O'Connor v. State
120 So. 3d 390
| Miss. | 2013Background
- John O’Connor was indicted on two counts of gratification of lust for alleged sexual touching of two girls (A.R. and B.W.), both under 16; jury acquitted on count involving B.W. and convicted on count involving A.R.; sentence: 15 years (10 to serve, 5 suspended) plus 5 years probation.
- At trial the State introduced testimony from Jessica Atkinson‑Hamm that O’Connor had molested her in Florida when she was 11–14; Atkinson‑Hamm described multiple instances of O’Connor entering beds and touching her while she slept.
- Defense counsel (O’Connor) first disclosed during opening that O’Connor had been convicted in Florida of a misdemeanor relating to Atkinson‑Hamm and had been acquitted on a separate Florida charge; defense questioning later elicited details of the Florida proceedings.
- The trial court ruled pretrial that evidence of prior sexual offenses against minors could be admissible under Miss. R. Evid. 404(b) and 403 to show motive, common scheme/plan, and absence of mistake; the judge found probative value outweighed prejudice.
- During closing the prosecutor referred to the Florida conviction and argued the prior acts showed a pattern (defense did not object contemporaneously).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (O’Connor) | Held |
|---|---|---|---|
| Admissibility of prior sexual‑misconduct evidence under Rules 404(b) & 403 | Evidence of prior acts shows motive, common scheme/plan, and absence of mistake; probative value outweighs prejudice | Admission was unfairly prejudicial under Rule 403; prior acquittal/conviction references violated fairness/due process | Court: No abuse of discretion. Prior‑act evidence admissible to show pattern/absence of mistake; defendant opened the door to Florida conviction/acquittal. |
| Prosecutorial misconduct for alleged "send‑a‑message" closing argument | Closing argument responded to defense themes and prior‑act evidence; not so inflammatory to require sua sponte objection | Prosecutor improperly argued vengeance/send‑a‑message by citing Florida conviction and suggesting punishment across states | Court: Claim waived for failure to object; statement not so inflammatory that judge should have objected sua sponte; no reversible misconduct. |
Key Cases Cited
- Hargett v. State, 62 So.3d 950 (Miss. 2011) (standard of review for evidentiary rulings: abuse of discretion)
- Welde v. State, 3 So.3d 113 (Miss. 2009) (two‑part test for prior‑act evidence: 404(b) relevance to noncharacter issue and 403 balancing)
- Gore v. State, 37 So.3d 1178 (Miss. 2010) (prior sexual offenses admissible to show motive and similarity of means)
- Green v. State, 89 So.3d 543 (Miss. 2012) (prior sexual assaults admissible to show common plan/system and to infer a pattern)
- Ross v. State, 954 So.2d 968 (Miss. 2007) (Rule 403 balancing rests in trial court’s sound judgment)
- Jones v. State, 920 So.2d 465 (Miss. 2006) (trial judge must rely on sound judgment in Rule 403 weighing)
- HWCC‑Tunica, Inc. v. Jenkins, 907 So.2d 941 (Miss. 2005) (appellant cannot complain about errors he invited)
- Spicer v. State, 921 So.2d 292 (Miss. 2006) (framework for reviewing unobjected‑to prosecutorial remarks and adoption of two‑prong test)
- Payton v. State, 785 So.2d 267 (Miss. 1999) (review of prosecutorial misconduct when remarks are so inflammatory that judge should intervene)
- Gray v. State, 487 So.2d 1304 (Miss. 1986) (same principle: judge may need to intervene sua sponte for inflammatory remarks)
- Griffin v. State, 292 So.2d 159 (Miss. 1974) (historical basis for sua sponte intervention on inflammatory prosecutorial conduct)
- Long v. State, 52 So.3d 1188 (Miss. 2011) (failure to contemporaneously object generally waives claim unless remarks are so inflammatory that judge should have objected)