                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2004-KA-00070-SCT
                                       consolidated with
                                    NO. 2004-KA-00375-SCT


SCOTT ANTHONY FOLEY

v.

STATE OF MISSISSIPPI


DATES OF JUDGMENTS:                          12/17/2003 & 02/06/2004
TRIAL JUDGE:                                 HON. GEORGE B. READY
COURT FROM WHICH APPEALED:                   DeSOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     BENJAMIN LOUIS TAYLOR
                                             JACK R. JONES, III
ATTORNEYS FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                             BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                           JOHN W. CHAMPION
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 09/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Scott Anthony Foley was indicted in the Circuit Court of DeSoto County for: (1)

felonious sexual intercourse with a child under the age of 14 and 24 months younger than

Foley (rape); (2) felonious sexual penetration with a child less than 18 (sexual battery); and (3)

possession of materials depicting children under the age of 18 engaging in sexually explicit

conduct (child exploitation).   The first two counts pertained to Foley’s conduct with a female
child, K.F. The third count pertained to other children who remained unidentified. A trial was

held concerning the first two counts while a separate trial adjudicated the third.    The appeals

from both trials have been consolidated and all three counts are considered below.

                                               FACTS

¶2.    Scott Foley and Deborah Foley Houck were previously married and adopted Deborah’s

niece, K.F., during their marriage. After divorcing, Deborah retained physical custody of K.F.

while Scott was allowed some visitation. Soon after a weekend visit with Foley, K.F., who was

five years old at the time, told a therapist named Dr. Ruth Cash (sometimes referred to as Outz

in the record) that Foley showed her pornographic images on his computer. K.F. also made

comments to Cash indicating that Foley was undressing in front of K.F, placing a vibrator “in

her,” forcing her to “touch him,” and forcing her to perform oral sex on him.        A subsequent

physical exam was conducted by Ninah Sublette, a sexual assault examiner, that revealed

substantial injuries to K.F.’s vagina and anus consistent with some sort of blunt, penetrating

trauma. K.F. also made remarks to Sublette indicating that Foley had performed oral sex on

K.F., forced K.F. to touch him inappropriately, and inserted a vibrator into parts of K.F.’s body.




¶3.    Scarlett Barnes, a social worker who talked with K.F. in a counseling session, also

witnessed K.F. drawing pictures of what appeared to be penises and using explicit language to

refer to the subject of those drawings when questioned.          K.F. also drew pictures of sexual

intercourse and mentioned the pictures were similar to events occurring at Foley’s home the

previous weekend. Josh Zacherias, a detective from the DeSoto County Sheriff’s Department,

was informed of the allegations of sexual abuse of K.F. by the Department of Human Services


                                                  2
and obtained a search warrant to search Foley’s home. Vibrators matching descriptions given

by K.F. were found in locations where K.F. indicated they were kept. Stacks of compact discs

containing pornographic images of children were also found in Foley’s home and seized.

Foley’s home computer was also seized and later turned over the Federal Bureau of

Investigation. Foley was arrested and charged with capital rape, sexual battery, and possession

of child pornography.      Foley was tried and found guilty of all counts in separate trials.    On

Counts I and II, the circuit court sentenced Foley to life imprisonment for the crime of capital

rape and thirty years for the crime of sexual battery.          On Count III, Foley was sentenced to

twenty years for possession of child pornography.

                                              DISCUSSION

¶4.     The two separate appeals are consolidated into one opinion because of common issues

of law and facts and for judicial economy. We will begin our discussion with issues common

to both trials and then consider issues specific to one of Foley’s two trials.

                                           Standard of Review

¶5.     Many issues presented by Foley concern evidentiary rulings of the circuit court and will

be examined under an abuse of discretion standard. Broadhead v. Bonita Lakes Mall, Ltd.

P’ship, 702 So. 2d 92, 102 (Miss. 1997) (citing Sumrall v. Miss. Power Co., 693 So. 2d 359,

365 (Miss. 1997)).        Issues requiring a different standard of review are noted below and

analyzed accordingly.

                              ISSUES COMMON TO BOTH TRIALS

        I.      WHETHER THE CIRCUIT COURT ERRED IN ADMITTING
                STATEMENTS MADE BY A CHILD TO MEDICAL PERSONNEL
                INTO EVIDENCE.

