Curtis Aaron White v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-KA-01458-COA

CURTIS AARON WHITE A/K/A CURTIS APPELLANT
WHITE A/K/A CURTIS A. WHITE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/27/2015
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RICHARD T. STARRETT
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: AKILLIE MALONE-OLIVER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF TWO COUNTS OF
GRATIFICATION OF LUST AND ONE
COUNT OF STATUTORY RAPE AND
SENTENCED TO SERVE EIGHT YEARS ON
EACH COUNT OF GRATIFICATION OF
LUST AND THIRTY YEARS FOR
STATUTORY RAPE
DISPOSITION: REVERSED AND REMANDED - 02/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

ISHEE, J., FOR THE COURT:

¶1. On August 27, 2015, Curtis White was convicted in Yazoo County Circuit Court of

two counts of gratification of lust and one count of statutory rape. Counts I and III of the

indictment charged White with gratification of lust and the statutory rape of MM,1 and Count

1
The names of the minor victims are changed for confidentiality purposes.
II charged White with gratification of lust for LM. White was sentenced to serve eight years

for each count of gratification of lust and thirty years for the statutory-rape charge. White’s

statutory-rape sentence was to be served without the possibility of early release, and was to

run concurrently with one count of gratification of lust, and consecutively to the other count.

White timely appealed and argues that the circuit court committed a plethora of reversible

errors. We agree. Because the circuit court repeatedly abused its discretion and violated

White’s constitutional rights of due process and a fair trial by an impartial jury, we reverse

and remand.

STATEMENT OF FACTS

¶2. White was MM’s uncle by marriage, and LM was close friends with MM. White

was tried for incidents that occurred in Yazoo County on April 30, 2013, and April 21, 2014.

Both counts of gratification of lust stemmed from the alleged events on April 30, 2013. At

that time, MM was approximately thirteen years old (born on December 28, 2000), LM was

approximately twelve years old (born on January 25, 2001), and White was approximately

thirty-two years old (born on March 13, 1981). MM testified that White gave her and a few

of her friends beer while they rode horses together, before White drove MM and LM back

home. MM alleged that while White was driving them home, he showed the girls

pornography on his cell phone, handed the cell phone to MM, and told both girls to watch

it. It was further alleged that White then lifted MM’s and LM’s shirts to touch their breasts

and compare whose breasts were bigger. MM testified that White told her that her breasts

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were larger. White then continued to drive the girls home without further incident. MM

testified that she did not tell anyone about the incident.

¶3. Count III of the indictment stemmed from events that allegedly took place on April

21, 2014. MM testified that she, along with others, helped White move a deck onto his

property. She testified that White insisted that she ride in his truck with him while he pulled

a trailer attached to the back of the truck, and while the other people helping rode in a

separate vehicle following behind them. MM testified that while she was driving the truck,

White put her hand on his penis while he put his hand on her vagina. MM alleged that when

they arrived back at White’s house, White insisted that he, as opposed to his wife Claire,

should drive MM back to her house so that MM could attend an appointment later.2 MM

testified that White drove the truck behind a pond and parked the car, where she alleged that

he took her clothes off, performed oral sex on her, engaged in vaginal and anal sex with her,

and then placed her hand on his penis and moved it back and forth “until stuff came out.”

She testified that she got dressed as he drove the truck to her grandmother’s house, who then

took her to her appointment. MM testified that the sexual acts that took place behind the

pond lasted “ten minutes at most.”

¶4. Additional witnesses who testified recalled events differently than MM, and Lane

Twiner testified that he rode in the back of the trailer attached to White’s truck during the

2
MM was attending counseling appointments for behavioral issues; however the
circuit court excluded evidence regarding the specificity of the appointments during pretrial
motions.

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time MM alleges he touched her vagina while she touched his penis. Twiner testified that

White, not MM, drove the truck, and that he kept eye contact on White because he was

providing directional hand signals to White since the trailer’s load obstructed the rear view.

Twiner testified that there was a tool box between White and MM in the passenger seat, and

that he saw no sexual activity occur between the two. Twiner noted that when White pulled

into his driveway with the trailer, he “took out his mailbox.” This was not mentioned by

MM, who testified that she was driving.

¶5. White testified in his own defense at trial and in regard to the alleged events of April

30, 2013. He asserted that he neither showed MM or LM pornography nor ever lifted up

their shirts. In response to the alleged events of April 21, 2014, he stated that he did not

direct MM to ride with him in his truck, and confirmed that Twiner was riding on the trailer

attached to the truck, and that he knocked down his mailbox when he pulled into his

driveway. White testified that MM’s mother called to say that MM had to be home for her

appointment, and stated that Claire gave MM some hotdogs to take with her before White

drove MM to her grandmother’s house. White denied stopping anywhere on the drive back,

said MM’s grandmother pulled into the driveway when they arrived at the house, and claimed

that he was around MM and others over the next several days and she did not act like

anything was wrong or out of the ordinary.

¶6. Prior to the trial, White made a motion in limine to exclude any evidence that he

engaged in an affair with a fifteen-year-old named AB when he was approximately twenty-

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three years old. The affair occurred nine years prior to the trial, and White was never

charged with a crime stemming from the affair. The circuit court denied White’s motion in

limine and all contemporaneous objections during the trial that pertained to the affair.

¶7. At trial, the State was allowed to present evidence, over the defense’s vehement

objections, that MM alleged White statutorily raped her on July 4, 2012, at Wolf Lake in

Humphreys County, Mississippi. That incident was under indictment in a separate county

and was not part of any charge that White was tried for in Yazoo County—the trial from

which this appeal stems. MM provided the details of that incident in a handwritten statement

prepared on January 19, 2015. In the written statement, MM alleged that on July 4, 2012,

she, along with her sister and two of White’s daughters, went with White to the lake to

prepare for the July 4th festivities taking place later that day. Also in her written statement,

she said White sexually assaulted her and that he threatened to hurt her and anyone she told.

However, on direct examination at trial, MM testified that the alleged events took place a few

days before July 4, 2012. MM testified that White asked her to go into the lake with him to

retrieve water jugs he placed in the water to attract fish. She told the jury that White then

grabbed her head and forced it under water and made her perform oral sex on him until she

could not breath. She then testified that he engaged in vaginal sex with her and that she did

not tell anyone when they returned to the festivities because she was afraid he would hurt her.

¶8. On cross-examination, MM admitted that the pictures that defense counsel showed

her were taken after the alleged rape occurred on July 4, 2012, and depicted her having a

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good time. On redirect, the assistant district attorney led MM to say again that the rape

actually occurred a few days prior to the Fourth of July party where the pictures were taken.

