Kelvin Green v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-01019-COA

KELVIN GREEN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/30/2021
TRIAL JUDGE: HON. LISA P. DODSON
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
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
DISPOSITION: AFFIRMED - 11/15/2022
MOTION FOR REHEARING FILED:

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

EMFINGER, J., FOR THE COURT:

¶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,

1
The victim’s name has been changed to protect her identity.
2
About three weeks prior to this event, Jane had reported to her school counselor that
Green had tried to drown her and had punched her in the face.

2
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

3
More detail concerning the testimony and procedural history will be addressed in
our discussion of Green’s assignments of error.

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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 “self-

contradictory 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 three-

wheeler. 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

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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

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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 further objections by the defense as

the “evidence actually unfolds.”

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Rule 404(b) reads as follows: “(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character. (2) Permitted Uses. This
evidence may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

6
¶10. At the time of trial, Gash was fifty-one years old. She testified that she went to high

school at Fortier in New Orleans and that Green was a security guard there. When she was

between the ages of fifteen and seventeen, she was walking down the hall and came into

contact with Green who advised her she was going the wrong way. Gash testified that Green

led her to a stairway that was under construction. Green then threw her against the wall and

started kissing her and rubbing his head on her chest. He put his hand inside her shirt and

touched her breast and then touched her private part. She was pushing him, trying to scratch

him and she got away and went downstairs but the doors were locked. Green caught her

again and started rubbing his private part against hers. Green told her that if she told anyone

he was going to kill her and her family. It finally ended and she went to her teacher crying

and told the teacher that she wanted to go home. Someone at the school called her parents.

She did not remember whether she disclosed what happened while she was still at school or

if she told her parents after she got home. In any event, she spoke with the police, but she

does not know what happened with her complaint.

¶11. Freeman was thirty-six years old at the time of trial. She testified that when she was

fifteen years old she was a runaway and was living on the streets in New Orleans. She met

Green in a picture shop on Canal Street. She went home with Green and he told her she could

stay there. She stated that Green was in his thirties and no one else was living in his house.

She said the first time Green approached her sexually, she resisted and he punched her in the

face. After that she reluctantly let him have intercourse with her. She was scared, but she was

living on the street and needed a place to live. She testified that there were other times when

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he restrained her and forced himself on her. She stated that she lived with him for about three

months and that Green did this repeatedly. He threatened to harm her if she told anyone.

Shortly thereafter Freeman left and entered Girls and Boys Town.

¶12. Green argues that the trial court erred by allowing the testimony of Gash and Freeman.

Green contends that such testimony was impermissible character evidence to show that he

had a propensity to commit the offense against Jane because he had committed sexual

offenses against Gash and Freeman. Green also argues that such testimony should have been

excluded because those acts were dissimilar to the allegation here and too remote in time

from the date of the indicted offense. Green contends he is entitled to a new trial due to the

admission of this testimony.

¶13. Our analysis of this issue starts with the understanding that the trial court has a great

deal of discretion regarding the admissibility of evidence. In Lomas v. State, 328 So. 3d 670,

688 (¶49) (Miss. Ct. App. 2021), this Court described our standard of review as follows:

As noted earlier, the admissibility of evidence is reviewed under an abuse of
discretion standard. Saddler v. State, 297 So. 3d 234, 241 (¶21) (Miss. 2020).
“As long as the trial court remains within the confines of the Mississippi Rules
of Evidence, its decision to admit or exclude evidence will be accorded a
high degree of deference.” Magee v. State, 300 So. 3d 1088, 1090 (¶9) (Miss.
Ct. App. 2020). “Reversal is appropriate only when the circuit court’s abuse
of discretion results in prejudice to the accused.” Williams v. State, 308 So. 3d
892, 894-95 (¶8) (Miss. Ct. App. 2020).

(Emphasis added).

¶14. We first address Green’s allegation that the testimony of Gash and Freeman was

nothing more than impermissible character evidence. This issue is framed for us in Boggs v.

State, 188 So. 3d 515, 519-20 (¶¶11-12) (Miss. 2016):

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[Mississippi] Rule [of Evidence] 404 generally prohibits the admission of
evidence of a person’s character for the purpose of proving that he or she acted
in conformity with that character on a particular occasion. Miss. R. Evid.
404(a). Evidence of “other crimes, wrongs or acts” is inadmissible as character
evidence, but it may be admitted for other purposes, such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Miss. R. Evid. 404(b). The purposes listed in Rule 404(b)
are not exhaustive; they simply are examples of noncharacter purposes for
which evidence of other crimes, wrongs, or acts may be admitted. Green v.
State, 89 So. 3d 543, 549 n.12 (Miss. 2012).