                                                     3
¶6.     Foley contends that in both cases the trial court erred by allowing statements of K.F.

to be brought before the jury through the testimony of medical professionals who examined

or interviewed K.F. The State called a number of medical professionals and counselors as part

of its case-in-chief.   One of those witnesses, Dr. Cash, was to testify as to statements made

to her by K.F. Recognizing that such statements would be hearsay, the circuit court judge first

determined that the statements of K.F. to Dr. Cash would be admissible under Mississippi Rule

of Evidence 803(4) as a statement made for the purposes of medical treatment, and thus an

exception to the hearsay rule of exclusion.1


        1
            The comment to Mississippi Rule of Evidence 803(4) reads:

        (4)       Statements for Purposes of Medical Diagnosis or Treatment. Rule 803(4)
        represents a deviation from previous Mississippi practice in three significant
        ways. First, Rule 803(4) permits statements of past symptoms as well as
        present symptoms. Second, the rule allows for statements which relate to the
        source or cause of the medical problem whereas Mississippi courts formerly
        disallowed such statements. See Field v. State, 57 Miss. 474 (1879), and
        Mississippi Cent. R.R. Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909), for
        pre-rule Mississippi law.          While statements about cause are permissible,
        statements concerning fault are still subject to being excluded. Third, the
        statements may be made either to a physician or to diagnostic medical
        personnel.      Mississippi's pre-rule practice distinguished between narrative
        statements made to a treating physician and those made to an examining
        physician who was retained for use as an expert witness in the litigation.
        Statements made to the former were generally admissible, whereas no
        statements made to the latter were admissible. See Mississippi Cent. R.R.
        Co. v. Turnage, 95 Miss. 854, 49 So. 840 (1909). Rule 803(4) eliminates that
        distinction and permits statements made both for treating and diagnostic
        purposes. Under Rule 803(4) the statement need not be made to a physician.
        This is consistent with traditional Mississippi practice.

                  The amendment to Rule 803(4) is a recognition that medical diagnosis

                                                   4
¶7.    K.F.’s statements made to Dr. Cash in the course of therapy fall easily into the

exception outlined above. In addition to the exception under M.R.E. 803(4), the circuit court

judge interviewed K.F. and found her to be unavailable as a witness due to her young age and

because of developmental characteristics that would make questioning of her impractical, if

not impossible.   K.F.’s age, court-determined unavailability, and the nature of the allegations

in the case put K.F.’s statements squarely within the tender years exception to hearsay as

provided by Mississippi Rule of Evidence 803(25).2

¶8.    As stated above, though, M.R.E. 803(25) requires a three-pronged test be met before

a child’s testimony may admissible in evidence under the tender years exception. First, it must

be shown that a child of tender years has described some sexual contact with or on the child

by another; second, the court must find that a number of factors show that the statements



       and treatment may encompass mental and emotional conditions as well as
       physical conditions.    Moreover, the rule, by requiring the judge to find
       trustworthiness, gives the trial judge greater discretion than the original rule.
       By permitting the recipient to be non-medical personnel, M.R.E. 803(4)
       modifies case law interpretations of the former language of this exception and
       now conforms with prevailing interpretations of F.R.E. 803(4). See F.R.E.
       803(4), Advisory Committee Notes.
       2
        M.R.E. 803(25) provides as follows:

       Tender Years Exception. A statement made by a child of tender years describing
       any act of sexual contact performed with or on the child by another is admissible
       in evidence if: (a) the court finds, in a hearing conducted outside the presence
       of the jury, that the time, content, and circumstances of the statement provide
       substantial indicia of reliability; and (b) the child either (1) testifies at the
       proceedings; or (2) is unavailable as a witness: provided, that when the child is
       unavailable as a witness, such statement may be admitted only if there is
       corroborative evidence of the act.

                                                 5
contain substantial indicia of reliability; and finally, either the child must testify at the

proceedings or be unavailable. Before a child may be rendered unavailable, however, M.R.E.

803(25) requires that there be corroborative evidence of the act before the statement(s) be

admitted. The first criterion is easily met inasmuch as K.F. was five to six years old at the time

of her allegations of sexual abuse. As to the prong concerning substantial indicia of reliability,

the comments to M.R.E. 803(25) give a number of factors to be considered when determining

whether a child’s allegations of sexual abuse meet the reliability standard.3

¶9.     In the present case, the circuit court judge interviewed K.F. personally and examined

the context of the statements she made.            We find that K.F.’s statements had the requisite

substantial indicia of reliability and the circuit judge’s decision to apply the tender years

exception to K.F.’s testimony was not in error.           K.F.’s comments, spontaneously made to a

number of professionals trained to detect abuse and its effects, showed an overwhelming sense

of adult knowledge of sexual topics of which children in their earliest years should have no

knowledge. Additionally, the statements were made without the presence of adults who might


        3
         The comment to M.R.E. 803(25) states as follows:

        (1) whether there is an apparent motive on declarant's part to lie; (2) the general
        character of the declarant; (3) whether more than one person heard the
        statements; (4) whether the statements were made spontaneously; (5) the timing
        of the declarations; (6) the relationship between the declarant and the witness;
        (7) the possibility of the declarant's faulty recollection is remote; (8) certainty
        that the statements were made; (9) the credibility of the person testifying about
        the statements; (10) the age or maturity of the declarant; (11) whether
        suggestive techniques were used in eliciting the statement; and (12) whether the
        declarant's age, knowledge, and experience make it unlikely that the declarant
        fabricated.

