Tracy Ellis v. State of Mississippi

Canton, MS - Criminal Defense Attorney, two counts of fondling for molesting his stepdaughters





¶2. Alicia Ellis (Alicia) and Ellis began dating in 2009 in North Carolina. In 2010, Alicia

and her three daughters, AX, AY, and AB, moved to Oklahoma with Ellis. In Oklahoma,

Ellis began paying AX, then eleven years old, and AY, then ten years old, to give him back

and shoulder massages. Initially, AX and AY massaged Ellis in the family’s living room, but

Ellis later asked them to massage him in his bedroom instead. Ellis would lock the bedroom

door while the girls massaged his back, shoulders, legs, and buttocks. Alicia knew that AX

and AY were giving Ellis massages, and she thought it “was kind of weird,” but she “never

said anything because . . . [she] tried her best to . . . trust . . . [Ellis].” Alicia did ask Ellis

why he locked their bedroom door. Ellis responded that Alicia’s walking “in and out of the

bedroom . . . was interrupting his sleep and relaxation of getting a massage.”

¶3. AX and AY testified that in 2010 Ellis pulled them into a “dim” room and showed

them how to “rub” his penis. They took turns rubbing Ellis’s penis until he ejaculated. After

this incident, Ellis began asking the girls for “rubs” in addition to back massages. AX and

AY understood that when Ellis asked for a “massage,” he wanted a traditional massage, but

when Ellis asked for a “rub,” he wanted them to rub his penis. AX and AY did not talk about

these incidents with one another. AX and AY both testified that Ellis would pay them twenty

dollars or more “to rub his penis.”

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¶4. In 2013, the family moved back to North Carolina, and Alicia and Ellis married. In

2015, the family moved to Mississippi. By this time, Alicia and Ellis were having marital

problems and were discussing a divorce. AX and AY testified that the massages and “rubs”

continued in North Carolina and Mississippi.

¶5. In January 2018, Ellis and Alicia had an argument related to their discussions about

a divorce. After the argument, Alicia went into AY’s room and saw that AY “was in deep

thought.” Alicia asked AY what was on her mind, and AY disclosed that she and AX had

been “massaging [Ellis’s] penis” for some time. At the time, AX was away from home for

military training. Alicia texted AX about AY’s disclosure, and AX confirmed that it was

true. Alicia and AY then went to the Ridgeland Police Department to report Ellis’s abuse.

Ellis was arrested, and he was indicted for two counts of fondling, one count for molesting

AX, and one count for molesting AY. The case proceeded to trial in January 2019.

¶6. Alicia testified that she had seen AX and AY giving Ellis back massages. She also

testified that Ellis locked the bedroom door whenever AX or AYmassaged himin the marital

bedroom. She testified that her daughters told her “maybe two times” that they were fearful

of Ellis. Alicia stated that neither girl disclosed any abuse prior to January 2018. However,

around March 2017, AY told Alicia about an incident that made AY uncomfortable. AY told

Alicia that Ellis had hugged her inappropriately in the hallway and “touched her butt.” AY

also told Alicia that Ellis had sent her text messages about the incident. When Alicia

confronted Ellis about the incident and the messages, Ellis “never denied it. He just basically

said that he was just being country and that’s how he played.”

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¶7. AY testified that Ellis first told her to rub his penis when she was ten years old and

they lived in Oklahoma. She testified that this abuse continued in North Carolina and

Mississippi. AY testified that as she got older, she felt “disgust[ed]” whenever she rubbed

Ellis’s penis, but she was “scared to say no to [Ellis] because he [was] . . . intimidating,

especially when [he was] angry.” However, while the family was living in Mississippi, AY

refused to continue rubbing Ellis’s penis. At that point, Ellis told her, “If I’m cut off, then

you’re cut off.” According to AY, Ellis then began treating her differently than AX and cut

her off both financially and emotionally.

¶8. AX testified that she rubbed Ellis’s penis from the time she was eleven years old until

she left home at the age of eighteen to join the military. AX stated that she joined the

military “to get out of the house” and away from “a scared environment.” AX testified that

she continued to rub Ellis’s penis after AY stopped because she was “afraid to stop” and

“wanted to have a relationship with [Ellis].” AX stated that after AY stopped giving Ellis

“rubs,” Ellis treated AY differently. Ellis constantly “talked down” to AY and called her

“stupid.” AX testified, “[O]f course I didn’t want that . . . to happen to me.” AX did not tell

anyone about Ellis’s abuse until she told Alicia in January 2018.

