Green v. State

• Decision Date: 15 November 2022
• Docket Number: 2021-KA-01019-COA
• Parties: KELVIN GREEN APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

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KELVIN GREEN APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2021-KA-01019-COA

Court of Appeals of Mississippi

November 15, 2022

DATE OF JUDGMENT: 07/30/2021

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P. DODSON TRIAL JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY JUSTIN T. COOK

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY CASEY B. FARMER

DISTRICT ATTORNEY: WILLIAM CROSBY PARKER

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

EMFINGER, J.

¶1. Following a jury trial in the Circuit Court of the First Judicial District of Harrison County, Mississippi, Kelvin Green was found guilty of sexual battery and was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Green's post-trial motion for judgment notwithstanding the verdict or for a new trial was denied by the circuit court, and Green appealed his conviction and sentence.

FACTS

¶2. Green's indictment alleged that between February 1, 2018, and February 22, 2018, he committed sexual battery upon Jane,^[1] who was under fourteen years of age. The indictment further alleged that Green engaged in an act of sexual penetration by having sexual intercourse with Jane. Proof at trial showed that Green was fifty-eight years old at the time of the alleged offense, and Jane was eight years old. Jane testified that she lived on 17th Street in Gulfport with her mother and father until her mother's death in 2017. After her mother's death, she continued to live in the house with her father, who is legally blind, and there were always people in and out of the house to help them. Green was one of the people who would come to help out, and according to Jane, he was staying at the house at the time of the alleged sexual battery. Jane described that on one occasion in the living room of the house, while her father was asleep, Green pulled off her clothes and had sexual intercourse with her. She said she did not tell anyone because she was scared.^[2] She first disclosed the sexual assault to her social worker, and as a result, the Department of Human Services arranged for Jane to have a forensic interview with Sarah Flagg at the Child Advocacy Center (CAC) on February 27, 2018. This interview was recorded, admitted into evidence, and played for the jury at trial. During this interview, Jane disclosed, among other things, that Green had sexual intercourse with her at her house.

¶3. The State called a total of seven witnesses at trial. The defense called two witnesses, including Green, who denied that he had sexual intercourse with Jane.^[3] After considering all the evidence and applying the law as instructed by the trial court, the jury returned a verdict finding Green guilty of sexual battery.

DISCUSSION

¶4. Green raises the following issues on appeal.

I. Was the evidence legally sufficient to support Green's conviction?

¶5. Green contends that no evidence submitted by the State supports his conviction of sexual battery. As a result, he asks this Court to reverse the jury's decision and render a verdict of not guilty. Our standard of review on a challenge to the legal sufficiency of the evidence was stated in McLaughlin v. State, 338 So.3d 705, 717 (¶33) (Miss. Ct. App. 2022), as follows:

Rulings on the sufficiency of the evidence claims are reviewed de novo. Turner v. State, 291 So.3d 376, 383 (¶20) (Miss. Ct. App. 2020). When a challenge to the sufficiency of the evidence is being reviewed, the relevant question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sanford v. State, 247 So.3d 1242, 1244 (¶10) (Miss. 2018) (quoting Hearn v. State, 3 So.3d 722, 740 (¶54) (Miss. 2008)). The evidence is viewed in a light most favorable to the State, and the State is given all favorable inferences that can be reasonably drawn from the evidence. Williams v. State, 285 So.3d 156, 159 (¶11) (Miss. 2019). If the court finds that "any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand." Smith v. State, 250 So.3d 421, 424 (¶12) (Miss. 2018) (quoting Cowart v. State, 178 So.3d 651, 666 (¶41) (Miss. 2015)).

¶6. Green contends that his conviction rests solely upon Jane's testimony and statements made by her during her interview at the CAC. He acknowledges that Jane's uncorroborated testimony could be sufficient to support his conviction if it is not discredited or contradicted by other credible evidence. However, Green argues that because Jane's testimony was "selfcontradictory and riddled with misrepresentations," it is insufficient to support his conviction.