                                                     6
have coached her and, based on expert testimony, were voluntarily given and not elicited by

certain questions. The defense objected to the reliability of K.F.’s statements by pointing out

the possibility that K.F.’s allegations were related to a custody battle, that there were

allegations of abuse by people other than Foley, and that K.F. exhibited signs of immaturity.

The circuit court judge, though, was in the best position to make that determination, and there

is no evidence that the circuit judge faltered in finding K.F.’s statements contained the required

substantial indicia of reliability.

¶10.       The hearsay exception under M.R.E. 803(25) requires that a child either testify or, if

unavailable, the child’s statements are corroborated with evidence of the act alleged.         The

circuit judge determined that due to age and developmental issues, K.F. was unavailable to

testify.     Foley argues that this also made her statements unreliable, but M.R.E. 803(25)

expressly contradicts this argument by allowing an unavailable child’s testimony to be

admissible so long as it passes the safeguards to protect against untrustworthy testimony.

There is no doubt that the overwhelming physical evidence of abuse to K.F.’s person

corroborated the statements by K.F. alleging sexual abuse.       Thus, K.F’s statements met all the

criteria to find admission under the tender years exception and the medical statement

exception to hearsay.           Foley incorrectly avers that the circuit court restricted his Sixth

Amendment rights to cross-examine K.F. by allowing the testimony of medical professionals

to bring in K.F.’s comments. Foley’s argument ignores the fact that such allowances make up

the basic nature of hearsay exceptions based on the unavailability of the declarant.        Foley’s

arguments to the contrary are without merit.

                                                    7
¶11.   Foley asserts an additional argument on this issue in the appeal of his second trial.

Foley asks us to find that allowing such testimony violated his Sixth Amendment right to

confront adverse witnesses as discussed by the United States Supreme Court’s decision in

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The

United States Supreme Court’s decision in Crawford held that out-of-court statements by

witnesses that are testimonial in nature are not allowed under the Confrontation Clause unless

the witness is unavailable and the defendant had a prior opportunity to cross-examine the

witness.   Id.   Foley argues that admitting the testimony of medical personnel and counselors

concerning K.F.’s statements violates Crawford because he had no chance to cross-examine

K.F. Under Crawford, Foley must show that K.F.’s statements were “testimonial” in order for

them to violate the Confrontation Clause. Id. at 50-53. The Supreme Court stated that, at a

minimum, statements of a testimonial nature include “prior testimony at a preliminary hearing,

before a grand jury, or at a former trial” and police interrogations.         Id. at 68.   The Court

declined to further elaborate on its definition.       Id.   Statements made by K.F. do not fall into

any of those categories, and Foley failed to argue or show that the therapists or medical

professionals who testified concerning statements made by K.F. had contacted the police or

were being used by the police as a means to interrogate K.F. or investigate her claims.          See,

e.g. State v. Snowden, 385 Md. 64, 867 A.2d 314, 326 (Md. 2005). K.F.’s statements were

made as a part of neutral medical evaluations and thus do not meet Crawford’s “testimonial”

criterion. Thus, Foley’s Crawford argument is without merit.



                                                   8
        II.       WHETHER IT WAS ERROR TO DENY FOLEY’S MOTION TO
                  SUPPRESS EVIDENCE SEIZED PURSUANT TO A SEARCH
                  WARRANT.

¶12.    Foley argues that the circuit court in both cases erred in not granting his pretrial motion

to suppress evidence obtained by a search warrant. Specifically, Foley argues that the warrant

was not supported by probable cause and that the supporting affidavit and facts relied on

hearsay.      When reviewing a finding of probable cause to issue a warrant “this Court does not

make a de novo determination of probable cause, but only determines if there was a substantial

basis for the magistrate’s determination of probable cause.” Smith v. State, 504 So. 2d 1194,

1196 (Miss. 1987).       Federal and state common law favor a totality of the circumstances test

when deciding if probable cause is present:

        The United States Supreme Court has established a “totality of the
        circumstances” standard for determining the existence of probable cause: The
        task of the issuing magistrate is simply to make a practical, common-sense
        decision based on all the circumstances set forth in the affidavit before him,
        including the “veracity” and “basis of knowledge” of persons supplying hearsay
        information. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 2332, 76 L. Ed.
        2d 527 (1983). We adopted the Gates “totality of the circumstances” test in
        Lee v. State, 435 So. 2d 674, 676 (Miss. 1983).

State v. Woods, 866 So. 2d 422, 425-26 (Miss. 2003).