¶9. Leslie Owens, an investigator with the Ridgeland Police Department, testified that she

met with Alicia, AX, and AY to discuss their allegations against Ellis. AY showed Owens

messages on her cell phone that Ellis allegedly sent to her. These included both standard text

messages and messages on the Google Hangouts application. However, Owens did not

examine the phone to attempt to verify the number or identity of the sender. After

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interviewing Alicia, AX, and AY and obtaining affidavits from the girls, Owens concluded

that there was sufficient evidence to arrest Ellis.

¶10. Ellis testified at trial. He denied that his stepdaughters had ever touched or rubbed

his penis. In addition, Ellis denied sending the text messages and Google Hangouts messages

that were introduced into evidence at trial. Ellis admitted that Alicia confronted him about

hugging AY in the hallway in a way that made AY feel uncomfortable. However, Ellis

testified that Alicia’s only complaint was that he had “picked [AY] up and held her” when

he hugged her, nothing more. Ellis also admitted that his stepdaughters gave him back

massages, that some of the massages took place in his locked bedroom, and that he began

paying his stepdaughters for the massages as they got older. Ellis stated, “I didn’t get them

to do anything. They volunteered to do it. I never made them do anything.”

¶11. The jury found Ellis guiltyon both counts ofthe indictment. The court sentenced Ellis

to two consecutive terms of fifteen years in MDOC custody. Ellis filed a motion for

judgment notwithstanding the verdict or a new trial, which the court denied, and a notice of

appeal. On appeal, Ellis argues that the trial judge abused his discretion by (1) admitting

evidence under Mississippi Rule of Evidence 404(b) that Ellis had molested AX and AY for

several years prior to the acts charged in the indictment; (2) denying Ellis’s motion for a new

trial; (3) excluding family photos and a letter that AX sent to Alicia and Ellis; and (4)

admitting evidence of text messages and Google Hangouts messages that Ellis sent to AY.

ANALYSIS

I. Rule 404(b) Evidence

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¶12. Prior to trial, the State filed a notice of intent to introduce evidence that Ellis

“molested the victims and acted inappropriately on other occasions.” The State argued that

the evidence was relevant and admissible under Mississippi Rule of Evidence 404(b) to show

the “pedophilic, sexual motive” of Ellis toward AX and AY. At a pretrial hearing, the State

explained that AX and AY would testify to “how the abuse started and that it started out with

giving massages and then moved into massaging [Ellis’s] penis, how it then moved into

doing that for payment, [and] how there were occasions where they watched pornographic

materials with [Ellis].” The trial judge ruled that the evidence was admissible under Rule

404(b) and was “more probative than unfairly prejudicial.” In addition, before AX and AY

testified, the judge gave a limiting instruction “regarding other alleged acts of [Ellis that

were] offered in an effort to prove motive and opportunity, intent and absence of mistake or

accident.” The judge instructed the jury, “You may give [such] testimony such weight and

credibility as you deem proper under the circumstances; however, you cannot and must not

consider the testimony in any way regarding whether [Ellis] is guilty or not guilty of the

crime for which he is presently on trial.” The judge gave the same oral and written

instruction after the close of the evidence. Ellis requested that the instruction be given and

did not suggest any changes to its substance.

¶13. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with

the character.” M.R.E. 404(b)(1). However, such “evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

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absence of mistake, or lack of accident.” M.R.E. 404(b)(2). Moreover, our Supreme Court

“has repeatedly held that ‘evidence of prior sexual acts between the accused and the victim

is admissible [under Rule 404(b)]to show the accused’s lustful, lascivious disposition toward

the particular victim, especially in circumstances where the victim is under the age of

consent.’” Caldwell v. State, 6 So. 3d 1076, 1078 (¶6) (Miss. 2009) (quoting Walker v. State,

878 So. 2d 913, 915 (¶14) (Miss. 2004)).

¶14. If the evidence is offered for a permissible purpose under Rule 404(b), it still “must

pass through the ultimate filter of [Rule] 403.” White v. State, 842 So. 2d 565, 574 (¶27)

(Miss. 2003) (quotation marks omitted). Under Rule 403,”[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” M.R.E. 403 (emphasis added).

