation. He also determined that the search warrant

was signed in 2011, and the allegations about the issuing judge were from 2004 and 2005.

Thus, Judge Emfinger ultimately concluded that “[the issuing judge’s] relationship with [the

woman] or [John’s girlfriend], or even the knowledge of John . . . is [not] relevant where

none of that is shown on this search warrant.”

¶80.   Donaldson’s counsel then insisted that whether the issuing judge had been to John and



                                             26
John’s girlfriend’s residence was relevant because it would show that the issuing judge knew

John’s last name was Donaldson. Judge Emfinger allowed counsel to continue with his

questioning. The issuing judge was then asked if he had ever been to John and his

girlfriend’s residence and he answered, “Absolutely. And as soon as I saw that they were

co-habitating, I quit going there. I was very uncomfortable with that.” The issuing judge

was then asked his purpose in going there; the State objected, and Judge Emfinger sustained

the objection.

¶81.   John testified that, approximately two weeks before the search warrant was issued, he

had a telephone conversation with John’s girlfriend. They discussed the compromising

photographs of the issuing judge and the woman. John said that his girlfriend asked him if

he still had the photographs, and he told her that he did. John testified that when he told his

girlfriend that he had not destroyed the photographs like she thought he had, that she became

angry and “pretty much hung up on [him].”

¶82.   Additionally, John testified that during the execution of the search warrant, the Cyber

Crime Unit seized the computers that contained the photographs of the issuing judge and the

woman. John further testified that he lived with Michael when the search warrant was

executed, but he was not at the house during the search. According to John, most of his

computer equipment was taken during the search.

¶83.   After Donaldson’s counsel asked John about the relationship between the issuing

judge and the woman, the State objected on the grounds of relevance. Judge Emfinger

sustained the objection. Thereafter, Donaldson’s counsel asked to proffer what John’s



                                              27
testimony would be and Judge Emfinger refused to allow the proffer.

¶84.   During her testimony, John’s girlfriend denied calling John approximately two weeks

before November 3, 2011. She denied that she asked John to give her all of the photographs

that he had taken of the issuing judge and the woman. John’s girlfriend said that the

conversation about the pictures happened “months and months prior to that.” She also denied

that she threatened John that his probation would be revoked if he didn’t turn over the

photographs. However, John’s girlfriend admitted that she thought she had threatened John

with probation-revocation because he blackmailed her over the photographs. When asked

if the issuing judge and the woman ever visited her home, the State objected to the relevancy

of the question. Donaldson’s counsel explained that the question was for impeachment

purposes, but Judge Emfinger sustained the objection. John’s girlfriend did testify that

although she introduced John to the issuing judge, she did not believe that she had mentioned

John’s last name to him. To her knowledge, John’s girlfriend said that the issuing judge had

never met Michael Donaldson. At the conclusion of her testimony, defense counsel asked

for permission to proffer that if he had been able to “ask those questions that were sustained

as to relevance,” he would have been better able to show that the issuing judge was not

detached and neutral. Judge Emfinger ruled that he would let defense counsel make an

argument at the conclusion of the hearing, but he would not let defense counsel “proffer into

the record questions [he] didn’t ask.”

¶85.   Judge Emfinger denied the motion to dismiss the indictment or, in the alternative, to

suppress evidence. He found that Donaldson failed to present any evidence “to show that



                                             28
[the issuing judge] was anything less than a neutral and detached magistrate.” Further, he

ruled that “there was never any testimony or evidence presented that [the issuing judge] in

any way knew that [John] was in any way connected to [Michael Donaldson] or that [John]

had anything to do with [Michael Donaldson’s] residence . . . at the time of the issuance of

this search warrant.” Judge Emfinger also concluded that Donaldson had failed to present

evidence “that would indicate in any shape, form, or fashion that [the issuing judge] had any

way to connect . . . the probable cause in this warrant to the person he knew as John and . . .

any relationship, according to [John’s] testimony, existed in 2004 and 2005. This warrant

was issued in 2011.” Judge Emfinger additionally stated, “there’s been absolutely no proof

before this [c]ourt that [the woman] had had any conversations with [the issuing judge]

concerning those photographs or pictures.” Thus, Judge Emfinger found that the search

warrant “was properly issued.”

