Greenboam v. State

Judge BAILEY,

dissenting.

I respectfully dissent. In my opinion, it is unlikely that the jury relied upon allegedly improper 404(b) evidence to reach its verdicts, in light of the victim's testimony, which the majority accurately deems "wrenching" and "detailed." Majority Opinion at --.

In order to admit Indiana Evidence Rule 404(b) evidence, the trial court must (1) determine that the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Jackson v. State, 728 N.E.2d 147, 152 (Ind.2000). This balancing is reviewed for an abuse of discretion. Id. Considering Greenboam's systematic plan to abuse the female children in his home, clearly established by the State's evidence, I cannot conclude that Greenboam has demonstrated an abuse of the trial court's discretion.

Moreover, reversal is compelled only if the record as a whole discloses that erroneously admitted evidence was likely to have had a prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.1995). I fully concur with the majority's conclusion that C.G.'s and Captain Ritter's testimony of prior molestation was unlikely to have contributed to Greenboam's convictions. As the majority observes, C.G.'s testimony gave no details of her prior molestation by Greenboam except that Greenboam touched her breast and crotch and made her touch him.5 Greenboam had admitted as much to Detective Ritter, and commented upon the admission during his opening statement. However, I disagree that S.H.'s testimony "tips the balance." Majority Opinion at 16. Even assuming that S.H.'s testimony improperly bolstered the testimony of C.G., any error was harmless in light of the overwhelming evidence of Greenboam's guilt, including C.G.'s testimony (in precise detail) of her five recent molestations by Greenboam.

I would affirm Greenboam's conviction of child molesting.

. Moreover, a defendant's prior bad acts are usually admissible to show the relationship between the defendant and the victim. Hicks v. State, 690 N.E.2d 215, 222 (Ind.1997).