¶15. At trial, both AX and AY testified that Ellis began abusing them in Oklahoma when

they were eleven and ten years old, respectively. They also testified similarly regarding the

progression leading up to the abuse—from traditional massages, to massages in a locked

bedroom, to sexual abuse. They also both testified that the abuse continued as the family

moved to North Carolina and eventually to Mississippi. Under Supreme Court precedent,

their testimony regarding Ellis’s history of sexual abuse against them was admissible under

Rule 404(b) to prove Ellis’s “lustful, lascivious disposition toward [them].” Caldwell, 6 So.

3d at 1078 (¶6). Moreover, the trial judge did not abuse his discretion by ruling that the

evidence was “more probative than unfairly prejudicial.”

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¶16. Citing White v. State, 228 So. 3d 893 (Miss. Ct. App. 2017), Ellis argues that the trial

judge committed reversible error by not identifying on the record the specific purpose for

which the evidence was admissible under Rule 404(b). However, the lead opinion in White2

concluded “the circuit court abused its discretion in admitting . . . highly prejudicial and

minimally probative nine-year-old, uncharged statutory-rape evidence.” White, 228 So. 3d

at 902 (¶22). The trial judge committed no similar abuse of discretion in this case.

¶17. Moreover, our Supreme Court has held that “the trial court’s failure to identify the

specific applicable exception(s) under Rule 404(b) does notrequire reversal.” Green v. State,

89 So. 3d 543, 551 (¶17) (Miss. 2012); accord, e.g., Johnson v. State, 204 So. 3d 763, 768

(¶15) (Miss. 2016); Masters v. State, 285 So. 3d 192, 197 (¶17) (Miss. Ct. App. 2019). Here,

the evidence was admissible for the purpose identified in the State’s notice of intent, and we

find no abuse of discretion in the trial judge’s ruling admitting the evidence.

II. Weight of the Evidence

¶18. Ellis next contends that he is entitled to a new trial because the jury’s verdict was

against the overwhelming weight of the evidence. The trial judge, having heard the evidence

and observed the witnesses firsthand, is in a far better position than this Court to rule on a

motion for a new trial. Little v. State, 233 So. 3d 288, 291-92 (¶¶17-19) (Miss. 2017).

Therefore, we review the trial judge’s decision denying a new trial only for an abuse of

discretion. Id. at 292 (¶21). In addition, we must “view the evidence in the light most

2 White produced no identifiable majority opinion. The lead opinion—which found

that reversal was required for “many reasons”—was joined in full by only one other judge

and joined in unspecified part and in result by three other judges, which resulted in a reversal

of the conviction by a 5-4 vote. White, 228 So. 3d at 912 (¶60).

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favorable to the verdict and disturb the verdict only when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Id. at 289 (¶1). We do not “assume[] the role of juror on appeal.

We do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not

resolve conflicts between evidence. Those decisions belong solely to the jury.” Id.

¶19. Ellis claims that both AX and AY falsely accused him in order to help Alicia obtain

a divorce. Ellis also argues that AX’s and AY’s testimonies were inconsistent and confusing

and that there is no corroborating physical evidence. However, “[o]ur case law holds that

the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict

where the testimony is not discredited or contradicted by other credible evidence, especially

if the conduct of the victim is consistent with the conduct of one who has been victimized

by a sex crime.” Cross v. State, 759 So. 2d 354, 356 (¶11) (Miss. 1999).

¶20. In this case, AX’s and AY’s testimonies regarding Ellis’s abuse were consistent on

material points. Moreover, Alicia confirmed and Ellis admitted that Ellis paid both girls for

massages behind locked doors. In addition, AY testified that Ellis “grabb[ed] her butt . . .

in a sexual way.” When Alicia confronted Ellis about the incident, he did not deny it but

simply stated that “he was just being country and that’s how he played.”

¶21. The “task of evaluating the credibility of each witness is properly left to the sole

province of the jury.” Blackwell v. State, 744 So. 2d 359, 364 (¶18) (Miss. Ct. App. 1999).

“Our role as an appellate court is to review the trial court’s decision to grant or deny a new

trial for an abuse of discretion.” Little, 233 So. 3d at 292 (¶21). The jury heard the

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testimonies of AX, AY, Alicia, and Ellis. The jury obviously found that AX and AY were

credible witnesses and that Ellis was not. Moreover, Ellis presented nothing, other than his

own denials, to contradict the evidence against him. Viewing the evidence in the light most

favorable to the verdict, we cannot say that the verdict was against the overwhelming weight

of the evidence or that the trial judge abused his discretion by denying Ellis’s motion for a

new trial.