¶86.   In Cole v. State, 915 So. 2d 481, 483 (¶9) (Miss. Ct. App. 2005), this Court found no

error where an appellant claimed that the search warrant was not issued by a detached and

neutral magistrate. There, the judge who signed the search warrant acknowledged that Cole’s

current girlfriend was his ex-girlfriend, and the judge admitted that he had previously

contacted his ex-girlfriend to warn her that the appellant was a “drug kingpin.” Id. at (¶7).

This Court ruled that “[g]iven these circumstances, it certainly would have been preferred

that some other judge approve the search warrant.” Id. This Court acknowledged that a

suppression hearing on the issue of the search warrant was later held before a neutral and

detached magistrate, who “found that a sufficient evidentiary foundation existed to have



                                              29
justified issuance of the search warrant.” Id. at (¶8). This Court also “reviewed the affidavit

for a search warrant and the record of the suppression hearing” and determined “that there

was put forth sufficient information which would justify the issuance of a search warrant.”

Id. at (¶9). Thus, in Cole, this Court determined that there would be no constitutional

violation where ample probable cause exists. See also United States v. Heffington, 952 F.2d

275, 279-80 (9th Cir. 1991) (“[T]he trial court applied the harmless error analysis to

appellant's neutral and detached magistrate claim because from all the facts before the court

it was clear that any magistrate would have found probable cause for a warrant.”)

¶87.   “It is well-settled that an individual issuing a warrant must be a detached and neutral

magistrate.” Mitchell v. State, 931 So. 2d 639, 642 (¶7) (Miss. Ct. App. 2006) (first citing

Johnson v. United States, 333 U.S. 10, 14 (1948); then citing McCommon v. State, 467 So.

2d 940, 942 (Miss. 1985)). “On review of a challenge to the issuance of a search warrant,

this Court will affirm if there was a substantial basis for the conclusion that probable cause

existed.” Batiste v. State, 121 So. 3d 808, 859 (¶129) (Miss. 2013).

¶88.   Here, we find no evidence to establish that the issuing judge knew that John was

Michael Donaldson’s brother or that John lived with Michael. The search warrant only

mentioned the name of Michael Donaldson. Additionally, John’s girlfriend testified that

although she did talk to John about returning the pictures of the judge and the woman, the

conversation occurred “months and months” prior to the issuance of the search warrant.

Donaldson offered no evidence that John’s girlfriend had ever talked to the issuing judge

about the pictures.



                                              30
¶89.   Based on our review of the record, we find that there was a sufficient evidentiary basis

to justify the issuance of the search warrant. Therefore, we find no merit to this issue.

       9.     The judge assigned to the case should have recused.

¶90.   Next, Donaldson claims Judge Emfinger should have recused. Since this case was

originally assigned to him, Judge Emfinger presided on all pre-trial matters. A month before

the scheduled trial, Donaldson filed a motion to recuse Judge Emfinger. The motion asked

that the case be reassigned to Rankin County Senior Circuit Judge William Chapman. Eight

days before trial, Judge Chapman entered an order that reassigned the case as requested.

Judge Chapman presided over the trial.

¶91.   Despite being granted the requested relief, Donaldson argues that, because of Judge

Emfinger’s substantial involvement in the case, Judge Emfinger’s decisions should have been

reviewed anew by Judge Chapman. Hence, Donaldson says that he should have been given

another opportunity to present evidence and have Judge Chapman rule on the motion to

suppress. Donaldson also attacks the order granting the State’s motion in limine, which

prohibited Donaldson from introducing evidence regarding

       any testimony, asking any questions of witnesses or making any remarks at any
       point during this trial, in the presence of the jury, concerning any facts or
       evidence regarding the alleged friendship and relationship between [the issuing
       judge, the woman] or [John’s girlfriend]; any reference to alleged pictures of
       [the issuing judge, the woman] or [John’s girlfriend]; or any facts or evidence
       concerning the relationship between John Donaldson and [the woman].

