           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2017-KA-01758-COA

RICKIE GREEN                                                                 APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                             11/09/2017
TRIAL JUDGE:                                  HON. LINDA F. COLEMAN
COURT FROM WHICH APPEALED:                    TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       PHILIP CAREY HEARN
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: BILLY L. GORE
DISTRICT ATTORNEY:                            BRENDA FAY MITCHELL
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  AFFIRMED - 06/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WESTBROOKS, McDONALD AND McCARTY, JJ.

       WESTBROOKS, J., FOR THE COURT:

¶1.    Rickie Green appeals his conviction in the Tunica County Circuit Court for one count

of fondling by an authority figure in violation of Mississippi Code Annotated section 97-5-

23(2) (Rev. 2015). Green asserts that the trial court erred in denying his motion for a new

trial. Green also asserts that the trial court failed to conduct an investigation into whether

juror misconduct resulted in an unfair trial. We find no error and affirm.

                          FACTS AND PROCEDURAL HISTORY

¶2.    On Thanksgiving Day 2015, D.D.,1 her parents Willie and Loran, and numerous other


       1
           We use initials to protect the identity of the minor child.
relatives were at Green’s residence he shared with his wife, Shirley Isabell, and their children

and grandchildren. Green gave D.D. and two of her younger cousins two rides on his four-

wheeler to a spot some distance from the residence.

¶3.    At trial, D.D. testified that during the second four-wheeler excursion, Green stopped

to use the restroom by a pond. D.D. stated that when Green returned to the four wheeler, he

stuck his hand down her pants into her underwear and touched her vagina. Upon returning

from the second excursion, D.D. was seen walking back toward the house while the other

children were still on the four wheeler. D.D. testified that she was crying and highly upset.

She stated that she immediately told her father what Green had done to her, because he was

standing outside when she arrived home.

¶4.    A short time later, there was an altercation regarding the incident among Willie,

Shirley, and Shirley’s son, and the police were called to the Greens’ home. Shirley testified

that the altercation started after Willie took a swing at her; however, Willie testified that the

altercation occurred after he tried to speak with Green regarding D.D.’s allegation of sexual

abuse. Officer Victor Randle, formally with the Tunica County Sheriff’s Office, responded

to the disturbance. Officer Randle testified that when he arrived he encountered D.D. and

her mother, Loran. D.D. informed Officer Randle that her uncle, Green, put his hands down

her pants and touched her between her legs. Officer Randle stated that he collected clothes

from Green’s house to test them for evidence.

¶5.    Detective John Logwood, an investigator with the Tunica County Sheriff’s Office,


                                               2
took D.D. for her forensic interview with Meredith Rawl. Rawl, an expert in the field of

forensic interviewing, testified that D.D. disclosed that Green touched her vagina while on

the four wheeler. Rawl stated that based upon her interview with D.D., she believed that

D.D.’s statements were consistent with a child who had been abused.

¶6.    Green testified on his own behalf and claimed that he touched D.D., just not in the

sexual manner that she maintained. Green stated that he grabbed D.D. right before hitting

a speed bump to stop her from falling off. After he grabbed her, Green testified that D.D.

stated “My momma said nobody touch me” and that D.D. started to cry.

¶7.    Following a jury trial,2 Green was convicted and sentenced to five years in the custody

of the Mississippi Department of Corrections, with three years suspended with supervised

probation. Green was also ordered to register as a sex offender upon release. Green filed a

motion for a judgment notwithstanding the verdict (JNOV), and alternatively for a new trial.

¶8.    At Green’s hearing on his JNOV motion or motion for a new trial, one of his

arguments was that one of the jurors on the jury panel failed to disclose pertinent information

regarding her connection with the victim and witnesses in this case. The trial court denied

Green’s motion. Aggrieved, Green appeals the denial of his motion for a new trial.

                                   STANDARD OF REVIEW

¶9.    In Lindsey v. State, 212 So. 3d 44, 45 (¶4) (Miss. 2017), the Mississippi Supreme

Court held:


       2
           Green’s first trial resulted in a mistrial.

                                                  3
       When reviewing a denial of a motion for a new trial based on an objection to
       the weight of the evidence, we will only disturb a verdict when it is so contrary
       to the overwhelming weight of the evidence that to allow it to stand would
       sanction an unconscionable injustice. The evidence must be weighed in the
       light most favorable to the jury’s verdict. If the verdict is against the
       overwhelming weight of the evidence, the proper remedy is to grant a new
       trial, but this remedy should be used only in exceptional cases where the
       evidence preponderates heavily against the verdict.

