text:
    A15A1445.
    TAYLOR v. THE STATE.
    (778 SE2d 26)
   McFADDEN, Judge.

John Taylor was tried before a jury, convicted of child molestation and denied a new trial. He appeals, claiming that the trial court erred in allowing an expert witness to testify about an ultimate issue in the case and in charging the jury on reasonable doubt. However, Taylor failed to raise an ultimate issue objection to the testimony in question, and there is no reasonable possibility that the reasonable doubt charge misled the jury as to the state’s burden of proof. Accordingly, we affirm.

Construed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Taylor was the boyfriend of the mother of minor girls N. M. and S. F. when he moved into the family’s home. In January 2011, Taylor began molesting 12-year-old N. M. by touching her vagina and having her massage his penis until he ejaculated. N. M. told her sister and her mother about the abuse. The police were contacted, and N. M. described the molestation during a videotaped forensic interview. Taylor subsequently agreed to submit to a polygraph examination, but no polygraph was administered because during the pre-examination interview Taylor admitted that on two occasions N. M. had masturbated him until he ejaculated. After the oral admission, Taylor gave a written admission describing his sexual acts with N. M.

Taylor was indicted for one count of child molestation for having had the victim masturbate him to the point of ejaculation. The jury found Taylor guilty of the charged offense, and the trial court imposed a 20-year sentence. After Taylor’s motion for a new trial was denied, this appeal followed.

1. Forensic interviewer testimony.

Taylor claims that the trial court erred when it allowed the forensic interviewer to answer the state’s question about whether the objective evidence in the case was consistent with the victim’s story because this was improper testimony on an ultimate issue that went beyond the scope authorized by OCGA § 24-7-704. However, even assuming for the sake of argument that it was error to allow the testimony, such error was harmless because it is highly probable that it did not contribute to the verdict in light of the overwhelming evidence of guilt, including Taylor’s oral and written admissions to the charged offense. Sims v. State, 297 Ga. 401, 402 (2) (774 SE2d 620) (2015); Williams v. State, 330 Ga. App. 606, 608 (1) (768 SE2d 788) (2015).

2. Reasonable doubt charge.

Taylor argues that the trial court erred when it charged the jurors that to find reasonable doubt, their minds had to be “unsettled, unsatisfied and wavering.” (Emphasis supplied.) Taylor takes issue with the use of the word “and” emphasized above, noting that Suggested Pattern Jury Instruction 1.20.10 instead uses the word “or” in instructing the jurors that “if your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law, and you must acquit the defendant.” (Emphasis supplied.)

However, this argument has previously been rejected by this court in Roman v. State, 155 Ga. App. 355 (271 SE2d 21) (1980). As explained in Roman, because

the words the court used to describe “reasonable doubt[,]” that is, wavering, unsettled and unsatisfied, were used as synonyms to describe the particular belief or feeling of doubt which is the “doubt of the law” and not three required separate states of mind, we cannot agree with appellant’s contentions of error in this regard. [Cit.]

Decided September 25, 2015.

Long D. Vo, for appellant.

D. Parks White, District Attorney, Geoffrey L. Fogus, Assistant District Attorney, for appellee.

Id. at 356 (3). Likewise, in Davis v. State, 168 Ga. App. 272, 275 (8) (308 SE2d 602) (1983), this court upheld a similar jury charge, concluding that “ [t] he trial judge’s instructions could not have caused the jury to misunderstand the burden of proof resting upon the state.” (Citations and punctuation omitted.)

In the instant case, it certainly would have been the better practice for the trial court to have more precisely followed the suggested pattern jury instruction by using the word “or” instead of the word “and” in the charge in question. Nevertheless, in viewing the charge as a whole, as we are bound to do, “we conclude that it is not reasonably likely that the jury misapprehended the [s]tate’s burden of proof.” Anderson v. State, 286 Ga. 57, 59 (5) (685 SE2d 716) (2009). Accordingly, there is no reversible error.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A0911.
    LaGON v. THE STATE.
    (778 SE2d 32)
   BARNES, Presiding Judge.

A Clayton County jury found Shelton LaGon guilty of one count of statutory rape, two counts of aggravated child molestation, two counts of child molestation, and two counts of aggravated sexual battery. LaGon filed a motion for new trial, as amended, which the trial court denied. On appeal, LaGon contends that the trial court erred by failing to appoint different counsel to represent him at trial; by starting the trial and conducting portions of the proceedings in his absence after LaGon refused to enter the courtroom; and by declining to grant LaGon a continuance for an alleged discovery violation committed by the State. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Towry v. State, 304 Ga. App. 139 (695 SE2d 683) (2010). So viewed, the evidence showed that during the time period in question, the victim lived with her older brother and her maternal grandmother in Clayton County. The victim’s mother did not have custody of the victim or her brother, but she frequently would visit her children at the grandmother’s home. LaGon was a friend of the victim’s mother and had known the victim and her brother since they were small children, and he would attend family gatherings with them.