¶9. Additional evidence was presented at trial, over defense counsel’s objections, that

White cheated on his first wife, Karen Hemphill, and gave her STDs on two separate

occasions. The circuit court allowed further testimony that White gave Hemphill one of the

STDs while she was pregnant. Hemphill testified that when this occurred, she was

approximately seventeen years old and White was eighteen years old.

¶10. After deliberations, the jury returned a verdict of guilty on all three counts. White

timely appeals to this Court for relief.

DISCUSSION

¶11. It is long established that the standard of review regarding the admission and

exclusion of evidence is abuse of discretion. Newell v. State, 49 So. 3d 66, 71 (¶9) (Miss.

2010). Decisions regarding the relevance and admissibility of evidence are “largely within

the discretion of the trial court.” Mabus v. State, 809 So. 2d 728, 733 (¶24) (Miss. 2001).

The Mississippi Supreme Court has held that a trial court’s evidentiary rulings will not be

reversed “unless the error adversely affects a substantial right of a party.” Id. (citing Mingo

v. State, 944 So. 2d 18, 28 (¶23) (Miss. 2006)). This Court will not reverse an evidentiary

ruling “unless an abuse of discretion is shown, or the trial judge acted outside the rules of

evidence.” Id.

I. The circuit court erred by denying White the opportunity to authenticate
evidence of electronic communications to attempt to establish the

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 defense’s theory regarding MM’s motive to fabricate allegations.

¶12. “A criminal defendant is entitled to present his defense to the finder of fact, and it is

fundamentally unfair to deny the jury the opportunity to consider the defendant’s defense

where there is testimony to support the theory.” Edmonds v. State, 955 So. 2d 787, 798 (¶29)

(Miss. 2007). “While a defendant is entitled to present his defense, the right is not without

its limitations, as ‘all evidence admitted in support of the defendant’s theory of the case must

comport with the Mississippi Rules of Evidence.’” Scott v. State, 2014-KA-00572-COA,

2016 WL 3391630, at *2 (¶12) (Miss. Ct. App. June 21, 2016) (quoting Clark v. State, 40

So. 3d 531, 542 (¶30) (Miss. 2010)). Authentication is a condition precedent to admissibility

of evidence. Smith v. State, 136 So. 3d 424, 432 (¶18) (Miss. 2014). “A party must make

a prima facie showing of authenticity, and then the evidence goes to the jury, which

ultimately will determine the evidence’s authenticity.” Id. (citing Young v. Guild, 7 So. 3d

251, 262 (¶32) (Miss. 2009)). “Electronic evidence may be authenticated by the traditional

means, and is adequately covered by the current rules of evidence, but “the circumstantial

evidence that tends to authenticate a communication is somewhat unique to each medium.”

Id. Because social-media posts are subject to fabrication, “something more” than the account

owner’s name and photograph is required to authenticate the posts. Id. at (¶20).

¶13. In this case, the State made a pretrial motion in limine to prevent White from using

social-media evidence at trial. White sought to use social-media posts purported to be from

MM to establish the defense’s theory that MM was lying and that the alleged events never

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took place. The social-media posts were discovered by family friend Brenda Dew, who

reported the posts to MM’s mother. The posts depicted MM kissing and engaging in

romantic conversations with another female; testimony from her mother regarding text

messages she found on MM’s phone, MM’s behavioral issues, and testimony from Dew

supported the validity of the social-media posts. White further sought to offer testimony

from various family members of MM that she was seeing a counselor for behavioral

problems, that the family had a large fight when informed of MM’s social-media posts, and

that the family sent MM to a church camp upon hearing of the posts. White sought to

introduce the electronic communications and testimony under Mississippi Rule of Evidence

404(b)3 as evidence of MM’s motive to fabricate the allegations against White. However,

the State opposed admission of this evidence, arguing it was irrelevant, improper evidence

of the victim’s sexual past under Mississippi Rule of Evidence 412, and inadmissible due to

a lack of authentication under Mississippi Rule of Evidence 901. The circuit court

interrupted the State’s argument against the admission of the aforementioned evidence, and

stated:

Well let me say this. As far as the posting on social[-]media, that is not
relevant. There’s no way we can authenticate that. So that motion—as far as
the posting, that motion is granted. That will not be reliable, would not be
admissible, the social-media posting, okay. Now go ahead.

3
We note that the Rules of Evidence have been restyled to include nonsubstantive
revisions since the time of White’s trial. We apply the version of the rules in effect at that
time.

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¶14. In Smith, 136 So. 3d at 433 (¶21), the supreme court delineated a nonexhaustive list

of possible ways to authenticate social-media evidence. The supreme court listed the

following:

[T]he purported sender admits authorship, the purported sender is seen
composing the communication, business records of an internet service provider
or cell phone company show that the communication originated from the
purported sender’s personal computer or cell phone under circumstances in
which it is reasonable to believe that only the purported sender would have
access to the computer or cell phone, the communication contains information
that only the purported sender could be expected to know, the purported sender
responds to an exchange in such a way as to indicate circumstantially that he
was in fact the author of the communication, or other circumstances peculiar
to the particular case may suffice to establish a prima facie showing of
authenticity.

¶15. While we decline to delve into the merits of the various evidentiary arguments,

specifically those regarding Rules 404(b) and 412, presented by the State and the defense on

this issue, we find that the circuit court abused its discretion in refusing to allow the defense

the opportunity to even attempt to authenticate the evidence. At minimum, the circuit court

should have allowed the defense the chance to proffer the authenticity of the evidence with

the court, outside the presence of the jury. A “proffer allows the nature and significance of

the evidence to be evaluated.” Trotter v. State, 878 So. 2d 248, 251 (¶11) (Miss. Ct. App.

2004). Because the nature of these types of child-victim cases inherently involves

circumstantial, word-of-mouth evidence, evidence supporting MM’s motive to lie is relevant.

Under the specific facts of this case, we find that it was reversible error to deny White the

chance to authenticate the proposed evidence, especially in light of the significance the

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evidence had to White’s defense.

II. The circuit court erred in denying White’s motion in limine and trial
objections regarding evidence of the nine-year-old uncharged statuary
rape of AB and an indictment in Humphreys County.

¶16. Under Rule 404(b), “[e]vidence of crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show that he acted in conformity therewith.” Also under

Rule 404(b), however, this evidence may “be admissible for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” M.R.E. 403.

¶17. In Derouen v. State, 994 So. 2d 748, 756 (¶20) (Miss. 2008), the supreme court held:

[E]vidence of a sexual offense, other than the one charged, which involves a
victim other than the victim of the charged offense for which the accused is on
trial, . . . if properly admitted under Rule 404(b), filtered through Rule 403,
and accompanied by an appropriately-drafted limiting or cautionary instruction
to the jury, should not be considered per se error.