(Citations and internal quotation marks omitted).

                                        DISCUSSION

       I.     Whether the verdict was against the overwhelming weight of the
              evidence.

¶10.   In his first assignment of error, Green asserts that the verdict was contrary to the

overwhelming weight of the evidence because the sole probative evidence the State offered

was D.D.’s testimony. Although Green asserts that the trial court erred in denying his JNOV

motion and motion for a directed verdict, or in the alternative, for a new trial, it appears that

Green only challenges the denial of his motion for a new trial, which challenges the weight

of the evidence. See Dilworth v. State, 909 So. 2d 731, 737 (¶20) (Miss. 2005). “The verdict

must be so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice.” Id. at (¶21) (internal quotation mark omitted).

¶11.   Green was convicted on one count of fondling by an authority figure under

Mississippi Code Annotated section 97-5-23(2) (Rev. 2015). This Code section reads:

       Any person above the age of eighteen (18) years, who, for the purpose of
       gratifying his or her lust, or indulging his or her depraved licentious sexual
       desires, shall handle, touch or rub with hands or any part of his or her body or
       any member thereof, any child younger than himself or herself and under the

                                               4
       age of eighteen (18) years who is not such person’s spouse, with or without the
       child’s consent, when the person occupies a position of trust or authority over
       the child shall be guilty of a felony and, upon conviction thereof, shall be fined
       in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five
       Thousand Dollars ($5,000.00), or be committed to the custody of the State
       Department of Corrections not less than two (2) years nor more than fifteen
       (15) years, or be punished by both such fine and imprisonment, at the
       discretion of the court. A person in a position of trust or authority over a child
       includes without limitation a child's teacher, counselor, physician, psychiatrist,
       psychologist, minister, priest, physical therapist, chiropractor, legal guardian,
       parent, stepparent, aunt, uncle, scout leader or coach.

¶12.   At trial, testimony established that Green was fifty years old at the time of the crime

and that he was married to the victim’s aunt, Shirley. D.D. was twelve years old at the time

of the crime. D.D. testified at trial that Green put his hands on the inside of her clothing and

touched her private area. D.D. also stated that once she returned to the house, she

immediately told her father and other family members what happened.

¶13.   “Our case law clearly holds that the unsupported word of the victim of a sex crime is

sufficient to support a guilty verdict where that testimony is not discredited or contradicted

by other credible evidence.” Lindsey, 212 So. 3d at 47 (¶14). D.D. was visibly upset when

she returned from the second four-wheeler excursion and immediately reported the incident

after returning. D.D.’s father also testified that his daughter told him that Green touched her

between her legs when they were riding the four wheeler. Therefore, D.D.’s testimony

coupled with her father’s testimony would have provided a sufficient basis for convictions

without further corroboration. Moreover, Green did not offer any conflicting testimony other

than his own—even though he admitted that he touched D.D. during the four-wheeler ride.


                                               5
¶14.   But Green maintains that D.D.’s description of where the crime took place was

inconsistent and that testimony coupled with the lack of physical evidence proves that the

verdict is against the overwhelming weight of the evidence. The Mississippi Supreme Court

has held that “the jury is charged with the responsibility of weighing and considering the

conflicting evidence and credibility of the witnesses and determining whose testimony should

be believed.” Id. at 49 (¶18).

¶15.   Here, the jury weighed the evidence and considered the credibility of the witnesses.

Accordingly, we find no abuse of discretion in the trial court’s denial of Green’s motion for

a new trial. Viewing the evidence in the light most favorable to the verdict, the trial court

did not sanction an unconscionable injustice in ruling that the judgment must stand.

       II.        Whether there was juror dishonesty.

¶16.   Green asserts that juror Megan Taylor withheld material information as to her

relationships with numerous persons involved, including her relationship with D.D., during

voir dire. As a result, Green maintains that he suffered significant prejudice and is entitled

to a new trial.

¶17.   During voir dire, the trial court asked whether anyone knew Rickkeyta Isabell or had

a relationship with her. Taylor responded that she was Rickkeyta’s classmate, however, she

could still sit as a fair and impartial juror. The trial court also asked whether anyone there

was related by blood or marriage to Bridgett Davis. Bridgett’s name was on the list of

potential witness, but she did not testify at trial. Taylor responded that Bridgett was her


                                              6
cousin, however, she could still sit as a fair and impartial juror.