In June 2012, the victim was 12 years old and LaGon was 35 years old. One day that month, LaGon visited the grandmother’s home. Only the victim and her brother were there at the time. After sending the victim’s brother away to purchase some marijuana, LaGon approached the victim, who was taking a shower, and told her that he had sent her brother away and that “he [knew] something [they] could do.” Once the victim got out of the shower and put on some clothes, LaGon approached the victim again and told her to come into the bedroom with him. LaGon told the victim to bend over the bed, and he then removed her pants and had vaginal sex with her. The victim started to bleed and was scared during the encounter. After having sex with the victim, LaGon left before the brother returned home.

The victim turned 13 later that summer. Several months passed, and LaGon then attended a family gathering at the grandmother’s home when the victim was out of school on Thanksgiving break. That night, after the victim’s mother left to do some holiday shopping and the other family members had fallen asleep, the victim got up to use the bathroom. When she came out of the bathroom, LaGon approached her with his penis exposed. LaGon instructed the victim to bend over, removed her pants, and told her that they were going to “try something new.” LaGon then penetrated the victim’s vagina with his finger and had anal sex with her. LaGon left the home before the victim’s mother returned from the store.

On December 15, 2012, LaGon attended another family gathering at the grandmother’s home. That night, the victim’s mother and brother fell asleep on the living room couch. LaGon and the victim were still awake in the same room. After making sure that everyone else was asleep, LaGon pulled down the victim’s pants and penetrated her vagina with his finger. LaGon then had the victim perform oral sex on him while he rubbed her buttocks.

The victim’s grandmother was asleep in her bedroom while the other family members were in the living room. However, the grandmother woke up during the middle of the night, and as the victim was performing oral sex on LaGon, the grandmother came into the living room on her way to check the lock on the front door. Although the living room was dark except for the light from the television, the grandmother could see that someone was performing oral sex on LaGon on the couch. The grandmother could tell that the person performing oral sex wore a gray shirt and at first assumed that it was the victim’s mother. But the grandmother then realized that only the victim was wearing a gray shirt and that she must have been the one performing oral sex on LaGon. The grandmother screamed at LaGon and kicked him out of her home.

The grandmother and mother took the victim to the hospital. The victim initially denied to her grandmother and mother that anything had happened with LaGon, but then began crying at the hospital and told them that she had oral sex with LaGon and previously had vaginal and anal intercourse with him. The victim also spoke with detectives about what had occurred, and she subsequently underwent a physical examination and was taken to a child advocacy center where a recorded forensic interview was conducted.

LaGon was arrested and indicted on one count of statutory rape, two counts of aggravated child molestation, two counts of child molestation, and two counts of aggravated sexual battery. At the ensuing jury trial, the victim, her mother, her grandmother, and her brother testified to the events as set out above. The lead detective assigned to the case, the pediatric nurse who conducted the physical examination of the victim, and the forensic interviewer also testified. Additionally, the State introduced and played a recording of the victim’s forensic interview.

After the trial court denied LaGon’s request for new counsel, LaGon refused to attend the first few days of the trial. However, on the fourth day of the trial, LaGon was present and testified in his own defense. LaGon denied that he ever had sexual contact with the victim and claimed that it had been the victim’s mother performing oral sex on him when the grandmother walked into the living room. LaGon admitted, however, that when he initially spoke with a detective in a recorded telephone conversation, he never claimed that the victim’s mother was the one performing oral sex on him. According to LaGon, the victim’s mother had falsely accused him because she did not want her boyfriend to know that she had performed oral sex on LaGon.

After hearing the conflicting testimony, the jury found LaGon guilty of the charged offenses. LaGon filed a motion for new trial, as amended, and the trial court conducted a hearing and denied the motion. This appeal followed.

1. LaGon contends that the trial court committed reversible error by denying his request to discharge his appointed counsel and replace him with another attorney. We disagree.

An indigent defendant has no absolute right under the Sixth Amendment to counsel of his own choice. Hulett v. State, 296 Ga. 49, 56 (3) (766 SE2d 1) (2014). Rather, “[a] request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court.” (Footnote omitted.) Nicely v. State, 277 Ga. App. 140, 141 (1) (625 SE2d 538) (2006). A trial court abuses its discretion only if the defendant’s request “is supported by objective considerations favoring the appointment of [new] counsel, and there are no countervailing considerations of comparable weight.” (Citation and punctuation omitted.) Hulett, 296 Ga. at 56 (3).

