Crider v. StateCrider v. State
Jeffrey A. Crider was convicted by a Muscogee County jury of aggravated assault and aggravated sodomy. The trial court sentenced him to 20 years to serve on each count, to run consecutively. Crider appеals the order denying him a new trial. Crider contends that the trial court erred in (1) admitting child hearsay testimony, (2) failing to charge the jury on simple battery, and (3) inaccurately charging the jury on the law of aggravated assault. He аlso claims ineffective assistance of counsel. For reasons that follow, we affirm Crider’s convictions.
Crider ran out the back door when the police first arrived, but was in his apartment when the police returned to question him. Crider refused to answer the door, so the police got a warrant, entered the apartment through an unlocked window, and found him hiding in a closet with a bottle of liquor. Crider struggled with the police and claimed that thеy gave him a black eye. The police took him to the hospital. At the hospital, Crider informed the staff that he had “beat his girlfriend’s ass and that every woman needed a good ass whipping every once in a while.”
1. At trial the State called Officer McMinnaman, with the Opelika, Alabama, Police Department, to give similar transaction evidence of sexual abuse by Crider. Officer McMinnaman testified that on August 22, 1992, he responded to a report made by M. C., Crider’s I 12-year-old daughter. She told Officer McMinnaman that Crider entered her bedroom nude, fondled her breasts and vagina, and inserted a finger in her vagina. She kept pulling his hand away, but Crider asked her, “Are you gоing to be like your, mother and make me fight you?”
Although Crider does not appeal the admissibility of the prior act as a similar transaction in general, he does argue that McMinnaman’s testimony was inadmissible hearsay. The State claims his testimony was admissible under
The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same[,] and, the nature of the child’s statement and type of language used thеrein; and (10) the consistency between repeated out-of-court statements by the child.
Gregg, supra at 240 (3) (b).
McMinnaman testified that M. C. left her residence and reported the molestation immediately after it occurred and that hе spoke with her the same evening. The officer saw no evidence that M. C. was coached, and he did not lead her in making her statement.
2. Crider argues that the trial court erred in failing to charge the jury on the lesser included offense of simple battery. Counsel asked the court to charge the jury on simple battery, but failed to make the request in writing. Our Supreme Court has established that it is not error for a trial court to fail to charge a lesser included offense if not requested in writing. State v. Stonaker. 2 Accordingly, the trial court did not err in refusing to charge the jury on simple battery.
3. Crider reserved objection on the jury charges and argued in his motion for new trial that the trial court erred in inaccurately charging the jury as to aggravаted assault. After reading Count 2 of the indictment, which charged Crider with aggravated assault, the trial court then charged the jury as to aggravated assault. When doing so, the trial court charged inter alia:
Aggravated assault is аn attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of immediately receiving violent injury. A person commits the offense of aggravated assault when that person assaults another person with any object which when used offensively against a person is likely to result in serious bodily injury. To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person coupled with the apparent ability to cоmmit the injury or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.
See record, vol. 2, p. 124; record, vol. 3, p. 9. This charge, when considered as a whole, adequately states the law of aggravated assault under
As is herein relevant, the offense of aggravated assault requires that an assault, as defined in
In this case, the indictment charged Crider under
The use of hands to choke a victim satisfies the deadly weapon or dangerous object element of the aggravated assault statute. See
Richards v. State.
5
In an indictment alleging that a defendant assaulted the victim “by kicking her in the head and shoulder area
and by striking her with his hands and feet,” it was unnecessary to further allege that defendant used his hands and feet as deadly weapons or that there was an intent to injure. See
Gafford v. State.
6
An indictment charging that defendant’s fists were likely to result in serious bodily injury was sufficient, and no reference to deadly
4. Crider maintains that he received ineffective assistance of counsel.
“A trial court’s finding that a defendant has not been denied effective assistаnce of trial counsel will be affirmed unless clearly erroneous. [Cit.]” Warren v. State. 8
The burden was on [Crider] to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his dеfense. A strong presumption exists that representation has been effective, and trial strategy and tactics do not establish ineffective assistance. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.
(Citations and punctuation omitted.) Straite v. State. 9
(a) Officer McMinnaman testified that he believed M. C. was being truthful when she told him that Crider abused her. Crider argues that defense counsel rendered ineffective assistance by not objеcting to this testimony. It is well settled that the credibility of a witness cannot be bolstered by the opinion of another. See
Lagaña v.
State.
10
Although
(b) Crider argues that his cоunsel was ineffective because counsel failed to object to the admissibility of Crider’s statements that he beat the victim, and because counsel failed to request a jury charge regarding the voluntariness of Crider’s statements. Before Crider’s statements were introduced, the court held a Jackson-Denno hearing. Evidence showed that Crider was read his Miranda warnings twice before making the statements which he sought to suppress. In any event, his statements were made to hospital personnel, in respоnse to their inquiry, and not in response to police questioning. Crider’s statements were admissible.
Counsel’s decision not to request a jury charge regarding the voluntariness of Crider’s statement can be characterized as a matter of trial strategy. Counsel may have chosen not to focus the jury’s attention upon Crider’s inculpatory comments.
Crider’s convictions are affirmed.
Judgment affirmed.
Notes
Gregg v. State,
State v. Stonaker,
King v. State,
Harrison v. State,
Richards v. State,
Gafford v. State,
Jay
v.
State,
Warren v. State,
Straite v. State,
Lagana v. State,
Roberson v. State,
Stamey v. State,