¶13.    Probable cause has also been defined as “more than a bare suspicion but less than

evidence that would justify condemnation.”      Id. (citing Wagner v. State, 624 So. 2d 60, 66

(Miss. 1993)). Looking at the totality of the circumstances, K.F. specifically stated that Foley

showed her pictures of nude people on his computer screen doing things she described as

“gross.” She used language to describe acts performed on her and by her in relation to Foley


                                                 9
in such sexually explicit terms that veracity could easily be inferred.       Additionally, police were

alerted to the fact that K.F.’s body showed evidence of recent sexual assault, and that she had

been in the presence of Foley within the last seventy-two hours.            When considering all of the

circumstances present at the time of the warrant’s issue, the circuit court judge did not err in

either trial in his finding that probable cause did exist in refusing to suppress evidence

recovered as a result of the warrant at issue.

        III.     WHETHER THE CIRCUIT COURT ERRED                                IN   DENYING
                 FOLEY’S PROPOSED JURY INSTRUCTIONS.

¶14.    Foley claims the circuit court erred in refusing his proposed instructions, D-3 and D-4.

When examining a trial court’s determination as to appropriate jury instructions, parties are

only entitled to fair instructions giving adequate recitation of the law:

        [W]hile a party is entitled to have jury instructions submitted that represent his
        or her theory of the case, an instruction that "incorrectly states the law, is
        covered fairly elsewhere in the instructions, or is without foundation in the
        evidence" need not be submitted to the jury. Humphrey v. State, 759 So. 2d
        368, 380 (Miss. 2000). This Court will not find reversible error where the
        instructions actually given, when read together as a whole, "fairly announce the
        law of the case and create no injustice." Coleman v. State, 697 So. 2d 777, 782
        (Miss. 1997) (citing Collins v. State, 691 So. 2d 918, 922 (Miss.1997)).

Entergy Miss., Inc. v. Bolden, 854 So. 2d 1051, 1054 (Miss. 2003).

¶15.    Both of the proposed instructions dealt with instructing the jury on circumstantial

evidence. “[W]here there is direct evidence of a crime, the circumstantial evidence instruction

need not be given.” King v. State, 580 So. 2d 1182, 1191 (Miss. 1991) (citing Gray v. State,

549 So. 2d 1316, 1324 (Miss. 1989)).               Additionally, a circumstantial evidence case “is one

in which there is neither an eyewitness nor a confession to the crime.” Mangum v. State, 762

                                                      10
So. 2d 337, 344 (Miss. 2000).          While there are certainly more types of direct evidence than

eyewitness testimony or confessions, the instant case easily meets the standard in Mangum.

K.F.’s statements about being shown pornography were introduced through the testimony of

Dr. Cash and Barnes. K.F. was, of course, an eyewitness to the pornography, and this instance

of direct evidence alone allowed the jury to be given direct evidence instructions only. Foley’s

argument to the contrary is without merit.

¶16.    In his second trial, Foley’s request for a jury instruction on circumstantial evidence was

also rejected by the circuit court.      The circuit judge found K.F.’s medical report constituted

actual or direct evidence.       Additionally, as stated before, the presence of an eyewitness

necessarily precludes a case from having circumstantial evidence instructions.         Id.   K.F. was

clearly an eyewitness to the abuse committed upon her person.              Testimony by others clearly

outlined this and introduced the jury to statements by K.F. since she was unavailable as a

witness. Thus, the circuit court was not in error when it refused to present the jury with the

defense’s proposed circumstantial evidence instructions in either trial.

                  ISSUE ON APPEAL FROM CONVICTION OF COUNT III
                       (POSSESSION OF CHILD PORNOGRAPHY)

        IV.     WHETHER THE CIRCUIT COURT IMPROPERLY
                OVERRULED OBJECTIONS AND DENIED MOTIONS
                MADE BY FOLEY.

¶17.    Foley argues that statements by the prosecutor during cross-examination of a witness

and during his closing statements warranted a mistrial. The first assignment of error that Foley




                                                    11
makes involves a defendant’s right not to testify in a proceeding.           Comments referring to a

defendant’s right not to testify are generally unacceptable:

        No person AAA shall be compelled in any criminal case to be a witness against
        himself, AAAU.S. Const. Am. 5. See also Miss. Code Ann. section 13-1-9 (1972);
        Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
        This constitutional right has been construed by this Court to have been violated,
        not only when a direct statement is made by the prosecution as to the defendant's
        not testifying, but also by a comment which could reasonably be construed by
        a jury as a comment on the defendant's failure to testify. Jimpson v. State, 532
        So. 2d 985, 991 (Miss. 1988); Livingston v. State, 525 So. 2d 1300, 1305-08
        (Miss. 1988); Monroe v. State, 515 So. 2d 860, 865 (Miss. 1987); Bridgeforth
        v. State, 498 So. 2d 796, 798 (Miss. 1986); Wilson v. State, 433 So. 2d 1142,
        1146 (Miss. 1983); Davis v. State, 406 So. 2d 795, 801 (Miss. 1981).