Here, the record reflects that LaGon was arrested in January 2013 and was appointed counsel a few days later. The same counsel had represented LaGon in a prior case and thus was familiar with LaGon. After his appointment in the present case, counsel met with LaGon at the jail and spoke with him on the telephone on several occasions, participated in reciprocal discovery with the State, and filed pretrial motions on LaGon’s behalf.

The case was specially set for trial on January 13, 2014. When the case was called on that date, LaGon did not express any dissatisfaction with his representation or move for a continuance to secure new counsel. However, because the prosecuting attorney had a conflict, the case was reset for February 3, 2014.

When the case was called on February 3, 2014, LaGon rose in open court and for the first time expressed his dissatisfaction with his appointed counsel and his desire for new representation. LaGon claimed that his trial counsel had refused to interview the State’s witnesses; had denied his request to let him watch the recording of the victim’s forensic interview and hear the audio recording of his telephone conversation with the detective; refused to subpoena a potential defense witness; and had failed to retain an expert to review the forensic interview.

LaGon’s appointed counsel responded that he had made efforts to convince the State’s witnesses to speak with him but had been unsuccessful, which he explained was “not uncommon in a case of this nature.” Counsel also explained that he had offered LaGon an opportunity to watch the victim’s forensic interview, but LaGon had refused to watch it. Additionally, counsel told the court that he had planned to have LaGon listen to his recorded telephone conversation with the detective shortly before trial, but a bad winter storm had prevented him from meeting with LaGon to play the tape for him. Counsel further stated that he was unaware of any favorable defense witnesses who could be subpoenaed, and that he had made a strategic decision, after reviewing the recorded forensic interview, not to hire an expert.

After listening to LaGon and his appointed counsel, the trial court denied LaGon’s request for new counsel, but ordered that LaGon would be afforded an opportunity to watch the recording of the victim’s forensic interview and listen to the audio recording of his telephone conversation with the detective during a recess before the trial commenced. In denying LaGon’s request for new counsel, the trial court credited appointed counsel’s explanations and found that he had made “sufficient efforts on behalf of his client and ha[d] made understandable tactical decisions” to which the court would give deference. The trial court further concluded that LaGon had the benefit of an appointed attorney who was “trained and experienced in the law” and that his “strong advice” was for LaGon to take advantage of his counsel’s training and experience.

Following a recess during which LaGon listened to the victim’s forensic interview and his telephone conversation with the detective, the trial court further noted that LaGon had been arrested in January 2013 but had not expressed any desire for new counsel until approximately 19 months later, on the morning of trial, and had presented no evidence that would justify delaying the proceedings so that new counsel could be obtained. Consequently, the trial court made the additional finding that LaGon’s request for new counsel was done “for the purpose of delaying the proceedings.”

In light of this record, the trial court did not err in denying LaGon’s request to discharge his appointed counsel and obtain new representation. Sitting as the factfinder on this issue, the trial court was entitled to disbelieve LaGon and instead rely on his appointed counsel’s explanation of what had transpired between them and what preparation he had done on the case. See Hickey v. State, 259 Ga. App. 240, 243 (2) (a) (576 SE2d 628) (2003). Consequently, the trial court was authorized to find that LaGon had failed to demonstrate that his appointed counsel was unable or unwilling to effectively represent him. See Feaster v. State, 283 Ga. App. 417, 419 (2) (641 SE2d 635) (2007). Moreover, given the timing of LaGon’s request, the trial court was authorized to find that LaGon was simply attempting to use the discharge of his appointed counsel and employment of new counsel as a dilatory tactic. See Nicely, 277 Ga. App. at 141 (1); Hickey, 259 Ga. App. at 244 (2) (a).

The trial court also was entitled to find that any dissatisfaction that LaGon had with his appointed counsel was outweighed by the countervailing considerations that counsel had been working on the case for approximately 19 months and that removing him from the case would further delay a trial that had already been continued once before. See Hulett, 296 Ga. at 57 (3); Waddell v. State, 292 Ga. App. 801, 804 (665 SE2d 893) (2008). And, at least some of LaGon’s concerns with his appointed counsel were mitigated by the trial court’s decision to afford LaGon an opportunity to watch the victim’s forensic interview and listen to his recorded telephone conversation with the detective before the trial commenced.

Accordingly, because the record supports the trial court’s conclusion that LaGon’s personal preference for new counsel was not supported by objective considerations that outweighed countervailing considerations, the court did not abuse its discretion in denying his request to discharge his appointed attorney and obtain new counsel. See Hulett, 296 Ga. at 58 (3). LaGon therefore was not entitled to a new trial on the asserted ground.