III. Exclusion of Evidence

¶22. Ellis next argues that the trial judge abused his discretion by excluding Exhibit D-2,

a composite of family photos, and Exhibit D-3, a letter that AX wrote to Alicia and Ellis

during her military training. We review a trial judge’s rulings admitting or excluding

evidence only for an abuse of discretion. Floyd v. City of Crystal Springs, 749 So. 2d 110,

113 (¶12) (Miss. 1999). Furthermore, “[w]here error involves the admission or exclusion of

evidence, this Court will not reverse unless the error adversely affects a substantial right of

a party.” Id. (quotation marks omitted).

A. Exhibit D-2

¶23. During Alicia’s testimony, Ellis attempted to offer Exhibit D-2, a composite of eleven

photos showing the family with Ellis. The photos showed AX and AY smiling with Ellis,

and Ellis argued that they were relevant to show his “relationship with these children” and

to rebut AX and AY’s claims that they had been afraid of him. The State objected to the

photos as irrelevant and because theywere not produced in discovery.

3 The trial judge stated

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See MRCrP 17.3(2) (requiring the defendant to produce any photos that he intends

to offer at trial if he makes a request for discovery under Rule 17.2). Ellis made a pretrial

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that the photos might “become relevant at some point” when AX or AY testified. However,

the judge ruled, “[A]t this point in time, I’m going to sustain the objection on the grounds of

discovery but most importantly relevance at this time.” Ellis did not attempt to introduce the

photos during the testimony of AX or AY.

¶24. If the photos were relevant to some aspect of AX’s or AY’s testimonies, then Ellis

should have offered them at that point. Indeed, the trial judge specifically stated that the

photos might “become relevant at some point” during their testimony. However, Ellis failed

to do so. Moreover, AX and AY only testified that they were afraid of Ellis at times or in

certain situations. Photos of the girls smiling in family photos in other situations do not

contradict that testimony. Therefore, we cannot say that the trial judge abused his discretion

by excluding the photos as irrelevant.

B. Exhibit D-3

¶25. Ellis also argues that the trial judge abused his discretion by excluding Exhibit D-3,

a two-page letter that AX wrote to Alicia and Ellis during her military training. In her direct

examination, AX testified that she was fearful of Ellis and that she joined the military partly

to get out of the house and get “away from the scared environment.” Ellis argued that D-3

was relevant to show that AX was not fearful of him because AX indicated in the letter that

she missed her family.

4 The State objected on the grounds that the letter was not relevant and

request for discovery under Rule 17.2 but admitted that he failed to produce the photos in

response to the State’s request for reciprocal discovery.

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In the letter, AX primarily talked about her experiences during military training. In

closing, AX stated, “Tell everyone I said hey and I’m doing good. Love all of you.”

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was not disclosed in discovery. The trial judge excluded the letter, finding that “the fact she

wrote her mother and [Ellis] a letter [was not] particularly relevant.” However, the trial

judge admitted Exhibit D-4, which was a similar letter that AX wrote to Ellis during her

military training. The court determined that D-4 was relevant to AX’s testimony regarding

her alleged fearfulness of Ellis.

¶26. We cannot say that the trial judge abused his broad discretion by finding that D-4 was

relevant but D-3 was not. See Farris v. State, 906 So. 2d 113, 117 (¶7) (Miss. Ct. App. 2004)

(“The trial court has broad discretion in determining the relevance of evidence . . . .”); see

also Irby v. State, 49 So. 3d 94, 100 (¶16) (Miss. 2010) (“A trial judge enjoys a considerable

amount of discretion as to the relevancy and admissibility of evidence.” (quoting Graves v.

State, 492 So. 2d 562, 565 (Miss. 1986))). D-3 added nothing to D-4, and the trial judge did

not abuse his discretion by finding that the fact that AX had written a letter to both her

mother and her stepfather was not relevant to any material fact in the case. See M.R.E. 401

(“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in determining the

case.”). Accordingly, this issue is also without merit.

IV. Google Hangouts Messages and Text Messages

¶27. Next, Ellis contends that the trial judge abused his discretion by admitting Exhibits

S-5 and S-6. Exhibit S-5 is a screenshot of messages that Ellis allegedly sent to AY on the

Google Hangouts application. Exhibit S-6 is a photo of text messages that Ellis allegedly

sent to AY. Ellis argues that the messages were not properly authenticated.