Griffin v. State, 557 So. 2d 542, 552 (Miss. 1990).

¶18.    In the instant case, the prosecutor stated in his closing arguments that “you have to rely

on your own memories, because I am not a witness. They’re not a witness. . . .” Foley objected

and stated that this remark created negative inferences based upon Foley’s choice to exercise

his right not to testify.   In response to the objection, the prosecution explained that the word

“they” referred to the attorneys and not the defendant.              The circuit judge overruled the

objection, and the prosecution was allowed to continue. Trial judges are best positioned

to determine if an attorney’s closing arguments created unjust prejudice against a party:

        In Eckman v. Moore, 876 So. 2d 975, 994 (Miss. 2004), we summarized the
        standard of review for closing arguments: Attorneys have wide latitude in
        closing arguments.    Notwithstanding the wide latitude afforded in closing
        arguments "[t]he standard of review that appellate courts must apply to lawyer
        misconduct during opening statements or closing arguments is whether the
        natural and probable effect of the improper argument is to create unjust
        prejudice . . . so as to result in a decision influenced by the prejudice so
        created." This Court has held that "any alleged improper comment must be


                                                    12
        viewed in context, taking the circumstances of the case into consideration." The
        trial judge is in the best position to determine if an alleged objectionable remark
        has a prejudicial effect.

Burr v. Miss. Baptist Med. Ctr., --- So. 2d ----, 2005 WL 1498868, at *1 (Miss. 2005).

¶19.    It is clear from the context of the sentences that the prosecutor was referring to the

attorneys and not Foley.     The prosecutor first pointed out that he was not a witness and then

made the statement Foley brings into issue. Nothing from the prosecutor’s express words or

any reasonable inference from those words points to Foley.            Looking to the particular

comments and facts of this case, no serious or irreparable damage was inflicted on Foley by

a statement that could not reasonably have been construed to be a comment upon Foley’s

failure to take the stand.     Foley’s constitutional rights were not violated, and there is no

evidence that the prosecutor’s comments in closing had any sort of a prejudicial effect on the

jury warranting reversal.

¶20.    Foley next asserts an identical assignment of error concerning statements made by the

prosecution in its questioning of his father, Nicholas Foley.     Nicholas was asked on cross-

examination whether or not he was aware of a statement made by his son in a deposition

concerning a civil matter. The purported purpose of the prosecution’s question was to impeach

the credibility of the witness using a prior inconsistent statement made by Scott Foley.      The

defense vigorously objected, and the circuit court sustained the objection reasoning that

impeachment of the witness using extrinsic evidence was inappropriate.          The circuit court

judge subsequently ordered jurors to disregard the question.       Foley’s counsel moved for a

mistrial on the grounds that it drew attention to and encouraged inferences concerning Foley’s

                                               13
choice not to testify.    The motion was denied because the circuit court           determined that the

statements would not affect the ultimate issue of the case and could be removed from the

minds of the jury by a verbal instruction to disregard.         A trial court can best determine if

irreparable harm resulted from arguments made in a particular case:

        [t]he trial court is in the best position to weigh the consequences of an
        objectionable argument and, unless serious and irreparable damage has occurred,
        at that point admonish the jury to disregard the improper comment. McGilberry
        v. State, 741 So. 2d 894, 909 (Miss. 1999). Whether there is error based on
        improper prosecutorial comments must be determined according to the facts of
        the particular case.

Baldwin v. State, 784 So. 2d 148, 164 (Miss. 2001).

¶21.    Additionally, the standard of review for rulings on motions for mistrial are abuse of

discretion.    Pulphus v. State, 782 So. 2d 1220, 1223 (Miss. 2001) (citing McGilberry v.

State, 741 So.2d 894, 907 (Miss. 1999)).             Considering the facts surrounding the disputed

comments under the analysis outlined above, we find that no serious and irreparable harm

resulted.     The circuit court correctly told the jury to disregard the line of questioning and

denied Foley’s motion for mistrial. Doing so did not constitute an abuse of discretion. Id.

¶22.    Finally, Foley maintains that a motion for mistrial should have been granted because of

comments made by the prosecutor concerning the failure of the defense to call a witness. One

of Foley’s primary defenses was the possibility that someone else had placed the pornographic

images on his computer.       The prosecution’s closing statements made reference to the defense

counsel’s failure to call a child who had lived in Foley’s home for a few months with his




                                                   14
mother and Foley.     Defense counsel objected to the statements, but the circuit court overruled

the objection and instructed the jury to disregard the statements by the prosecutor.