¶7. In Ladnier v. State, 878 So.2d 926, 931 (¶15) (Miss. 2004), a thirteen-year-old testified that her grandmother's boyfriend rubbed her breast while they were riding a threewheeler. The defendant challenged the sufficiency of the evidence that he touched the child for the purpose of "indulging his depraved licentious sexual desire and that there was no testimony which corroborated that the touching was anything more than accidental." Id. at 929 (¶10). However, the supreme court noted that the child testified that the defendant rubbed her breast the entire time they were riding the three-wheeler. Id. at 930 (¶13). The supreme court recognized that there were inconsistencies between the child's testimony and that of other witnesses but stated:

Although there were inconsistencies between Anne's testimony and that of other witnesses, issues of witness credibility and the weight to be accorded a witness's testimony are matters to be resolved by the trier of fact, in this case, the jury:

Our case law is axiomatic on the proposition that the jury is arbiter of the credibility of testimony. "It is, of course, within the province of the jury to determine the credibility of witnesses ...." "The conflict between the testimony of the appellant and the prosecutrix was properly resolved by the jury." "We are asked to reverse this case on the grounds that there are inconsistencies and contradictions in her testimony. If this be true, it would still be a question for the jury." In the instant case, any inconsistencies found in C.H.'s testimony go [sic] the weight and credibility of her testimony, clearly a jury question. In addition, C.H.'s testimony was not at all inconsistent on the issue at the heart of this matter-Collier's fondling of her.

Collier [v. State], 711 So.2d [458], 462-63 [(¶18) (Miss. 1998)] (emphasis added) (citations omitted).

Based on this evidence, we find that the circuit court did not err in denying Ladnier's motions for directed verdict and for judgment notwithstanding the verdict.

Id. at 931 (¶¶16-17) (bold emphasis added).

¶8. Just as in Ladnier, it was the jury's responsibility to resolve any conflicts in the evidence and to determine the worth and weight to give the testimony of each witness. While Jane's testimony and prior statements during the CAC interview may have been inconsistent or contradictory in some respects, she was consistent in stating that Green had sexual intercourse with her. When considering the evidence presented by the State, we find that "any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution." McLaughlin, 338 So.3d at 717 (¶33). Accordingly, the evidence was legally sufficient and this issue is without merit.

II. Did the trial court err by allowing prior-bad-acts evidence?

¶9. As a part of the Gulfport Police Department's investigation in this case, they ran a criminal history check on Green and found that he had multiple arrests in New Orleans concerning crimes of a similar nature. The State was able to locate two witnesses from these prior arrests. In each case a complaint was made against Green, but there was no subsequent criminal prosecution in either case. The State gave the defense notice that it intended to offer the testimony of these two witnesses pursuant to Mississippi Rule of Evidence 404(b). At a hearing conducted prior to trial, the State made a proffer of the expected testimony of the witnesses. The State advised the trial court that Yolanda Gash Robinson (Gash) and Rebecca Freeman Johnson (Freeman) were expected to testify that when they were teenagers, between the ages of fifteen and seventeen, Green sexually assaulted them and that each would testify as to the details of the attack on them by Green. The trial court heard the arguments in support of and in opposition to the admissibility of these witnesses' testimony. The State argued that this testimony was admissible under Rule 404(b)^[4] to show that Green had "a seemingly uncontrollable desire to partake in . . . pedophiliac sexual activities with young and developing female juveniles" and was probative regarding motive. Green argued that the events were too remote in time and dissimilar and therefore, were irrelevant and highly prejudicial. The trial court found that the witnesses' expected testimony would be admissible pursuant to Rule 404(b) to show Green's motive, opportunity, and intent for the alleged assault upon Jane. The court further found that under Mississippi Rule of Evidence 403, the probative value of such testimony was not substantially outweighed by the danger of unfair prejudice. The court noted that this pretrial ruling was a "preliminary ruling," as there was still pending a ruling on the tender-years motion, and all was dependent upon Jane's testimony at trial. The court left open the possibility of...