¶92.   Donaldson claims Judge Emfinger should have recused himself prior to ruling on

these “critical motions” because his daughter was employed by in the Public Integrity

Division of the Attorney General’s office at the time of trial. According to Donaldson, the

                                             31
Cyber Crime Unit of the Public Integrity Division prosecuted the case.

¶93.   Donaldson further claims that Judge Emfinger should have recused himself prior to

ruling on his motions because Judge Emfinger worked in close proximity with the issuing

judge. Donaldson argued:

       The Rankin County Courthouse is a relatively small place, and it is
       commonplace for judges and other court personnel in the same courthouse to
       meet with one another, formally and informally, for many reasons. It is likely
       that those judges socialize with one another and court personnel at court or bar
       events, or privately. Logically, people who see each other regularly over time
       develop professional respect, appreciation and friendships for one another.

       Consequently, a reasonably well-informed person might harbor a reasonable
       doubt about a judge’s capacity for impartiality when it comes to judging the
       credibility of those with whom he has enjoyed such relationships. Where, as
       here, the case involves a fellow judge and court personnel as witnesses, and
       the judge is called upon to judge their credibility about possible misconduct,
       then a judge should recuse himself.

¶94.   Donaldson cites Canon (3)(E) of the Mississippi Code of Judicial Conduct, which

requires a judge to “disqualify [himself] in proceedings in which [his] impartiality might be

questioned by a reasonable person knowing all the circumstances” including, but not limited

to, where a “person within the third degree of relationship” of the judge is acting as a lawyer

in the proceeding or is “known by the judge to have an interest that could be substantially

affected by the outcome of the proceeding.”

¶95.   “[A] judge’s impartiality is presumed, and the presumption must be overcome by the

appellant in order for appellate courts to find manifest error.” West v. State, 131 So. 3d 583,

586-87 (¶10) (Miss. Ct. App. 2013). “Mere speculation is insufficient to raise reasonable

doubt as to the validity of the presumption that the trial judge was qualified and unbiased.”



                                              32
Jackson v. State, 962 So. 2d 649, 663 (¶31) (Miss. Ct. App. 2007).

¶96.   Canon 3 requires that we apply an objective standard of review to determine whether

a judge should have disqualified himself from hearing a case. West, 131 So. 3d at 586-87

(¶10). “A judge is required to disqualify himself if a reasonable person, knowing all the

circumstances, would harbor doubts about his impartiality.” Id. “The decision to recuse or

not to recuse is one left to the sound discretion of the trial judge, so long as he applies the

correct legal standards and is consistent in the application.” Id.

¶97.   On January 8, 2015, Donaldson filed the motion to recuse Judge Emfinger. He

claimed this was after he discovered that Judge Emfinger’s daughter was employed as a

Special Assistant Attorney General in the Public Integrity Division.7 Donaldson asked that

Judge Emfinger “either recuse himself from further participation in this action, or re[]assign

this action to . . . [Judge] Chapman.” By order dated January 12, 2015, Judge Chapman

reassigned the case to himself.

¶98.   During the trial, Donaldson asked Judge Chapman to revisit the order that granted the

motion in limine and prevented Donaldson from calling the issuing judge as a witness at trial.

Judge Chapman declined and ruled:

       I have reviewed and studied th[e] transcripts. And it seems to me that what
       was before Judge Emfinger was, as much of anything, a suppression hearing
       relative to the issuance of the warrant with the allegations that [the issuing
       judge] was not a neutral and detached magistrate. And Judge Emfinger
       considered all of that.



       7
       Donaldson additionally asserted that Judge Emfinger’s daughter also worked as a
summer intern for the Rankin County District Attorney’s office from May 2004 until August
2012.

                                              33
       ....

       I can say, based on what I have before me, I would have ruled exactly the way
       [Judge Emfinger] ruled. I think he was correct in that ruling in that it was
       reasonable for that warrant to be executed. And the evidence turned up during
       that search warrant doesn't give the [c]ourt any indication that anything
       improper had gone on.