Prior to 2008, evidence of a defendant’s sexual misconduct involving other
minor victims was considered to be so prejudicial as to be per se inadmissible,
even if such evidence was offered for a permissible noncharacter purpose
under Rule 404(b). See, e.g., Mitchell v. State, 539 So. 2d 1366, 1372 (Miss.
1989), overruled by Derouen v. State, 994 So. 2d 748 (Miss. 2008). However,
in Derouen, this Court explicitly overruled Mitchell and its progeny, holding
that evidence of other sexual misconduct, “if properly admitted under Rule
404(b), filtered through Rule 403, and accompanied by an appropriately-
drafted limiting or cautionary instruction to the jury, should not be considered
per se error.” Derouen, 994 So. 2d at 756 [(¶20)].

The trial court was required to find that the testimony was admissible for a “permissible

noncharacter purpose under Rule 404(b).” The alleged victim here was eight years old at the

time of the alleged sexual assault. Gash and Freeman were fifteen to seventeen years old at

the time they were allegedly sexually assaulted by Green. The State argued that the evidence

was admissible pursuant to Rule 404(b) for the purpose of showing that Green had “a

seemingly uncontrollable desire to partake in . . . pedophiliac sexual activities with young and

developing female juveniles.” After considering the matter, the trial court found that such

testimony was admissible for Rule 404(b) purposes with regard to Green’s motive,

opportunity, and intent. Further, the trial court found that the probative value of such

testimony was not substantially outweighed by the danger of unfair prejudice. At the

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conclusion of the trial, the court gave a proper limiting instruction, confining the jury’s

consideration of such testimony to these issues.5

¶15. Second, Green argues that the acts described by Gash and Freeman are dissimilar to

the acts alleged in this case and that those acts were too remote in time to be relevant in this

proceeding. He cites White v. State, 228 So. 3d 893 (Miss. Ct. App. 2017), in support of his

argument. However, in Anderson v. State, 293 So. 3d 279, 288 (¶24) (Miss. Ct. App. 2019),

the Court found:

White v. State does not apply here. In contrast to the circumstances in White,
there is a very strong similarity between the circumstances described by Ann
and Sally and those described by Susan. Further, in Gore v. State, 37 So. 3d
1178 (Miss. 2010), the supreme court rejected the same “remote-in-time”
argument Anderson makes here, citing numerous cases in which the courts
found no abuse of discretion in admitting testimony about abuse incidents
occurring decades before the events in question. Id. at 1187 (¶20). As the
supreme court recognized, “‘even though the other crimes evidence may
appear to be remote in time in some instances, the incidents are all within the
same time period in terms of the victims’ lives . . . .’” Id. at 1187 (¶19)
(quoting State v. Driggers, 554 So. 2d 720, 727 (La. Ct. App. 1989)); see
Green [v. State], 89 So. 3d [543], 547 (¶¶5-8) [(Miss. 2012)] (finding no abuse
of discretion in allowing testimony of other sexual offenses occurring five to
nearly forty years before the offense at issue). The same analysis applies here.
We find Anderson's “remote-in-time” argument without merit.

The acts described by Jane, Gash, and Freeman involved forcible sexual assaults of young

girls in somewhat isolated circumstances, and all the girls feared Green. They were all

5
Jury Instruction 11 provided: “You have heard evidence about the defendant’s acts
with other individuals about which the defendant is not on trial before you. You are not to
consider these acts as evidence that the defendant committed the crime for which he is now
charged. You may consider the other acts for the limited purpose of establishing proof of
motive, opportunity, or intent. You cannot and must not simply infer that the defendant acted
in conformity with his previous acts and that he is therefore guilty of the charge for which
he is presently on trial.”

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between the ages of eight and seventeen, quite similar to the range in ages of the witnesses

in Anderson. Further, in McGrath v. State, 271 So. 3d 437, 442 (¶18) (Miss. 2019), cited by

the State at trial, the supreme court explained:

What is relevant, however, is this Court’s emphasis that any evidence that
tends to show a “seemingly uncontrollable desire to partake in pedophilic
sexual activities with young and developing female juveniles, is probative
regarding motive.” Young [v. State], 106 So. 3d [775,] 779 [(¶14) (Miss.
2019)] (internal quotation marks omitted) (quoting Green [v. State], 89 So. 3d
[543,] 550 n.19 [(Miss. 2012)]. And a jury may hear evidence of a
“‘defendant’s means of accomplishing these activities’” if they “‘bear
substantial resemblance to each other and with the present offense.’” Id.
(quoting Gore v. State, 37 So. 3d 1178, 1186 [(¶18)] (Miss. 2010)). McGrath’s
motives and opportunity were similar—he used his position of trust, while
alone with his stepchildren, to sexually abuse them. That there were
differences in severity of some of the assaults and molestations and that one
of his stepchildren was three or four and the other thirteen did not negate his
substantially similar opportunities and pedophilic motives.

