Gore v. State


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Docket Number: 2009-KA-01090-SCT

Supreme Court: Opinion Link
Opinion Date: 07-01-2010
Opinion Author: Randolph, J.
Holding: Affirmed

Additional Case Information: Topic: Gratification of lust - Prior misconduct - M.R.E. 404(b) - M.R.E. 403 - Exclusion of testimony - M.R.E. 608(b) - Warrentless search - Sufficiency of evidence
Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Lamar, Chandler and Pierce, JJ.
Dissenting Author : Kitchens, J., Dissents With Separate Written Opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 07-01-2009
Appealed from: RANKIN COUNTY CIRCUIT COURT
Judge: William E. Chapman, III
Disposition: Conviction of gratification of lust and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections, with conditions.
District Attorney: Michael Guest
Case Number: 20561

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: John T. Gore




OFFICE OF INDIGENT APPEALS: GEORGE T. HOLMES, LESLIE S. LEE



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

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    Topic: Gratification of lust - Prior misconduct - M.R.E. 404(b) - M.R.E. 403 - Exclusion of testimony - M.R.E. 608(b) - Warrentless search - Sufficiency of evidence

    Summary of the Facts: John Gore was convicted of gratification of lust. He was sentenced to fifteen years, with the final two years suspended, and five years of post-release, supervised probation. He appeals.

    Summary of Opinion Analysis: Issue 1: Prior misconduct The State sought to introduce testimony from the defendant’s adult children that he had sexually molested his daughter in his bed and had made her sit on his lap while both were naked to look at child pornography on his computer when she was twelve years old; had required both children to be naked at home, as he often was, in their juvenile years; and had required them to remain disrobed at a nudist colony. Gore argues that the nudist colony evidence and evidence about the allegations involving his daughter were remote, irrelevant, and more prejudicial than probative. Under one or more of the exceptions listed in M.R.E. 404(b), the circuit court did not abuse its discretion in admitting evidence of Gore’s prior sexual abuse of his daughter, as well as acts of nudity involving his children and granddaughter. As to relevance and probative value under M.R.E. 403, Gore’s prior sexual abuse of his daughter tends to demonstrate pedophilic sexual activities with young and developing female juveniles. The defendant’s means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offense. There was no abuse of discretion by the circuit court in admitting the evidence under the exceptions of Rule 404(b), and further finding its probative value was not substantially outweighed by its prejudicial effect. The circuit court also provided the jury with a limiting instruction. Issue 2: Exclusion of testimony In attempting to rebut his daughter’s testimony, Gore sought to call his former girlfriend to testify that she, Gore, and the daughter were always clothed when the daughter was in bed with them and that she had never witnessed Gore touching his daughter improperly. The court found that the testimony was prohibited under M.R.E. 608(b). The circuit court erred in concluding that Stanley’s testimony was prohibited under Rule 608(b). The State concedes as much. The testimony pertained not to the daughter’s character and conduct, but rather to specific acts of Gore’s conduct. Moreover, the sole reason for Gore proffering such evidence was not to attack or support the witness’s character for truthfulness but to provide a contrasting statement regarding a fact presented by the State through the daughter’s testimony (i.e., that all three were naked in bed). However, the error was harmless when compared to the overwhelming evidence of Gore’s guilt. Issue 3: Warrantless search Gore argues that since the seizure of his vibrator was made neither incident to arrest and without consent, and without probable cause, it should have been suppressed. Voluntary consent eliminates the warrant requirement. The circuit court’s denial of Gore’s motion to suppress was supported by substantial evidence. The circuit court was presented with evidence that Gore was informed of his Miranda rights, that he stated that he understood those rights as a former law enforcement officer, and that he then proceeded to recount his version of the incident to the officers on his front porch. In so doing, Gore noted that the vibrator was under his bed and offered to retrieve it. Gore then voluntarily led the officers to his bedroom, where the vibrator was retrieved. Issue 4: Sufficiency of evidence The jury was presented with not merely sufficient evidence of Gore’s guilt on the enumerated elements, but overwhelming evidence of such.


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