*1 highest pretrial million, DOT’s offer and the value of the $1.25 Thus, found the the property by testifying appraiser. DOT’s trial court “lump did not award an sum” the simply unapportioned as DOT suggests apportioned fact the award as required by above Paulk, Brewer Compare case law. (673 545) (2009) (“trial apportion court failed to fees between those incurred in defending against claims deemed any frivolous were sum, not”). In we find no in the error trial court’s calculation of the fee award. regard
With litigation expenses, however, find we no evidence of any apportionment. attorney аward, Unlike the fee Shiv Aban was all awarded litigation expenses by incurred attorneys. its any Because the trial court failed to make apportionment whatsoever those expenses, portion we vacate that of the award and remand with direction to apportion expenses those and to award those associated with the DOT’s sanctionable conduct.
Judgment reversed and case remanded with direction in Case No. Judgment part A15A2013. in part, and vacated and case affirmed Andrews, J., remanded direction in Case No. A15A2014. P. Miller, J.,P. concur. — Decided March April 14,
Reconsiderations denied Associates, Jr., & Coppedge Coppedge, Warren N. Daniel H. Laird III, Michmerhuizen, Stephen appellant. for Olens, General, Volkert,
Samuel S. Attorney Jo Mary Senior Jr., General, Attorney Assistant Henry Tharpe, Sapp, C. Anne W. General, Assistant Attorneys appellee. for
A15A2064. HUNT v. THE STATE. 456)
Branch, Judge. appeals
Edward Hunt his conviction on 16 counts of criminal conduct well as the denial of his for trial. motion new He contends support convictions, insufficient trial court evidence, erred admitting certain trial counsel was ineffective failing challenge the scientific basis of the “Child Abuse Syndrome” (CAAS). below, Accommodation Fоr the reasons we affirm judgment but vacate the sentence and remand for resen- tencing.
On appeal, weight we do not assess the of the evidence Instead, credibility whether, question witnesses. “the relevant prosecu- light viewing to the in the most favorable the evidence after any elements have found essential tion, rational trier offact could Virginia, beyond Jackson v. a reasonable doubt.” of the crime (citation (III) (B) 61 LE2d SCt U. S. emphasis original). omitted; trial, trial, B.,K. 17 at the time of came to
When case *2 siblings her Hunt to and her that her mother introduced testified years approximatеly later, he old, in 1999. Months K. B. six when was County. six, he in When she was into their home Oconee moved clothing, her and on the her inside and outside of touched on the private parts. six, his her she was still and While inside outside day every touching progressed sex, oral and which occurred almost split up about 7.5 and Hunt when she was until her mother lasted Georgia rarely years family then to north and she saw The moved old. approximately years. B. or 2004 K. was In when Hunt for several grade, however, their mother and Hunt resumed rela- in sixth her County. eventually got tionship, They married this time in Barrow August daughter, H., 16, 2005. Hunt’s H. was born on and had a whо up again activity improper K. B. almost imme- sexual with started give forcing diately including thereafter, him oral sex in Hunt her During the time the from time-out her room. order to family released verywhere. County, Hunt would touch her “[e] lived Barrow [m]yvagina my My my privates breasts, butt. He touched me ... .. . including vagina fingers everywhere,” her and touch- inside with “pretty ing incidents occurred her breast with his mouth. These area multiple places building in a in the back and in in the house and often” of the house.
During breasts, time, this Hunt also touch her would penis; privates, give sex; make her and with his her oral buttocks privates; give sex. Hunt also had sex his her, and make her him oral touch years occasion, On that she told with once she was old. when anyway,” stop,” it hurt her but he “did which and him “no” “to her, how he had sex K. B. her feel When asked often with made awful. long just together. “everything kind for so it of runs testified went on of.” testified that to make her But at least two times I know She engage mother, activities, hit which he would threaten to her these siblings. sexually before, done abuse one her he had year. activity eighth-grade March At sexual continued until of her B. time, B. her older S. had been K. told sister what about younger happening, later, Hunt and, when her sister said that had B. her, K. her K. B.’s mother testified K. hurt B. told mother. appeared depressed time, B.’s counselor testified to be at this and K. relationships, anger, guilt, “trust, K. B. had difficulties with nightmare,” with a child that a recurrent which was consistent [had] sexually been abused. had
The State also introduced two similar transactions into evidence. transaction, In B. one S. testified that Hunt once commented on her masturbating breast size and once asked her if she had been because masturbating “if [she] was then better In the [she’d] share.” second biological daughter transaction, H., similar H. Hunt’s and K. B.’s younger nasty things half-sister, testifiеd that Hunt “did [her] really hard.” These events occurred when the child was three. reported Other witnesses testified that H. H. that Hunt had hurt her penis. vagina mouth, butt, and with his K. B.’s mother contacted ultimately investigation DFACS, which led to an of Hunt’s actions Finally, with K. B. the State introduced the of a social part testimony, H.; worker who interviewed H. worker was allowed to as a of her the social testify, objection, regarding over defense CAAS.