¶18. In pretrial hearings and on appeal, the State used the rule established in Derouen to

argue that a nine-year-old, uncharged statutory rape committed by White as part of an

extramarital affair was admissible in his trial for the forcible statutory rape of MM. The

State argued that such “bad-acts evidence” was admissible to show White’s motive, intent,

opportunity, and pattern in committing sexual acts against underage girls. Here, the circuit

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court misapplied the principle established in Derouen; it does not automatically admit such

similar evidence or testimony, but simply eliminated a per se exclusion on such evidence.

The proposition that an uncharged, factually dissimilar, and almost decade-old offense

contains probative value that substantially outweighs the threat of unfair prejudice to the

defendant’s constitutional rights is certainly a stretch.

¶19. MM alleged that White raped her behind a barn on April 21, 2014, and that he first

raped her when she was eleven years old, in the incident that allegedly took place in

Humphreys County on July 4, 2012. As previously discussed, MM testified that on July 4,

2012, White forced MM to perform oral sex on him while he held her head under water until

she could not breath, vaginally penetrated her, and told her that if she told anyone about what

he did to her, that he would “hurt [her] and whoever [she] told.”

¶20. Contrasting those allegations with the testimony that AB gave at trial, it is clear that

White’s affair with AB is not probative of his plan, motive, intent, or opportunity in regard

to MM. AB testified that her affair with White was based on a “mutual flirtation” and that

White “was never forceful with [her].” Further, at the time of the affair, White was

approximately twenty-four years old, while AB was between fifteen and seventeen years old.4

In the case at hand, White was accused of being a thirty-three-year-old uncle who repeatedly

forcibly raped his eleven-year-old niece for several years. The two scenarios are hardly

4
It was unclear how old White was when the affair began, but the record shows that
it lasted for approximately two years, ending when AB was seventeen years old.

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factually similar in a way that allows Derouen to be a persuasive supporting argument.

¶21. Additionally, the circuit court failed to make a detailed finding on the record

explaining its decision to allow such evidence to be heard by the jury. When the State

opposed White’s motion in limine, it essentially just read the language of Rule 404(b) and

argued that the nine-year-old uncharged statutory-rape affair was admissible, seemingly

under all nine delineated permitted uses of the Rule; it never offered one permitted use as

more appropriate than any other. Though defense counsel responded persuasively in arguing

to exclude such evidence, the circuit court made the following ruling on the record:

The [c]ourt[,] after using the filter test under 403 as to the probative or
prejudicial effect, as well as 404(b), as to why the State wishes to offer the
evidence, . . . finds the case law in this area is pretty clear, and as late as . . .
2013, the Supreme Court held that if the evidence is found to be more
probative than prejudice [sic] and it is filtered through 404(b) as to why the
State wished to offer the evidence, then the evidence is admissible. The court
finds that the reasons the State gives for the offering of the evidence is [sic]
proper pursuant to 404(b), that the evidence is more probative than prejudicial
and that the—there will be a cautionary instruction given to the jury . . . .

¶22. The circuit court did not cite any permitted use under Rule 404(b) in its decision, but

merely parroted the generalized and blanketed argument made by the district attorney that

the evidence was admissible under such rule. “When the trial court admits other bad acts

evidence under Rule 404(b), it should make an on-the-record Rule 403 finding that the

probative value is not substantially outweighed by the danger of unfair prejudice.” Archer

v. State, 118 So. 3d 612, 625 (¶57) (Miss. Ct. App. 2012) (citing Tate v. State, 912 So. 2d

919, 925 (¶16) (Miss. 2005)). While the circuit court did make the aforementioned required

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finding on the record, it failed to find under which permitted use listed in Rule 404(b) the

evidence would be admitted. The circuit court merely cited the entirety of the Rule in its

decision to admit the evidence, which would allow an inference to be made that the evidence

was admitted to show preparation—a permitted use under which a nine-year-old, factually

dissimilar act certainly could not properly be admitted. This Court finds that the circuit court

abused its discretion in admitting the highly prejudicial and minimally probative nine-year-

old, uncharged statutory-rape evidence, and as such, committed reversible error.

¶23. As part of the same motion in limine, defense counsel sought to exclude testimony

from Brenda Dew, an adult woman who asserted vague allegations that White made sexual

advances on her. Because the circuit court failed to specify which aspect of White’s motion

that her ruling applied to, defense counsel attempt to clarify the ruling with the court, and the

following exchange took place on the record:5

Mr. Hollomon: But I want to make sure—I mean, my motion goes to
[Dew’s testimony] also, that that be excluded also.

The Court: My ruling goes to that as well. As long as it’s offered for
the reasons pursuant to Rule 404(b) and it will be given
a limited instruction, okay. It goes to any prior victims
or statements that have been filtered under 404(b).

Mr. Hollomon: Your Honor, just so the Court is clear on this and I’m
clear on this, Brenda Dew is an adult woman who was a
neighbor and friend of the White family who’s making
these allegations. I don’t know how that would play into

5
Joseph Hollomon was Curtis White’s defense attorney, and Akillie Malone-Oliver
was the district attorney prosecuting the case.

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 gratification of lust and a charge of statutory rape.

The Court: Making allegations of what?

Mr. Hollomon: She’s made vague allegations that Curtis [White] made
sexual advances toward her.

The Court: Yeah. It comes under 404(b).

Mr. Hollomon: To prove what, Your Honor, if I may ask the State?

The Court: The same—that the State stated that they would offer to
prove.

Mr. Hollomon: The same reasons that were given?

The Court: Okay. Now, I’m not going to sit here—I’ve made my
ruling on that. I’m not going to sit here and—

Mr. Hollomon: I’m just trying to be clear for any appellate record, Your
Honor.

The Court: Well, the trial will make it clear for any appellate record.
Basically, I told you if it comes under 404(b), which is
what the State has offered to prove it—

Mr. Hollomon: I understand—

The Court: —that’s why they’re offering it—then it’s admissible.

Mr. Hollomon: For what—I’m trying to understand, Your Honor. I’m
sorry. Bear with me.

The Court: I’m not going to sit here and tell you whether it’s for the
pattern, the opportunity, the motive, the plan. Basically,
they’ve offered to prove that—to show that through that
404(b) filtering.

Mr. Hollomon: But I think they have to state for what purpose it’s going
to be offered.

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 The Court: And I think they just did, didn’t they?

Mr. Hollomon: Not with respect to Ms. Dew, Judge. And I’m sorry if
I—

The Court: Would you tell him why you’re offering Ms. Dew’s
testimony?

Ms. Malone-Oliver: For those same filtering things that we just stated:
Opportunity, intent, preparation, plan and all that,
identity, absence of mistake or accident.

The Court: Okay. Anything further?

Mr. Hollomon: No, Your Honor.

