O'Connor v. State

• Court: Mississippi Supreme Court
• Citation: O'Connor v. State, 120 So. 3d 390 (Miss. 2013)
• Decision Date: 12 September 2013
• Docket Number: No. 2012–KA–00294–SCT.,2012–KA–00294–SCT.
• Parties: John O'CONNOR a/k/a John Allen O'Connor a/k/a John O'Conner v. STATE of Mississippi.

120 So.3d 390

John O'CONNOR a/k/a John Allen O'Connor a/k/a John O'Conner

v.STATE of Mississippi.

No. 2012–KA–00294–SCT.

Supreme Court of Mississippi.

June 20, 2013.

Rehearing Dismissed Sept. 12, 2013.

Office of State Public Defender by Justin Taylor Cook, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.

RANDOLPH, Presiding Justice, for the Court:

¶ 1. John O'Connor was indicted for two counts of gratification of lust: count one for the touching or rubbing of B.W. at a time when O'Connor was over the age of eighteen and B.W. was under the age of sixteen, and count two for the touching or rubbing of A.R. at a time when O'Connor was over the age of eighteen and A.R. was under the age of sixteen. A jury found O'Connor not guilty on count one. Before the Court is O'Connor's direct appeal of his conviction on count two. O'Connor was sentenced to fifteen years, with ten years to be served and five years suspended, and five years of supervised probation. O'Connor challenges the trial court's admission of evidence of a previous sexual offense involving a minor, of which he had been convicted by a Florida court. He also argues that a statement by the State during its closing argument constituted prosecutorial misconduct warranting reversal. We find both arguments without merit, and affirm O'Connor's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On Saturday, February 6, 2010, Charles “Chuck” Perry and his wife, Gale Perry, hosted a party to celebrate Chuck's fifty-second birthday. The Perrys held the party on their property, at a restaurant and bar that they had converted from a workshop, located about one-hundred or one-hundred-fifty yards—a two- or three-minute walk—from their house.

¶ 3. Chuck's son, Trey Perry, and his wife, Janell Perry, traveled from Florida for the party, along with O'Connor, his girlfriend, Chantal Williams, O'Connor's and Williams's four-year-old son, Christian, and twelve-year-old B.W.,¹ who was to help with babysitting while the adults attended the party. Trey, Janell, O'Connor, Chantal, Christian, and B.W. all stayed at Chuck and Gale's house for the weekend. O'Connor previously had visited Chuck's and Gale's house with Trey, and Chuck testified that O'Connor and Chantal were staying in the same room where O'Connor had slept on his prior visits. Kristie Kraft, Chuck's and Gale's daughter, and Kristie's six-month-old daughter, Perry Kate, were also at the house that night. A.R.,² a longtime babysitter of Chuck's and Gale's grandchildren, also stayed at the house to help B.W. babysit during the party.

¶ 4. On Saturday afternoon, the adults left the house and walked to the restaurant for the party. A.R. and B.W. stayed at the house with the minor children. A.R. testified that O'Connor made repeated trips back to the house throughout the evening, “like he was looking for something.” The older children fell asleep on couches in the living room. A.R. and B.W. lay on either side of Perry Kate in a queen-size bed, ensuring that Perry Kate was safely asleep between them, and then they fell asleep.

¶ 5. Subsequently, A.R. was awakened by the presence of a fourth person in the bed. She realized that B.W. also was awake. A.R. asked B.W. who was in the bed with them. In response, B.W. shined a light from her cell phone on O'Connor and told A.R. “That's John.” A.R. said “ ‘Well, go get Chantal and tell her to get him out of here.’ ” ³ A.R. testified that “when [B.W.] tried to get up, she couldn't, because he was holding on to her.” B.W. finally was able to get up, and left to get Chantal, but came back and told A.R. that she couldn't wake Chantal. A.R. testified that B.W. again left to attempt to wake Chantal, and that:

Whenever [B.W.] left the second time to go get Chantal up, he turned over and put his hand up under my shirt, and then on by back side, and my butt. And then I jumped up and I screamed.

A.R. testified that she and B.W. then went to Chantal's room and woke her up. Chantal testified that only B.W. entered her room to wake her up. Chantal went to the girls' room and told O'Connor to get up. He followed her to their room, where they both went back to sleep. Chantal testified that she:

[c]alled his name maybe once or twice, and he didn't wake up. He sleeps pretty hard when he drinks. I actually went and shook him, and he looked at me, and I told him to get up, “you're in the wrong bed,” and we went back to sleep.