Again, in the present case, Jane was an eight-year-old girl who, according to her testimony,

previously had been physically assaulted by Green, and she was scared of him. He sexually

assaulted her when they were in her house, with no one else present except her blind father

who was asleep. Gash was a young teenager, about fifteen years old, when Green, a security

guard, caught her in the hallway alone. He directed her to a more isolated stairwell where he

sexually assaulted her. Afterward, he threatened to harm her and her family. Freeman was

a fifteen-year-old runaway whom Green took into his home. He attempted to sexually assault

her in his home, and when she resisted, he punched her in the face to accomplish his goal.

The argument that these events are dissimilar and too remote is without merit. We find that

the testimony of Gash and Freeman was properly admitted and that the jury was properly

instructed regarding their testimony.

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III. Did the trial court commit reversible error by finding that Green
could not attempt to impeach the victim’s testimony by using
allegedly inconsistent statements by the victim to Daniel Dooley in
a recorded interview?

¶16. In addition to Jane’s 2018 interview with Flagg, there was a second forensic interview

conducted by Daniel Dooley on April 3, 2019. Green contends that the trial court erred by

prohibiting him from presenting the testimony of Dooley as to statements Jane made to him

during their recorded interview that were inconsistent with either Jane’s trial testimony or her

CAC interview with Flagg. He contends that Dooley’s testimony was admissible for

impeachment purposes pursuant to Mississippi Rule of Evidence 613(b), which provides:

Extrinsic evidence of a witness’s prior inconsistent statement is admissible
only if the witness is given an opportunity to explain or deny the statement
and an adverse party is given an opportunity to examine the witness about it,
or if justice so requires. This subdivision (b) does not apply to an opposing
party’s statement under [Mississippi] Rule [of Evidence] 801(d)(2).

(Emphasis added).

¶17. At trial, during Green’s cross-examination of Jane, she denied having given a

statement to Dooley. However, Green did not then go forward in his cross-examination and

confront Jane with any statements from that interview that Green alleges are inconsistent

with her testimony. She was not “given an opportunity to explain or deny” any alleged

inconsistent statement. Therefore, the trial court ruled that Dooley could be called to impeach

Jane as to whether she gave him a statement, but because a proper foundation had not been

laid pursuant to Rule 613, Dooley could not testify as to the contents of his interview. As

stated above, the trial court’s decision to exclude such testimony should be “accorded a high

degree of deference” and should be reversed only if we find that the trial court abused its

12
discretion and such action caused prejudice to Green. Lomas, 328 So. 3d at 688 (¶13).

¶18. This issue had its genesis well before trial. The State disclosed that it intended to offer

the two forensic interviews of Jane into evidence at trial through the tender years exception

to the hearsay rule. MRE 803(25). A pretrial hearing was conducted on October 16, 2020,

at which both Flagg and Dooley testified for the State concerning their recorded interviews

of Jane. Copies of both interviews were admitted as evidence for purposes of the “tender

years” ruling. At the conclusion of the hearing, the trial court reserved its ruling on the

admissibility of the interviews until after Jane appeared at trial and testified.

¶19. Then, on July 20, 2021, after the jury was selected and just before opening statements,

the State brought forward its motion pursuant to Mississippi Rule of Evidence 412 to prohibit

the defense from placing any evidence before the jury of any allegation of sexual contact

between Jane and another man. The State argued that Dooley’s interview was conducted after

Jane allegedly made a report of another adult man having sex with her. Because the defense

had not filed the notice and followed the procedure required by Rule 412(c), the State sought

to prevent the defense from placing before the jury any testimony concerning Jane’s

allegation of sexual contact with another man. The defense reminded the trial court that the

State had already tendered Dooley’s interview for admission into evidence during the tender

years hearing described above. Green also advised the court that it had subpoenaed Dooley

and expected to call him as a defense witness. The defense argued that if the State “opened

the door” by admitting Dooley’s interview, the defense should be able to get into “why” there

was a second interview.

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¶20. The trial court ruled that because the defense failed to file a timely Rule 412 motion,

Green could not introduce evidence of Jane’s allegation of sexual contact with another man.

The trial court further ruled, without opposition from the State, that if Dooley’s interview

was introduced into evidence by the State, the defense could ask why a second interview was

conducted, without going into the details of the allegation. However, the State continued to

argue that if the State did not offer Dooley’s interview into evidence, the defense could not

“get into it.”

¶21. Green then argued that the defense should be able to “get into” Dooley’s interview to

the extent Jane talked about the case against Green. The defense stated, “I fail to see how

that’s not relevant and how it’s not admissible particularly if she’s going to give inconsistent

statements between the two interviews concerning the same time.”