¶99.   The State argues that this issue was waived. Donaldson knew, or reasonably should

have known, that Judge Emfinger and the issuing judge were colleagues when he filed his

motion to dismiss or, in the alternative, suppress evidence. Rule 1.15 of the Uniform Rules

of Circuit and County Court provides:

       A motion seeking recusal . . . shall, in the first instance, be filed with the judge
       who is the subject of the motion within 30 days following notification to the
       parties of the name of the judge assigned to the case; or, if it is based upon
       facts which could not reasonably have been known to the filing party within
       such time, it shall be filed within 30 days after the filing party could reasonably
       discover the facts underlying the grounds asserted.

The motion to recuse was filed two years after the motion to dismiss. We agree; Donaldson’s

motion for recusal of Judge Emfinger was not timely filed and was waived.

¶100. Notwithstanding the waiver, Donaldson “has not pointed to any specific rulings which

indicate that [Judge Emfinger] was biased or unqualified” to rule on his motions. Jackson

v. State, 1 So. 3d 921, 927 (¶18) (Miss. Ct. App. 2008). We find no merit to this issue.

       10.    The judge who reassigned the case to himself should have also recused.

¶101. Donaldson also claims that Judge Chapman should have recused. On April 25, 2016,

Donaldson filed a motion to recuse Judge Chapman. This motion was filed more than one

year after his post-trial motions but prior to a ruling on the motions. Donaldson claimed that

“[b]ecause the allegations contained herein cast doubt on the integrity of persons who have

                                               34
past and present associations with courthouse personnel, [Judge Chapman] should recuse

[him]self from any further proceedings and request the [s]upreme [c]ourt to appoint a special

judge[.]” Judge Chapman denied the motion by order dated July 22, 2016.

¶102. Rule 1.15 of the Uniform Circuit and County Court Rules clearly requires a motion

to recuse be filed within thirty days. Here, Donaldson filed this motion for recusal well

outside of the thirty-day requirement.

¶103. Donaldson does not appeal the denial of the motion for recusal. Instead, Donaldson

claims that Judge Chapman should have “voluntarily recused himself from this case prior to

trial and prior to hearing the post-trial motions.” Since Judge Chapman, like Judge Emfinger,

was a colleague of the issuing judge, the woman, and John’s girlfriend, Donaldson claims

that Judge Chapman should have voluntarily recused himself to avoid the appearance of

impropriety. Since this argument was previously made regarding Judge Emfinger, there is

no question that Donaldson could have made this assertion in a timely manner after Judge

Chapman reassigned the case to himself.

¶104. We conclude that Donaldson’s motion for recusal of Judge Chapman was not timely

filed and was waived. Notwithstanding the waiver, we also find that Donaldson “has not

pointed to any specific rulings which indicate that [Judge Chapman] was biased or

unqualified” to rule on his motions. Jackson, 1 So. 3d at 927 (¶18). We find no merit to this

issue.

         11.   The court committed reversible error by improperly precluding
               Donaldson from presenting a defense.

¶105. Donaldson next argues the circuit court improperly precluded him from presenting a

                                             35
defense in various ways. “A criminal defendant is entitled to present his defense to the finder

of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the

defendant’s defense where there is testimony to support the theory.” Clark v. State, 40 So.

3d 531, 542 (¶30) (Miss. 2010). However, “all evidence admitted in support of the

defendant’s theory of the case must comport with the Mississippi Rules of Evidence.” Id.

“The relevancy and admissibility of evidence are largely within the discretion of the trial

court[.]” Id. at 543 (¶30). We separately address each claim.

              A.     Testimony Regarding Conspiracy Theory

¶106. Donaldson first claims the court erred in granting the State’s motion in limine

regarding his conspiracy theory. He contends the court “precluded him from presenting

evidence regarding the relationship between [the issuing judge], [John’s girlfriend], [the

woman], and [John] Donaldson, and any reference to the pictures possessed by [John].”

Donaldson asserts that “[w]ithout proof of his conspiracy theory, [he] was left without a

defense and was unable to effectively cross-examine the witnesses and demonstrate their

untruthfulness.” He further asserts that “[s]uch evidence might have created a reasonable

doubt about whether [he] knowingly and intentionally possessed the images.”

¶107. We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Evans v. State, 25 So. 3d 1054, 1057 (¶6) (Miss. 2010). “[A] motion in limine

should be granted only if: (1) the material or evidence in question will be inadmissible at a

trial under the rules of evidence; and (2) the mere offer, reference, or statements made during

trial concerning the material will tend to prejudice the jury.” Id. “Before granting a motion



                                              36
in limine, courts must be certain that such action will not unduly restrict opposing party’s

presentation of its case.” Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988).