¶23.    “[T]he general principle is that ‘the failure of either party to examine a witness equally

accessible to both is not a proper subject of comment before the jury by either of the parties.’”

Brown v. State, 200 Miss. 881, 27 So. 2d 838, 840 (1946) (citing Heafner v. State, 196 Miss.

430, 17 So. 2d 806, 808 (1944)). Burke v. State, 576 So. 2d 1239, 1241 (Miss. 1991); see

also Madlock v. State, 440 So. 2d 315, 317-18 (Miss. 1983); Doby v. State, 557 So. 2d 533,

538-39 (Miss. 1990); Holmes v. State, 537 So. 2d 882, 885 (Miss. 1988); Griffin v. State,

533 So. 2d 444, 449 (Miss. 1988); Brock v. State, 530 So. 2d 146, 154-55 (Miss. 1988);

Williams v. State, 522 So. 2d 201, 206-07 (Miss. 1988)).

¶24.    Foley argues that we must follow this principle and reverse his conviction. However,

“where there is substantial evidence supporting the defendant's guilt, a prosecutor's comment

about a potential witness's absence is not reversible error in and of itself.”         Id. (citing Brock,

530 So. 2d at 154-55).         Such comments should only be considered reversible error if the

evidence in the case is close or is a part of a number of compounded errors meriting reversal.

Burke, 576 So. 2d at 1241. We recognize that there have been other procedural errors in the

trial of Foley on the charge of possession of child pornography, but none of them, even when

considered collectively, rise to the level of that which constitutes reversing the circuit court’s

refusal to grant a mistrial.     A defendant is not entitled to a perfect trial, only a fair one.

Stringer v. State, 500 So. 2d 928, 947 (Miss. 1986) (citing Sand v. State, 467 So. 2d 907



                                                   15
(Miss. 1985); Bell v. State, 443 So. 2d 16 (Miss. 1984); Palmer v. State, 427 So. 2d 111

(Miss. 1983); Shaw v. State, 378 So. 2d 631 (Miss. 1979)).

¶25.    There is no evidence that this single comment had a prejudicial effect warranting

reversal, and considering the overwhelming evidence, including testimony by a number of

witnesses and the actual presence of pornographic images on Foley’s computer, the

inappropriate comments by the prosecutor concerning the absence of defense witnesses did

not warrant a mistrial since instructing the jury to disregard the comments was an appropriate

response by the trial court.       Accordingly, the trial court’s decision was not an abuse of

discretion and Foley’s arguments to the contrary are without merit.

              ISSUES ON APPEAL FROM CONVICTION OF COUNTS I AND II
                       (CAPITAL RAPE AND SEXUAL BATTERY)

        V.      WHETHER IT WAS ERROR TO ADMIT A PHOTOGRAPH OF
                THE VICTIM INTO EVIDENCE.

¶26.    Foley asserts that the trial court’s admission of a photograph of K.F. into evidence was

in error.     However, Foley did not contemporaneously object to the introduction of such

evidence and cannot now complain about something which he did not object to in his trial. “A

failure to object at trial waives any error which may have been presented, even in capital cases.”

Duplantis v. State, 644 So. 2d 1235, 1245 (Miss. 1994) (quoting Chase v. State, 645 So. 2d

829, 859 (Miss.1994)); Smith v. State, 724 So. 2d 280, 316 (Miss. 1998). Foley’s argument

is procedurally barred and thus without merit.

        VI.     SUFFICIENCY OF THE EVIDENCE.



                                                  16
¶27.    Foley also questions the sufficiency of the evidence offered to uphold the jury verdict

in this case.   A question of sufficiency of the evidence is one best examined by considering

whether the defendant committed the crime beyond a reasonable doubt; specifically:

        in considering whether the evidence is sufficient to sustain a conviction in the
        face of a motion for directed verdict or for judgment notwithstanding the
        verdict, the critical inquiry is whether the evidence shows "beyond a reasonable
        doubt that accused committed the act charged, and that he did so under such
        circumstances that every element of the offense existed; and where the evidence
        fails to meet this test it is insufficient to support a conviction." Carr v. State,
        208 So. 2d 886, 889 (Miss. 1968).

Bush v. State, 895 So. 2d 836, 843 (Miss. 2005).

¶28.    “The relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id.         We find, after reviewing all the evidence in the most

favorable light to the prosecution, that there was sufficient evidence to convict Foley of capital

rape and sexual assault.       The State offered the testimony of a number of medical and

counseling professionals indicating that K.F.’s statements were consistent with those of a

sexual abuse victim.     K.F. named Foley as the perpetrator, and the State offered physical

evidence in the form of medical diagnoses and test results as well as many of the objects K.F.

stated Foley utilized in his abuse of her. Because of such evidence, we find that a rational juror

could have found Foley guilty of both crimes beyond a reasonable doubt. Accordingly, we will

not disturb the jury’s verdict or reverse the trial court’s decision to refuse to grant a directed

verdict or judgment notwithstanding the verdict.