¶22. The trial court emphasized again, prior to the beginning of the trial, that should the

State introduce Dooley’s interview into evidence, the defense could ask why there was a

second interview of Jane but could not go into the details of her allegations. However, if

Dooley’s interview was not introduced by the State, then Green could not get into Jane’s

allegation of sexual contact with another man. The trial court itself raised the possibility that

the defense could use Dooley’s interview for impeachment purposes whether the State

offered it into evidence or not. The trial judge noted, “[A]nd so we’ll have to cross that

bridge when we get to it.”

¶23. Defense counsel, in an attempt to clarify the trial court’s ruling, stated, “I would still

likely get into the second interview specifically as to relates to the allegations against Mr.

14
Green.” The trial court clarified that if not introduced by the State, the defense could use

Dooley’s interview for impeachment purposes only. However, the court specifically stated

that the entire interview could not be played for impeachment purposes but that parts may

be admissible if the proper foundation is laid. At that point, court recessed for the day, and

the trial continued the following day.

¶24. Jane, who was eleven years old at the time of trial, was the State’s first witness.

During direct examination, the State did not question Jane about the statements she gave to

Flagg or Dooley. The interview with Flagg was briefly mentioned at the end of direct with

the following exchange:

Q. And do you remember that after you told your dad about this that you
went and spoke to a lady named Ms. Sarah about this?

A. Yes, sir.

Q. Okay. And is what you told Ms. Sarah the truth?

A. Yes, sir.

¶25. Then, during cross-examination, the defense asked Jane, “Did you ever have a

conversation with any police officers or anybody of authority that was trying to help in this?”

After Jane responded, “No, sir,” the defense reminded her that the State had asked her about

her conversation with Flagg and at that Jane acknowledged that she had spoken with Flagg.

After Jane stated that she had not talked with anyone else, the defense asked, “[Y]ou never

talked to another person named Daniel Dooley that works in the same building?” Jane

responded that she had not talked with him and upon further questioning, she testified that

she had never talked with anyone else about the incident.

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¶26. The defense then turned its attention to the interview with Flagg. Defense counsel

asked, “And the same statement that you’re telling this court here today is the same thing that

you told Ms. Flagg, right?” After Jane said that it was, defense counsel inquired, “It’s not

different?” At which point Jane stated that she did not remember. When asked whether she

remembered telling Flagg that she had been “duct taped” by Green, Jane said she did not

remember. Counsel then asked whether she remembered any of the statements she made to

Flagg, and Jane said she did not.

¶27. Because Jane testified that she could not recall all the details of the Flagg interview,

the defense sought to refresh her recollection by playing portions of the interview outside the

presence of the jury. The jury was excused, and another hearing was conducted concerning

the playing of the Flagg interview, which had not yet been admitted into evidence at trial.

The issue was resolved by the defense waiving its objection to the admissibility of the

recorded interview with Flagg under the tender-years exception. With the agreement of the

State, the recorded interview was admitted as a joint exhibit and was played for the jury

while Jane was still under cross-examination.

¶28. Green’s counsel conducted a full bore cross-examination of Jane concerning the

differences between her testimony on direct examination, her interview with Flagg, and her

testimony on cross-examination. However, Green’s counsel never asked any questions of

Jane concerning any statements she may have made to Dooley.

¶29. After the State had rested its case-in-chief and the trial court had denied the defense’s

motion for a directed verdict, the trial court asked Green’s counsel how many witnesses he

16
expected to call and asked for an estimate of the amount of time that would be required to

put on the defense’s case. Defense counsel advised the court that it intended to call Dooley

and to play the video. Green’s counsel stated:

We intend to play the video. I don’t intend to get any testimony with him
really. 45 minutes. I can’t remember how long the video is.

The State objected to Dooley being called by the defense because of the court’s ruling on its

Rule 412 motion. The State reminded the trial court that it had ruled that if the State did not

admit the recorded interview, then the defense could only use it for impeachment purposes.

The State further argued that it was not proper for impeachment because the defense did not

confront Jane with any statement she may have made in Dooley’s interview.

¶30. In response, the defense argued that it had confronted Jane and that she denied having

spoken to Dooley. The trial court then stated that it would be proper impeachment to have

Dooley testify that he conducted an interview with Jane, but the defense could not go into the

substance of the interview because a proper foundation had not been lain.

¶31. The hearing on the State’s motion to exclude Dooley’s testimony continued and was

extensive. The trial court gave Green’s counsel time to check the record to find any evidence

that he had confronted Jane with any statement she had made to Dooley. During an extended

lunch break, the trial judge also gave both sides the opportunity to provide the court with

authorities to support their relative positions.