¶24. As is shown from the record, the circuit court wholly failed to conduct any type of

balancing test required under Rule 403 in regard to the testimony of Dew. Further, evidence

of White making sexual advances on Dew, an adult woman, is completely devoid of any

relevance or probative value to White’s charges of illegal sexual conduct with an underage

female. Its lack of probative value is illustrated by the circuit court’s inability, and outright

refusal, to specify under which permitted use in Rule 404(b) Dew’s testimony was

admissible. The admission of such prejudicial evidence is an abuse of discretion by the

circuit court and constitutes reversible error.

¶25. For the same reasons as stated above, we find that the circuit court abused its

discretion in admitting evidence of bad acts that occurred in Humphreys County that were

part of a separate indictment in that county. The incident that took place in Humphreys

County allegedly occurred two years before the acts for which White was tried and convicted.

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The district attorney made reference to the Humphreys County incident in her opening

statement, to which defense counsel contemporaneously objected. At a bench conference,

the district attorney merely asserted that she was allowed to present the two-year-old

evidence from a separate county because she had “to tell the full story as far as how it

started.” She made only vague references to “case law on point” but failed at that moment,

or any other moment, to cite any names or jurisdictions from which the case law came.

¶26. The supreme court has ruled on the admissibility of evidence in order to complete the

narrative and tell a “full story.” In Flowers v. State, 773 So. 2d 309, 324 (¶47) (Miss. 2000),

the court held that “[i]t is the ‘necessity’ by the State to use the other evidence . . . in order

to tell a coherent story that is the key to its admissibility.” But the court further cautioned

that “evidence which is not necessary for the State to prove its case . . . could be unduly

prejudicial to the defendant.” Id. The court clarified Flowers in Keller v. State, 138 So. 3d

817, 854 (¶93) (Miss. 2014), by applying a principle established in Wheeler v. State, 536 So.

2d 1347, 1352 (Miss. 1988). The court explained that “otherwise inadmissible evidence of

prior bad acts is admissible in instances where the prior bad acts are ‘integrally related in

time, place[,] and fact with the’ crime for which the defendant is being tried.” Keller, 138

So. 3d at 854 (¶93).

¶27. Here, the evidence of the Humphreys County incident is not adequately integrally

related under the rule established in Wheeler. The incidents were two years apart, in two

separate counties, and consisted of different sets of facts, as set forth above in this opinion.

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Such an admission forced White to not only defend himself against the charges for which he

was actually on trial in Yazoo County, but also defend a charge triable in a completely

separate county. Because such evidence is neither necessary to fully tell a story nor integrally

related in time, place, or fact, the circuit court erred in admitting such prejudicial evidence.

III. White was denied due process by the repeated and persistent acts of
prosecutorial misconduct by the district attorney and assistant district
attorney.

¶28. “Where prosecutorial misconduct endangers the fairness of a trial and the impartial

administration of justice, reversal must follow.” Goodin v. State, 787 So. 2d 639, 653 (¶41)

(Miss. 2001) (citing Acevedo v. State, 467 So. 2d 220, 226 (Miss. 1985)). “The standard of

review which [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 against the accused so as to result in a decision influenced by the

prejudice so created.’” Wilson v. State, 194 So. 3d 855, 864 (¶30) (Miss. 2016). “The

purpose of a closing argument is to fairly sum up the evidence.” Id. (citing Galloway v.

State, 122 So. 3d 614, 643 (¶72) (Miss. 2013)). Prosecutors “are not allowed to employ

tactics which are ‘inflammatory, highly prejudicial, or reasonably calculated to unduly

influence the jury.’” Id. “The prosecutor may comment upon any facts introduced into

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

the facts.” Id. “Counsel ‘cannot, however, state facts which are not in evidence, and which

the court does not judicially know, in aid of his evidence. Neither can he appeal to the

17
prejudices of men by injecting prejudices not contained in some source of the evidence.’”

Id.

¶29. “Under the cumulative-error doctrine, individual errors, which are not reversible in

themselves, may combine with other errors to make up reversible error, where the cumulative

effect of all errors deprives the defendant of a fundamentally fair trial.” Harding v. State, 17

So. 3d 1129, 1133 (¶13) (Miss. Ct. App. 2009). The case law of our state “allows an

accumulation of otherwise harmless error to result in reversal.” Flowers, 773 So. 2d at 334

(¶82). Aggregate instances of prosecutorial misconduct can lead to reversal. Stringer v.

State, 500 So. 2d 928, 930-31 (Miss. 1986).

¶30. Throughout White’s trial, the district attorney made numerous prejudicial,

inflammatory, and improper comments. While the comments may not be reversible standing

alone, the cumulative effect of the otherwise harmless errors warrants reversal. Though the

instances of misconduct are plentiful, we only address the most egregious for the sake of

brevity.

A. Comments on Cross-Examination of LM

¶31. During the cross-examination of LM, defense counsel asked, “[MM] had moved in

2013 with her father and then back with her mother?” The district attorney then made a

speaking objection, in the presence of the jury, and stated, “Object to the relevance of where

[MM] was living. We are here because Curtis [White] was raping her.” Such an

inflammatory comment is improper and only serves to prejudice the jury against White.

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 B. Comments on Cross-Examination of White

¶32. White testified in his own defense at trial, and during the district attorney’s cross-

examination of him, she inquired about testimony LM gave regarding riding horses alone

with White and MM on occasion. White responded to the inquiries by refuting LM’s

testimony and testified that they had never ridden horses alone together. After the district

attorney unsuccessfully attempted to bait White into calling LM a liar and then proceeded to

badger him about “what did happen,” she made the following statement in front of the jury:

“What would you do? What would you do? I know what you’ve been accused of happened.

But I’m talking about what happened between you and [LM] and [MM], when you would

all be together?” (Emphasis added). White responded, “Nothing.”

¶33. “The law is clear that a prosecutor should abstain from incorporating his or her

personal beliefs into the presentation of his case.” Lewis v. State, 905 So. 2d 729, 736 (¶24)

(Miss. Ct. App. 2004) (citing United States v. Young, 470 U.S. 1, 9-10 (1985)). Though

White’s counsel did not contemporaneously object after the district attorney expressed her

personal belief of the defendant’s guilt, the supreme court has held that a court is “not . . .

constrained from considering the merits of the alleged prejudice by the fact that objections

were made and sustained, or that no objections were made.” Randall v. State, 806 So. 2d

185, 210 (¶57) (Miss. 2001). While “it is the duty of a trial counsel, if he deems opposing

counsel overstepping the wide range of authorized argument, to promptly make objections

and insist upon a ruling by the trial court,” if a comment is “so inflammatory that the trial

19
court should have objected on [its] own motion, the point may be considered.” Evans v.

State, 725 So. 2d 613, 670 (¶241) (Miss. 1997); Gray v. State, 487 So. 2d 1304, 1312 (Miss.

1986).