Following investigation against allegations including B., crimes, the State him sixteen rape, two counts of molestation, nine counts of child four counts of aggravated cruelty mоlestation, and one count to child in the degree. matching pairs (Counts first In six 8, of counts 1 and 3 and 15), 7 and committing against identical crimes K. B. “on and the 6th between *3 day August, day March, 2007, of and the 1st of the exact date being Jury,” unknown to the Grand difference between being specified pair the two counts in each the second occurrence of the same crime occurred that the second count an
on “occasion jury or a different” “on different date” than the first occurrence. The against counts, returned verdict Hunt on all 16 and the trial court sentenced him on eаch count. sentences on each count within pairs matching concurrently each ofthe six of crimes were to run each other. against
1. Hunt contends the first him was insufficient. disagree. We
(a) K. B. testified to facts to show that Hunt each the committed of period alleged crimes in the indictment within the time in the indictment. above,
As shown Hunt she testified that forced her sex have against with him her and under will threat of harm to her mother on supports rape. occasions, two least which the two counts of (a) (1) rape (“Aperson § commits OCGA 16-6-1 the offense of when he knowledge forcibly аgainst will.”); has [a] carnal of... female and her (1) (b) (774 152) (2015) v. 332 Ponder 581 SE2d Ga. (“[F]orcemay proved by direct or circumstantial evidence. of Lack by resistance, fear, force, induced shown victim’s prior experience state of mind from her with the defendant and 824 punctua- danger him.”) (citation
subjective apprehension from of (1) (530 omitted); 600 v. tion Summerour Ga. 494) (2000) (“The force is shown if defendant’s element of to instill in the victim a reasonable acts sufficient words or were dangerous bodily apprehension violence, harm, or other conse- of others.”) (punctuation quences or fоotnote herself put penis on in her mouth testified his The victim also multiple put vagina multiple his on her on mouth occasions aggravated supports child moles- occasions, the four counts of which (“A(c) person § that conduct. OCGA 16-6-4 commits tation based on person aggravated com- child molestation when such the offense mits an offense of child sodomy.”). . act of molestation which . . involves an penis her touch his She testified that Hunt made parts private multiple in he touched her numerous occasions and that supports ways multiple child occasions, which the seven counts of (“A (a) (1) person OCGA 16-6-4 molestation based on that conduct. person:... Does such commits the offense child molestation when presence any any child to or in the of or with immoral or indecent act satisfy age years under the with the intent to arouse or person.”). And the evidence sexual desires either the child or awful, conduct, B., hurt made her feel showed that sup- nightmares, depressed, gave which caused her to feel her single cruelty degree. ports in the See to children first count cruelty (b) (“Any person OCGA commits offense § 16-5-70 person maliciously degree in the when such causes children first physical pain.”); under the of 18cruel or excessive or mental (one 21) (2007) manner Banta cruelty degree proving “the first is to establish to children plain doing an with an awareness of a wanton and wilful act (citations omitted); might result”) strong harm likelihood such (1) (a) (705 e.g., see, Bunn Ga. (2010), 569) (2012) (cruel exces- affirmed, pain sive sexual misconduct made them feel uncomfortable and caused shown where victims testified defendant’s mental
one stealing stop paying school, school, to start victim to attention sister). aggressive *4 became with her to argument, (b) рart that he was of Hunt contends As pairs matching improperly in ofthe six convicted on both counts each for the reason that there was insufficient of counts set forth above argues occurred; that the trial offense he also evidence court a second matching him both each not authorized to sentence on of presented above, to sufficient evidence was counts. As we have held alleged, including that each of the crimes show that Hunt committed charged matching pairs the six of he committed of the crimes each
