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State v. Greenberry

Court of Appeal of Louisiana, Fourth Circuit

November 19, 2014

STATE OF LOUISIANA
v.
DAMEION A. GREENBERRY

Page 701

[Copyrighted Material Omitted]

Page 702

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 507-628, SECTION " H" . Honorable Camille Buras, Judge.

AFFIRMED.

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Andrew M. Pickett, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.

Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet).

OPINION

Terri F. Love, Judge.

Page 703

[2014-0335 La.App. 4 Cir. 2] Dameion Greenberry (" Mr. Greenberry" ) appeals his conviction of sexual battery, a violation of La. R.S. 14:43.1(C)(2), and contends tat (1) the trial court erred by introducing inadmissible hearsay; (2) the trial court erred when it allowed the State to introduce other crimes evidence; and (3) he was deprived a fair trial due to prosecutorial misconduct during closing arguments. We find that Mr. Greenberry's statement was admissible pursuant to La. C.E. art. 801(D)(2)(a) as a personal admission and therefore the trial court did not err. We also find the trial court did not abuse its discretion in allowing the State to introduce evidence that Mr. Greenberry violated a protective order as its probative value outweighed any prejudicial effect. Furthermore, this Court finds the prosecutor's comments do not merit a reversal of Mr. Greenberry's conviction and sentence, as Mr. Greenberry failed to show any reasonable likelihood that the comments influenced the verdict in this case. Accordingly, we affirm.

PROCEDURAL HISTORY

In July 2011, the State indicted Mr. Greenberry with one count of sexual battery, a violation of La. R.S. 14:43.1(C)(2) and one count of aggravated rape, a [2014-0335 La.App. 4 Cir. 3] violation of La. R.S. 14:42(A)(4). Thereafter, the State filed its notice of intent to offer " other crimes" evidence.

In July 2013, the State elected to proceed to trial on the sexual battery charge only. At the conclusion of a two-day trial, the twelve-member jury unanimously found Mr. Greenberry guilty as charged.

In November 2013, the trial court sentenced Mr. Greenberry to forty-five years at hard labor, with the first twenty-five years to be served without benefit of parole, probation or suspension of sentence, sentence to be served concurrently with any other sentence, with credit for time served. Also on this date, the defense filed its motion for appeal, and the motions for new trial and reconsideration of sentence were denied.

FACTUAL BACKGROUND

Mr. Greenberry was charged with the sexual abuse of his live-in girlfriend's ten year old[1] daughter, J.W.[2] The incident

Page 704

which triggered this prosecution occurred in April 2011, when Mr. Greenberry inserted his finger into the victim's vagina.

Testimony of Victim's Mother

L.T., the victim's mother, testified that in addition to the victim, she also had an eight year old son, J.W. L.T. stated that Mr. Greenberry was her ex-boyfriend, [2014-0335 La.App. 4 Cir. 4] and that she, the victim, and J.W. moved into his house in 2009. The house had two bedrooms. L.T. and Mr. Greenberry shared one, and the victim and J.W. occupied the other. L.T. said that in 2010, the victim told her that Mr. Greenberry touched her inappropriately. L.T. and the victim confronted Mr. Greenberry with the victim's accusation, after which she and her children moved into an apartment. Sometime after the move, the victim recanted her accusation against Mr. Greenberry. Shortly after, L.T., the victim and J.W. returned to live with Mr. Greenberry. At that time, L.T. said she was employed, working an early morning shift, and that Mr. Greenberry was unemployed.

L.T. recalled that on April 3, 2011, she left the residence between five and six in the morning to report to work and returned about one or three in the afternoon. In speaking with the victim that afternoon, L.T. learned that the victim and Mr. Greenberry had been in Mr. Greenberry's bed watching the television. The victim then told her that Mr. Greenberry " had touched her down there." When L.T. confronted Mr. Greenberry, he told her he did not remember touching the victim. A few days later, the victim told L.T. that the first time Mr. Greenberry touched her, he performed oral sex on her. The victim also informed her that the April 3, 2011 incident[3] was the second time Mr. Greenberry touched her and that he digitally penetrated her vagina.