¶108. During the hearing on the motion in limine, the court asked Donaldson’s counsel how

the issuing judge’s testimony was relevant to the charges. Defense counsel responded,

“Motive. Motive . . . to do my client harm when he’s done nothing.” Defense counsel

further stated that the issuing judge’s testimony was relevant to prove that: (1) the issuing

judge knew John, (2) the issuing judge had an inappropriate relationship with the woman,

and (3) the motive for the child pornography investigation was to retrieve the incriminating

pictures. Defense counsel advised that John would testify that “when [he] refused to give

[John’s girlfriend] those pictures, just two weeks before [Donaldson] was arrested, that there

was a conspiracy then set up to get with the Cyber Crime Unit, the investigators there, and

to obtain a search warrant to get those pictures under the guise of him having child

pornography.”

¶109. However, the State offered testimony that the child pornography investigation was

initiated solely by the Cyber Crime Unit and that no one in the Unit had talked to any law

enforcement officers or judges, or to the district attorney’s office in Rankin County, about

the investigation before the November 4, 2011 search warrant was obtained and executed.

¶110. The trial court granted the motion in limine and determined that such evidence had

no relevance to Donaldson’s investigation for possession of child pornography. We find no

abuse of discretion in the trial court’s decision to grant the State’s motion in limine.

Accordingly, we find no merit to this issue.



                                               37
              B.     Cross-examination Regarding Time Stamps

¶111. Donaldson next argues the trial court limited his cross-examination regarding the time

stamps. Donaldson asserts he “attempted to show that the State had misinterpreted the times”

and that “the files were actually accessed at approximately 11:00 a.m. local time when the

State had sole custody of the hard drive rather than 6:00 a.m. when, according to the State’s

theory, [he] had sole access.”

¶112. We review a trial court’s limitations on cross-examination for abuse of discretion.

Anthony v. State, 108 So. 3d 394, 397 (¶5) (Miss. 2013). “We will affirm the trial court’s

exercise of discretion unless the ruling resulted in prejudice to the accused.” Id.

¶113. During Investigator Turnage’s cross-examination, Donaldson attempted to show

Investigator Turnage his laptop and XWave software to prove that Investigator Turnage was

misinterpreting the time stamps. The State objected, and the trial court sustained the

objection, informing Donaldson: “[t]hat would be you testifying, and you’ve already

testified.” Donaldson’s counsel explained, “[n]o, your Honor, he wants to . . . show him an

example.” The court asked Investigator Turnage if he was confused by Donaldson’s line of

questioning, and Investigator Turnage responded that he was not. The court then stated:

“[h]e doesn’t need to be shown anything.” Thereafter, Investigator Turnage testified that the

time stamps referred to universal time and not local time.

¶114. Importantly, the record reflects that despite not being allowed to show Investigator

Turnage an example from his laptop and XWave software, Donaldson was still able to cross-

examine Investigator Turnage regarding the date that the IP address of Laptop 1 was assigned



                                             38
to Donaldson. We find no abuse of discretion or reversible error.

              C.     Exclusion of Documents

¶115. Donaldson next argues that the trial court erroneously excluded documents from the

National Institute of Standards and Technology Information Technology Laboratory and the

U.S. Department of Justice’s websites, along with approximately forty document files.

Donaldson claims these documents would have cast doubt on Investigators Houston’s and

Turnage’s testimonies that no two files have the same “hash value.”

¶116. On cross-examination, Investigator Houston was asked if he was “familiar with th[e]

document released by the National Institute on Standards of Technology.” The State

objected to the admission of this document based on authentication. Donaldson argued that

because there was a government seal on the document, the document was self-authenticating.

However, the trial court sustained the objection and explained: “There’s a difference between

a self-authenticating document that has some sort of certification credentials. This has none.

It’s paper printed off the internet.” Donaldson then asked Investigator Houston if he could

identify the document, to which Investigator Houston responded that he could not.