¶34. The district attorney’s blatant projection of guilt onto White, in the presence of the

jury, is so inflammatory, unfairly prejudicial, and extremely improper that in this

circumstance defense counsel’s lack of objection an does not bar the issue from our

consideration on appeal. The district attorney later made additional prejudicial comments

during her cross-examination of White. She asked White several questions about “raping”

MM and LM, and when White responded that she was wrong, she said, “Isn’t it true, that not

only did you [rape MM and LM], but that’s the same pattern, whenever you get an

opportunity around kids . . . ?” (Emphasis added). Again, defense counsel did not

contemporaneously object, but as stated above and applying the same precedent, we find that

under the circumstances of this case, the lack of an objection does not bar this issue from our

consideration on appeal.

¶35. An additional error was made during the cross-examination of White when the circuit

court admitted irrelevant and inadmissible character evidence. Somewhat randomly, the

district attorney asked White if he had been unfaithful to his first wife, to which defense

counsel objected. The following interaction took place:

Ms. Malone-Oliver: He has [a] character witness that’s coming in.
They’re going to talk about what a great person he
is . . . .

20
 The Court: So this line of questioning is going where?

Ms. Malone-Oliver: To the person, to him.

The Court: Character.

Ms. Malone-Oliver: Hmm hmm.

The Court: That’s it.

Ms. Malone-Oliver: Yeah.

¶36. Defense counsel quickly responded that the fact that the evidence was being used for

character purposes was the exact reason it was inadmissible under Rule 403. The district

attorney realized her slip and clarified her position:

Ms. Malone-Oliver: He opened the door with that talking about his
family life and how he’s been with her. He did
that. I should be able to question him about his
family life. That’s all I’m doing.

The Court: Well the thing of it, when we got into this earlier,
it went into credibility.

Ms. Malone-Oliver: I’m not talking about—

The Court: No, I’m talking it when [sic] to credibility.

Ms. Malone-Oliver: Right, and that’s what I’m talking about it [sic].
That’s what I’m using it for.

The Court: Not character.

Ms. Malone-Oliver: Right. I’m sorry. I misspoke.
The Court: As long as it go [sic] to credibility and not his
character.

Ms. Malone-Oliver: And his ability to tell the truth and honesty and

21
 how he lies.

¶37. The circuit court then overruled the objection and allowed the district attorney to

question White about if he and his first wife, Karen Hemphill, whom he married when he

was eighteen and has since divorced, separated because he was “lying, being untruthful, and

being unfaithful on several occasions.” The admission of prejudicial and irrelevant evidence

did not stop there, but continued when the district attorney asked, in the presence of the jury,

if White gave his first wife “two STD[]s while she was pregnant.” After defense counsel

objected, had the jury admonished to disregard the question, and unsuccessfully moved for

a mistrial, the district attorney then asked White if he divorced his “first wife while she was

pregnant.” Again, defense counsel objected, the jury was admonished to disregard the

question, and he unsuccessfully moved for a mistrial. Defense counsel unsuccessfully moved

for mistrial two additional times during the cross-examination of White.

¶38. Not only was the evidence that White gave his wife two STDs due to an affair wholly

irrelevant to the crimes charged, but it was unfairly prejudicial and substantially outweighed

any probative value it may have had. Further, the State inadvertently admitted it was opening

its own door to character evidence. The district attorney argued that White would have

character witnesses testify in the future, so she should be allowed to attack his character on

his cross-examination, before such witnesses testified. Such an argument misunderstands

the plain language of Rule 404(a)(1), which only allows a prosecutor to offer “[e]vidence of

a [defendant’s] pertinent trait” to “rebut” evidence the defendant presented first. (Emphasis

22
added). “The defense must be responsible for opening the door before the State is entitled

to enter.” McGee v. State, 853 So. 2d 125, 131 (¶13) (Miss. Ct. App. 2003).6

¶39. Twice during the district attorney’s cross-examination of White defense counsel

objected to the district attorney’s mischaracterization of the evidence and facts. The first

time he objected, the circuit court responded, “[J]ury will recall the testimony,” to which the

district attorney immediately interjected, “[j]ury remembers.” The second occasion, before

the circuit court could respond, the district attorney quipped, “The jury knows.” The district

attorney’s comments are inappropriate and outside the scope of the authority possessed by

a prosecutor. Evidentiary rulings are to be left to the court, and prejudicial comments that

are predominately made to tarnish the defense’s credibility are improper. While the

aforementioned instances of misconduct may not rise to the level of reversible error or plain

error on their own, the cumulative effect of the misconduct substantially prejudiced White

and denied him the constitutional rights of due process and a fair trial.

C. Comments During Closing Arguments

¶40. “In general, the failure to object to the prosecution’s statements in closing argument

constitutes a procedural bar.” Ross v. State, 954 So. 2d 968, 1001 (¶71) (Miss. 2007) (citing

6
On cross-examination of defense witness Wesley Womble, the State asked: “And
you’re saying that pretty much Curtis [White] is a good guy?” Defense counsel immediately
objected because on direct examination, Womble was only asked about White’s truthfulness.
The circuit overruled the objection, and allowed the State to attack Womble’s opinion with
specific bad-acts evidence. This is another example of the district attorney opening her own
door to character evidence.

23
Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006)). Despite the procedural bar, this Court

may address the statements if they were “so inflammatory that the trial judge should have

objected on [her] own motion.” O’Connor v. State, 120 So. 3d 390, 399 (¶23) (Miss. 2013).

As applied to failures to contemporaneously object during closing arguments, plain error may

only be found if the inflammatory or prejudicial comments have the “natural and probable

effect of . . . creat[ing an] unjust prejudice against the accused so as to result in a decision

influenced by the prejudice so created.” Mitchell v. State, 21 So. 3d 633, 642 (¶31) (Miss.

Ct. App. 2008) (quoting Dampier v. State, 973 So. 2d 221, 235 (¶39) (Miss. 2008)). “A

review under the plain error doctrine is necessary when a party’s fundamental rights are

affected, and the error results in a manifest miscarriage of justice.” McGee v. State, 953 So.

2d 211, 215 (¶8) (Miss. 2007). As has long been the rule under both the Constitutions of the

United States and of Mississippi, “[n]o person shall be deprived of life, liberty, or property

except by due process of law.” Miss. Const. art. 3 § 14; see also U.S. Const. amend. V.

While a defendant is not entitled to a perfect trial, he is certainly entitled to a fair trial by an

impartial jury. Smith v. State, 986 So. 2d 290, 299 (¶31) (Miss. 2008); U.S. Const. amend.

XIV; U.S. Const. amend. VI.