                                                   17
       VII.    WHETHER THE CIRCUIT COURT ERRED IN OVERRULING
               FOLEY’S OBJECTIONS TO EVIDENCE OF OTHER CRIMES.

¶29.   The next assignment of error Foley makes is what he refers to as the circuit court’s

erroneous allowance of “other crimes” of Foley to be presented to the jury.          Specifically,

during the cross-examination of Houck, Foley’s ex-wife, counsel for Foley questioned Houck

about a restraining order against Foley which she had requested. Houck had been called by the

defense as an adverse witness.       Subsequent questioning of Houck by the prosecution also

involved the restraining order.     Foley objected to such questioning, but the circuit judge

overruled the objection pointing out that the defense had initially asked Houck about the

restraining order and could not block the prosecution’s questions concerning a document the

defense had brought to light in questioning.       Foley’s contentions of a wrongful introduction

of other crimes or bad acts fails because, once a defendant opens the door and invites

questioning on a matter, then that defendant may not complain of such alleged errors “invited

or induced by himself.” Caston v. State, 823 So. 2d 473, 502 (Miss. 2002) (quoting Singleton

v. State, 518 So. 2d 653, 655 (Miss. 1988)); see also Evans v. State, 547 So. 2d 38, 40 (Miss.

1989); Edwards v. Stat e, 441 So. 2d 84, 90 (Miss. 1983). Based on the foregoing authority,

the circuit judge did not abuse his discretion in allowing the prosecution’s questions about

areas already reached by questions of Foley’s counsel.

       VIII. WHETHER FOLEY’S CROSS-EXAMINATION OF A WITNESS
             WAS IMPROPERLY RESTRICTED.

¶30.   During his trial, Foley called Houck as an adverse witness.       Counsel for Foley began

questioning Houck about her son’s counseling for sexual issues and her intimate relationship

                                                 18
with a man. The State objected on grounds of relevance and improper impeachment. Foley’s

counsel made a number of ambiguous statements about the relevancy of the line of questioning

to aid in the establishment that other men or youth could have caused K.F.’s injuries.           Foley

wanted to bring in information that Houck had committed adultery and the like.              The circuit

judge refused to allow Foley’s attorneys to question Houck about the man to whom she is now

married because the circuit court found that this testimony had no relevance.          "[T]he scope of

cross-examination though ordinarily broad, is within the sound discretion of the trial court and

the trial court possesses inherent power to limit cross-examination to relevant matters." Heflin

v. State, 643 So. 2d 512, 518 (Miss. 1994). See also Carr v. State, 655 So. 2d 824, 847

(Miss. 1995). Foley’s assertions simply are not substantiated by the record, and we find that

the circuit court judge did not abuse his discretion in finding that the questions being asked

failed to meet basic relevance requirements concerning either the son or the father.

        IX.     WHETHER FOLEY’S CLOSING                               ARGUMENT           WAS
                IMPROPERLY RESTRICTED.

¶31.    Foley also alleges error based on the circuit court’s restricting his counsel’s closing

arguments.    Specifically, the circuit court sustained an objection by the State made upon

defense counsel’s statements that “[W]e didn’t hear from [G.F.] Nobody knows where he is.

His mother testified he was up in Memphis.” The objection alleged that defense counsel was,

in effect, testifying as to G.F.’s failure to appear at trial as a witness. Foley was attempting to

show that G.F., Deborah Houck’s son, could have been the perpetrator and cast doubt on the

State’s evidence that Foley was the one responsible for the acts against K.F.               Before he


                                                   19
sustained the objection, the circuit judge called counsel for both sides to the bench. The bench

conference was not transcribed in the record. After a brief talk, the circuit judge announced

that the statement was to be disregarded by the jury. The judge said, “[T]hat’s not an appropriate

argument under the law. They could have gotten him if they wanted to, could have attempted

it anyway.” “[T]he standard of review that appellate courts must apply to lawyer misconduct

during opening statements or closing arguments is whether the natural and probable effect of

the improper argument is to create unjust prejudice ... so as to result in a decision influenced

by the prejudice so created.” Eckman, 876 So. 2d at 944.

¶32.   Both Foley and the State focus their arguments on the availability of Houck’s son, G.F.,

and whether it was permissible to comment upon his absence as a witness in closing arguments.

Foley points out that there was an attempt to subpoena G.F., but from the judge’s comments,

it is apparent that the circuit court determined that Foley had not adequately attempted to

secure G.F. as a witness.     The trial court also made reference to the statements not being

appropriate under the law. Indeed, “[t]he general principle is that ‘the failure of either party to

examine a witness equally accessible to both is not a proper subject of comment before the

jury by either of the parties.’ Brown v. State, 27 So. 2d at 840 (citing Heafner v. State, 196

Miss. 430, 17 So. 2d 806, 808 (1944)).” Burke, 576 So. 2d at 1241.