¶32. When the hearing resumed, although it had been Green’s expressed intention to offer

the entire video of Dooley’s interview into evidence, Green’s defense offered no authority

or basis to support the admission of the entire interview into evidence. Accordingly, the only

17
issue before the trial court was the extent to which Dooley could testify for impeachment

purposes. The defense was unable to point the trial court to any instance where Jane was

confronted with any alleged inconsistent statement she made to Dooley.

¶33. The trial judge cited Wilkins v. State, 603 So. 2d 309, 319 (Miss. 1992), overruled in

part by Carothers v. State, 152 So. 3d 277, 282 (Miss. 2014); Caston v. State, 823 So. 2d

473, 493 [(¶59)] (Miss. 2002); Pustay v. State, 221 So. 3d 320, 332 [(¶16)] (Miss. Ct. App.

2016); Thames v. State, 310 So. 3d 1163, 1172 [(¶43)] (Miss. 2021) (being the most recent

decision from the Mississippi Supreme Court) and Augustine v. State6 (being the most recent

decision from the Mississippi Court of Appeals), concerning the admissibility of extrinsic

evidence under Rule 613. Based on these cases, the trial judge ruled that Jane’s prior

unsworn statements from the Dooley interview could only be admissible for impeachment

purposes. The trial court further ruled that because Green had not confronted Jane with any

inconsistent statement, a proper foundation had not been laid for Green to impeach Jane’s

testimony with any prior inconsistent statement she may have made to Dooley.

¶34. The trial court allowed the defense to call Dooley in its case-in-chief to impeach

Jane’s testimony that she had not talked with him about this case. However, the defense was

not allowed to go into the details of her statement to Dooley. Thereafter, the defense called

Dooley as its witness and he testified that Jane had in fact given him a statement in this

matter.

6
Augustine v. State, 2020 WL 7350676 (Miss. Ct. App. Dec. 15, 2020), rev’d, 337
So. 3d 646 (Miss. 2022), was reversed by the Mississippi Supreme Court’s decision
discussed later. See infra at ¶¶35-40.

18
¶35. On appeal, Green relies heavily upon the Mississippi Supreme Court’s ruling in

Augustine v. State, 337 So. 3d 646 (Miss. February 10, 2022),7 to support his claim that the

trial court erred by failing to allow Jane to be impeached with the contents of her inconsistent

statements to Dooley. Based upon this case, which was decided almost six months after the

trial in this case, Green argues

It would be inaccurate to say that Augustine and the current case are
analogous. Rather, they [are] the exact same - except for the fact that the trial
court’s ruling in this case implicates Green’s constitutional rights. There can
be no distinction; therefore, reversal is required.

As discussed below, we disagree.

¶36. In Augustine, the defendant was indicted for the first-degree murder of Nigel Poole.

Augustine, 2020 WL 7350676, at *1 (¶¶1-2). The case was tried in Harrison County Circuit

Court, and Augustine was found guilty of the lesser-included offense of second-degree

murder. Id. At trial, during its case-in-chief, the State called Irby Jules to testify as to

incriminating statements Augustine had made to Jules relative to the murder of Poole and to

identify Augustine. Id. at *2 (¶¶8-10). However, Jules became unexpectedly hostile and

refused to identify Augustine in the courtroom, even though he had testified that he knew

him from the neighborhood. Id. at (¶8). Further, Jules denied having ever given a statement

to the police. Id. When the prosecutor attempted to confront Jules with the specifics of his

prior statement to Gulfport Police Officer Keyhoe, as required by Rule 613, the trial court

sustained the defense objection and would not allow the State to get into the details of the

7
We use the Court of Appeals’ now-reversed opinion to explain the case’s
background.

19
statement. Id. at (¶¶8-9).

¶37. Later, outside the presence of the jury, the State advised the trial court that it intended

to call Officer Keyhoe to impeach Jules with his prior statement and made a proffer of his

testimony. Id. at (¶9). Keyhoe testified, first outside the presence of the jury, that Jules had

told him about statements Augustine had made to him prior to the murder. Id. According to

Keyhoe, Jules told him that Augustine said he wanted to “catch a body,” meaning that he

wanted to kill someone. Id. Jules also told Keyhoe that Augustine had offered to sell him a

.38-caliber revolver for $150 one week before the murder of Poole. Id. Jules further advised

Keyhoe that he believed that Augustine and Poole were having relations with the same girl.

Id. at (¶10).

