Conley v. State
329 Ga. App. 96
Ga. Ct. App.2014Background
- Defendant Barry Lamar Conley ("Conley") was convicted by a jury of three counts of aggravated sodomy, two counts of child molestation, and one count of battery; aggravated child molestation counts were merged into the aggravated sodomy convictions.
- Victims Jo. C. (approx. 12–13 at relevant times) and Je. C. (11 at relevant offense) were family acquaintances who stayed overnight at Conley’s apartment and referred to him as "Uncle Barry." Multiple episodes of oral and anal sexual contact were described, including removal of clothing, threats to be quiet, physical restraint, biting, and bribery to prevent reporting.
- State presented similar-transaction evidence of prior convictions (1991 and 1993) for molesting young boys.
- Conley moved for directed verdicts and later for a new trial; he also raised ineffective-assistance claims based on trial counsel’s failure to object to an expert’s testimony and failure to file a special demurrer challenging date specificity.
- The trial court denied post-trial relief; Conley appealed arguing insufficiency of evidence as to force (aggravated sodomy), failure of the trial court to exercise discretion on the new-trial motion, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Conley) | Held |
|---|---|---|---|
| Whether evidence proved force for aggravated sodomy (Jo. and Je.) | Evidence of intimidation, threats to be quiet, removal of clothing, physical acts (biting, positioning), victim fear and lack of reporting show force. | Insufficient proof of force for aggravated sodomy because victims were older than ten; State failed to prove forcible element. | Court held evidence (circumstantial, minimal standard) was sufficient to prove force; convictions affirmed. |
| Whether trial court failed to exercise discretion on new-trial motion (OCGA §§5-5-20, 5-5-21) | Trial court reviewed sufficiency and weighed evidence under OCGA §5-5-20; denial proper. | Trial court did not expressly state it sat as thirteenth juror, so failed to exercise discretion; remand required. | Court presumed trial judge applied correct standard; record shows legal-sufficiency and discretionary consideration, so no remand required. |
| Ineffective assistance: failure to object to forensic interviewer opining victim not coached | Testimony that interviewer saw no coaching is permissible and trial strategy; no prejudice shown. | Counsel should have objected as improper bolstering of child’s credibility. | Court found counsel’s choice presumed strategic (no hearing questioning counsel on this point) and such testimony is not improper bolstering; claim fails. |
| Ineffective assistance: failure to file special demurrer over broad date ranges in indictment | Indictment gave adequate date range; defendant did not assert alibi; demurrer would not have materially impacted defense. | Counsel ineffective for not specially demurring to force dismissal or at least require specificity. | Court held no prejudice shown and failure to demur generally not ineffective because re-indictment is possible; claim fails. |
Key Cases Cited
- Boileau v. State, 285 Ga. App. 221 (2007) (force includes mental coercion and minimal evidence suffices to prove forcible sodomy against a child)
- Choisnet v. State, 292 Ga. 860 (2013) (trial court has broad discretion to sit as thirteenth juror on motion for new trial)
- Moore v. Stewart, 315 Ga. App. 388 (2012) (presumption that trial judge applied proper standard unless order indicates otherwise)
- Brockman v. State, 292 Ga. 707 (2013) (no remand needed where trial court’s order shows legal sufficiency and discretionary consideration)
- Boatright v. State, 308 Ga. App. 266 (2011) (standard for reviewing ineffective-assistance claims and deference to trial court findings)
- McCowan v. State, 302 Ga. App. 555 (2010) (expert testimony that interviewer saw no coaching does not improperly bolster victim’s credibility)