¶33.   Foley fails to show why the witness was unavailable. Simply failing to have a witness

under subpoena does not render them unavailable. The circuit judge obviously found evidence

that Foley could have obtained G.F.’s presence in court with some amount of reasonable effort

but failed to do so. Foley asks us to find that the trial court judge’s reasoning was flawed, but

                                               20
did nothing to preserve the judge’s objectionable reasoning in the record for appeal.               A

presumption of equal access to both parties arises when the record provides no proof of the

absent witness’s accessibility or inaccessibility.    Ross v. State, 603 So. 2d 857, 864 (Miss.

1992) (citing Madlock v. State, 440 So. 2d 315, 318 (Miss. 1983)); see also Holmes v. State,

537 So. 2d 882 (Miss. 1988).         We find no reason to disturb the ruling of the circuit judge

since we have not been presented with a showing of prejudice to Foley and has not been shown

why the circuit court’s judgment was incorrect in finding that G.F. could have been found

through reasonable effort by Foley. Foley’s complaint to the alternative is without merit.

        X.      WHETHER LIFE IMPRISONMENT WAS AN EXCESSIVE
                SENTENCE.

¶34.    Foley challenges the authority of the circuit court to impose a life sentence for the

conviction of his crime under Miss. Code Ann. § 97-3-65 (1)(b) (Rev. 2000). The State and

Foley point to statutory guidelines for sentencing for a statutory rape conviction in § 97-3-65

(2)(c). However, the accurate subsection is Miss. Code Ann. § 97-3-65 (3)(c) (Rev. 2000) for

statutory rape convictions, and concerning sentencing states that “[I]f eighteen (18) years of

age or older and convicted under paragraph (1)(b) of this section, to imprisonment for life in

the State Penitentiary or such lesser term of imprisonment as the court may determine , but

not less than twenty (20) years”(emphasis added).          It was the intent of the state legislature,

Foley argues, that the jury determine his sentence and not the judge.           Foley makes reference

to § 97-3-79 of the Mississippi Code which covers the crime and sentencing of the

commission of a robbery with a deadly weapon.               Foley points to the fact that a person


                                                     21
convicted of robbery with a deadly weapon is entitled to have the jury decide his sentence.4

It is obvious from the language in § 97-3-79 that the jury was intended to arrive at a sentence

for a convicted defendant.      In contrast, though, the Legislature used words indicating judicial

discretion would be the determination for crimes of statutory rape in § 97-3-65 (2)(c). Foley

assertions to the contrary are without merit.

                                            CONCLUSION

¶35.    Scott Foley’s assertions of error by the trial court are either too slight to warrant

reversal or without merit completely.           Accordingly, we affirm the circuit court’s judgments.

¶36.    CASE NUMBER 2004-KA-00375-SCT:

      COUNT ONE: CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT HOPE OF PAROLE OR PROBATION, WITH
CONDITIONS, AFFIRMED. SAID SENTENCE IS TO BEGIN AT THE EXPIRATION
OF THE CONSECUTIVE SENTENCES IMPOSED IN COUNTS TWO AND THREE IN
THIS CAUSE. COUNT TWO: CONVICTION OF SEXUAL BATTERY AND SENTENCE
OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF


        4
         Miss. Code Ann. § 97-3-79 provides as follows:

        Every person who shall feloniously take or attempt to take from the person or
        from the presence the personal property of another and against his will by
        violence to his person or by putting such person in fear of immediate injury to
        his person by the exhibition of a deadly weapon shall be guilty of robbery and,
        upon conviction, shall be imprisoned for life in the state penitentiary if the
        penalty is so fixed by the jury; and in cases where the jury fails to fix the
        penalty at imprisonment for life in the state penitentiary the court shall fix the
        penalty at imprisonment in the state penitentiary for any term not less than three
        (3) years.

(Emphasis added).


                                                     22
CORRECTIONS, WITHOUT HOPE OF PAROLE OR PROBATION, WITH
CONDITIONS, AFFIRMED. SAID SENTENCE IS TO BE SERVED CONSECUTIVELY
WITH THE TWENTY (20) YEAR SENTENCE PREVIOUSLY IMPOSED IN COUNT
THREE IN THIS CAUSE.

     CASE NUMBER 2004-KA-00070-SCT:

     COUNT THREE: CONVICTION OF CHILD EXPLOITATION AND SENTENCE
OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITHOUT HOPE OF PAROLE OR PROBATION, WITH
CONDITIONS, AND PAYMENT OF A FINE IN THE AMOUNT OF $1,000.00,
AFFIRMED.

      SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




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