825 multiple agree, may only however, counts on occasions. We that Hunt matching pairs be sentenced on one count in each of six the of counts. indistinguishable charges ‘Where two are of because all including (which averments, date was not made an essential ele ment), description constituting victim, of defendant’s conduct only maybe imposed.” identical, offense were one sentence Daniels v. App. (739 (2) 773) (citation (2013) State, 340, 320 Ga. 342 SE2d punctuation omitted). App. State, See 250, also LaPan 167 Ga. (4) (305 858) (1983) (“Since alleged 253-254 SE2d all the dates fall period only limitation, within the of of the statute оne can sentence be imposed.”) (citations omitted) (physical precedent only); Smith v. App. (4) (285 749) (1981) (where State, 26, 160 29 Ga. SE2d “the except alleged,” counts in the accusation are identical for the dates only and the dates “were averments, not made essential one convic stand”) (citation omitted); App. tion can State, Hilliard v. 193 Ga. 54 (1) (387 21) (1989). pairs matching Here, SE2d above, shown six (Counts 2, 4, 8, counts 1 and 3 and 5 and 7 and 9 and and 14 15), committing and against Hunt was one of these crimes range being dates, B. within a certain “the exact date Jury,” only unknown to the Grand with the difference between рair being specified two counts each that the second count that the second occurrence the same crime occurred on an “occasion differ ent” or “on a different date” than the first did occurrence. State allege they, separate counts, not in these nor could that the events range within the same date complaint.1 Accordingly, were somehow material averments may only be sentenced one pairs matching counts in each of the of counts listed above.2 Hunt’s resentencing sentence therefore is vacated and the case remanded for opinion.3 consistent with this
rule is lies as however, may makes the dates it has a much limited to a be a such an election when it different conviction be convicted if and obtain period. The cases cited See Jones v. See generally periods any generally 673) (1983), multiple convictions; if the pleaded single conviction.”). But where the date is other broader material the offense time date.”) (citations omitted). Bloodworth v. charges as res time time unlike the the dissent do not judicata averments and is not frame if the a defendant thus рroof corresponds present within any 796, 800 within the counts were State essence, 128 Ga. offense (1991), support which introduces case, to be does (2) (777 multiple the two and that period fitting App. material, not make the dates material a different conclusion. In both distinguishable prove Hamilton v. sufficient evidence to the averments of the indictment within otherwise counts of the crimes were the statute of date 480) (2015) (“The general presentment alleged, contrary matching same but no res the defendant limitation, is committed, true: the defendant crime: if the prove counts refеrred to 423) State must make averments, Salley v. judicata plea which there dates, could but it (“The State may, then may it *5 by allowing similar trans trial court erred
2. Hunt contends the regarding H. trial this case was B. and H. The evidence S. action February 24-2-2 former OCGA was 2011, and therefore held applicable at the time.4 independent prior act com law, an bad “evidence of
Under the [was] the admissible if evidence [could] defendant mitted substantially the prob purpose a other than show
relevant for some ability because he the crime trial that the defendant committed prove things motive, as character,” “tо such such as has a criminal plan, identity.” conduct,... scheme, or mind, of intent, bent of course (b) 646) (2014) (4) (757 Peoples SE2d State, 295 53-54 v. Ga. hearing omitted). (citations punctuation Thus, on the at the showing evidence, the bears the burden of State similar transaction appropriate an it the evidence for that purpose; seeks introduce that to establish that there is sufficient evidence independent act; there the and that the accused committed similarity indepen- the or between is a sufficient connection proof that of the former the crime so dent act and рrove the latter. tends to (709 217) (2011) (citations (2) 22, 24 v.