2. LaGon contends that the trial court violated his constitutional right to be present at his trial by allowing the third day of the trial (February 5, 2014) to proceed in his absence. According to LaGon, he told jail personnel that he wanted to attend the third day of the trial, but they refused to bring him to the courtroom after allegedly telling him that he was not needed in the proceedings. We conclude that LaGon’s contentions are belied by the record and provide no basis for reversal.

Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right to be present in the courtroom at all critical stages of his trial. See U. S. Const. Amend. VI; Tennessee v. Lane, 541 U. S. 509, 523 (124 SCt 1978, 158 LE2d 820) (2004); Illinois v. Allen, 397 U. S. 337, 338 (90 SCt 1057, 25 LE2d 353) (1970). Similarly, the Georgia Constitution affords a criminal defendant the right to be present at every stage of the proceedings materially affecting his case. See 1983 Ga. Const., Art. I, Sec. I, Par. XII; Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725) (2001). But the right to be present belongs to the defendant, and the defendant is free to waive that right. See Lonchar v. State, 258 Ga. 447, 452 (2) (a) (369 SE2d 749) (1988). In addition to an express waiver of his right to be present at trial, a defendant can implicitly waive his right to be present by conducting himself in a disruptive manner before the trial court or by voluntarily absenting himself from the proceedings. See Allen, 397 U. S. at 342-343; Weaver v. State, 288 Ga. 540, 542-543 (3) (705 SE2d 627) (2011); Coley v. State, 272 Ga. App. 446, 449 (3) (612 SE2d 608) (2005); Anderson v. State, 238 Ga. App. 866, 873 (3) (519 SE2d 463) (1999). A defendant also can waive his right to be present through counsel, if the waiver is made by counsel in the defendant’s presence or with his express permission, or if the defendant subsequently acquiesces to counsel’s waiver. See Allen v. State, 199 Ga. App. 365, 367-368 (6) (405 SE2d 94) (1991). We will affirm the trial court’s finding of waiver if there is any evidence to support it. See id. at 368 (6).

Although LaGon complains in this enumeration of his absence from the third day of trial, his absence on that day can only be fully understood through a rendition of the facts leading up to, including, and following that date. The relevant facts are as follows.

The First Day of Trial (February 3, 2014). As previously noted, on the morning of the first day of trial, LaGon asked to discharge his appointed counsel and obtain new counsel, but the trial court denied his request. The trial court then called a recess so that, among other things, LaGon could review the victim’s forensic interview and his telephone interview with the detective. However, that afternoon, when the trial court reconvened the proceedings, a sheriff’s deputy informed the court that LaGon was in the “attorney’s booth” that was “just one wall away from the courtroom” and was refusing to return to the courtroom. The trial court instructed the deputy to speak with LaGon and inform him that if he failed to return to the courtroom, the court would “take the position that he has voluntarily chosen to be absent from his trial.” The trial court then called a recess so that the deputy could speak with LaGon in the attorney’s booth.

After the recess, the deputy reported back to the trial court that he had informed LaGon that by refusing to come into the courtroom, LaGon would be giving up his right to attend the trial. According to the deputy, LaGon continued to refuse to come into the courtroom but insisted that his refusal was not a waiver of his right to attend the proceedings. The trial court then instructed the deputy to

go back to the defendant and tell him that he needs to come into the courtroom And then I want you, to the extent you can, to cause him to come into the courtroom. However, if you determine that the only way you could cause him to come into the courtroom would be by engaging him in a fight, a physical struggle,... then stop and come report that back to me.

Following another recess, the deputy reported to the court, “[LaGon] said we’re going to have to drag him in here if that’s what it takes.”

The trial court instructed LaGon’s attorney to “step into the attorney booth and see if [LaGon] will speak with you on this issue.” After meeting with LaGon, trial counsel reported, “[LaGon] has indicated to me that unless there is an agreement that a new attorney be appointed he would have to be physically dragged into the courtroom.”

The trial court subsequently stated on the record:

I have done everything I can think of to persuade [LaGon] to come out, including the information which has been conveyed to the defendant by the deputy sheriffs at my direction and at my direction by his own attorney, and as I understand it further, that the defendant’s brother has been asked to speak with him as well.

After LaGon’s counsel confirmed that LaGon’s brother had tried to persuade him to attend court, the trial court instructed the deputies to once again tell LaGon “it’s time to come to court,” but cautioned the deputies that if a violent struggle would be necessary to accomplish that goal, to “stop and then come back and report that back to me.”

After another recess, the sheriff’s deputy in charge of courtroom security reported back to the trial court, “[LaGon’s] still refusing. He has his legs wrapped around the seat. So in order to get him out here he’s going to fight us.” At that point, the trial court ruled that LaGon had voluntarily waived his right to be present at trial, but adjourned the case for the day, thereby giving LaGon time to reconsider his decision not to attend his trial.

