This case arises out of allegations that Paul Eric Towry fondled the genital area of J. L., his six-year-old granddaughter, during a weekend campout at his home. The jury found Towry guilty of child molestation, and the trial court denied his amended motion for new trial. On appeal, Towry contends that his trial counsel was ineffective by failing to object to testimony of a child therapist that allegedly bolstered the credibility of J. L. and went to the ultimate issue in the case; by failing to request that the video recording of his police interview be redacted to exclude certain allegedly prejudicial comments made by the interviewing investigator; by failing to object to testimony by the investigator that allegedly bolstered the credibility of the similar transaction witnesses; by failing to object when the prosecutor asked certain defense witnesses to comment on the veracity of other witnesses; by failing to prepare and present testimony from an expert in child interviewing techniques; and by failing to request jury charges on the defenses of accident and mistake of fact. For the reasons discussed below, we affirm.
Following a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Johnson v. State,
On Saturday, August 9, 2003, M. L. and J. L. were spending the night with their grandparents, Towry and his wife. Two other grandsons also were present, and the plan was for M. L. and the other two grandsons to sleep outside in a tent. J. L., who was six years old, also wanted to sleep in the tent, but her grandmother did not believe that it was a good idea for a little girl to sleep in a tent with three older boys. On the other hand, Towry, who had been drinking heavily that day, said that J. L. could sleep in the tent. Towry also suggested that the three boys sleep naked in the tent. After the four grandchildren entered the tent, Towry joined them inside, wearing only his underwear. Once inside the tent, J. L. kept on her nightgown, but the three boys decided to sleep naked as Towry had suggested. Although J. L. wanted to sleep beside her brother M. L., Towry insisted that she sleep on the other side of the tent next to him. While Towry remained in the tent, his wife went back inside their home to sleep.
At some point during the night, Towry reached over and began rubbing J. L. all over her body, including her genital area and buttocks, while she was lying beside him. J. L. told Towry to stop, but he would not. When J. L. attempted to leave the tent, Towry would not let her go. After Towry stopped rubbing J. L., he exited from the tent and spent the rest of the night inside his home with his wife.
The following day, Jennifer learned for the first time that her ex-husband, with whom M. L. and J. L. had been staying for the weekend, had allowed the children to spend the night at their grandparents’ home. Jennifer went to pick up the children. Upon her arrival, Towry waited until they were alone and then told Jennifer that he needed to speak with her. He told her, “I’ve done something I’m really ashamed of and I feel bad and I need to tell you.” When asked what he was referring to, Towry responded, “I touched [J. L.].”
Distraught, Jennifer inquired from J. L. whether Towry had touched her, and J. L. confirmed that he had done so. Jennifer then asked J. L. where Towry had touched her, and she responded, “Everywhere.” Jennifer inquired further about what had happened, and J. L. stated that Towry “started rubbing me and then just started touching me everywhere.”
After leaving with her children, Jennifer contacted the police, and a police investigator conducted separate interviews of Jennifer and J. L. later that same day. During her videotaped interview, J. L.
Following J. L.’s disclosures, and after learning from Jennifer and Sonja that they also had been molested by Towry, the investigator sought and obtained a warrant for Towry’s arrest. Once taken into custody, Towry agreed to speak with the investigator after being advised of his rights under Miranda v. Arizona,
The detective also asked Towry about the allegations of molestation made by his two daughters. Towry first claimed that both of his daughters were lying. Towry contended that Jennifer had fabricated the allegations because she was still angry over the fact that once, when she was a teenager, they had gotten into a fight when he caught her home alone with an older boy. When asked about the allegations made by Sonja, Towry responded that everyone knew she was “weird” and “different.” At other times during the interview, however, Towry stated that he did not remember molesting his daughters, but that if he had done so, it was because he had a severe drug abuse problem at that point in his life.
Towry was indicted and tried for child molestation in that he “did fondle [J. L.] . . . with the intent to arouse his sexual desires.”
After hearing the conflicting testimony, the jury convicted Towry of child molestation for fondling J. L. Towry filed a motion for new trial, after which he was appointed new counsel, who filed an amended motion asserting that Towry’s trial counsel had provided ineffective assistance. Following an evidentiary hearing, the trial court denied the amended motion for new trial, resulting in this appeal.
1. The evidence set forth above was sufficient to entitle any rational trier of fact to find Towry guilty beyond a reasonable doubt of child molestation as charged in the indictment. Jackson v. Virginia,
2. Towry alleges that his trial counsel provided ineffective assistance. “To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Farris v. State,
(a) Towry first contends that his trial counsel should have objected to the expert testimony of the child therapist that, based upon her clinical experience interviewing children, she did not “get any indication” during her sessions with J. L. that Jennifer had encouraged or told J. L. to lie about what had occurred. According to Towry, the clinical therapist’s testimony was improper because it bolstered the credibility of J. L. and went to the ultimate issue in the case. We disagree.
It is true that “[i]n Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth.” (Punctuation and footnotes omitted.) Stillwell v. State,
Significantly, however, we recently held that testimony by a witness that he “did not see any evidence that [the child victim] had been coached” did not constitute bolstering of the child’s credibility and did not impermissibly address the ultimate issue. Stillwell,
The failure to pursue a futile objection does not constitute deficient performance. See Massingill v. State,
(b) Towry argues that his trial counsel should have timely objected, moved to strike, or requested a mistrial when the child therapist later testified that in her opinion the molestation in this case had occurred. We discern no ineffective assistance.
