Bunn v. State
307 Ga. App. 381
Ga. Ct. App.2010Background
- Bunn was convicted on two counts each of child molestation, aggravated child molestation, and cruelty to children in the first degree.
- Victims were Bunn’s two nieces, ages seven and nine, whom he supervised while their mother worked.
- Victims testified to repeated touching of private parts in the mother's home, with threats to coerce compliance.
- Forensic interviews were conducted; therapist described specific acts and ongoing contact, and a video of the interviews was shown at trial.
- A sexual assault nurse examiner found only generalized redness and no specific injuries.
- Bunn appealed after amended motion for new trial was denied, challenging sufficiency of evidence, jury instruction, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for cruelty to children | State contends evidence shows cruel mental pain. | Bunn argues no evidence of cruel or excessive mental pain. | Evidence supported cruel mental pain. |
| Malice element in cruelty to children | State asserts malice can be inferred given role and impact on victims. | Bunn argues no proof of malice. | Malice inferred; evidence sufficient. |
| Need to define 'maliciously' in jury charge | State contends no definition required; common understanding suffices. | Bunn argues trial court erred by not defining maliciously. | No definition required; instruction adequate. |
| Ineffective assistance of counsel | State contends counsel's performance reasonable; no prejudice shown. | Bunn asserts multiple deficiencies in preparation, investigation, and strategy caused prejudice. | No prejudice shown; trial court’s ruling affirmed. |
| Admission and handling of therapist testimony | State contends testimony about credibility is permissible expert context; objections would be futile in places. | Bunn argues improper expert opinion on credibility and improper testimony. | No reversible error; counsel did not perform deficiently; some testimony not improperly opinion-based. |
Key Cases Cited
- Sims v. State, 234 Ga.App. 678 (Ga. Ct. App. 1998) (treatment of whether evidence shows cruel or excessive mental pain for cruelty to children)
- Chastain v. State, 239 Ga.App. 602 (Ga. Ct. App. 1999) (malice may be inferred where child victims rely on adult authority figures)
- Keith v. State, 279 Ga.App. 819 (Ga. Ct. App. 2006) (sufficient evidence of cruel and excessive mental pain when victim harmed and counseled)
- Alford v. State, 243 Ga.App. 212 (Ga. Ct. App. 2000) (explanation that excessive mental pain need not rely solely on victim testimony)
- Woodard v. State, 269 Ga. 317 (Ga. 1998) (limits on child hearsay and expert testimony in sensory testimony context)
- Mora v. State, 295 Ga.App. 641 (Ga. Ct. App. 2009) (prejudice requires proffered expert testimony to show potential trial impact)