¶ 6. A.R. and B.W. then sat on their bed, talking about what had happened. A.R. testified that she “posted it on Facebook” and that shortly thereafter, Kristie walked into the house. They told Kristie what had happened, and Kristie left to get Chuck. Chuck testified that, during the party, Kristie walked up to him and said that “ ‘the girls just called or texted and said that John O'Connor was in the bed with them, touching them in wrong ways.’ ” Chuck left the party and went straight to the room where A.R., B.W., and Perry Kate were staying. After talking to A.R. and B.W., Chuck called out “John O'Connor, and ... told him to get out of my house now.” Chuck testified that O'Connor would not get out of bed, so Chuck went to the living room and decided to call the sheriff's department. He yelled to O'Connor “ ‘Well, if you won't get up, I've got somebody that will get you up.’ ” Chuck testified that:

I called the law, and, finally, he come in there, gathering his clothes up. And the lady at the sheriff's department said, “If he tries to leave to call them back.” And that's—they did. They got in the car and tried to leave.

Chantal testified that “I went and got Mr. O'Connor. We went back to bed. And then the next time I wake up, everything is just chaos.” She testified that:

Mr. Perry came in the room and started screaming and told Mr. O'Connor to get out of bed and told him to get out of his house. And then he started screaming and cussing and went to ... [Janell's] room, and then she had came to me and was hysterical.... And nobody really knew what was going on, and I was just trying to figure out what was going on.... John had gotten up, gotten out of the house, and he was telling us to leave.

O'Connor, Chantal, and Christian left the house. Chantal explained that “Mr. Perry told us to leave, so we were leaving” and that, when they left, she was not aware that the sheriff's department had been called.

¶ 7. Two deputies with the Yazoo County Sheriff's Department were dispatched to the Perrys' house. As they approached the house, they received a dispatch that the suspect had left in a white vehicle. They stopped the white vehicle and took O'Connor back to the Perrys' house for further investigation. Deputy Jason Bright testified that O'Connor was able to walk normally from his vehicle to the patrol car, along “the side of the road with a ditch there leaning.” Upon arriving at the house, Bright interviewed A.R. and B.W., took statements from Kristie and Chantal, and prepared a report.

¶ 8. O'Connor subsequently was indicted for two counts of gratification of lust: count one for the touching or rubbing of B.W., and count two for the touching or rubbing of A.R. He filed a motion for discovery, and, in response, the State disclosed the following potential witnesses, among others:

[Witness 1] [Florida address] Witnesses [sic] will testify to prior acts of the defendant in which he crawled into her sleeping area when she was about 14 and rubbed on her vaginal area.

Jessica Atkinson ⁴ [Florida address] Witness will testify to defendant prior bad act of sexually molesting her when she was 9. She is also the daughter of the defendant.⁵

The State's discovery responses did not mention any prior charges, conviction, or acquittal related to O'Connor's prior sexual acts with minors.

¶ 9. O'Connor filed a motion in limine to “[prohibit] any reference at trial to prior offenses with which he was charged and any prior convictions in the State of Florida or elsewhere....” At a pretrial motion hearing, the trial court denied the motion, finding as follows:

The law is pretty clear in Mississippi that evidence of a sexual offense, other than the one charged, which involved another victim other than the victim charged, is admissible subject to the reason for the attempt to admit it and subject to the weighing under [Mississippi Rules of Evidence] 404 and 403....

Basically, my understanding from the State is that this information will be attempted to be admitted to show common scheme of plan, motive absence mistake. It [can't] be admitted to show conformity that he did it before, so he's doing it again. Can't go to character.... [T]he Court finds that the probative value ... to show absence of mistake or common scheme o[r] plan outweighs any substantial prejudice.

¶ 10. Trial began on August 18, 2011. However, when the father of a witness attacked O'Connor in the jury's presence during trial, the trial court declared a mistrial. A second trial began on November 28, 2011.

¶ 11. At trial, the first mention of O'Connor's previous conviction for a sexual offense involving a minor was in O'Connor's opening statement. The State, during its opening statement, told the jury that it would hear from Jessica Atkinson–Hamm that, when spending the night with O'Connor's daughter, Katie, she awoke to O'Connor touching her on numerous occasions, until she finally reported the abuse to her parents. The prosecutor did not mention a trial or conviction related to Atkinson–Hamm's testimony. In O'Connor's opening statement, O'Connor elected to inform the jury that he had gone to trial in Florida and had been convicted of a misdemeanor for a charge involving Atkinson–Hamm. Counsel further stated in opening statement that O'Connor also had been found not guilty of a separate charge in Florida involving another young girl. The prosecutor asked to approach the bench, and explained to the judge and defense co...