637 S.E.2d 790 | Ga. Ct. App. | 2006
Following a jury trial, John Darrell Anderson was convicted of one count each of aggravated child molestation,
1. We first address Anderson’s contention that the evidence was insufficient to support his conviction. “On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Anderson] no longer enjoys a presumption of innocence.” Berry v. State.
So viewed, the record shows that in early November 1997, then seven-year-old C. J. informed her mother that Anderson, a friend of her mother who had been living with them for the past several months, had inappropriately touched her. However, when her mother became upset and began questioning her further, C. J. recanted the accusation. Confused and still upset, C. J.’s mother had her sister-in-law (C. J.’s aunt), who lived in the same mobile home park and often took care of C. J., take C. J. to stay with her that night. The next morning, the aunt asked C. J. to tell her the truth about whether Anderson had touched her. C. J. responded that he had, and more specifically that Anderson had put his privates inside her privates and had also tried to put his privates in her behind. The aunt then told C. J.’s mother what had happened and suggested that C. J. be taken to the hospital for an examination. The following day, C. J.’s mother took her to the hospital where she was examined by a nurse practitioner who found evidence consistent with sexual molestation.
Anderson was arrested and indicted on one count each of aggravated child molestation, attempted aggravated sodomy, statutory rape, kidnapping, and enticing a child for indecent purposes. At trial, C. J. testified that one night while she was trying to go to sleep, Anderson woke her up, carried her into his bedroom, and would not let her leave. He removed her clothes, put his privates inside her privates, and also tried to put his privates in her behind. When he was finished, he let her leave but told her not to tell anyone about what had happened. C. J.’s mother and her aunt also testified as to what C. J. told them had happened. The investigating police officer testified as to what C. J. told him about the incident and also played a videotaped interview with C. J., taken a few days after she had revealed to her mother and aunt that she had been molested. In
Anderson contends that the evidence was insufficient to support his conviction. We disagree. “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”
“A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.”
2. Anderson contends that the trial court erred in charging the entirety of OCGA § 16-6-4 (c), given that the indictment charged him with aggravated child molestation only by causing a physical injury to the child. Specifically, he argues that because the State introduced evidence of attempted aggravated sodomy, in addition to evidence that he caused a physical injury to C. J., charging on the entirety of OCGA § 16-6-4 (c) raised the possibility that the jury believed he committed aggravated child molestation in a manner not charged in the indictment. See Dukes v. State
We first note that Anderson failed to object to any of the trial court’s charges, including the charge on the definition of aggravated child molestation. “Generally, failure to object to a jury charge in a criminal case constitutes a waiver, except, under OCGA§ 5-5-24 (c), where there has been a substantial error in the charge which was harmful as a matter of law.” Jones v. State.
Viewing the charge here as a whole, it is highly unlikely that the jury was misled by the portion of the charge defining OCGA § 16-6-4 (c) in its entirety. The court read each specific count of the indictment to the jury, and the indictment itself was sent out with the jury for review during deliberations. The court also instructed that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt.” Under these circumstances, we discern no reasonable possibility that the jury was misled and convicted Anderson of aggravated child molestation based on an act of sodomy not alleged in the indictment. See Robertson, supra, 278 Ga. at 381 (5); Holloway v. State
3. In his final two enumerations of error, Anderson contends that the trial court erred in denying his motion for new trial based on what he alleged to be two instances of ineffective assistance of counsel. Specifically, Anderson argues that his trial counsel was ineffective in (a) failing to object to the testimony of C. J.’s aunt, which impermissibly bolstered C. J.’s credibility, and (b) failing to request that a portion of C. J.’s videotaped interview, in which she mentioned Anderson’s marijuana use, be redacted.
In light of the fact that Georgia does not recognize the cumulative error doctrine, we will discuss each claim of ineffective assistance separately. See Fitz v. State.
