OSMER v. THE STATE
A05A1567
Court of Appeals of Georgia
DECIDED SEPTEMBER 15, 2005
621 SE2d 519
MIKELL, Judge.
Berry & Reynolds, D. Victor Reynolds, for appellant. James R. Osborne, District Attorney, Fred A. Lane, Jr., William M. Clark, Assistant District Attorneys, for appellee.
Edward Paul Osmer was convicted of three counts of aggravated sodomy and three counts of aggravated child molestation. After merging certain counts, the trial court sentenced Osmer to a total of twenty years, ten in prison and ten on probation. Osmer moved for a new trial, arguing that the trial court erred in admitting evidence that he was a victim of child molestation and that his trial counsel rendered ineffective assistance. A hearing was held at which trial counsel testified. Following the hearing, the trial judge denied the motion, issuing an extensive order that reflects a careful review of the evidence adduced at trial as well as at the hearing. On appeal, Osmer enumerates as error the same issues asserted in the motion for new trial. We affirm.
Osmer contends that the trial court abused its discretion in permitting the prosecutor to question him about the fact that he had been molested as a child. Osmer argues that this line of questioning was irrelevant and placed his character in issue. However, Osmer waived the argument that the evidence placed his character in issue by failing to make that objection at trial. “[A]n objection on a specific ground or grounds at trial waives any objection to that evidence on other grounds on appeal. Accordingly, all other grounds for objection, other than the specific grounds posed at trial, are not preserved for appeal.”1
As to his sole preserved objection, relevance, Osmer asserts in his appellate brief that his status as a victim was “completely and utterly irrelevant to the case that was being tried.” However, Osmer makes no argument in support of this assertion.2 Moreover, the sole case upon which he relies, Tyler v. State,3 is distinguishable. In Tyler, an appeal from a conviction of aggravated child molestation, the trial court refused to grant a mistrial after the prosecutor elicited hearsay testimony from the investigating police officer that the defendant had been sexually molested as a child.4 The trial court found the testimony irrelevant but not harmful and did not give any curative instruction. Remarkably, the trial court commented that “there is no rule that because someone was molested they will not molest, in fact, the very opposite is very often true.”5 Under these circumstances, we found that the testimony “placed [appellant’s] character in issue in a way that was clearly harmful and irrelevant.”6 Because the prosecutor had intentionally elicited prejudicial hearsаy testimony from a state’s witness concerning matters not in evidence, we held that the trial court erred in failing to grant a mistrial.7
The facts of the case at bar are dramatically different from those in Tyler. Osmer testified that the victim, his male cousin who was 13 or 14 years old when the incidents underlying the conviction took place, had fabricated the allegations in retaliation for Osmer having “turned [the child] in for raping his little sister.” Osmer claimed he did not want to call the police to report the abuse because he did not want to put any additional strain on his grandparents, who were ill, and
Osmer further testified that he told his cousin to stop the abuse, because “there’s consequences and there’s repercussions. You can get in a lot of trouble for doing such things.” Later, according to Osmer, when the little girl reported more abuse to him, he was uncomfortable beсause he was “not real good at, you know, talking about things like that, especially when it comes to the male and female genital areas.”
Finally, Osmer testified during cross-examination that he had never called the authorities because the abuse hаd been reported by someone else, and it was not his fault that the state did nothing about it. The trial court then permitted the prosecutor to show that Osmer’s stepfather molested him beginning from the time he was eight years old for about two years, and that the abusе stopped when he reported it to a school counselor. The line of questioning was relevant to show that Osmer was well aware that he could have stopped the abuse of the little girl by reporting it to the proper authorities and, thus, to refute his theory that his cousin had fabricated the allegations out of a desire for revenge. Moreover, the prosecutor did not elicit hearsay testimony about matters not in evidence, as was the case in Tyler. Osmer did not object after the proseсutor questioned Loden concerning Osmer’s disclosure that he had been molested, rendering the subsequent line of questioning merely cumulative of Loden’s testimony. “The admission of cumulative evidence is harmless.”8 It follows that this enumeration of error is meritless.
2.
