Green v. State

• Decision Date: 31 May 2012
• Docket Number: No. 2009–KA–01373–SCT.,2009–KA–01373–SCT.
• Citation: 89 So.3d 543
• Parties: Roger D. GREEN a/k/a Hugh Roger Dale Green v. STATE of Mississippi.
• Court: Mississippi Supreme Court

89 So.3d 543

Roger D. GREEN a/k/a Hugh Roger Dale Green

v.STATE of Mississippi.

No. 2009–KA–01373–SCT.

Supreme Court of Mississippi.

May 31, 2012.

Office of the Public Defender by George T. Holmes, Leslie S. Lee, attorneys for appellant.

Office of the Attorney General by Billy L. Gore, Scott Stuart, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Following a jury trial in the Circuit Court of Tippah County, Mississippi, fifty-four-year-old Roger Green was convicted of two counts of sexual battery and two counts of touching a child for lustful purposes involving D.W., Green's ten-year-old stepdaughter. Following denial of Green's “Motion for Judgment Notwithstanding the Verdict or in the Alternative For a New Trial,” Green filed this appeal. We affirm Green's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 23, 2008, D.W. informed her special education teacher,¹ her regular education teacher, the school counselor, and the school nurse that Green was sexually molesting her by “stick[ing] his fingers in me every morning when he gets up[,] ... in my private parts.” ² D.W. repeated these charges to a social worker with the Mississippi Department of Human Services (“DHS”). In a subsequent interview with forensic interviewer Angie Floyd of the Family Resource Center in Tupelo, Mississippi, D.W. stated that Green regularly put his finger inside her vagina “in her bedroom when she would wake up in the morning,” on other occasions “in the living room at her house,” ³ and that he had also driven her to a “blue trailer” and touched her breasts with his mouth and made her touch his penis. All incidents occurred in Ripley, Mississippi, where her family had lived since December 2007.

Trial—State's case

¶ 3. At trial, Floyd testified regarding her forensic interview with D.W., and the audio-visual recording of that interview was played before the jury. D.W., then-eleven years old, testified that she understood the difference between telling the truth and lying, and that her statements to Floyd were true; and then she made an in-court identification of Green as the perpetrator. D.W. added that Green had threatened to “slap” her if she told anyone about the incidents, which had scared her.

¶ 4. The State also offered the testimony of four witnesses of the same sex (female) who alleged that Green had sexually abused them in a similar manner (the same or similar acts, in their homes), in an intrafamilial context (the same or similar relationships to Green), when they were near the age of puberty (the same or similar ages).⁴ Green objected to the introduction of such testimony. As shown infra, the circuit court followed the directives of Derouen v. State, 994 So.2d 748, 756 (Miss.2008), for the admission of “evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense[,]” and admitted the testimony of all four witnesses. See paragraphs 5–11 infra.

¶ 5. In the Rule 404(b) hearing and at trial, M.S.,⁵ the twenty-five-year-old ex-stepdaughter of Green, testified that when she was thirteen years old, Green would come into her bedroom “when everybody was asleep [,]” nearly “every other night[,]” and would “play with my breasts and stick his finger in my vagina.” Additionally, days before M.S.'s fourteenth birthday, Green informed her that he wanted to take her to the store to buy her something, but then “parked like in a gravel road, like a dead end street, and he was taking off my clothes and ... trying to put his penis in my vagina.” According to M.S., Green only stopped the attempted rape when her mother fortuitously called his cell phone and “he told her we was coming home.” When M.S. told her mother about the sexual abuse, “she wouldn't listen, so I ended up telling the people in school.” ⁶

¶ 6. In the Rule 404(b) hearing and at trial, seventeen-year-old K.M.H., another former stepdaughter of Green, testified that when she was between the ages of ten and twelve years old, Green “would come in my room at night and mess with me. He would put his finger in my vagina at night when everybody was asleep.” Moreover, on one occasion when K.M.H. was twelve years old, she went shopping with Green, following which he drove them “behind a church and he got out of the truck and pulled his pants and all down and then pulled mine down and he stuck his penis in my vagina.” After that incident, K.M.H. testified that Green had threatened her, stating that “if I would tell anybody that he would kill my mom and my sister.” While K.M.H. informed her mother about the sexual abuse, she initially recanted her account of the incident, because she was afraid of Green.⁷

¶ 7. In the Rule 404(b) hearing and at trial, A.R., Green's thirty-five-year-old niece testified that when she was seven or eight years old, Green and his wife had “stayed the night” at her parents' home. Green and his wife slept on a mattress on the floor, while A.R. slept on the couch. According to A.R., she “woke up to [Green] touching me in my private parts.” While this was a one-time occurrence, A.R. subsequently avoided being alone with Green. She did not report the incident to anyone when she was younger because “I just didn't think they would believe me.”