¶117. Despite the exclusion of the document, Donaldson was allowed to show Investigator

Houston a demonstration that he had prepared about “hash values.” Donaldson cross-

examined Investigator Houston about the demonstration:

       Q.     Do those two different files have the same hash value?

              ....

       A.     Yeah. . . . Yes, those are the same hash values.



                                             39
       Q.     From two different files?

       A.     Yes, sir. Those are two different files with different file extensions.

              ....

       Q.     Is that the first time you’ve witnessed two files having the same – two
              different files having the same hash value?

       A.     Yes, sir.

¶118. Additionally, during Investigator Turnage’s cross-examination, Donaldson attempted

to introduce a document from the U.S. Department of Justice’s website. The State objected

on the grounds of “lack of foundation, authentication, hearsay, and relevance.” The trial

court sustained the objection, and explained that the document “does not have the indicia of

trustworthiness in the sense of there’s just no certification[.]” However, Donaldson

questioned Investigator Turnage regarding the contents of the document:

       Q:     And did the hashes always match in this case related to [Laptop 1]?

       A:     Yes.

       Q:     They did? Have you read the article from the Department of Justice
              where the last six sectors or eight sectors of a disc are not imaged using
              FTK?

       A:     I’ve heard . . . that argument brought up before, but it’s not anything
              that IACIS had told us or put out that it shouldn’t be used. And the FBI
              cart lab still uses the FTK software imager, the same FTK software that
              I use to do the examination nationwide. So if there’s a problem with
              FTK, when I see hash values not match, then I’m not going to use FTK
              anymore, or when the FBI says that they’re through with it, because
              there’s a problem with it, then I’m going to be through with it.

¶119. Thus, the record indicates that, despite the exclusion of the documents from the

National Institute of Standards and Technology Information Technology Laboratory and the

                                             40
U.S. Department of Justice’s websites, Donaldson was still able to cross-examine the State’s

expert witnesses about the contents of the documents and present his theory of defense.

Indeed, the record reflects that Donaldson questioned the investigators regarding the

documents and was not deprived of a meaningful opportunity to present his defense.

¶120. Donaldson also claims the circuit court erroneously excluded “an additional 40 files

demonstrating that the images were different although the hash values were the same.”

However, Mississippi Rule of Evidence 403 allows the circuit court to “exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . needlessly

presenting cumulative evidence.” Because the documents were cumulative to the files

Donaldson had already presented, we do not find the trial court abused its discretion in

excluding the documents. Thus, we find no reversible error or merit to this issue.

       12.    The court erred in not severing the counts.

¶121. Donaldson further argues that the trial court erred in denying his motion to sever the

two counts of the indictment. Donaldson asserts the two indicted offenses were not part of

the same scheme or plan and were not interwoven.

¶122. We employ an abuse-of-discretion standard when reviewing a trial court’s denial of

a motion to sever a multi-count indictment. Singleton v. State, 151 So. 3d 1046, 1049-50

(¶14) (Miss. Ct. App. 2014). When the defendant files a motion to sever the counts in an

indictment, “the State bears the burden of making out a prima facie case showing the

offenses charged are within the language of the statute.” Id. at (¶15). If the State meets this

burden, “the defendant may thereafter rebut the State’s case by showing the offenses were



                                              41
separate and distinct acts or transactions.” Id. “[T]he trial court must conduct a hearing to

determine whether or not to sever the counts.” Id. at (¶16). “[T]his Court gives deference

to the trial court’s findings, unless an abuse of discretion occurred.” Id.

¶123. Pursuant to Mississippi Code Annotated section 99-7-2(1) (Rev. 2015):

       Two (2) or more offenses which are triable in the same court may be charged
       in the same indictment with a separate count for each offense if: (a) the
       offenses are based on the same act or transaction; or (b) the offenses are based
       on two (2) or more acts or transactions connected together or constituting parts
       of a common scheme or plan.

In Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), the supreme court ruled there were

three issues to consider: (1) whether the time period between the occurrences is insignificant;

(2) whether the evidence proving each count would be admissible to prove each of the other

counts; (3) and whether the crimes are interwoven. The court reasoned that:

       We recognize that if the trial court finds that the offenses stem from separate
       and distinct acts or transactions, in some cases the State still may be allowed
       to introduce evidence of the other offense(s) under Rule 404(b)[.] Whether the
       evidence would be admissible under this rule has no bearing on whether the
       trial court should allow a multi-count indictment.