¶38. After the proffer, the defense did not object to Keyhoe testifying that Jules had given

him a statement, but objected to Keyhoe testifying as to the details of that statement. Id. at

(¶9). The defense argued that the only statement Jules made at trial that was subject to

impeachment was that he had not given police a statement. However, the trial court overruled

the defense objection and allowed Keyhoe’s testimony before the jury as to the details of

Jules’s prior statement. Id. The trial court gave the jury a limiting instruction that Keyhoe’s

testimony could only be used for the evaluation of the truthfulness of Jules’s testimony and

that the jury could not consider the prior statement by Jules as evidence of the truth of the

matters contained in the statement. Id. at *6 (¶25).

¶39. On appeal, this Court found that the trial court erred by allowing Keyhoe to testify as

to the details of Jules’ prior statement. Because the only statement that Jules made that was

20
subject to impeachment was that he had not given a statement to the police, this court found

that the details of Jules statement “was inadmissible hearsay and prejudicial to Augustine’s

defense, as it provided the only evidence of a motive for the shooting.” Id. at *4 (¶19). This

Court further found that the prejudice was not cured by the limiting instruction. Id.

Augustine’s conviction was reversed and the case remanded for a new trial.

¶40. On certiorari, the Mississippi Supreme Court reversed the decision of this Court and

reinstated Augustine’s conviction. Augustine, 337 So. 3d at 653 (¶33). The supreme court

found that “Keyhoe’s testimony regarding Jules’s prior statement was to demonstrate the

clear inconsistency of Jules’s testimony.” Id. at 650 (¶16). The court further found that the

prejudicial effect of such testimony “fails to substantially outweigh the probative value of

Keyhoe’s comments.” Id. at 651 (¶19). The court noted that any prejudice resulting from this

testimony was alleviated by the trial court’s limiting instruction to the jury. Id. at 650-51

(¶¶17-18). The supreme court went on to state that even if it were to find error by the

admission of Keyhoe’s testimony, it was harmless under the facts of that case. Id. at 652-53

(¶¶27-32).

¶41. While both Augustine and the case at bar involve the admissibility of prior

inconsistent statements pursuant to Rule 613 to impeach the credibility of a witness who

denied even having made a statement, the similarities stop there. In Augustine, the State

called a witness in its case-in-chief, Jules, who became unexpectedly hostile. Jules refused

to identify the defendant, Augustine, in the courtroom even though he had just testified that

he knew Augustine “from the neighborhood.” Jules also denied having ever given police a

21
statement. The State tried to lay a foundation, pursuant to Rule 613, to impeach Jules by

confronting Jules with specifics from the statement he had given Officer Keyhoe. However,

the trial court sustained the defense’s objection and would not allow the State to question

Jules concerning the details of the statement.

¶42. The present case differs from Augustine on several important points. First, this was

not a case where the State was trying to impeach its own witness; it was the defense trying

to impeach a State’s witness. This was not an unexpectedly hostile witness who refused to

identify a person he testified he knew, who was sitting in front of him in the courtroom. This

was not an adult who had given a detailed statement to the police relative to a homicide and

then denied having done so. Green sought to impeach Jane, who was eight years old on the

date of the offense, and on the date of the Flagg interview. She was nine years old at the time

of the Dooley interview on April 3, 2019, over a year later. Jane was eleven when she

testified at trial. The child clearly had little independent recollection of the interviews with

Flagg and Dooley, which had occurred over two years earlier.

¶43. This position is supported by the fact that when Jane could not recall the contents of

the Flagg interview during cross-examination, the defense offered to refresh her recollection

by playing the interview for her outside the presence of the jury. In the end, the Flagg

interview was admitted into evidence by the agreement of both parties during Green’s cross-

examination of Jane. The entire interview was played, and Jane was cross-examined at length

concerning perceived differences with her testimony during direct examination.

¶44. As noted above, Green did not attempt to confront Jane with any inconsistencies from

22
the Dooley interview. Green did not offer to refresh Jane’s recollection by playing the Dooley

interview outside the presence of the jury, as he had done with the Flagg interview. Unlike

the prosecution in Augustine, Green was not prevented by the trial court from confronting

Jane about specific statements she may have made in the Dooley interview in order to lay a

proper Rule 613 foundation. Green did not attempt or offer to recall Jane to the stand in his

case-in-chief in order to remedy the situation and give her the “opportunity to explain or

deny” whatever statement he intended to introduce through Dooley’s testimony. In other

words, Green did nothing to lay a foundation to offer extrinsic evidence to impeach Jane’s

trial testimony pursuant to Rule 613.