¶ 8. In a Rule 404(b) proffer ⁸ and at trial,⁹ P.B., Green's forty-nine-year-old half-sister testified that, when she was eight or nine years old, she began living in the same home as Green (then-fourteen or fifteen years old). According to P.B., between the ages of nine and thirteen, Green would touch her “private areas” with “[h]is hand and penis,” and would have sexual intercourse with her. When P.B. informed her mother about the sexual abuse, her story was dismissed, with her mother stating that she “was taking things the wrong way.” ¹⁰ P.B. testified that the sexual abuse ceased only after Green left home when she was thirteen years old. When P.B. was fifteen years old, Green and his then-wife moved back in, at which point P.B. got married allegedly to get away from Green.

¶ 9. Following the Rule 404(b) hearing testimony of M.S., K.M.H., and A.R., the circuit judge concluded that “this is a concrete example of where 404(b) applies. ... I'm satisfied that there are overwhelming similarities to prove motive, opportunity, intent and the other factors under Rule 404(b) ... and this is a textbook copy of ... the exception created in [Derouen ].” (Emphasis added.) As to P.B.'s subsequently proffered testimony, the circuit judge found it “a little bit different, but I still believe that it's under the purview of the 404(b) proof that the [c]ourt has deemed appropriate under the very specific facts of this case ....” (Emphasis added.)

¶ 10. Regarding Mississippi Rule of Evidence 403, the circuit judge acknowledged that “the more people you have, the more prejudicial it is, but the more people you have, ... the more likely it is that it is a reliable indicator of a pattern or plan.” (Emphasis added.) As to M.S., K.M.H., and A.R., the circuit judge concluded that under Rule 403, “this testimony ... is more probative than prejudicial, and therefore, the [c]ourt is going to allow it.” Regarding P.B.'s proffered testimony, the circuit judge deemed it more probative than prejudicial, “based upon the totality of the circumstances and based also upon the specific nature of the offenses in this case.”

¶ 11. Finally, the circuit court provided the following cautionary instruction after the testimony of each of the other victims:

[t]he testimony of the State's witness ... is to be used for the purpose of establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident on the part of the defendant, ... and should not be considered as substantive evidence in this case. Remember that the defendant is on trial here only for the crimes alleged in the indictment ... and not for any other acts. You may not return a guilty verdict unless the State proves the crime or crimes charged in the indictment beyond a reasonable doubt.[ ¹¹]

Trial—Green's case

¶ 12. Green's defense at trial was that he had been wrongly accused. The sole witness for the defense was Green's ten-year-old son, Dakota Green, who had resided in the home with Green, D.W., and D.W.'s mother. Dakota testified that he had never observed any inappropriate contact between Green and D.W. He added that D.W. had disclosed to him that she previously had been molested by her biological father and uncle.

Jury verdict and sentencing

¶ 13. The jury convicted Green on all counts. 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, with all sentences to run consecutively. Following the circuit court's denial of Green's “Motion for Judgment Notwithstanding the Verdict or in the Alternative For a New Trial,” Green filed this appeal.

ISSUES

¶ 14. This Court will consider:

(1) Whether the circuit court abused its discretion in admitting evidence of other sexual offenses via the testimony of M.S., K.M.H., A.R., and P.B.

(2) Whether the “tender years” exception of Mississippi Rule of Evidence 803(25) was properly applied by the circuit court.

(3) Whether the circuit court wrongfully excluded defense evidence.

(4) Whether the jury verdict was contrary to the overwhelming weight of the evidence.

ANALYSIS

I. Whether the circuit court abused its discretion in admitting evidence of other sexual offenses via the testimony of M.S., K.M.H., A.R., and P.B.

¶ 15. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses his discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Gore v. State, 37 So.3d 1178, 1183 (Miss.2010) (quoting Price v. State, 898 So.2d 641, 653 (Miss.2005); Walker v. State, ...