Corley, 584 So. 2d at 772 n.1.

¶124. At the motion hearing, Donaldson claimed that the indicted offenses were two

separate crimes because the offenses were not committed on the same day. He maintained

that the crimes were not interwoven, and argued that “[t]he only similarity of the charged

crimes [is] that they are both sex crimes.”

¶125. However, the State argued that the time period between the charges was insignificant

and explained that the possession of child pornography charge was from November 4, 2011,



                                              42
and the video was created on October 28, 2011. The State further argued that the evidence

to prove each count would be admissible to prove the other count. The State maintained that

although the video is a recording where an expectation of privacy existed, it also constituted

child pornography. The State explained that it would attempt to introduce the video of MB

to show ownership and knowledge for Donaldson’s possession of child pornography charge.

Since the computer containing child pornography and the video of MB was found in

Donaldson’s bathroom, the same location where he filmed MB, the State argued that the

crimes were interwoven.

¶126. The trial court denied the motion and ruled:

       I find that the amount of time, whether it was October or close or further away
       from that, I don’t think that is as significant as the fact that the proof would be
       admissible on both counts and that even in separate trials[,] . . . the evidence
       would be admissible as to [Donaldson] in each trial, both as evidence, as the
       State has indicated of each of the counts, but further to show the items coming
       off the same computer with the video showing [Donaldson] in the video would
       tend to show the ownership, knowledge and identity of the person responsible
       for possessing the other items that were contained on the computer that were
       similar in nature. So I believe that under the law this is a proper multi-count
       indictment[.]

¶127. We find no abuse of discretion. The trial court properly considered the Corley factors

before denying Donaldson’s motion to sever. We find no merit to this issue.

       13.    Prosecutorial misconduct occurred during closing arguments.

¶128. Donaldson last argues that he was deprived of a fair trial because of the prosecutor’s

improper and inflammatory comments during closing arguments.                 When we review

allegations of prosecutorial misconduct during closing arguments, we must determine

“whether the natural and probable effect of the improper argument is to create unjust

                                               43
prejudice against the accused so as to result in a decision influenced by the prejudice so

created.” Fortenberry v. State, 191 So. 3d 1245, 1251 (¶18) (Miss. Ct. App. 2015). “[A]ny

allegedly improper prosecutorial comment must be considered in context, considering the

circumstances of the case[.]” Id. We recognize that “[c]ounsel is allowed considerable

latitude in the argument of cases.” Id. The prosecutor “is not limited to the facts introduced

into evidence,” and “he may argue the deductions and conclusions that may reasonably be

drawn therefrom.” Id.

¶129. Donaldson claims the prosecutor improperly commented on what Donaldson allegedly

said when the search warrant was executed. The prosecutor said:

       And I submit to you the first word out of his mouth [when questioned at his
       house at the time of the search], or one of them when he was asking questions
       was, how did ya’ll open my encrypted files? How did y’all get into those
       encrypted files?

After this comment, defense counsel approached the bench and argued, “[t]hat’s not in the

record.” The court then instructed the jury, “Ladies and gentlemen, the jury’s recollection

of the evidence will control.” Donaldson did not request any additional curative instruction.

In addition, prior to closing arguments, the court instructed the jury as follows: “The

[closing] arguments, statements and remarks of counsel . . . are not evidence . . . . [The

attorneys], as you, will be recalling the evidence that has been presented. . . . [I]f their

recollection of the evidence differs from what your recollection is, you must follow your own

recollection. If any argument, statement or remark has no basis in the evidence, then you

should disregard the argument, statement, or remark.”

¶130. “The jury is presumed to have followed the directions of the trial judge.” Catchings

                                             44
v. State, 39 So. 3d 943, 949 (¶22) (Miss. Ct. App. 2009). “[W]hen a jury is properly

instructed that statements made by counsel are not evidence, reversal is not required.”

