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Pierce v. State

Court of Appeals of Mississippi

January 30, 2018

MATTHEW EDWARD PIERCE A/K/A MATTHEW PIERCE A/K/A MATTHEW E. PIERCE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/18/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P. DODSON, JUDGE

          ATTORNEYS FOR APPELLANT: ROBERT B. MCDUFF JACOB WAYNE HOWARD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          IRVING, P.J.

         ¶1. Matthew Edward Pierce was convicted of photographing, taping, or filming a person in violation of an expectation of privacy pursuant to Mississippi Code Annotated section 97-29-63 (Rev. 2014) and sentenced to a term of five years in the custody of the Mississippi Department of Corrections, with three years suspended, leaving two years of incarceration, and three years of supervised probation. Pierce was required to register as a sex offender. He now appeals. Because we find reversible error, we reverse and remand.

         FACTS

         ¶2. S.A.[1] first began seeing Pierce, a licensed massage therapist, when he worked for a chiropractor in Long Beach, Mississippi. When Pierce opened his own practice, S.A. followed him. S.A. was a client of Pierce's for a total of two and a half years.

         ¶3. On October 2, 2014, S.A. attended a scheduled appointment with Pierce. When she arrived at the venue for her appointment, Pierce left the room, and S.A. undressed from the waist up, as she normally did for her massage appointments. Pierce returned and performed S.A.'s massage. Upon completion of the massage, Pierce again left the room to give S.A. privacy to re-dress. As S.A. was dressing, she noticed that Pierce's iPhone was propped up against the backsplash of a counter opposite the table where the massage had taken place. The phone's camera was facing where she was standing and getting re-dressed. Concerned that Pierce might have been videotaping her while she undressed or re-dressed, S.A. picked up the phone and saw that it had indeed been videotaping. S.A. stopped the videotaping and sent the video to herself in a text message. When Pierce returned to the room, S.A. confronted him about the video. Pierce denied that he had intended to film her. S.A. reported the incident to Detective Brad Gross with the Long Beach Police Department, and Pierce was subsequently arrested on October 3, 2014.

         ¶4. On January 20, 2015, a grand jury of the First Judicial District of Harrison County indicted Pierce for secretly videotaping S.A in violation of section 97-29-63. Pierce's trial was held in Harrison County Circuit Court on April 5 and 6, 2016. Three witnesses testified: S.A., Detective Gross, and Pierce. Prior to opening statements, the State orally moved "to either close the courtroom to the general public during the victim's testimony or in the alternative, when we do play the video to at least turn the TV away from the general audience, " because the video depicted S.A. while she was undressed. The State maintained that a surprisingly large number of people had shown up to watch the trial who had not been present at previous proceedings, and that it wished to "limit the number of people that actually see this video and see her naked." The defense objected. The trial court granted the State's motion and closed the courtroom for the entirety of S.A.'s testimony, noting that over thirty people had shown up for the trial who had not been present at previous proceedings, and that the majority of the audience was sitting on the defense's side of the courtroom.

         ¶5. After all three of the witnesses testified, the trial court issued its jury instructions. Pierce proposed Instruction D-2a, which provided the following:

The [c]ourt instructs the jury that if you find that the cell-phone video was created as the result of accident and without unlawful intent, then you shall find the Defendant, Matthew Pierce, Not Guilty of Secretly Photographing, Taping, or Filming [S.A.], in a state of undress, without her permission and in violation of her expectation of privacy as charged in the indictment, and return your verdict as follows: "We, the Jury, find the Defendant, Matthew Pierce, Not guilty of Secretly Photographing, Taping, or Filming a person, in a state of undress, without her permission in violation of her expectation of privacy as charged in the indictment, by reason of accident.

         The State objected and the trial court denied the instruction, finding that the instruction did not properly state the charge, nor did it properly state the form of the verdict. Further, the trial judge stated, "I'm not aware that accident is a defense, per se, . . . to this type of charge"; however, the court provided: "If you guys can find [an instruction] that has to do with accidents specific to this type [of] charge, then I'm more than happy to consider it." Further, the court held that the exclusion of the defense's proposed instruction did not prohibit defense counsel "from arguing that there was no intent because that is in the elements instruction."

         ¶6. The jury began its deliberations, and soon after sent a note (1) requesting the definition of "lewd, licentious or indecent intent"; (2) asking, "If S.A. saw camera [sic] does that change 'expectation of privacy'[?]"; and (3) asking, "If it was by accident[, ] is it same thing same [sic] as knowing or is it lewd, licentious or indecent intent[?]" No further instruction was given to the jury. The jury next sent a note stating that it was deadlocked. After further deliberation, the jury finally found Pierce guilty of the charge against him.

         ¶7. Pierce filed a motion for a new trial or a judgment notwithstanding the verdict (JNOV), which the trial ...


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