TEZENO v. the STATE.
343 Ga. App. 623
| Ga. Ct. App. | 2017Background
- Victim (age 14) was a neighbor of Dianell Michael Tezeno, visited his home, and performed yard work for pay.
- Victim testified he told Tezeno he needed money and, in response to Tezeno’s earlier offer to pay, allowed Tezeno to perform oral sex on two occasions; one payment of $15 was made.
- Victim reported the incidents at a hospital; police and a forensic interviewer recorded statements identifying Tezeno as the perpetrator. A forensic-interview video was played at trial.
- The State presented similar-transaction evidence from witnesses alleging prior sexual misconduct by Tezeno and called a forensic expert to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS).
- Tezeno was convicted of two counts of aggravated child molestation, two counts of sodomy, one count of enticing a child for indecent purposes, and one count of solicitation of sodomy; he moved for a new trial which was denied and appealed.
- The Court of Appeals found the evidence sufficient on the enticement and solicitation counts but held Tezeno received ineffective assistance of counsel based on multiple deficiencies; convictions were vacated and the case remanded. The challenge to admission of similar-transactions evidence was not decided on the merits.
Issues
| Issue | State's Argument | Tezeno's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for enticement and solicitation | Victim’s testimony and forensic interview show Tezeno solicited/enticed the 14-year-old with an offer of money for oral sex; elements met | Evidence insufficient because victim initiated the acts | Convictions for enticement and solicitation are supported; solicitation satisfied by offer to pay a minor for oral sex (statutory consent incapacity met) |
| Ineffective assistance — failure to obtain impeachment records (mother’s felony convictions and victim’s school records) | Records not necessary to verdict; defense had opportunity | Trial counsel failed to investigate and obtain records that would impeach key testimony about victim’s behavior change | Counsel’s failure to seek available, favorable records was deficient and prejudicial when considered with other errors |
| Ineffective assistance — failure to challenge/state expert on CSAAS | CSAAS testimony properly explained victim reactions; State’s expert admissible | Counsel failed to prepare or meaningfully cross-examine expert, did not request continuance when co-counsel absent | Counsel’s lack of preparation and cursory cross-examination of CSAAS expert was deficient and contributed to prejudice |
| Ineffective assistance — failure to obtain video for impeachment of similar-transaction witness | State had provided discovery; impeachment not outcome-determinative alone | Counsel knew of potentially exculpatory interview video but did not request it or seek continuance to obtain it | Failure to obtain/use the video was deficient and, combined with other errors, creates reasonable probability of different outcome |
| Admission of similar-transactions evidence | Trial court properly admitted prior-acts testimony (State’s position) | Admission was erroneous (Tezeno argued) | Court did not reach the merits because convictions were vacated on ineffective-assistance grounds |
Key Cases Cited
- Batten v. State, 295 Ga. 442 (Ga. 2014) (standard for viewing evidence on appeal)
- Cimildoro v. State, 259 Ga. 788 (Ga. 1989) (enticement/asportation element satisfied by persuasion to come to location)
- Kelley v. State, 301 Ga. App. 43 (Ga. Ct. App. 2009) (enticement without physical taking; offer and arrangement to meet at home sufficient)
- Watson v. State, 293 Ga. 817 (Ga. 2013) (elements of solicitation of sodomy defined)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (constitutional ineffective-assistance standard)
- Goldstein v. State, 283 Ga. App. 1 (Ga. Ct. App. 2006) (deference to trial-court fact findings; counsel’s failure to challenge expert testimony can be deficient)
- Douglas v. State, 327 Ga. App. 792 (Ga. Ct. App. 2014) (failure to investigate is unreasonable when it results from inattention)
- Darst v. State, 323 Ga. App. 614 (Ga. Ct. App. 2013) (counsel’s failure to obtain victim records can be deficient)
- Hunt v. State, 336 Ga. App. 821 (Ga. Ct. App. 2016) (effective cross-examination can rebut CSAAS testimony)
- Anderson v. State, 142 Ga. App. 282 (Ga. Ct. App. 1977) (jurors’ common understanding of vernacular sexual terms)