Forde v. StateForde v. State
Fоllowing a jury trial, Earl Forde, Sr., was convicted on one count of sexual battery
Viewed in the light most favorable to the verdict, Davis v. State, 2 the record shows that in 2002, Forde’s 13-year-old daughter, B. F, was disciplined by her eighth grade teacher for talking back in class. Later that day, after the school informed him of her behavior, Forde ordered B. F. to her bedroom and told hеr that he was going to punish her with a spanking. As Forde demanded, B. F. removed her pants and lay down on her stomach, but instead of spanking her, Forde began touching her privates and only stopped when B. F. began crying.
A couple of years passed with no further abuse occurring. However, on two occasions in either late 2003 or early 2004, when B. F. was fifteen years old and in the tenth grade, Forde ordered B. F. to a bedroom, demanded that she remove her pants, and touched her privates under the pretense of “inspecting” her to determine if she was having sex. In the early summer of 2004, Forde once again demanded that B. F. allow him to touch her privates for what he termed an “inspection,” but this time B. F. refused and immediately thereafter called her grandmother in New York to report that her father had been sexually abusing her. That same day, B. F.’s grandmother informed B. F.’s mother (Forde’s wife) of the abuse that had bеen occurring over the past few years. After B. F.’s mother confirmed what B. F.’s grandmother told her by talking to her daughter, she notified the police.
Forde was indicted on two counts of child molestation. The first count alleged that sometime between 2000 and 2004, Forde had touched B. F.’s privates, and the second count alleged that sometime between 2000 and 2004, he had touched B. F.’s breasts. B. F., Forde, and several other witnesses for both the State and the defense testified at trial. After the State rested, the trial court granted Forde’s motion for a directed verdict as to the second count of child molestаtion, which alleged that Forde had touched B. F.’s breasts. The trial court also charged the jury on the lesser included offense of sexual battery on a child under the age of 16 years pursuant to
At the second trial, B. F. again testified regarding the sexual abuse, and her mother and grandmother again testified regarding B. F.’s outcry. The State also proffered similar transaction evidence through the testimony of one of B. F.’s friends, who testified that Forde made inappropriate sexual remarks and tried to force her to sit on his lap while giving her a ride home one night. In addition, the State introduced, without objection, a videotaped forensic interview
of B. F. by a psychologist with a local child advocacy center, during which B. F. recounted Forde’s acts of sexual abuse. Forde testified in his own defense and dеnied the allegations. He and several other defense witnesses also offered evidence that B. F. resented being disciplined, that she did not like living in Georgia, and that she concocted the abuse allegations so that she would be allowed to move back to New York with her grandmother. At the close of evidence, the trial court again charged the jury on the lesser included offense of sexual battery on a child under the age of 16 years. The jury found Forde guilty of the lesser included offense, and the trial court sentenced him to serve five years in prison pursuant to
Subsequently, Forde obtained new counsel and filed a motion for new trial, alleging that he received ineffective assistance of counsel at trial and that the trial court erred in
1. Forde contends that his trial counsel provided ineffective assistance by failing to make a hearsay objection to B. F.’s statements in the videotaped forensic interview conducted by the child advocacy psychologist. We find no prejudice.
To establish ineffective assistance of counsel under
Strickland v.
Washington,
3
a criminal defendant must prove (1) that his triаl counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.
Mency v. State.
4
“Making that showing requires that [Forde] rebut the strong presumption that [his] lawyer’s cоnduct falls within the wide range of reasonable professional assistance.”
Simpson v. State.
5
See
Wright v. State;
6
Mency,
supra,
At the hearing on his motion for new trial, Forde’s trial counsel testified that he did not raise a hearsay objection to thе videotaped interview of B. F. by the child advocacy psychologist because he did not think that the statements in the videotape constituted hearsay but that he would have objected if he thought he could have kept the statements out of evidence. Forde argues that the videotaрed interview was not subject to the Child Hearsay Statute because B. F. was 16 years old when she made the statement, and thus the interview constituted inadmissible hearsay. SeeOCGA§ 24-3-16; Currington v. State. 8
The State responds that the videotaped interview was admissible as a prior consistent statement. Specifically, the State argues that Forde’s defense focused on attacking B. F.’s credibility by offering evidence that she fabricated the sexual abuse allegations because she hated Forde and wanted to move back to New York, and therefore her statements in the interview were admissible to demonstrate thаt her recounting of the abuse had always been consistent. This argument, however, misconstrues the law regarding prior consistent statements. Following our Supreme Court’s holding in Woodard v. State, 9 we have held that
only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination is a witness’s veracity placed in issue so as to permit the introduction of a prior consistent statement. Even then, the prior consistent statement may be admitted as nonhearsay only if it was made before the motive or influence came into existence or before the timе of the alleged recent fabrication. Otherwise, it is pure hearsay, which cannot be admitted merely to bolster the witness’s credibility.