¶41. In the case at bar, there was a litany of prejudicial comments by the State in its closing

argument. Defense counsel failed to object to the comments discussed below, which would

ordinarily bar this Court from reviewing them on appeal. However, because the State’s

comments resulted in a manifest miscarriage of justice and a violation of White’s

24
constitutional rights of due process and fair trial by an impartial jury, this Court examines the

comments under plain-error review. The State’s misconduct during its closing argument

created an unjust prejudice against White and resulted in a decision influenced by the

prejudice so created, thus constituting reversible error. We now briefly discuss the most

constitutionally pervasive comments made by the district attorney and the assistant district

attorney in their respective closing arguments.

i. Improper Comments on Facts Not in Evidence

¶42. Both members of the State’s prosecution team focused heavily on the absence of any

“motive evidence” submitted by the defense. As stated previously, the circuit court excluded

social-media evidence and any other references to such, no matter how vague or how far

attenuated the references may have been. The State continuously implored the jury to “use

their common sense” and argued that it made “absolutely no sense” for MM to fabricate the

allegations. The assertion was supported by the district attorney when she said:

Not one time did you hear anything about [MM] hated Curtis [White] . . . . I
asked them on the stand. I’m trying to see[,] well[,] why would she lie on you
[sic]. Not one time did y’all hear anything about, she hated Curtis [White], she
had a problem with Curtis [White], no motive whatsoever against Curtis
[White].

¶43. The State’s exploitation of the circuit court’s pretrial ruling continued in the assistant

district attorney’s rebuttal, when she argued that it made no sense for MM to “lie on her

Uncle Curtis [White] for no good reason whatsoever,” and then noted, “I’m sorry people.

That’s not how it happens.”

25
¶44. It is improper for a prosecuting attorney to comment on evidence excluded by the

court. See Matthews v. State, 148 Miss. 696, 114 So. 816, 818 (1927). Here, because the

circuit court went to such lengths to exclude evidence even remotely connected to the social-

media evidence, the defense was deprived of the ability to present evidence supporting the

defense’s theory regarding MM’s motive to fabricate the allegations. Both the district

attorney and the assistant district attorney used the circuit court’s exclusion of the evidence

to argue that the defense did not provide evidence of MM’s motive for fabrication because

none existed. The exploitation of the court’s pretrial ruling in this manner was misleading

to the jury, prejudicial to the defendant, and improper under the findings of this Court.

¶45. Further, “[a]rguing statements of fact which are not in evidence or necessarily

inferable from facts in evidence is error when those statements are prejudicial.” Jackson v.

State, 174 So. 3d 232, 237 (¶12) (Miss. 2015). The district attorney argued throughout her

closing argument that White targeted MM specifically. However, she went a step further

in also arguing that there was “[n]o doubt in [her] mind that there were other children that

day[,] [who] could have helped [White]” set up for the Fourth of July party. No evidence

was presented regarding the availability of other children to help White; in fact, the first time

that theory was mentioned to the jury was during the district attorney’s closing argument.

Such statements are prejudicial because they bait juries into believing there is a basis for the

argument outside of the evidence presented. This is especially so when the statement is made

by a party who, in the minds of the jurors, has seen all of the possible evidence in the case

26
and, if believed, would not make such a comment unless it was supported by some type of

evidence. The district attorney’s comment was made in error, and while not sufficient to

constitute plain error on its own, combined with the plethora of other errors, the cumulative

effect creates reversible error.

ii. Improper Comments About White’s Character

¶46. The district attorney made numerous improper comments regarding White’s character.

Prosecuting attorneys should “refrain from doing or saying anything that would tend to cause

the jury to disfavor the defendant due to matters other than evidence relative to the crime.”

Banks v. State, 725 So. 2d 711, 718 (¶28) (Miss. 1997) (citing Sumrall v. State, 257 So. 2d

853, 854 (Miss. 1972)). It is impermissible to use appeals to the fears of juries, such as a

defendant’s future danger to society, at the guilt or sentencing phases of trials. Id.; see also

Williams v. State, 544 So. 2d 787, 799 (Miss. 1987). Statements that imply a defendant will

“commit crimes in the future if acquitted” are improper. Flora v. State, 925 So. 2d 797, 812

(¶46) (Miss. 2006) (citing Banks, 725 So. 2d at 718 (¶26)).

¶47. At one point during her closing argument, the prosecutor said, “That’s the thing with

when people don’t get stopped from doing something. Nine times out of ten that happens

again. It’s the urges.” It is clear that the district attorney’s purpose in implying that White

had a ninety-percent chance of being a recidivist was to play on the fears of the jury so that

they would return a verdict of guilty. While future-dangerousness comments are not per se

reversible error, they are improper and prejudicial and, combined with the multitude of other

27
impermissible instances of prosecutorial misconduct in this case, provide another validation

for our finding of abuse of discretion and reversible error.

¶48. The district attorney made glaring arguments pertaining to White’s character and

propensity for sexual deviance. Bolstering her unsupported assertion that White had a

ninety-percent chance of committing another sexual crime against a minor, the district

attorney argued that “[y]ou can live your whole life and nobody is going be [sic] saying you

raping [sic] them, unless you are doing it most of the time.” In commenting on White’s

unfaithfulness to his wife and the STDs he gave her, she asked the jury, “Is this the character

of someone that you believe?”

¶49. Recalling the previous discussion of this evidence, the district attorney was confused

when asked to answer the objection alleging that evidence of White’s affair was inadmissible

character evidence. The district attorney “misspoke” and declared that the evidence was

character evidence, before correcting herself to say the evidence was being offered as

evidence of White’s credibility. However, the arguments made during her closing argument

unequivocally show that her misstatement was in fact the exact reason the evidence was

being offered. It was offered to attack White’s character, not his credibility. Such evidence

was inadmissible character evidence at the time it was admitted, and the district attorney’s

comments regarding the evidence during closing argument were improper and highly

prejudicial. Again, while this instance of prosecutorial misconduct, if isolated, may not be

enough to constitute plain error, when combined with the many other instances of

28
misconduct, the cumulative effect warrants reversal.

iii. Improper Comments on the Credibility of Witnesses and the
Veracity of Their Testimony

¶50. The district attorney and the assistant district attorney repeatedly remarked on the

credibility of witnesses and the veracity of thier statements at trial. It is a long-standing and

well-known rule that “[a] prosecutor is forbidden from interjecting his personal beliefs

regarding the veracity of witnesses during closing argument.” Moffett v. State, 156 So. 3d

835, 859 (¶70) (Miss. 2014) (citing Foster v. State, 639 So. 2d 1263, 1288 (Miss. 1994)).

On several occasions during closing argument, the State remarked that MM “told the truth”

at trial and that White did not tell the truth at trial. The State went a step further, and

contrasted what defense counsel argued, by saying that the State “was speaking what [was]

actually true.”