(a) Anderson contends that his trial counsel should have objected when C. J.’s aunt impermissibly bolstered C. J.’s credibility. At trial, following testimony in which C. J.’s aunt recounted how C. J. told her about being sexually abused and how this upset her, the State asked: “So you believe what she told you?” The aunt responded: “Oh, yeah.” It is well established that “the credibility of a witness is a matter for the jury, and a witnesses] credibility may not be bolstered by the
Even though the testimony of C. J.’s aunt constituted improper bolstering, Anderson has failed to prove that the testimony so prejudiced his defense as to affect the outcome of his trial. See Frazier v. State
(b) Anderson contends that his trial counsel was ineffective in failing to request that the portion of C. J.’s videotaped interview with the police, in which she mentioned Anderson’s marijuana use, be redacted, arguing that such statements impermissibly put his character into issue. “While it is generally true that the defendant’s character cannot be put in issue in a criminal case unless the defendant chooses to put character in issue, material evidence does not become inadmissible simply because it incidentally places the defendant’s character in issue.” Parker v. State.
Here, the State introduced into evidence and played the investigating officer’s videotaped interview of C. J. recounting the sexual abuse. To allow the jury to more easily follow the video, the trial court also allowed the jury to review transcripts of the interview as it was being played. During the interview, in responding to the officer’s question as to whether Anderson worked during the day, C. J. stated that he did not work, but rather hung around the house with his friends smoking “weed,” “cigarettes,” and “cigars.” Anderson’s trial counsel did not object to the videotape’s admissibility or ask that it be redacted, but he did request that neither the videotape nor the transcript be allowed to go out with the jury during deliberations. The court agreed.
Because the videotape was relevant as evidence of the sexual abuse, as well as C. J.’s consistent account of that abuse, “the entire [videotape] was admissible even though certain comments may have
Judgment affirmed.
OCGA§ 16-6-4 (o).
OCGA § 16-6-2 (a).
OCGA § 16-6-3.
OCGA§ 16-5-40.
OCGA §16-6-5.
Berry v. State, 274 Ga. App. 831 (1) (619 SE2d 339) (2005).
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
“Sodomy” is defined as a “sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a).
OCGA§§ 16-4-1; 16-6-2 (a).
OCGA§ 16-6-3 (a).
Iles v. State, 278 Ga. App. 895, 896 (1) (630 SE2d 148) (2006).
Mann v. State, 263 Ga. App. 131, 132 (1) (587 SE2d 288) (2003).
Dorsey v. State, 265 Ga. App. 404, 405 (1) (593 SE2d 945) (2004).
OCGA§ 16-5-40 (a).
OCGA§ 16-6-5 (a).
Pickett v. State, 271 Ga. App. 250, 252 (1) (609 SE2d 181) (2005).
Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995).
Jones v. State, 252 Ga. App. 332, 334 (2) (a) (556 SE2d 238) (2001).
Robertson v. State, 278 Ga. App. 376, 380 (5) (629 SE2d 79) (2006).
Holloway v. State, 278 Ga. App. 709, 714-715 (5) (629 SE2d 447) (2006).
Joiner v. State, 257 Ga. App. 375, 376-377 (2) (571 SE2d 430) (2002).
Fitz v. State, 275 Ga. App. 817, 824-825 (4) (622 SE2d 46) (2005).
Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).
Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997).
Walker v. State, 268 Ga. App. 669, 673 (4) (a) (602 SE2d 351) (2004).
Rose v. State, 258 Ga. App. 232, 234-235 (2) (573 SE2d 465) (2002).
Boykin v. State, 264 Ga. App. 836, 841-842 (5) (592 SE2d 426) (2003).
Wood v. State, 264 Ga. App. 787, 789 (1) (a) (592 SE2d 455) (2003).
Branesky v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669) (2003).
Frazier v. State, 278 Ga. App. 685, 691 (3) (a) (629 SE2d 568) (2006).
Parker v. State, 244 Ga. App. 419, 423 (6) (535 SE2d 795) (2000).