The Second Day of Trial (February 4, 2014). On the second day of trial, the lower court began the proceedings by asking LaGon’s trial counsel if he had spoken with LaGon that morning about his willingness to attend trial. LaGon’s trial counsel informed the court, “He indicates to me he does not wish to participate.” LaGon’s counsel also informed the trial court that LaGon was refusing to change out of a jumpsuit and into courtroom attire.

Jurors were brought into the courtroom and voir dire commenced. Before selection, the jury was instructed that LaGon had made a voluntary decision to absent himself from the proceedings but that jurors should “not hold that fact against the defendant in any way whatsoever. It’s not a relevant factor in your decision at all if you’re selected to participate as a juror [.]” After voir dire, the jury was sworn, and the trial court again cautioned that LaGon’s voluntary absence from the courtroom should not play any role in the juror’s decision in the case. The trial then proceeded in LaGon’s absence. When the trial court later adjourned the trial for the evening, the trial court instructed the jurors not to report back until 1:30 p.m. the following afternoon to accommodate the court’s calendar in another jurisdiction.

The Third Day of Trial (February 5, 2014). When the trial court reconvened the proceedings around 1:30 p.m. the following day, the court first noted that a sheriff’s deputy had informed the court that LaGon had been asked if he wished to come to court that day. The deputy said that LaGon had responded that “he would not leave the jail unless he was dragged out of the jail and brought into the courthouse.” The trial court concluded that LaGon was continuing to voluntarily absent himself from the proceedings.

Additional witnesses testified at that point. After a recess, the trial court noted on the record that the court had been informed by a sheriff’s deputy that LaGon now wished to come into the courtroom and be present for trial. The trial court called a further recess so that LaGon could get dressed in civilian attire and be brought to the courtroom.

Following the recess, LaGon’s counsel reported to the trial court, “[LaGon] expressed to me that he has wanted to come to court all day and that he was told that jail personnel had been told he wasn’t needed. Now that he’s come here he’s told me he does not want to participate in this case.” After hearing counsel’s report, a sheriff’s deputy clarified to the trial court that LaGon had simply been told by jail personnel that he was not needed for court that morning and was only scheduled for court that afternoon. LaGon’s counsel then told the trial court that he had informed LaGon that there had been no court that morning but that, once LaGon was informed that the victim had already testified, LaGon decided he no longer wished to attend the day’s proceedings. Concluding that LaGon was continuing to voluntarily absent himself from the courtroom, the court proceeded with trial for the remainder of the day in LaGon’s absence.

The Fourth and Fifth Days of Trial (February 6-7, 2014). The next morning, LaGon came to the courtroom. LaGon was present for the remainder of the trial and testified in his own defense.

At the hearing on his motion for new trial, LaGon testified that he chose not to attend his trial because he believed he was not being represented well by his appointed counsel. According to LaGon, he thought he could stop the trial by refusing to attend. However, LaGon later admitted that he knew the trial was taking place without him. LaGon’s appointed counsel also testified at the hearing that he had specifically advised LaGon of his right to attend his trial and that the trial court would proceed with the trial without him if he refused to come into the courtroom.

Based on this combined record, the trial court was authorized to find that LaGon was voluntarily absent for the first three days of trial and thus waived his constitutional right to be present during those proceedings.

The record shows that [LaGon] was repeatedly advised of his right to be present at trial, and he refused to attend. On the other hand, when he wanted to do so, [LaGon] attended the trial. The trial court instructed the jury that they were not to consider [LaGon’s] absence in their deliberations. We find no error [in the trial court’s decision to conduct the first three days of the proceedings in LaGon’s absence].

Coley, 272 Ga. App. at 449 (3). See Anderson, 238 Ga. App. at 873 (3).

In reaching this conclusion, we note that once LaGon refused to enter the courtroom and attend the trial proceedings, the trial court was not required “to make moment-by-moment inquiries” as to whether LaGon had changed his mind and wished to be present. (Citation and punctuation omitted.) Weaver, 288 Ga. at 543 (3). Rather, it was sufficient for the trial court to have the sheriff’s deputies and LaGon’s appointed counsel periodically speak with LaGon and inquire whether he had changed his mind and wished to attend, particularly since LaGon indicated that he would only return to the courtroom and speak with the trial court if physically forced to do so by the deputies. See id.

Lastly, while LaGon claims that he repeatedly asked to be taken to the courtroom on the third day of trial but was thwarted by jail personnel, the trial court was not required to reach such a conclusion. Rather, there was evidence from which the trial court could find that the jail personnel simply told LaGon that he was not needed in the courtroom during the morning of the third day because the court was conducting other unrelated business, but that LaGon otherwise was given an opportunity to attend the court proceedings that afternoon but refused to do so. Accordingly, because there was evidence that would support a finding that LaGon knowingly and voluntarily chose to absent himself from the courtroom, the trial court did not err by proceeding with trial in his absence. See Allen, 199 Ga. App. at 368 (6) (applying an any evidence standard to the waiver question).

