MICHAEL DONALDSON A/K/A MICHAEL PAUL DONALDSON A/K/A MIKE DONALDSON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/02/2015
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.
GRIFFIS, P.J., CARLTON AND WILSON, JJ.
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.
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").
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.
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. 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.
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.
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.
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
Donaldson's motion for a judgment notwithstanding the
verdict (JNOV), or in the alternative, a new trial was
denied. Donaldson now appeals.
The trial court committed reversible error to preclude
Donaldson from testifying as an expert witness.
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.
"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).
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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
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).
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.
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.
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.
The evidence was insufficient to support the verdict on
Count I - possession of child pornography.
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
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).
Here, the Cyber Crime Unit discovered that a person using the
internet protocol (IP) address 18.104.22.168 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.
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.
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.
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.
The State failed to prove MB was recorded within the
two-year statute of limitations.
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.
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.
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.
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.
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
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.
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)
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 . . . .
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."
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
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.
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
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.
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.
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.
The jury instructions on Count II failed to require
jurors to find the essential element of intent.
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
"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).
"[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).
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]
Gilmer v. State, 955 So.2d 829, 834 (¶11)
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
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 ...