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¶28. We review a trial judge’s ruling on authenticity only for an abuse of discretion. Ragin

v. State, 724 So. 2d 901, 903 (¶7) (Miss. 1998). “To satisfy the requirement of authenticating

or identifying an itemof evidence, the proponent must produce evidence sufficient to support

a finding that the item is what the proponent claims it is.” M.R.E. 901(a) (emphasis added).

Under Rule 901, “[a] party need only make a prima facie showing of authenticity, not a full

argument on admissibility. Once a prima facie case is made, the evidence goes to the jury

and it is the jury who will ultimately determine the authenticity of the evidence, not the

court.” Garcia v. State, No. 2017-DP-00504-SCT, 2020 WL 2487383, at *20 (¶94) (Miss.

May 14, 2020) (emphasis added) (quoting Walters v. State, 206 So. 3d 524, 535 (¶32) (Miss.

2016)). “In other words, the [proponent of the evidence is] not required to rule out all

possibilities inconsistent with authenticity.” Id. (quotation marks omitted). “The only

requirement is that there has been substantial evidence from which [the jury] could infer that

the [evidence] was authentic.” Young v. Guild, 7 So. 3d 251, 262 (¶36) (Miss. 2009)

(quoting Sewell v. State, 721 So. 2d 129, 140 (¶60) (Miss. 1998)).

A. Exhibit S-5

¶29. As stated above, Exhibit S-5 is a screenshot of messages that Ellis allegedly sent AY

on her phone via the Google Hangouts application. The screenshot shows that AY was

interacting with “Tracy Ellis,” whose profile picture was a photo of Ellis. AY testified that

she regularlymessaged with Ellis using the application. The exchange between Ellis and AY

on February 8 and 13, 2017, was as follows:

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Ellis: I don’t suppose you would wanna give me a quick rub,[5] would you?

AY: No

Ellis: Ok, just wanted to try, LOL.

Ellis: Damn!!!! You are such a hotty. May I hug & cuddle with you more

often?

AY: Well u can hug me more often.

Ellis: Can I hug you more like I did in the hallway?

AY: Um . . . No

Ellis: Really??? Thats fine, if I’m cut off; you’re cut off as well.

¶30. The first three messages were sent on February 8, 2017. The remaining messages

were sent on February 13, 2017. AY testified that the February 13 exchange occurred

immediately after the incident in which Ellis “grabb[ed] her butt” in the hallway of their

home. AY further testified that Ellis was the only other person who knew about the incident

at the time the messages were sent. As discussed above, Alicia testified that AY later told

her about the incident and the messages, and Alicia confronted Ellis about the incident and

specifically about the messages. Alicia testified that Ellis did not deny that the incident

occurred, nor did he deny the statements he made in the messages.

¶31. Evidence can be authenticated in many different ways. M.R.E. 901(b). Rule 901 lists

nine specific “examples” of proper methods of authentication, but it also makes clear that

those are “examples only” and “not a complete list.” Id. Our Supreme Court has stated that

5 As discussed above, AY testified that when Ellis asked for a “rub,” he wanted her

to massage his penis.

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“[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.” Smith v. State,

136 So. 3d 424, 433 (¶21) (Miss. 2014). However, even in this context, the Court recognized

that there remain a number of viable options for authenticating such evidence. Id. This

includes, as relevant here, evidence that “the purport[ed] sender admit[ted] authorship” or

that “the communication contains information that only the purported sender could be

expected to know.” Id.

¶32. In the present case, the trial judge noted that Alicia “testified without objection that

she confronted [Ellis] about these messages and about the hug in the hallway, and [Ellis] said

specifically, ‘I was just being country,’ something to that effect.” In other words, according

to Alicia, Ellis effectively admitted that he sent the messages. Given Alicia’s testimony, the

trial judge concluded that Ellis’s objection went “to the weight [of the evidence], not [its]

admissibility.” In addition, AY testified that she received the messages about the “hug . . .

in the hallway” immediatelyafter Ellis hugged and groped her inappropriately in the hallway.

AY testified that at that time, only she and Ellis knew about the incident.

