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Donaldson v. State

Court of Appeals of Mississippi

June 19, 2018

MICHAEL DONALDSON A/K/A MICHAEL PAUL DONALDSON A/K/A MIKE DONALDSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/02/2015

          RANKIN COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III.

          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.

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

          GRIFFIS, P.J.

         ¶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 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.

         ¶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 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 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 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. 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 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 [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 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 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;
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 ...

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