322 Ga. App. 37
Ga. Ct. App.2013Background
- Heard was convicted by jury of child molestation, aggravated child molestation, and incest against his natural daughter; amended motion for new trial denied; appellate challenge followed.
- Victim testified to vaginal, anal, and oral intercourse with father starting November 2007 when she was 11, continuing until after her outcry in March 2009.
- Abuse described in a video-recorded forensic interview; investigator corroborated several details such as arrest dates and locations of abuse.
- Victim’s younger sister testified that the father would take the victim into the bedroom after the mother left for work for extended periods.
- Heard challenged the sufficiency of the evidence and argued improper bolstering and testimony regarding the ultimate issue; plain error review was raised but not preserved.
- The appellate court affirmed, holding the evidence was sufficient and the challenged testimony did not require reversal; plain error review did not apply due to timing and lack of objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | Heard contends the evidence is insufficient to sustain the convictions. | Heard argues the State did not prove beyond a reasonable doubt. | Evidence was sufficient to sustain convictions. |
| Bolstering and ultimate-issue testimony | Heard asserts the mother’s and investigator’s testimony bolstered the victim and reached the ultimate issue. | State contends testimony did not improperly bolster or invade the jury’s fact-finding function and was properly admitted. | No reversible error; claims not properly before the court for plain error review. |
| Plain error review applicability | Heard relies on plain error to challenge admission of evidence. | State argues plain error review is unavailable for these post-2013 Code issues on appeal from 2011 trial. | Plain error review does not apply; no preserved error for bolstering or evidence admissibility. |
| Victim’s mother as a witness | Mother’s testimony concerning belief in the victim’s account invaded the jury’s function. | Mother is not an expert; her testimony simply showed belief in the child and did not impermissibly decide the case. | Mother’s testimony permissible; not an improper expert or improper intrusion. |
Key Cases Cited
- Reid v. State, 319 Ga. App. 782 (Ga. App. 2013) (victim’s testimony alone can sustain child molestation convictions)
- Stott v. State, 304 Ga. App. 560 (Ga. App. 2010) (incest conviction supported by witness testimony)
- Jackson v. State, 292 Ga. 685 (Ga. 2013) (plain error review limited; proper for substantial rights under certain conditions)
- Thomas v. State, 318 Ga. App. 849 (Ga. App. 2012) (non-expert witness testimony on belief permissible)
- Durham v. State, 292 Ga. 239 (Ga. 2012) (plain error review not applicable to evidence-admission claims for trial before 2013)
- Putnam v. State, 231 Ga. App. 190 (Ga. App. 1998) (plain error discussion regarding improper admission of evidence; debated precedential value)