As the record clearly reflects, Towry’s trial counsel did object to the child therapist’s testimony:
STATE: Okay. You said that you probably talked about [the molestation incident with J. L.] seven different times. How many times did she tell you the same story on those occasions?
CHILD THERAPIST: Every time she told it.
STATE: What does that tell you about the story that she’s telling you?
CHILD THERAPIST: The consistency of which she told it and also across the different modalities that she told it to me would indicate to me in my opinion that it did happen —
DEFENSE COUNSEL: Your Honor, I’m going to object at this point before she finishes her answer. . . . [The law in Georgia] does not give her the authority or the right to give the answer as to the veracity of the child. That, again, is a question for the jury to answer. I think that the question of whether or not any individual is telling the truth doesn’t need to be bolstered one way or the other by another witness. I think that’s improper for her to try to answer that question.
TRIAL COURT: I sustain the objection.
Towry argues that his trial counsel’s objection was untimely, but the record shows that his counsel objected as soon as the bolstering testimony was given and before the child therapist completed her full answer. Furthermore, it was not clear from the state’s initial question to the child therapist that it would necessarily elicit impermissible bolstering testimony, and so it was not unreasonable
Towry also argues that his trial counsel should have moved to strike the child therapist’s objectionable testimony or requested a mistrial, but it is apparent from trial counsel’s testimony at the hearing on the motion for new trial that he made a strategic decision not to make any further motions. Trial counsel testified that “in my mind at that time during the trial [the objection would have] been sufficient as to what I was trying to get across to the [c]ourt and to the jury.” When asked why he did not move to strike the testimony or request a mistrial, trial counsel responded, “I did not think it necessary to do that at that point because the objection had been made in the presence of the jury. The jury had heard the argument and had heard it sustained.”
“Decisions regarding when and how to raise objections are generally matters of trial strategy, and such strategic decisions do not constitute deficient performance unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Nesbitt v. State,
(c) Towry maintains that his trial counsel should have requested that the video recording of his police interview be redacted to exclude certain comments by the interviewing investigator that he claims reflected negatively upon his character and that impermissibly bolstered the credibility of J. L. and other witnesses. Pretermitting whether trial counsel erred by not moving to redact the investiga
Notably, the investigator’s comments in the video recording were not the sworn testimony of a trial witness, but instead “reflect[ed] only an aggressive interrogation technique designed to test the truthfulness of [Towry’s] denial” of wrongdoing. Hames v. State,
(d) Towry further contends that his trial counsel should have objected to or moved to strike testimony by the investigator that there was “no doubt in [his] mind” that Towry had molested his daughters. We are unpersuaded under the circumstances here.
Notably, Towry does not contend that his counsel was ineffective for asking questions that elicited the testimony or that his counsel’s line of attack was an unreasonable trial tactic. Because the investigator’s testimony was elicited by trial counsel, any objection to the admission of the testimony would have been futile. See Menard v. State,
(f) Towry argues that his trial counsel should have investigated, prepared, and presented evidence from an expert in child interviewing techniques to testify regarding the videotaped police interview of J. L. Again, we discern no ineffective assistance.
“Although . . . expert testimony concerning interviewing techniques of children is admissible in molestation cases, the decision on whether to call an expert witness is one of trial strategy.” (Punctuation and footnotes omitted.) Nichols v. State,
(g) Towry maintains that his trial counsel should have requested
(h) Although not enumerated as error, Towry suggests that the cumulative effect of his trial court’s alleged errors amounted to the denial of his right to effective assistance. As discussed above, Towry has failed to substantiate that his trial counsel was deficient in many of the respects alleged and has failed to show prejudice resulting from any of his claims of ineffective assistance. We conclude that, even considered cumulatively, the alleged errors of Towry’s trial counsel did not rise to the level of ineffective assistance of counsel. See Jarvis v. State,
Judgment affirmed.
Notes
Towry also was indicted on a separate count of child molestation for “sleeping in a tent with a naked child), M. L.,] with the intent to arouse his sexual desires,” but he was acquitted on that count.
The state did not call J. L. as a witness, nor did the defense request that the trial court cause J. L. to he called as a witness under the procedure set forth in Sosebee v. State,
The availability of the child witness to testify is one of the prerequisites for admissibility under OCGA § 24-3-16. See Harrell v. State,
Compare Axelburg v. State,
Towry was unable to provide a plausible explanation for why his daughters would fabricate their own allegations of molestation.
Although not enumerated as error, Towry also contends in the argument section of his brief that the trial court erred in denying his post-trial motion for funds to hire an expert in child interviewing techniques to testify at the hearing on his motion for new trial. “[A]n appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation, punctuation and footnote omitted.) Tucker v. State,
Although Towry asserts in his compound enumeration of error that his trial counsel was ineffective for failing to request a jury charge on the alleged lesser included offenses of battery and simple battery, he does not support his ineffective assistance claim beyond this conelusory statement. “Pursuant to Court of Appeals Rule 25 (a) (3), an appellant must support enumerations of error with argument and citations of authority, and mere conelusory statements are not the type of meaningful argument contemplated by Rule 25 (a) (3).” (Citation and punctuation omitted.) U.S.A. Gas v. Whitfield County,