¶33. On these facts, we cannot say that the trial judge abused his discretion by admitting

Exhibit D-5. As discussed above, the State’s burden was only to “produce evidence

sufficient to support a finding” that the evidence was authentic. M.R.E. 901(a). Once that

burden is met, “it is the jury who will ultimately determine the authenticity of the evidence,

not the court.” Garcia, 2020 WL 2487383, at *20 (¶94) (quoting Walters, 206 So. 3d at 535

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(¶32)). “The only requirement is that there has been substantial evidence from which [the

jury] could infer that the [evidence] was authentic.” Young, 7 So. 3d at 262 (¶36) (quoting

Sewell, 721 So. 2d at 140 (¶60)). Here, the testimony of Alicia and AY—if believed—was

sufficient to support a finding that Ellis sent the messages shown in Exhibit D-5. Ellis

complains that there is no “independent corroboration” that he sent the messages, but the trial

judge did not abuse his discretion by ruling that there was enough evidence to support a

finding of authenticity and that Ellis’s objections went to the weight of the evidence rather

than its admissibility.

B. Exhibit S-6

¶34. As stated above, Exhibit S-6 is a photo of two traditional text messages that Ellis

allegedly sent to AY. The photo shows that the messages were sent by “Pop,” but it does not

show the sender’s phone number. AY testified that she saved Ellis’s phone number in her

phone as “Pop.” In the messages, “Pop” first stated that he was “coming up with jobs for

[AY] & how much [AY should] be paid” for the jobs. “Pop” then asked whether AY was

“willing to massage [him] based on [his] needs.” “Pop” stated that massages were “just

another option that [would] lead to [AY] earning more money.” “Pop” stated that it was “ok”

if AY was “not willing to do” massages. AY testified that she only had a photo of the text

messages because the messages were saved on an old phone that did not have a screenshot

feature. Therefore, she used her mother’s phone to take a photo of the messages and then

provided the photo to the police. The police did not take possession of AY’s phone or take

anyother steps to determine whether the messages were sent froma phone number associated

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with Ellis. As stated above, Ellis objected to S-6 on the ground that it was not properly

authenticated. The trial judge initially reserved ruling on S-6 but ultimately admitted it into

evidence over Ellis’s objection.

¶35. Unlike Exhibit S-5, there is no substantial evidence in the record to show that Ellis

sent the text messages depicted in S-6. Rather, the record contains only AY’s unverifiable

claim that “Pop” was a contact with a phone number that belonged to Ellis. In Smith, supra,

the Supreme Court stated that “something more than simply a name and [a] small, blurry

photograph . . . is needed to identify the [owner of a] Facebook account.” Smith, 136 So. 3d

at 433 (¶20). In addition, more than that was necessary “to make a prima facie case that the

messages were actually sent by [the account’s owner].” Id. at 434 (¶25). In this case, we do

not have even a name or a profile picture—or even a phone number or any other identifying

information. We have only a nickname assigned by the recipient. A person can assign any

nickname to a phone number stored in his or her own phone, so the fact that the messages

at issue came from “Pop” proves nothing in and of itself. Moreover, other than the fact that

the messages are consistent with the allegations against Ellis, there is nothing unique about

the messages that identifies him as the sender. Nor is there any evidence that Ellis was ever

confronted about or admitted sending these messages. Under these circumstances, Exhibit

S-6 was not properly authenticated as having been sent by Ellis, and it should not have been

admitted into evidence.

¶36. However, “[t]o warrant reversal, two elements must be shown: error and injury to the

party appealing.” Gray v. State, 799 So. 2d 53, 61 (¶30) (Miss. 2001). In other words, “[w]e

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will not reverse a conviction based on a harmless error.” Chaupette v. State, 136 So. 3d

1041, 1047 (¶12) (Miss. 2014). We conclude that the error in this case was harmless.

Exhibit S-6 did not contain any admission of guilt or any express reference to any conduct

of a sexual nature. “Pop” simply inquired whether AY would be willing to give massages

for money. As discussed above, Ellis readily admitted that he paid both AX and AY for

massages behind a locked bedroom door. Accordingly, Exhibit S-6 was nothing more than

corroboration of what Ellis himself admitted, and we fail to see how he was prejudiced by

its admission. Therefore, the error was harmless.

The trial judge did not abuse his discretion by admitting evidence under Rule 404(b), by denying Ellis’s motion for a new trial, by excluding Exhibits D-2 and D-3, or by admitting Exhibit S-5. We conclude that Exhibit S-6 was not properly authenticated and should not have been admitted; however, the error was harmless in light of Ellis’s own testimony and the weight of the evidence against him. In short, Ellis received a fair trial, and the jury’s verdict finding him guilty was not against the overwhelming weight of the evidence.

AFFIRMED.