Johnson Ga. similarity, omitted). regard “there can a substantial With logical there a connection of where exists variation circumstances essentially dissimilar.” Mattox v. crimes which are between (punctuation 192) (2007) 280, 282 andfootnote Ga. findings whether State Atrial factual court’s three-prong unless factual test will be affirmed those satisfied clearly findings 13-14 Reed are erroneous. 112) (2012). trial to admit the similar court’s decision Id. reviewed for abuse of discretion. transaction is transaction, the second count period material averment. matеrial on a count refer on or after” sentenced pairs different unknown date. And the averment Georgia’s but averment. The third case cited on both counts. See matching to a January and each count “separate an unknown date does 458) (2010), new rules different alleges counts refers to 2013. See Ga. period is also evidence distinct within Hamilton, indictment time . . . distinguishable that same acts” for which each date of commission was the same apply not, L. 2011, p. by any [the] period “any dissent, period distinguishable”). same made an essential averment means, motion made оr there because §§ Anderson time, time is was establish 101. a second identical a (where separate hearing In the case, “[t]he date of crime within present difference the defendant was averments trial commenced crime occurred the crime case, being 423, 424 each of of the same each that as a (a) objected B.’s to S. that Hunt once commented masturbating on her breast if size once asked her she had been masturbating “if [she] because lowing hearing then better [she’d] share.” Fol- admissibility regarding B., on the S. evidence although court trial found that did not shоw a inappropriate questionable offense, criminal “such behavior is disposition”; admissible and tends to show Defendant’s lustful the evidence could be offered to show Hunt’s “common scheme and a instigating inappropriate course of conduct sexual contact with a *6 family member”; minor female it that was admissible to show his proclivity young girls,
“sexual i.e., mind”; toward bent of and that similarity there was sufficient and connection between these acts and charges against the Hunt.
We find no First, mind, abuse of discretion. bent of course of disposition purposes conduct, and lustful wеre all valid under the prior (3) law. See Dillard v. 297 Ga.
(2015). “sharing” certainly And Hunt’s comment about S. B. can way disposition. construed to show his bent of mind and lustful testimony Second, B.’s S. was sufficient to establish he made the finding prior And, third, comments at issue. the trial court’s that the sufficiently charges against acts were similar to the Hunt was not clearly Again, “sharing” erroneous. the comment can construed as whereby instigated inappropriate an act sexual contact with a family charges member, minor female as he did in the for which he previously upheld onwas trial. And “this Court has the admission of demonstrating inaр- noncriminal, similar transaction evidence but propriate questionable by young girls or behavior a defendant toward tending disposition.” Leaptrot to show the defendant’s lustful (3) (a) (612 887) (2005) (citations 272 Ga. omitted). by We therefore find no abuse discretion the trial court in allowing regarding the similar transaction evidence S. B.
(b) Hunt enumerates as error that the trial court allowed similar younger transaction evidence Hunt’s actions B.’s argues only by sister H. H. But Hunt the court trial erred hearsay admitting H. H. under § former OCGA 24-3-16 and Gregg 65) (1991).
Under former OCGA 24-3-16: by years A statement made a child under the of 14 describing any performed act of sexual contact... with or on the child another ... the admissible person persons ofthe or if to whom made the child proceedings testify the court finds in the is available to provide sufficient of the statement that the circumstances reliability.5 indicia reliability, assessing the court consider the trial indicia
When following factors: the
(1) atmosphere the under which the and circumstances place, (including time, the the the was made statement (2) spontaneity thereat); people present the child’s (3) age; (4) persons present; the the the child’s statement (physical (5) general demeanоr; child’s condition child’s emotional); presence (6) of threats or or absence or promise presence drugs (7) or or benefits; absence credibility; (9) presence (8) general or alcohol; the child’s any coaching by parents parties third other absence of type statement, before or at time of child’s surrounding coaching same; and, circumstances type language used nature of the child’s statement consistency repeated therein; between out-of- by the child. court statements (b) (citations
Gregg, factors, Other at 240 *7 “consistency questioning repeated facts, with known such period, counseling by people during the interview and whether several personnel by were law enforcement the interviews conducted gathering against the accused” also of evidence the intention (600 v. 813 Ferreri Ga. considered. required (citation omitted). (2004) A trial is not to make “a court reliability finding specific for the indicia of order sufficient of child victims to admissible.” Whorton out-of-court statements 653) (2013) (punctuation omitted). requirements Rather, § of former OCGA and footnote parties rested, contains met if “after both have record 24-3-16 are (punctuatiоn support finding.” a Id. would such evidence which footnote Gregg case,