Phillips v. State.
10
See
Joines v. State.*
11
Here, the videotaped interview was conducted in August 2004, over one month after B. F.’s initial outcry to her grandmother. Given Forde’s contention that B. F.’s initial allegations of sеxual abuse were prompted by her long-standing animosity toward him and her desire to move back to New York, her statements contained in the videotaped interview
However, although Forde’s trial counsel рerformed deficiently in failing to raise a hearsay objection to the admission of B. F.’s statements contained in the videotaped interview, Forde has not shown that counsel’s error prejudiced his defense. The statements made by B. F. during the videotaped interview were merely cumulative of the tеstimony she offered at trial, regarding which she was cross-examined by Forde’s trial counsel, and were therefore harmless. See
Currington,
supra,
2. Forde сontends that the trial court erred in imposing a felony sentence pursuant to the sexual battery statute as amended in 2003 despite the fact that it is unclear from the jury’s general verdict whether Forde was found guilty of acts of sexual battery that he committed before the statute was amended or of acts that he committed after the amendment.
Prior to June 2, 2003,
Forde challenged the legality оf the sentence in his motion for new trial, but that challenge was denied. On appeal, he now argues that absent a special verdict, it is impossible to know whether the jury may have convicted him of sexual battery based
Although we have found no Georgia case authority that directly addresses the issue of whether a general guilty verdict on a charge for conduct that could have occurred either before or after enhanced punishment for that conduct was enacted violates the Ex Post Facto Clause, we find the federal case authority regarding this issue to be persuasive. Most recently, in United States v. Tykarsky 24 the Third Circuit Court of Appeals held that sentencing a defendant to the mandatory minimum prescribed by a statute where there was at least a possibility that the jury convicted the defendant based solely on pre-statute conduct violated the Ex Post Facto Clause. Specifically, the court held that “because the [conduct] spanned two different versions of the statute with different minimum penalties, the question of whether the violation extended beyond the effective date of the amended version was one that had to be resolved by the jury.” Id. at 479-480 (IX) (A). As a result, the court concluded “that sentencing [the defendant] to the mandatory minimum prescribed by the [statute] constitutes plain error, and we will vacate his sentence.” Id. at 483 (IX) (C).
Similarly, in United States v. Torres, 25 the Second Circuit found an ex post facto violation where defendants were subjected to life sentences for conduct that “straddled” the date that the mandatory life sentence for the crime went into effeсt. The court held that the mere possibility, however remote, that the jury convicted based on acts that occurred prior to the enactment of the mandatory life sentence was plain error and required a remand for resentencing. Id. Moreover, our own Supreme Court, albeit in a different context, has also recognized the potential problem posed by general jury verdicts in cases involving multiple acts by a defendant. See Crawford v. State 26 In Crawford, the court acknowledged “the well-settled rule that if a case has been submitted to the jury on several alternative theories, one of whiсh is unconstitutional, a general verdict of guilty which does not indicate that it was based upon one of the constitutional theories must be set aside.” Id. See Stromberg v. California 27
Here, given B. F.’s testimony regarding the time frame during which the separate acts of
Judgment affirmed; sentence vacated, and case remanded for resentencing.
Notes
Davis v. State,
Strickland v. Washington,
Mency v. State,
Simpson v. State,
Wright v. State,
Rose v. State,
Currington v. State,
Woodard v. State,
Phillips v. State,
Joines v. State,
Thompson v. State,
Kirkland v. State,
Wilson v. State,
Jeffries v. State,
Williams v. State,
Hanson v. State,
Jones v. State,
Barraco v. State,
Miller v. Florida,
Lynce v. Mathis,
Collins v. Youngblood,
Postell v. Humphrey,
United States v. Tykarsky,
United, States v. Torres, 901 F2d 205, 229 (B) (2nd Cir. 1990).
Crawford v. State,
Stromberg v. California,
Taylor v. State,