3. In a related enumeration of error, LaGon contends that the trial court violated his constitutional right to be present by starting the trial in his absence. According to LaGon, because he refused to enter the courtroom before the jury had been empaneled and sworn, waiver principles did not apply, and the trial court thus could not start the trial. We are unpersuaded under the specific circumstances of this case.

It is true that if a criminal defendant free on bond or on his own recognizance fails to appear at the start of trial, the trial court cannot try the defendant in absentia; instead, the trial court must delay the start of trial and rely on other sanctions such as bench warrants and bond forfeitures. See Stacey v. State, 254 Ga. App. 461, 462 (1) (562 SE2d 806) (2002); Riley v. State, 252 Ga. App. 781, 781-782 (1) (556 SE2d 917) (2001); Loper v. State, 191 Ga. App. 515, 515-516 (1) (382 SE2d 212) (1989); Pollard v. State, 175 Ga. App. 269, 269-270 (333 SE2d 152) (1985). Waiver principles do not apply in that context, and if the trial court conducts the trial in the absence of the defendant, the court violates the defendant’s constitutional right to be present, entitling him to a new trial. See id. A trial “starts” once a jury has been empaneled and sworn. See Pollard, 175 Ga. App. at 270.

The present case, however, is clearly distinguishable. This is not a case where a defendant out on bond or his own recognizance failed to appear at the trial proceedings when they commenced and then was tried and convicted in absentia. Rather, LaGon was in state custody and made a conscious choice to attend some but not all of his trial, threatening to violently resist if the sheriff’s deputies attempted to compel his attendance in the courtroom and thereby disrupt the court proceedings. Other courts have held that a defendant’s right to be present at trial is not violated in the circumstance where the defendant is in custody and makes clear to the trial court that he will not attend the start of trial without causing a disruption. See, e.g., United States v. Sterling, 738 F3d 228, 235-237 (11th Cir. 2013) (district court committed no error in finding that the defendant had waived his presence at trial under federal procedural rules, where the defendant, while in interview room before trial commenced, made clear that he would have to be forcibly brought into the courtroom); United States v. Benabe, 654 F3d 753, 768-774 (7th Cir. 2011) (district court did not violate defendants’ right to be present at trial under federal constitutional and procedural rules by removing the disruptive defendants before the jury was selected). Cf. United States v. Perkins, 787 F3d 1329, 1338-1339 (11th Cir. 2015) (any purported constitutional or procedural error in the defendant’s failure to be present at the beginning of trial was invited error and would not be reviewed on appeal, given that the defendant had refused to leave the interview room on the day his trial was set to begin in an effort to “sabotage the criminal proceedings”).

We similarly conclude that where a criminal defendant who is in state custody — after being made aware of his right to be present and that the trial will proceed forward in his absence — refuses to attend the start of his trial without causing a disruption, the trial court has the discretion to conclude that the defendant has waived his right to be present for the proceedings and begin the trial in his absence. As the United States Supreme Court has noted, “trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.” Allen, 397 U. S. at 343. See Weaver, 288 Ga. at 542-543 (3). And we do not believe that in this context, a trial court should be required to have a resistant defendant forcibly transported into the courtroom in front of shocked jurors so that he can quickly waive his right to be present and then be removed, simply so that it can be said that the defendant was “present” at the start of trial.

Forcing the defendant to actually come into the courtroom, for no other reason than to have the jurors briefly eyeball him, would have served no good purpose, but instead would have endangered the safety of all assembled, prejudiced the defendant before the jury, and undermined the dignity of the court.

United States v. Perkins, No. l:10-CR-97-1-JEC-LTW, 2013 WL3820716, at *21 (N.D. Ga. July 23, 2013), aff’d, 787 F3d 1329 (11th Cir. 2015).

Accordingly, we conclude that the trial court committed no error by beginning LaGon’s trial in his absence, given that LaGon was in custody and was informed of his right to be present and that the trial would proceed without him, but made clear that he would not enter the courtroom without a fight. LaGon therefore is not entitled to a new trial on the enumerated ground.

4. Lastly, LaGon contends that the trial court committed reversible error by declining to grant a continuance after the State belatedly turned over the victim’s hospital medical records in violation of the reciprocal discovery statute. We are unpersuaded.