In the trial court assessed the ten factors this “questionable” were “the child’s that the factors that were found ger (also changing age to requirement For offenses for occurring allowing 16). on or after child hearsay July 1,2013, evidence. Ga.L. showing p.222, indicia of 21; reliability OCGA § 24-8-820 no lon spontaneity and the other statements.” After additional discus- sion, the court concluded that the statements had sufficient reliabil- ity jury to be submitted to the for the ultimate determination of credibility. argument primary appeal single
Hunt’s is deficient. In the directly hearsay, only argues sentence that addresses the child by internally that the made H. statements H. the witnesses were spontaneous. identify inconsistent and not Yet Hunt failed to has precisely challenges expla- any what evidence he and failed to offer supporting support nation, facts, conclusion, or other detail to argument either in the section his brief or his “It statement facts. job [appellant] is not this Court’s to cull the record on behalf alleged find errors.” Maxwell
763) (2012) (citation omitted). Accordingly, carry Hunt has failed to showing by his burden of an abuse of disсretion the trial court in admitting including hearsay, evidence, the similar transaction regard generally about Hunt’s actions with to H. SeeH. Brittain v. 106) (2014) (nothing for appellant provided only “vague this Court to review where reference alleged hearsay statements [and] various witnesses . . . little specific detail or record citations to the he statements contends were court”). admitted in error the trial by allowing testimony
3. Hunt contends the trial court erred alleged regarding acts violence between Hunt and K. B.’s mother. trial, Prior to the State stated its intent to offer mother, acts violеnce between Hunt and K. B.’s that K. B. ground witnessed, on the that the incidents were relevant to show why B.K. waited to disclose the crimes and as offorce evidence for rape objected count. to the admission of this evidence on the ground State failed to show domestic delay reporting ground violence caused B. and on the that the put appeal, evidence Hunt’s character issue. On Hunt contends the by allowing court erred the domestic violence evidence because presented support trial did not the State’s contention that witnessing prompted reporting delay the domestic violence K. B. to against Pretermitting question, the crimes however, her. light evidence was otherwise relevant in that it shed the force rape, is, element that Hunt told K. B. he hurt her that would *8 Summerour, if mother she refused his sexual advances. (2) (where proof, testimony
at 601 force is an element of “victim’s regarding [defendant’s] in the form of violence threats to himself others the victim’s fear him was relevant and admissible” even the incidentally issue) places if the evidence in defendant’s character (footnote omitted). allowing find no abuse of in We discretion this
evidence. Siharath (2000) (proof harmed victim’s mother and others that defendant had force, in form intimi- defendant used evidence that was some rape child). dation, to Finally, because his trial counsel was ineffective
4. Hunt contends challenge present to the scientific basis failed to she jury given especially to CAAS, that was not instructed consider only involv- in with the similar transaction the evidence ing connection Appellant prevail claim, must both that H. “To this show H. performance provided that, but deficient trial counsel [his] probabil- unprofessional pеrformance, there is a reasonable for that ity proceeding different.” would have been that the outcome of 591) (2013) (citations State, 292 Ga. Brown v. Becky testimony Lee, the trial, introduced the At the State advocacy degree in center with a master’s director of a children’s Lee was over 500 forensic interviews. who had conducted social work qualified expert interviewing, testified and she as an in forensic During testimony, August H. Lee’s interviewed H. 2009. she State announced testify CAAS, Lee that it intended to have about expert qualified objected ground as that Lee was not аn expert interviewer, an forensic in child abuse. The court ruled qualified testify Lee then identified and to about CAAS. Lee was “categories” secrecy, helplessness, entrap- five of CAAS: described ment and delayed unconvincing disclosure, accommodation, testimony any specific did her to victim. retraction. Lee not relate got Lee admit trial then Lee and Hunt’s counsel cross-examined experienced though who has molestation that even secret, a child is also consistent remain the lack ofa disclosure argument made the same the defеndant’s innocence. And counsel jury closing. during appellate hearing trial, At motion for new Hunt’s on Hunt’s psych- presented Martin, of Dr. Mac a forensic counsel explain appropriate ologist, of that of CAASand uses basis theory. testimony, Hunt contends In Hunt’s reference to Martin’s “using CAAS a forensic context not that Martin testified that appropriate.” Lee CAAS But Hunt has not shown that used inappropriate manner; has that Lee used not shown forensic or opine Moreover, K. or H. H. had been molested. CAASto that either B. employ expert her not to an Hunt’s trial counsel decision testified testimony regarding strategic; CAASwas she testified rebut Lee’s expert by calling expert could bolster the State’s such an testifying Rather, she chose to to much of the same information. “symptoms syndrome were Lee to that the ofthis cross-examine show
831 molested,” also consistent with a kid who wasn’t and illustrate that expert anything an can “take and make it look it’s like consistent with child sexual abuse.”