¶45. The supreme court has recognized that the comment to Rule 613 relaxed the time or

sequence within which to confront a witness with a prior inconsistent statement, but the court

explained in Whigham v. State, 611 So. 2d 988, 994-95 (Miss. 1992), overruled on other

grounds by Dora v. State, 986 So. 2d 917 (Miss. 2008):8

As the comment to Rule 613(b) states, the foundation requirement of
our pre-rules decisions was preserved, but with some modifications. There is
no requirement that the witness’s attention be directed to a particular time or
sequence. U.S. v. Nelson, 574 F.2d 277 [(5th Cir. 1978)], cert. den. 439 U.S.
956, 99 S. Ct. 355, 58 L. Ed. 2d 347 (1978); U.S. v. Bibbs, 564 F.2d 1165 [(5th
Cir. 1977)], cert. den. 435 U.S. 1007, 98 S. Ct. 1877, 56 L. Ed. 2d 388 (1978).

As Harrison [v. State, 534 So. 2d 175 (Miss. 1988),] makes clear,
however, before impeachment testimony will be permitted some foundation
must be laid. In that case the State sought to impeach a witness, Ray Patty, as
to prior statements he had made to Coleman, a police officer:

8
The Mississippi Supreme Court in Augustine again recognized the continued
requirement that a witness must be afforded an opportunity to explain or deny the statement
by citing Johnson v. State, 905 So. 2d 1209 (Miss. 2005), which complied with the court’s
holding in Whigham.

23
. . . M.R.E. 613(b) was complied with in that the witness Ray
Patty was given an opportunity to explain or deny his
statements, and Patty was available for interrogation by
opposing counsel. Officer Coleman was likewise available by
counsel for the defendant.

Harrison, 534 So. 2d at 179.

If counsel for a party desires to impeach the testimony of a witness with some
pretrial, out-of-court statement that is inconsistent with his trial testimony, it
is only fair that the witness, while he is on the stand, be asked about it, and be
given an opportunity to explain or deny it. Nor does this create any difficulty
to counsel.

It is manifestly unfair, after the witness has been excused, to attempt to offer
a pretrial inconsistent statement of the witness into evidence, and no trial court
should be faulted for excluding such hearsay testimony in the absence of
laying any foundation. In this case counsel surely knew prior to trial about the
statements Stewart allegedly made to Phyllis. Yet he did not ask Stewart a
single question about any of them.

There may be instances in which a pretrial inconsistent statement of a witness
will not be known until after the witness has left the stand. In such an instance
a trial judge in the interest of justice may permit the introduction of such
statement, but only after making sure that the witness is available for recall and
is given an opportunity to explain or deny the statement. Even here, however,
it would be better procedure to permit the witness to be recalled for further
examination and asked about the statement, and given an opportunity to
explain or deny it, rather than introducing the statement and then recalling the
witness.

We make these extended observations about the rather plain provisions of Rule
613(b) because of our recent decision, Marcum v. Mississippi Valley Gas Co.,
587 So. 2d 223 (Miss. 1991), [overruled in part by Whigham v. State, 611 So.
2d 988, 994 (Miss. 1992),] in which we held it was reversible error for a circuit
court to exclude a pretrial inconsistent statement of a witness for which no
foundation had been laid while the witness was on the stand. We adhere to our
holding in Marcum that there may be instances, as above noted, in which a trial
court in the interest of justice has the discretion of admitting a pretrial
inconsistent statement of a witness into evidence for which no predicate was
laid of the witness, but only after the court has seen to it that the witness is

24
available for recall and is given an opportunity to deny. Marcum, however, is
overruled insofar as it is contrary to our holding today.

Because no foundation was laid for the introduction of any pretrial
statements of Stewart, the court made no error in excluding any testimony of
Phyllis Bounds as to any such statement.

There is an additional reason why the circuit judge did not err in
excluding questions to Phyllis about pretrial statements of Stewart: There
was no profert made by counsel as to what Phyllis would testify, if
permitted to do so. Rule 103(a)(2) M.R.E.; Tigner v. State, 478 So. 2d 293
(Miss. 1985); Hammond v. Grissom, 470 So. 2d 1049 (Miss. 1985).

(Emphasis added) (footnote omitted).

¶46. Again, unlike the prosecution in Augustine, Green made no proffer of Dooley’s

expected testimony. While Dooley’s recorded interview was admitted for purposes of the

tender years hearing only, the State had abandoned its effort to introduce Dooley’s interview

during its case-in-chief. During the extensive hearings on this matter, Green made no attempt

to identify any prior statements made by Jane during her interview with Dooley that were

inconsistent with her trial testimony or statements made in her Flagg interview (which was

in evidence at that point). Green was in possession of the recorded interviews of both Flagg

and Dooley for months before trial and had ample opportunity to prepare to confront Jane

concerning any inconsistencies in her interview with Dooley. In fact, he did confront Jane

with inconsistencies based upon her interview with Flagg. Further, there was no reason that

Green was unable to make a proffer of the testimony he wanted to elicit from Dooley in an

effort to impeach Jane’s credibility as required by Mississippi Rule of Evidence 103(a),

which states:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit

25
or exclude evidence only if the error affects a substantial right of the party and:
....
(2) if the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent from the
context.