Where the trial court has denied a motion for a continuance for a discovery violation, the defendant must show not only that the court erred in denying the continuance, but also that he was harmed by the denial. Murray v. State, 328 Ga. App. 192, 195 (3) (761 SE2d 590) (2014). Here, LaGon failed to make a proffer of the medical records, which therefore have not been made part of the appellate record, and he has not otherwise shown how a continuance would have benefitted him.

The record reflects that defense counsel received the medical records on the second day of trial, and the proceedings recessed for the day before the State’s first witness, the victim, had been subject to cross-examination. And, as previously noted, the trial court did not start the trial on the third day until that afternoon because of a scheduling conflict, and it was only at that point that defense counsel began his cross-examination of the victim. Thus, LaGon’s counsel had the entire morning of the third day of trial and the previous night to review the medical records and then use them for the cross-examination of the victim and other subsequent witnesses if he wished to do so. Accordingly, even if the State violated the discovery statute by its belated production of the victim’s medical records, LaGon has failed to carry his burden of establishing that the violation was harmful and thus is not entitled to a new trial on that basis. See Murray, 328 Ga. App. at 195 (3).

Decided September 28, 2015.

Vernon H. Smith, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       LaGon also was indicted on one count of rape, but the State later requested and obtained entry of a nolle prosequi on that count.

       In contrast, a criminal defendant free on bond or his own recognizance who is present when the trial starts, but later absconds during the course of the trial, waives his right to be present, and the trial can proceed forward in his absence. See Hill v. State, 290 Ga. 493, 494-495 (2) (722 SE2d 708) (2012); Estep v. State, 238 Ga. App. 170, 171-172 (1) (518 SE2d 176) (1999).


text:
    A15A1143.
    KIRKLAND v. THE STATE.
    (778 SE2d 42)
   BARNES, Presiding Judge.

A jury found Shawn Kirkland guilty of aggravated child molestation, and the trial court denied his amended motion for new trial. On appeal, Kirkland contends that the trial court erred in admitting certain similar transaction evidence because it was not sufficiently similar to the charged offense; erred in admitting the victim’s recorded forensic interview and witness testimony regarding the victim’s outcry because the recording and testimony constituted inadmissible hearsay; and erred in failing to declare a mistrial when the State elicited testimony from a witness that allegedly placed Kirkland’s character in issue. Kirkland also contends that the evidence was insufficient to support his conviction and that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Towry v. State, 304 Ga. App. 139 (695 SE2d 683) (2010). So viewed, the evidence showed that Kirkland lived with his girlfriend, the aunt of three-year-old A. D. Kirkland and his girlfriend had a pool and trampoline at their house, and A. D. and her older sister often would play there. When A. D. and her sister came over to the house, Kirkland would play video games in his bedroom. A. D. would sometimes watch Kirkland as he played video games, and the two would be alone in the bedroom with the door closed.

One day in early September 2011, A. D. was at her great-grandmother’s house. As they sat at the kitchen table, A. D. “out of the blue” told her great-grandmother that Kirkland was “gross” and had “put his thing in [her] mouth.” A. D. said that when Kirkland put “his thing” in her mouth, “it was choking her.” The great-grandmother asked what she meant by “his thing,” and A. D. indicated that she meant Kirkland’s front private part. The great-grandmother told A. D. to tell her mother what had happened.

A few days later, A. D. was with her mother folding clothes in their home. As they folded clothes, A. D. told her mother that Kirkland was “gross.” When her mother asked why Kirkland was gross, A. D. responded, “Because he made me stick his thing down there in my mouth.” A. D. said that Kirkland made her do it while she was with him in the bedroom.

After A. D.’s outcry, her mother contacted the sheriff’s department, which opened an investigation into the abuse allegations. A forensic interview of A. D. subsequently was conducted. During the interview, A. D. repeated that Kirkland “stuck his thing down there in my mouth” while she was alone with him in the bedroom with the door closed.

Kirkland was arrested and charged with aggravated child molestation for placing his penis in the mouth of A. D. While he was being booked at the sheriff’s office, Kirkland commented that he did not know he could be arrested for child molestation without any physical evidence.

During the trial, A. D.’s mother and great-grandmother testified as to A. D.’s outcry statements made to them, and the State introduced and played for the jury the video recording of A. D.’s forensic interview. A. D., then four years old, also testified at trial. A. D. testified that she went into the bedroom to watch Kirkland “playing a game,” the bedroom door was closed, Kirkland at some point paused the game, and she went over to Kirkland. However, when asked what specifically had happened in the room with Kirkland, A. D. gave no response. A. D. nodded affirmatively when asked if Kirkland had ever taken off his shorts, and also when asked, “Did [Kirkland] do anything?” When asked what happened when she “sat down in front of” Kirkland, A. D. responded, “I don’t want to say.” A. D. again nodded affirmatively when asked if she remembered telling her great-grandmother what had happened, but responded “I forgot” when asked what she had specifically told her great-grandmother. When questioned further about what had occurred, A. D. responded “I forgot” and nodded affirmatively when asked if she was embarrassed.