¶51. In cases where such remarks were made in response to defense’s counsel’s arguments

or misconduct, the comments were not considered reversible error. See Foster, 639 So. 2d

at 1288. However, because the district attorney argued this in her first closing, her remarks

clearly could not have been in response to defense counsel’s arguments, since she argued

before him. The State’s remarks were improper and in direct conflict with the precedent of

this State. While alone they may not be sufficient to constitute plain error, when combined

with all other instances of prosecutorial misconduct in this case, the cumulative effect of the

errors requires reversal.

iv. Improper Comments Vilifying White

29
¶52. In perhaps the most egregious and prejudicial instance of prosecutorial misconduct,

the assistant district attorney called White a “pedophile” three times during her rebuttal

closing argument. The first of which occurred during the first three sentences of her

argument. The assistant district attorney told the jury that “[t]his is a case about Curtis White

[,] who is a pedophile.” She continued referencing White as a pedophile when she discussed

his relationship with MM and LM and his position to prey on them. She remarked that “a

pedophile [is] a person [who] gets into the perfect situation” to prey on their victims. Lastly,

the assistant district attorney said, “It’s been over two years and this man was having sex with

this little girl, his niece, the one that he loves so much, multiple times a week. Who does

that? A pedophile does it. Tell you who else did it? Curtis White.” (Emphasis added).

¶53. In addition to the assistant district attorney’s distressing comments, the district

attorney called White a “child molester” during her closing argument as well. The district

attorney attacked defense counsel for his cross-examination of the investigator in this case,

and she claimed that defense counsel “tried to make it where [the investigator] had done

something wrong.” She then said, “But that’s what you do when you don’t want to reflect

on the real issue. You want to make it about somebody else [other] than that child molester

you got sitting over there beside you.” (Emphasis added).

¶54. “In a criminal case, the district attorney should be careful not to indulge in personal

abuse or vilification of the defendant and should not appeal to passion and prejudice.”

Steward v. State, 263 So. 2d 754, 758-59 (Miss. 1972). “[I]t is improper for him to indulge

30
in intemperate characterization, personal abuse, or vilification of [the] accused, tending

solely to arouse or to inflame the passion and prejudice of the jury against him, even where

such comments are to some extent supported by the evidence.” Craft v. State, 226 Miss. 426,

434, 84 So. 2d 531, 534-35 (1956). “Further, the jury’s decision must be based on the

evidence; thus any verdict based on ‘bias, passion, or prejudice’ will be overturned.”

Franklin v. State, 136 So. 3d 1021, 1031 (¶33) (Miss. 2014) (quoting Sheppard v. State, 777

So. 2d 659, 662 (¶10) (Miss. 2000)).

¶55. It is clear that the district attorney’s and assistant district attorney’s repeated

vilification of White during their closing arguments served no other purpose than to inflame

the passion and prejudice of the jury against White. By calling White a pedophile multiple

times, the assistant district attorney essentially usurped the jury’s role in determining guilt

and imposed her own personal beliefs on the jury. Her comments were shocking, highly

prejudicial, and are not tolerated by this Court. Both the district attorney and the assistant

district attorney committed prosecutorial misconduct, and we find that the “natural and

probable effect” of repeatedly calling White a child molester and pedophile “create[d] unjust

prejudice against the accused so as to result in a [jury] decision influenced by the prejudice

so created.” There is little other purpose for calling a defendant, who is accused of sexual

acts with minors, a pedophile than to inflame the jury, prejudice the defendant, and taint the

constitutionally guaranteed right of a fair trial. As such, we find this to be plain error that

warrants reversal standing alone.

31
¶56. Even if these comments alone were not found to be sufficient to constitute error so

plain to warrant reversal, the cumulative effect of these comments combined with the copious

amount of other instances of misconduct creates reversible error.

¶57. Further, there was not sufficient evidence of guilt presented at trial that would excuse

this Court from examining this appeal under reviews for plain error and cumulative error.

See Jackson, 174 So. 3d at 236-37 (¶¶11-13) (holding that there was sufficient evidence of

the defendant’s guilt so as to excuse the court from finding plain or cumulative error in

regard to prosecutorial misconduct).

¶58. Lastly, the circuit court attempted to remedy the admission of the improper character

evidence and prejudicial comments by instructing the jury that testimony regarding acts

White committed on a child who is not the subject of this case was not indicative of his

character or propensity to act in conformity with that character. While this limiting

instruction was gravely needed, we find that the overwhelming prejudicial effect the

multitude of errors had on White’s constitutional rights could not be cured by the instruction.

¶59. Lastly, we attempt to address the concerns raised by the dissent. It appears the dissent

views each instance of misconduct in isolation, and as such, would find that White received

a fair trial. In doing so, however, the dissent relies on judicial mechanisms—such as jury

instructions and limiting instructions—to remedy any inappropriate misconduct by the State.

While we agree that in certain instances these instructions are not only appropriate but useful,

we find that the cumulative effect of the misconduct in this case—taken as a

32
whole—deprived White of his fundamental right to a fair trial. We likewise note that the

dissent takes issues with White’s failure to object to each inflammatory comment. To

reiterate, however, we find that those relevant instances were so inflammatory that the trial

judge should have objected on her own motion. See O’Connor, 120 So. 3d at 399 (¶23).

Thus, we find that White’s fundamental rights were violated, which therefore requires

reversal.

CONCLUSION

¶60. For the many reasons discussed above, we find that the circuit court abused its

discretion and committed reversible error in this case; thus, we reverse and remand for a new

trial consistent with the findings of this opinion.

¶61. THE JUDGMENT OF THE YAZOO COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO YAZOO COUNTY.

GREENLEE, J., CONCURS. LEE, C.J., BARNES AND FAIR, JJ., CONCUR
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
IRVING, P.J., AND CARLTON, J.; WILSON, J., JOINS IN PART. WESTBROOKS,
J., NOT PARTICIPATING.

GRIFFIS, P.J., DISSENTING:

¶62. Because I do not find the circuit court abused its discretion regarding the admissibility

of the evidence, nor do I find White was denied due process or a fair trial as a result of

prosecutorial misconduct, I respectfully dissent.

Social-Media Posts

33
¶63. The majority concludes it was reversible error to deny White the opportunity to

authenticate the social-media posts. The majority makes this conclusion while admittedly

declining “to delve into the merits of the various evidentiary arguments.” However, it is the

“various evidentiary arguments” that support the circuit court’s ruling.

¶64. “Mississippi Rule of Evidence 901 governs the requirements of authentication of

evidence.” Smith v. State, 136 So. 3d 424, 432 (¶18) (Miss. 2014). “[T]he authentication

requirement is satisfied by evidence sufficient to support a finding that the matter in question

is what its proponent claims.” Id. (citing M.R.E. 901(a)). “A party must make a prima facie

showing of authenticity.” Id. “Because of special concerns regarding fabrication, the fact

that an electronic communication on its face purports to originate from a certain person’s

social networking account is generally insufficient standing alone to authenticate that person

as the author of the communications.” Id. at (¶20).

