Green v. State
| Docket Number: | 2009-KA-01373-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-31-2012 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery & Touching child for lustful purposes - Other sexual offenses - M.R.E. 404(b) - M.R.E. 403 - Tender years exception - M.R.E. 803(25) - Exclusion of evidence - M.R.E. 103(a)(2) - Weight of evidence Judge(s) Concurring: Waller, C.J., Carlson, P.J., Lamar and Pierce, JJ. Dissenting Author : Kitchens, J. Dissent Joined By : Chandler and King, JJ. Concur in Part, Concur in Result 1: Dickinson, P.J. Concur in Part, Concur in Result Joined By 1: Joined in Part by Waller, C.J., Randolph, Lamar and Pierce, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-19-2009 Appealed from: Tippah County Circuit Court Judge: Andrew K. Howorth Disposition: Appellant was convicted of two counts of sexual battery and two counts of touching a child for lustful purposes. District Attorney: Benjamin F. Creekmore Case Number: TK08-088 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Roger D. Green a/k/a Hugh Roger Dale Green |
OFFICE OF THE PUBLIC DEFENDER: GEORGE T. HOLMES
LESLIE S. LEE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE SCOTT STUART |
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| Topic: | Sexual battery & Touching child for lustful purposes - Other sexual offenses - M.R.E. 404(b) - M.R.E. 403 - Tender years exception - M.R.E. 803(25) - Exclusion of evidence - M.R.E. 103(a)(2) - Weight of evidence |
| Summary of the Facts: | Roger Green was convicted of two counts of sexual battery and two counts of touching a child for lustful purposes. The circuit court sentenced Green to two terms of life imprisonment for the sexual-battery counts and to two fifteen-year terms of imprisonment for the counts of touching a child for lustful purposes. Green appeals. |
| Summary of Opinion Analysis: | Issue 1: Other sexual offenses Evidence 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, may be considered by the jury if properly admitted under M.R.E. 404(b), filtered through M.R.E. 403, and accompanied by an appropriately-drafted limiting or cautionary instruction. In this case, the testimony of four prior victims of Green was offered to show that, over the course of five decades, Green engaged in the sexual abuse of female family members in a similar manner (the same or similar acts, in the same or similar locations), when they were near the age of puberty, i.e., vulnerable, young and developing juveniles (the same or similar ages). The overwhelming similarities between these other sexual offenses and threats and the incidents at issue undeniably bring the testimony of these other victims within the purview of admissibility under Rule 404(b). Under such circumstances, the circuit court did not abuse its discretion in finding that the probative value of the subject testimony was not substantially outweighed by its prejudicial effect. The circuit court carefully and meticulously considered and then admitted, the testimony of the prior victims under Rule 404(b); filtered it through Rule 403; and then provided appropriate cautionary instructions to the jury following the testimony of each witness, as well as a final limiting instruction. Issue 2: Tender years exception Green argues that the circuit court abused its discretion in not conducting an M.R.E. 803(25) hearing to determine the reliability of the victim’s statements to the school nurse and the forensic interviewer. Green also argues that the circuit court erred in admitting testimony of the mother of a prior victim regarding the accusations made against Green by the prior victim, because her testimony was inadmissible hearsay, violative of Rule 404(b), and was not accompanied by a limiting instruction. He also argues that the circuit court erred in allegedly allowing hearsay testimony by an investigator of the Ripley Police Department. With regard to his first two arguments, Green acknowledges that he failed to object to their admission. The failure to make a contemporaneous objection constitutes waiver of an issue on appeal. As to the investigator’s testimony, Green’s objections at trial were not that Rule 803(25) was misapplied by the circuit court. At trial, Green only objected that the investigator’s testimony was based on knowledge he had gleaned from the videotaped interview. Thus, he has failed to preserve the issue. Issue 3: Exclusion of evidence Green argues that the circuit judge erred when he sustained the State’s objection to some of the testimony of the defendant’s son. Green argues that his son would have testified that the victim fabricated the allegations because a friend told her that making such a false allegation would result in the victim being removed from Green’s home. Since the record does not include a proffer under M.R.E. 103(a)(2) of the basis of the son’s alleged knowledge on this subject, this issue has not been properly preserved for appeal. Issue 4: Weight of evidence Through the trial testimony of the victim; her in-court identification of Green as the perpetrator; the audio-visual recording of the forensic interview with the victim; the testimony of the forensic interviewer; and the Rule 404(b) testimony of the prior victims, the jury was presented with overwhelming evidence of Green’s guilt. |
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