¶47. Despite the fact that the trial court’s attention was focused upon whether Green had

confronted Jane with a prior inconsistent statement she made to Dooley, it was still

incumbent upon Green to make a proffer of the testimony he proposed to present through

Dooley in order to preserve the issue for purposes of appeal. In Johnson v. State, 311 So. 3d

1161, 1173 (¶22) (Miss. Ct. App. 2020), this Court stated:

This Court has held that an appeal of a trial court’s limitation of evidence,
without a proffer from the defendant as to the nature of the evidence in the
record, was not reversible error. Williams v. State, 281 So. 3d 263, 271 (¶19)
(Miss. Ct. App. 2019) (finding it “impossible” to find error in the trial judge’s
ruling to limit improper character evidence because the defense failed to offer
a “proffer of the nature of the character evidence”). “When a trial court rules
so as to prevent certain testimony from being introduced, it is incumbent
on the party to make a proffer of what the witness would have testified to
or the point is waived for appellate review.” Turner v. State, 732 So. 2d 937,
951 (¶55) (Miss. 1999).

(Emphasis added). We find Green failed to lay the proper foundation pursuant to Rule 613(b)

for the admission of a prior inconsistent statement from Dooley’s interview with Jane.

Further, Green failed to preserve this issue for appellate review by failing to proffer Dooley’s

expected testimony pursuant to Rule 103(a)(2).

IV. Was the jury’s verdict against the overwhelming weight of the
evidence?

¶48. The standard of review where the appellant/defendant contends that the verdict was

against the overwhelming weight of the evidence is set forth in Carson v. State, 341 So. 3d

26
995, 1000 (¶¶10-11) (Miss. Ct. App. 2022):

We review a trial judge’s denial of a motion for a new trial only for an abuse
of discretion. Little v. State, 233 So. 3d 288, 292 (¶21) (Miss. 2017). Our
standard of review is deferential because the “trial judge is in the best position
to view the trial.” Id. at 291 (¶18) (quoting Amiker v. Drugs For Less Inc., 796
So. 2d 942, 947 (¶16) (Miss. 2000)). “The trial judge who hears the witnesses
live, observes their demeanor and in general smells the smoke of the battle is
by his very position far better equipped to [rule on a new trial motion].” Id. at
291-92 (¶18) (quoting Amiker, 796 So. 2d at 947 (¶16)).

In addition, when we review the denial of a motion for a new trial, we afford
great deference to the jury and its verdict. Little, 233 So. 3d at 289 (¶1). The
jury is the fact-finder, and this Court will not “assume the role of juror on
appeal.” Id. As the Supreme Court made clear in Little,

[w]e do not reweigh evidence. We do not assess the witnesses’
credibility. And we do not resolve conflicts between evidence.
Those decisions belong solely to the jury. Our role as [an]
appellate court is to view the evidence in the light most
favorable to the verdict and disturb the verdict only when it is so
contrary to the overwhelming weight of the evidence that to
allow it to stand would sanction an unconscionable injustice.

The jury heard Jane testify that Green had sexual intercourse with her, and they heard Green

testify that he did not. The jury heard the cross-examination of both Jane and Green. They

heard other evidence that showed that Jane was below the age of fourteen and that Green was

more than twenty-four months older than her when they had sexual intercourse. The jury was

given proper instructions of law, which included those elements that the State was required

to prove beyond a reasonable doubt before the jury could return a verdict of guilty of sexual

battery. As stated above, we do not reweigh evidence, and we do not determine the credibility

of the various witnesses. This is the province of the jury. The jury heard all the testimony and

observed all the witnesses. To the extent there were conflicts in the evidence, it was their

27
duty to resolve those conflicts, if they could unanimously do so. Considering the evidence

in this case in the light most favorable to the jury’s verdict, we cannot say that to allow the

verdict to stand would be to sanction an unconscionable injustice.

CONCLUSION

¶49. We find that there was legally sufficient evidence to support the jury’s verdict finding

Green guilty of sexual battery. The jury’s verdict was not against the overwhelming weight

of the evidence, and we find that to allow the verdict to stand will not sanction an

unconscionable injustice. Finally, the trial court did not abuse its discretion by allowing the

testimony of Gash and Freeman and by excluding Dooley’s testimony concerning statements

Jane made to him. Accordingly, Green’s conviction and sentence are affirmed.

¶50. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS AND LAWRENCE, JJ., CONCUR. McCARTY, J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION. SMITH, J., NOT PARTICIPATING.

28