Duncan v. the State
342 Ga. App. 530
Ga. Ct. App.2017Background
- Defendant Frank Lee Duncan, father/adoptive father of four daughters (13-year-old triplets and a 6-year-old), was tried and convicted of multiple sexual offenses including two counts aggravated sexual battery, aggravated child molestation, nine counts child molestation, incest (merged), and two counts cruelty to children; some counts were merged or acquitted at trial.
- Allegations arose from September 2010 disclosures by the triplets describing repeated inappropriate touching, kissing of breasts/genital area, and other prior incidents; grandparents and a police investigator were contacted and recorded forensic interviews were played to the jury.
- Before voir dire the court heard a bench matter authorizing counsel to review a guardian ad litem (GAL) file; Duncan was absent from that hearing and later argued his constitutional right to be present was violated.
- On appeal Duncan raised multiple claims: absence from the GAL-file hearing, risk jury convicted him of pre-May-2010 incest conduct, insufficiency of venue for a molestation count, admission of extrinsic-act evidence, ineffective assistance for failing to object to guilt-assuming hypotheticals to character witnesses, erroneous jury instruction on aggravated sexual battery, and illegal/void child-molestation sentences.
- The Court of Appeals affirmed in part, reversed in part, and remanded: it found no right-to-be-present violation, venue proven, failure to preserve the extrinsic-act objection, ineffective-assistance claim not prejudicial, reversed aggravated sexual battery convictions due to erroneous jury instruction, and vacated child-molestation sentences for resentencing under OCGA § 17-10-6.2(b).
Issues
| Issue | Duncan's Argument | State's Argument | Held |
|---|---|---|---|
| Right to be present at hearing where GAL file was reviewed | Absence denied him ability to assist counsel in reviewing GAL file | Hearing involved purely legal/procedural matter; counsel reviewed file and presence unnecessary | No violation — defendant’s presence not reasonably related to fairness of that legal hearing; counsel reviewed file and would have used exculpatory material |
| Possible conviction for incest based on pre-change-in-law conduct | Jury could have convicted for sodomy-based incest occurring before law change | Incest count merged into aggravated child molestation so any error moot | Moot — incest merged; no relief required |
| Venue for a child-molestation count (August 2–11, 2010) | Venue not proved beyond a reasonable doubt for alleged Walton County offense | Home and incidents occurred in Walton County; forensic interview and testimony tied acts to residence | Venue proved beyond a reasonable doubt; conviction stands |
| Admission of extrinsic-act evidence (E.D.’s friend) | Trial court abused discretion; state improperly elicited extrinsic-act testimony | Defense “opened the door” during cross; no timely objection recorded | Waived — record incomplete and no preserved objection for appellate review |
| Ineffective assistance for failing to object to guilt-assuming hypotheticals to character witnesses | Counsel deficient for not objecting; such hypotheticals impermissible under modern evidence rules | Even if objectionable, answers refused the premise and were favorable to defendant; no prejudice | No prejudice shown — witnesses rejected hypotheticals; outcome likely unchanged |
| Jury instruction on aggravated sexual battery (consent/age) | Instruction incorrectly stated that victims under 16 cannot consent, relieving State of proving lack of consent | Instruction reflected then-prevailing law at trial | Reversed aggravated sexual battery convictions — later controlling authority (Watson) requires proof of nonconsent; error not harmless |
| Sentencing on child-molestation counts (split sentence) | Sentences void because trial court failed to impose statutory split sentences under OCGA § 17-10-6.2(b) | State concedes error | Vacated and remanded for resentencing consistent with statutory split-sentence requirement |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
- Watson v. State, 297 Ga. 718 (Georgia requires proof of nonconsent for sexual battery regardless of victim age)
- Campbell v. State, 292 Ga. 766 (defendant’s presence not required at hearings involving solely legal matters)
- Heywood v. State, 292 Ga. 771 (same rule on presence at legal hearings)
- Jones v. State, 299 Ga. 377 (venue must be proved beyond a reasonable doubt; use of direct and circumstantial evidence)
- Laster v. State, 340 Ga. App. 96 (application of Watson; erroneous instruction on consent requires reversal)
- New v. State, 327 Ga. App. 87 (trial court must impose split sentences for sexual offenses under OCGA § 17-10-6.2(b))
- Long v. State, 287 Ga. 886 (merger of incest into child-molestation/aggravated child molestation convictions)