Randall v. State, 806 So. 2d 185, 213 (¶72) (Miss. 2001) (quoting Burns v. State, 729 So. 2d

203, 229 (Miss. 1998)). The jury instructions, along with the court’s reminder that “the

jury’s recollection of the evidence will control,” were sufficient to cure any error in the

prosecutor’s remark.

¶131. Although Donaldson takes issue with additional statements made by the prosecutor,

he failed to object to those statements. Indeed, the record reveals no further objections

during the State’s closing argument. While “the failure to object contemporaneously

generally waives a claim of prosecutorial misconduct during closing argument, we will

review such a claim if the prosecutor’s statement was so inflammatory that the trial judge

should have objected on his own motion.” O’Connor v. State, 120 So. 3d 390, 399 (¶26)

(Miss. 2013). We do not find the prosecutor’s additional statements rise to this level.

¶132. Donaldson claims there was no evidentiary support for this statement:

       Y’all heard testimony not just from the defendant, y’all heard from
       Investigator Turnage, . . . . Well, you know, I couldn’t image some of those
       devices, because they’re encrypted and you didn’t give me the encryption key.
       Maybe that’s why we didn’t find all the undercover videos, because they’re
       sitting right there.

However, the record indicates Investigator Turnage testified that there were encrypted files

on Donaldson’s computers that could not be accessed or imaged. Thus, Donaldson’s claim

fails as there was evidence to support the prosecutor’s comment.

¶133. Donaldson next claims that the prosecutor “expressed his opinions of Donaldson’s



                                            45
guilt and placed the prestige of his office behind that opinion” when it was said, “If there’s

any doubt as to what he knew was on his computer, I guarantee you, I assure you he did.”

“Except to the extent the prosecutor bases any opinion on the evidence in the case, he may

not express his personal opinion on the merits of the case or the credibility of witnesses.”

Stokes v. State, 141 So. 3d 421, 427 (¶24) (Miss. Ct. App. 2013). Yet, this comment was

based on the evidence, as the testimony showed that several child pornography files were

accessed during a time when Donaldson was the only person known to be inside the house.

¶134. Donaldson further claims the prosecutor “misstated the evidence about whether it had

proved that the video of MB had been recorded within the statute of limitations.”

Specifically, the prosecutor stated:

       [Y]ou heard on October 28th, 2011, from Investigator Joey Turnage, our
       forensic computer examiner. He said that’s when it’s made; that’s the creation
       date. You know, they try to do all the smoke and mirrors about, oh, well, it’s
       made before here, or it couldn’t have been made then. I submit to y’all digital
       evidence doesn’t lie. It is what it is. [The video of MB] was made on October
       28th, 2011.

Donaldson claims the creation date is not the date on which a video was recorded; rather, it

is the date that the video is placed on the computer. However, Investigator Turnage testified

at trial that based on his forensic examination of Laptop 1, the video of MB was filmed on

October 28, 2011.

¶135. Donaldson last claims the prosecutor “improperly vouched for the integrity of the

prosecution” when he said, “I’ll submit to you we don’t bring charges against people that

have even questionable material. These are young kids, actual children.” However,

Donaldson fails to include the prosecutor’s full statement. The prosecutor said:

                                             46
      [I]t’s for y’all’s determination to decide if these images and videos are child
      pornography and/or children. The judge told you to use your common sense.
      Y’all go back there and look at those pictures, and tell me if y’all don’t think
      those are children. There’s not even a doubt. No, these aren’t teenagers.
      Okay? . . . I’ll submit to you we don’t bring charges against people that have
      even questionable material. These are young kids, actual children.

Considering the comment in context and the circumstances of the case, we do not find the

prosecutor’s statement was prejudicial. There was evidence presented that the images

contained on Donaldson’s computer were in fact images of children.

¶136. “The purpose of a closing argument is to fairly sum up the evidence.” Galloway, 122

So. 3d at 643 (¶72). “The prosecutor may comment upon any facts introduced into evidence,

and he may draw whatever deductions and inferences that seem proper to him from the

facts.” Id. We find no merit to Donaldson’s claims of prosecutorial misconduct.

¶137. AFFIRMED.

     CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.
IRVING, P.J., BARNES AND WESTBROOKS, JJ., CONCUR IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.




                                            47