“It well is established that the decision toas which defense strategy to call matter witnesses is a of trial and tactics.” Hubbard v. (3) (683 602) (2009) (citation punc- 791, 285 Ga. 794 regard tuation “And in that tactiсal errors will not consti- tute ineffective unless assistance counsel those errors are unrea- competent attorney sonable ones no would have made under similar (2) (citation punctuation Brown, circumstances.” 292 456 omitted). Given that Martin testified an abused will experience traits, several of the CAAS which would have bolstered competent trial, the State’s case at we cannot conclude no attorney would have relied on cross-examination alone to rebut the Accordingly, about CAAS in this case. claim of Hunt’s (“[C]ounsel’s ineffective tegic assistаnce counsel must fail. See id. stra- hunting expert, decision not to continue for a defense but challenge experts cross-examination, instead to the State’s on while presenting aspects also case, robust defense to other of the State’s performance.”) was not unreasonable and did not constitute deficient (citation omitted).
Judgment vacated, affirmed, sentence and case remanded with Ellington, Andrews, J., Barnes, J., J., direction. P. P. P. Dillard and part JJ., McFadden, Miller, J.,P. concur. concurs in and dissents in part. Presiding Judge, concurring part dissenting MILLER,
part. fully opinion. majority’s 2, I 3, concur Divisions and of the I fully majority’s holding also concur evidence was sufficient to with the in Division 1 that the
support respect- all of Hunt’s I convictions. fully majority’s dissent to the decision to vacate Hunt’s sentence and properly direction, remand this case because the trial court separate entered sentences each of Hunt’s convictions.
Where an averment in one count of an accusation or distinguishes counts, indictment it from other all either alleging a different set of facts or a date which is different transaction, made may essential avеrment of an the State punish conviction defendant for various crimes.
(Citation punctuation emphasis supplied.) Salley omitted; v. 260) (1991); 358, 199 Ga. see also (2010).
Anderson count Moreover, that where the “averments of each it is well settled period made essential same is an [the] to a different time refer transaction, of the indictment and each count averment distinguishable.” (Citations omitted.) Hamilton 673) (1983). 370, 371 (Counts pair
Here, 1 and 5 and in each of counts charged 15), count Hunt with 10, and 14 and the second 9 and committing from the on an occasion date different act committing prior raрe instance, Count 2 count. For 1”; different “on an than Count Count occasion committing *10 3”; child “ona date different from Count molestation with and Count 6 committing aggravated moles- than 5.” Because Hunt’s indictment tation “on a date different Count pair alleged dates, committed on different that each of crimes was of each crime. those dates were made an essential averment Salley, supra, (4). Evidently, the trial court found at legally date in each the evidence was sufficient as each Consequently, the trial court did not err count of Hunt’s indictment. sentencing separately for of his Ander- each convictions. See supra, (2). Accordingly, son, I would affirm the trial court. — Decided March April 14, 2016
Reconsideration denied Benjamin appellant. Pearlman, for A. Attorney, Bradley Smith, Skelton, District Samuel E. Patricia
J. Attorneys, appellee. Brooks, for J. Assistant District SOLUTIONS, LLC v. A15A2136. PARK DeKALB COUNTY BOARD OF TAX ASSESSORS. Judge.
MCFADDEN, appeal in this is whether a sheriff’s sale of certain real issue length, property under 48-5-2 was an “arm’s bona fide” sale OCGA price property’s maximum allow- so the sale constituted year. find that fair value the next taxable Because we able market for length, sale, sale such an arm’s bona fide sheriff’s contrary superior ruling must to the was erroneous and court’s reversed.