[2014-0335 La.App. 4 Cir. 5] L.T. testified that she took the victim to the Child Advocacy Center [4] and met with Ann Troy (" Ms. Troy" ), a forensic nurse practitioner specializing in child abuse. L.T. recalled telling Ms. Troy that with regard to the victim's accusation, Mr. Greenberry said: " It could be true. I was high on drugs. I don't remember."

On cross-examination, L.T. denied ever telling Ms. Troy that the victim told Mr. Greenberry to stop, but that he put his leg over her and his hand on her head to restrain her as he touched her. L.T. also denied telling the authorities that the victim told her Mr. Greenberry ordered the victim to roll around on him. Further, L.T. did not remember telling the authorities that the victim said when J.W. entered Mr. Greenberry's bedroom, the victim followed J.W. back to their bedroom.

When asked about her feelings towards Mr. Greenberry, she stated she was conflicted and that she still had feelings for him. After Mr. Greenberry's arrest on this charge, he telephoned her from jail, and the two spoke on more than one occasion. L.T. also said that on at least one occasion when Mr. Greenberry phoned her, he asked to speak with the children. L.T. admitted that after Mr. Greenberry's arrest, she and the victim paid a visit to his then-attorney. The attorney met with

Page 705

the victim alone for a few minutes, after which L.T. entered the room. After the attorney visit, Mr. Greenberry continued to telephone her from jail, and when he did, he asked to speak to the victim; however, she could not recall the victim [2014-0335 La.App. 4 Cir. 6] speaking to him. L.T. said that she still had feelings for Mr. Greenberry, even at the time of trial.

On cross-examination, L.T. remembered meeting with the defense team's investigator and telling him that she was abused as a child by her mother's boyfriend.

On re-direct examination, L.T. said that she did not remember Mr. Greenberry blaming the 2011 incident on his being high on drugs. She explained that the notation in Ms. Troy's notes was her (L.T.'s) comment, not Mr. Greenberry's.

Testimony of Ann Troy

As part of the NOPD's investigation, the victim and her younger brother gave recorded statements to the CAC. Ms. Troy, a forensic nurse practitioner specializing in child abuse, interviewed the victim in this case. At trial, Ms. Troy identified the victim's Children's Hospital medical records which included an emergency room record for the victim indicating that she was seen on April 5, 2011, noting that the victim presented with the complaint that her stepfather digitally penetrated her vagina two days prior, and that she experienced pain upon urinating. The emergency room personnel performed STD screening -- HIV, syphilis, gonorrhea and chlamydia -- and assessed the victim's genital urinary area. Based upon the victim's complaints, the emergency room personnel contacted the NOPD and Child Protection Services. Thereafter, the victim was referred to [2014-0335 La.App. 4 Cir. 7] Children's Hospital, where Ms. Troy met with the victim in May 2011. Ms. Troy recorded her interview with the victim which was played for the jury.

Ms. Troy indicated at trial that she concluded that the victim gave clear, detailed, spontaneous information about how Mr. Greenberry digitally penetrated her vagina. Ms. Troy did not detect any deception on the part of the victim. The physical examination performed by Ms. Troy indicated normal findings of the victim's genital area. She explained that the finding was not unusual in this type of sexual abuse, as a child's body quickly repairs itself.

After interviewing the victim, Ms. Troy spoke to the victim's mother to gather what information she had concerning the incident.

After the victim's mother testified, the State recalled Ms. Troy as a rebuttal witness. Ms. Troy indicated that part of her assessment of child abuse is speaking with the parent or guardian who presented the child for assessment. In this case, Ms. Troy spoke with the victim's mother, out of the victim's presence. She identified the notes she took during her conversation with the victim's mother. The notes indicated that the victim's mother told Ms. Troy that the victim told her that Mr. Greenberry inserted his finger into her vagina, and that he was sweating profusely when doing so. Further, Ms. Troy's notes indicated that when she asked the victim's mother what she did in reaction ...


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