¶65. White provided the circuit court copies of the social-media posts. He failed to offer

sufficient evidence that the social-media posts were made by MM or that the account was

actually hers. When the circuit court voiced its concern over the authenticity, defense

counsel stated, “She’s got her name and photograph there.” However, “[t]he ease with which

defendants and alleged victims alike could fabricate a social media account to corroborate

a story necessitates more than a simple name and photograph to sufficiently link the

communication to the purported author under Rule 901.” Id. at (¶21). As White failed to

provide sufficient evidence to support a finding that the social-media posts were what he

34
claimed, the circuit court did not abuse its discretion by excluding them.

¶66. Additionally, the evidence White sought to introduce centered around MM’s sexual

orientation and sexual behavior. Pursuant to Mississippi Rule of Evidence 412(a),

“reputation or opinion evidence of the past sexual behavior of an alleged victim of such

sexual offense is not admissible.” Evidence of MM’s sexual orientation and sexual behavior,

and the family turmoil that occurred as a result of such behavior, is exactly the reputation or

opinion evidence that Rule 412(a) excludes. As MM’s prior sexual behavior was irrelevant,

the social-media posts were properly excluded.

¶67. The majority finds the social-media posts are significant to White’s defense. I

disagree. White’s defense is that MM lied about the allegations charged in the indictment.

White sought the introduction of the social-media posts as evidence of MM’s motive to lie.

However, during cross-examination, MM admitted that she has had trouble in the past being

truthful, that she sometimes tells lies, and that her lies have been a problem with her family.

Thus, the circuit court’s exclusion of the social-media posts as evidence of MM’s motive to

lie did not prevent White from presenting his theory of the defense that she does in fact lie.

Prior Bad Acts

Statutory Rape of AB

¶68. Typically, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(b).

However, evidence of sexual misconduct involving other minors is admissible under Rule

35
404(b) when it demonstrates “that the defendant’s means of accomplishing [sexual activities]

on past occasions bear substantial resemblance to each other and with the present offense,

which serves as proof of motive and a common plan or scheme.” Boggs v. State, 188 So. 3d

515, (¶13) (Miss. 2016) (citing Gore v. State, 37 So. 3d 1178, 1186 (¶18) (Miss. 2010)).

¶69. Here, the record shows both AB and MM lived in close proximity to White, both of

their families had a close relationship with White and trusted him, both had the opportunity

to be alone with White, and both had issues with their parents at the time of the offense. The

substantial similarities between MM’s allegations and White’s misconduct with AB support

the admissibility of evidence of White’s sexual misconduct with AB.

Humphreys County Incident

¶70. The State offered evidence that White’s sexual misconduct with MM began when he

statutorily raped her on July 4, 2012, at Wolf Lake in Humphreys County. Evidence of

another crime or prior bad act may also be admissible “to tell the complete story so as not to

confuse the jury.” Archer v. State, 118 So. 3d 612, 625 (¶53) (Miss. Ct. App. 2012). “The

prosecution has a ‘legitimate interest in telling a rational and coherent story of what

happened.’” Id. at (¶54) (citing Brown v. State, 483 So. 2d 328, 330 (Miss. 1986)). As the

majority notes, “[i]t is the necessity by the State to use the other evidence . . . in order to tell

a coherent story that is the key to its admissibility.” Flowers v. State, 773 So. 2d 309, 324

(¶47) (Miss. 2000).

¶71. Here, in order to tell a complete, rational, and coherent story, it was necessary for the

36
State to present evidence of when and how White began his sexual misconduct with MM.

Although the Humphreys County incident occurred at a different time and location, the

incident is integrally related in fact with this case as it involves the same victim and similar

allegations of sexual misconduct.7

¶72. Overall, the record shows evidence of the statutory rape of AB and the Humphreys

County incident was properly admitted under Rule 404(b) and filtered through Rule 403, and

was accompanied by a limiting instruction. The majority asserts that the circuit court failed

to specify under which permitted use the evidence would be admitted. However, the record

makes clear such evidence was offered to show opportunity, motive, plan, absence of mistake

or accident, and/or intent. Thus, I find the evidence was properly admitted and would

affirm.8

Prosecutorial Misconduct

¶73. I do not find the allegations of prosecutorial misconduct endangered the fairness of

White’s trial and the impartial administration of justice. Pitchford v. State, 45 So. 3d 216,

233 (¶58) (Miss. 2010). Moreover, I disagree with the majority’s opinion that “the circuit

7
Here, MM alleged White parked his vehicle behind a pond, performed oral sex on
her, and engaged in vaginal sex with her. Regarding the Humphreys County incident, MM
alleged that, while at Wolf Lake, White made her perform oral sex on him, and engaged in
vaginal sex with her.
8
The majority finds the circuit court abused its discretion in failing to exclude
testimony from Brenda Dew. However, White does not raise such alleged failure as an
assignment of error on appeal. Instead, White’s assignment of error is limited to the statutory
rape of AB and the Humphreys County incident.

37
court abused its discretion and committed reversible error in this case.” Nevertheless, I will

address the specific concerns raised by the majority.

Comments on Cross-examination of LM

¶74. The majority finds the comment made by the district attorney that “[w]e are here

because [White] was raping [MM]” to be inflammatory and prejudicial. However, the jury

had been advised and was aware of the nature of the case. The jury clearly knew the

allegations involved and that the State’s position was that White raped MM. The fact that

this was repeated in front of the jury does not rise to the level of prosecutorial misconduct.

Comments on Cross-examination of White

¶75. The majority further finds the prosecutor’s interjection of her personal beliefs and

projection of guilt onto White were improper. However, no contemporaneous objection was

made by White. “If no contemporaneous objection is made, the error, if any, is waived.

Walker v. State, 913 So. 2d 198, 238 (¶148) (Miss. 2005). The majority claims the comments

were so inflammatory and prejudicial that the circuit court should have objected on its own

motion. See Gray v. State, 487 So. 2d 1304, 1312 (Miss. 1986). However, if the instances

of misconduct were so “plentiful,” as the majority notes, White should have objected. White

cannot sit idly by and expect the circuit court to object each and every time to what he now

claims amounts to “[a]ggregate instances of prosecutorial misconduct.”

¶76. The majority further takes issue with the prosecutor’s questions to White regarding

his first wife. However, upon White’s objection, the jury was instructed to disregard the

38
questions.

Closing Arguments

¶77. The majority finds a “litany of prejudicial comments by the State in its closing

argument.” However, once again, White failed to object to any comments made during

closing arguments. Regardless, the record shows the jury was properly instructed that

statements made by counsel are not evidence.

¶78. Upon review, for the reasons discussed herein, I find no abuse of discretion and would

affirm White’s conviction and sentence.

IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION; WILSON, J., JOINS
THIS OPINION IN PART.

39