¶18.   Green, however, maintains that during voir dire, Megan Taylor failed to answer

whether she knew or had a close relationship with Willie, Shirley Isabell, and D.D. It was

later discovered that Bridgett and Willie are cousins. Yet, at the posttrial hearing, Taylor

testified that she “knew of” Willie and his daughter. Taylor also admitted to dating Shirley’s

son, Kendrell, while she was in high school; however, she acknowledged that she did not

have a “close” relationship with any of the individuals involved in the case. Green asserts

that the trial court should have found that he established a presumption of prejudice and

should have ordered an examination of the jury under Gladney v. Clarksdale Beverage Co.,

625 So. 2d 407, 419 (Miss. 1993).

¶19.   In Gladney, the Mississippi Supreme Court held that

       in the absence of a threshold showing of external influences, an inquiry into
       the juror verdict is not required. When the threshold showing is made under
       the standards previously outlined, the court should conduct a post-trial hearing.
       The scope of the hearing is however, limited; the proper procedure is for the
       judge to limit the questions asked the jurors to determine whether the
       communication was made and what it contained. Once it is determined that
       the communication was made and what the contents were, the court is then to
       decide whether it is reasonably possible this communication altered the
       verdict.

Id. (emphasis added).

¶20.   But in Gladney, both [parties] charged that the jury had been improperly influenced

by extraneous prejudicial evidence. Id. Here, Green has not charged that his verdict was

influenced by extraneous evidence and there was no evidence of the same. Green asserts that


                                               7
Taylor withheld information during voir dire. Therefore, the Gladney test does not apply.

¶21.   Our Mississippi Supreme Court has stated:

       We hold that where, as here, a prospective juror in a criminal case fails to
       respond to a relevant, direct, and unambiguous question presented by defense
       counsel on voir dire, although having knowledge of the information sought to
       be elicited, the trial court should, upon motion for a new trial, determine
       whether the question propounded to the juror was (1) relevant to the voir dire
       examination; (2) whether it was unambiguous; and (3) whether the juror had
       substantial knowledge of the information sought to be elicited. If the trial
       court’s determination of these inquiries is in the affirmative, the court should
       then determine if prejudice to the defendant in selecting the jury reasonably
       could be inferred from the juror’s failure to respond.

Doss v. State, 882 So. 2d 176, 181 (¶5) (Miss. 2004) (emphasis added) (quoting Odom v.

State, 355 So. 2d 1381, 1383 (Miss. 1978)).

¶22.   In Odom v. State, the defendant was granted a new trial where a juror failed to reveal

that his brother was one of the investigating officers in the murder that the defendant was

charged with. See Odom, 355 So. 2d at 1383. In Merchant. v. Forest Family Practice Clinic

P.A., 67 So. 3d 747, 756 (¶20) (Miss. 2011), the Mississippi Supreme Court referred to the

aforementioned language in Odom and Doss as “the standard of review for juror misconduct

arising from a failure to respond to questions during voir dire.”

¶23.   Also in Merchant, the supreme court stated the following regarding prejudice:

       [A] party shows that a juror withheld substantial information or misrepresented
       material facts, and where a full and complete response would have provided
       a valid basis for challenge for cause, the trial court must grant a new trial, and,
       failing that, we must reverse on appeal. We presume prejudice. Where, as a
       matter of common experience, a full and correct response would have provided
       the basis for a peremptory challenge, not rising to the dignity of a challenge for
       cause, our courts have greater discretion, although a discretion that should

                                               8
       always be exercised against the backdrop of our duty to secure to each party
       trial before a fair and impartial jury.

Id. at 757 (¶22). Therefore, we find that standard applicable to this case.

¶24.   Here, the record reflects that during jury selection, the defense ultimately accepted

Taylor as a juror without additional inquiries concerning her relationships. Green was

properly notified of Taylor’s relationship to D.D., Rickkeyta, and Bridgett Davis. Therefore,

Green’s attorney should have done a more diligent and thorough inquiry during voir dire

once Taylor disclosed her kinship with Bridgett Davis. The trial court found that after

Green’s attorney inquired whether Taylor was related to Bridgett Davis, his inquiry should

have gone to further to ask whether she was related to D.D. and Willie; however, the inquiry

ceased.

¶25.   Furthermore, Taylor informed the trial court that even if she was related to D.D. and

Willie, she did not have a close relationship with them nor did she have any contact with

them. The record also reflects that Taylor denied being related to Willie and D.D. As a

result, it appears that the trial court found after inquiry into the nature of the information that

was withheld, that no prejudice presumed—which is a finding of fact. Therefore, Green’s

argument that the trial court should have proceeded with an inquiry of the jury under Gladney

is without merit.

¶26.   Accordingly, we find no error in the trial court’s judgment.

¶27.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.



                                                9