Osmer contends that the trial court erred in denying his motion fоr new trial on the basis of ineffective assistance of counsel. A trial court’s finding that a defendant has been afforded effective assistance of counsel is entitled to deference and will be upheld unless that finding is clearly erroneous.9
In the case at bar, Osmer asserts that trial counsel was ineffective for failing to interview certain witnesses prior to trial, specifically the victim, the victim’s parents, and the expert witness who videotaped the victim’s statement. At the hearing on the motion for new trial, Osmer’s trial counsel, Lee Henley, testified that he is the head of the public defender’s office in Rome, has practiced law since 1982, and has tried nearly 300 cases before juries, mostly representing defendants in criminal matters. Henley explained that he did not attempt to interview the victim or his parents because of the hostility between those witnesses and the defendant. Further, Henley testified that he had observed these witnesses at prеliminary hearings that had been held in the case, that he had a copy of the victim’s videotaped statement, that he had obtained one or two continuances, and that he had been ready to try the case. The expert witness at issue interviewed the victim on behalf of a child advocacy center and videotaped his statement. The trial transcript shows that Henley was acquainted with him through previous cases.
Although it may have been the better practice for Henley to have interviewed thеse witnesses prior to trial, Osmer has not shown how the outcome of his trial might have been different had Henley done so.12 Accordingly, he has failed to carry his burden of showing that any alleged deficiency prejudiced his defense.13
Judgment affirmed. Andrews, P. J., concurs. Phipрs, J., concurs specially.
OSMER v. THE STATE
A05A1567
Court of Appeals of Georgia
DECIDED SEPTEMBER 15, 2005
PHIPPS, Judge, concurring specially.
Although I concur fully with Division 2, I write separately to specially concur with Division 1.
In this case, the trial court allowed the prosecutor, over objection, tо question Osmer about the fact that he had been molested as a child by his stepfather. Notwithstanding our holding in Tyler, the majority concludes that the trial court did not err because (1) evidence of Osmer’s history of molestation was relevant; and (2) the prosecutor did nоt elicit hearsay testimony about matters not in evidence, as occurred in Tyler. The majority also concludes that any error in allowing the prosecutor to question Osmer about his history of molestation was harmless because such evidence was cumulаtive. I disagree with the majority’s conclusion that no error occurred. Nevertheless, under the facts of this case, I am compelled to conclude that the error was harmless.
The trial court should not have allowed the questioning at issue. Evidence оf Osmer’s history of molestation was not relevant. The state argues that such evidence showed that Osmer knew that he could have stopped the abuse of his female cousin (the victim’s younger sister) by reporting it to the proper authorities, because Osmеr’s own abuse ended after he reported it to a school counselor years before. Thus, the state contends, such evidence was relevant to undermine Osmer’s credibility by refuting his theory that his victim made up the molestation allegations to retaliatе against him for speaking out about the victim’s molestation of the victim’s younger sister. But the salient point is that Osmer knew how to report allegations of child molestation, not that he had been molested as a child. The prosecutor could have elicited testimony that Osmer had previously made a report of child molestation without delving into his personal history of molestation.
And even though this case did not involve the prosecutor’s intentional eliciting of hearsay testimony from a state’s witness, as did Tyler, the fact rеmains that evidence of a defendant’s history of child molestation is irrelevant and prejudicial, no matter how the prosecutor introduces that history into evidence. The majority opinion obscures that fact.
The trial court’s error in allowing the evidеnce, however, is not reversible. As the majority points out, a defense witness already had
In addition, the evidence of Osmer’s guilt, although not overwhelming, appears to have been stronger than the еvidence against the defendant in Tyler. Although the case ultimately boiled down to a credibility contest between Osmer and the victim, multiple state witnesses corroborated various aspects of the victim’s testimony, and there were inconsistencies in Osmer’s testimony. Finally, the prosecutor did not argue to the jury that Osmer’s history of molestation increased the likelihood that he would become a child molester. Instead, the prosecutor contended that Osmer was not a credible witness and that his version of the evеnts was less believable than the victim’s. Under these circumstances — where the prejudicial evidence was cumulative, the victim’s testimony was corroborated, and the prosecutor did not draw improper inferences from the evidence — it is “highly probаble that the error did not contribute to the judgment.”17