Gaines v. the State
339 Ga. App. 527
| Ga. Ct. App. | 2016Background
- Victim V.W., age 15, met Gaines (age 20) at school; they later met at a Burger King and went to Gaines’s house.
- V.W. testified Gaines forced her, kissed and pinned her, removed her clothing, put on a condom, and had intercourse; she attempted to resist.
- V.W. brought home a used condom; hospital exam identified V.W.’s report that she was forced and that her right nipple was bitten.
- Forensic testing found DNA matching Gaines on V.W.’s right nipple and both V.W. and Gaines on the condom.
- Gaines was indicted for statutory rape and child molestation; jury acquitted on statutory rape but convicted on child molestation.
- Gaines moved for new trial and appealed, raising insufficiency, misconduct in opening/closing, record supplementation, and ineffective assistance claims; the trial court denied the new trial and this Court affirmed.
Issues
| Issue | Gaines' Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for child molestation | Evidence insufficient to prove molestation | Victim testimony, her statements to nurse, and DNA supported conviction | Affirmed — evidence sufficient |
| Prosecutor’s opening: reference to a “murderer” in house; motion for mistrial | Comment improperly injected character/guilt by association; mistrial required | Reference explained victim’s fear and why she didn’t report; curative instruction sufficed | Waived by failure to renew; alternatively, no mistrial needed — curative instruction adequate |
| Motion to supplement record post-trial about alleged “murderer” not convicted | Trial court erred in refusing certified record showing murder charge nolle prossed | Prosecutor admitted mistake at new-trial hearing; record already showed no murder conviction | Denial proper — additional proof unnecessary |
| Prosecutor’s closing comment about Gaines having “no explanation” for DNA (implied silence)/Ineffective assistance for counsel not objecting | Statement impermissibly commented on right to remain silent; counsel ineffective for not objecting | Argument was permissible: commented on failure to rebut evidence, not defendant’s silence; objection would be meritless | Waived (no objection). On merits, comment not a forbidden comment on silence; counsel not ineffective for failing to make a futile objection |
Key Cases Cited
- Sowell v. State, 327 Ga. App. 532 (victim testimony and context for sufficiency review)
- Powell v. State, 335 Ga. App. 565 (victim testimony alone can support child-molestation conviction)
- O’Rourke v. State, 327 Ga. App. 628 (acquittal on one count does not negate sufficiency for conviction on another)
- Sanders v. State, 290 Ga. 445 (trial court may use curative instructions rather than mistrial for prejudicial statements)
- Norman v. State, 298 Ga. 344 (failure to object to closing argument in non-capital case waives appellate review)