The State also presented similar transaction evidence. Specifically, A. D.’s ten-year-old sister testified that Kirkland had shown her a vibrator, turned it on to demonstrate how it worked, and encouraged her to “try it” when she went to bed, but she had refused. A. D.’s sister further testified that on a different occasion, Kirkland had asked her if he could watch her change into a bathing suit, but she had said no, and then, on another occasion, had shown her sexually explicit photographs of his girlfriend that were on his cell phone. The sexually explicit photographs shown to A. D .’s sister, which were later obtained from Kirkland’s cell phone pursuant to a search warrant, were introduced into evidence.

Kirkland testified in his own defense. Kirkland admitted that there had been times when A. D. was in the bedroom with him while he played video games, but denied that he had ever engaged in any inappropriate sexual contact with A. D. Kirkland also denied the allegations made by A. D.’s sister.

Kirkland’s girlfriend also testified in his defense. She testified that Kirkland would always stay in the bedroom when A. D. and her sister came over to visit, and that the children were never allowed to go into that room.

After hearing all the testimony and viewing the forensic interview, the jury found Kirkland guilty of the charged offense. Kirkland filed a motion for new trial, as amended, which the trial court denied.

1. Kirkland contends that the trial court abused its discretion by admitting the similar transaction evidence of his conduct towards A. D.’s older sister. According to Kirkland, those prior incidents were not sufficiently similar to the charged offense to authorize admission of the similar transaction evidence at trial. We disagree.

To obtain admission of similar transaction evidence, the State must show (1) that it seeks to introduce the evidence for a proper purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that sufficient similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and footnote omitted.) Alvarez v. State, 309 Ga. App. 462, 464 (2) (710 SE2d 583) (2011). See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We will uphold the trial court’s factual findings regarding the similarities between the independent offense or act and the charged offense unless clearly erroneous, and we review the trial court’s ultimate decision whether to admit the similar transaction evidence only for an abuse of discretion. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014); Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

The record reflects that before trial, the State provided notice of its intent to introduce evidence of Kirkland’s sexually inappropriate conduct toward A. D.’s ten-year-old sister for the purpose of showing Kirkland’s bent of mind, common scheme and plan, motive, modus operandi, intent, and course of conduct. The trial court then conducted a pretrial hearing to determine the admissibility of the similar transaction evidence under Williams, 261 Ga. at 642 (2) (b), and ruled that the evidence would be admissible at trial for the purposes sought by the State. At the subsequent trial, as previously noted, A. D.’s sister testified about the incidents in which Kirkland showed her a vibrator and attempted to persuade her to use it, asked her to allow him to watch her change into a bathing suit, and showed her sexually explicit photographs of his girlfriend. The trial court gave a limiting instruction regarding the similar transaction evidence when A. D.’s sister testified and in the final charge to the jury.

As noted, Kirkland’s sole claim on appeal is that there was insufficient similarity between his conduct toward A. D.’s sister and the charged offense to warrant its admission at trial. But “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Dean v. State, 321 Ga. App. 731, 732 (1) (742 SE2d 758) (2013). “Moreover, Georgia courts construe the rules regarding the use of similar transaction evidence liberally in cases involving sexual offenses.” (Citation omitted.) Alvarez, 309 Ga. App. at 465 (2). This is particularly true in cases involving the sexual molestation of young children, where we have held that differences “in the victims’ ages, sex, and specific acts of molestation [do] not render the similar transaction inadmissible.” Collins v. State, 310 Ga. App. 613, 617 (2) (714 SE2d 249) (2011). See Waters v. State, 303 Ga. App. 187, 190 (2) (692 SE2d 802) (2010) (noting that “the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence”) (citation and punctuation omitted). Rather, “[t]o show sufficient similarity, there need only be a logical connection between the independent act and the crime charged.” (Citation omitted.) Mills v. State, 319 Ga. App. 131, 133 (1) (735 SE2d 134) (2012).

Guided by the liberal standard applicable in cases involving sexual offenses against children, we conclude that the trial court committed no error in finding that there was sufficient similarity and connection between Kirkland’s inappropriate sexual conduct toward A. D.’s sister and his aggravated child molestation of A. D. Both the similar transaction and the charged offense involved instances where Kirkland preyed on young girls to whom he had access because of his relationship with his girlfriend and her family. Both occurred in the time frame after Kirkland had moved in with his girlfriend, and the acts were committed against siblings. Under these circumstances, the trial court’s finding of sufficient similarity was not clearly erroneous, and the court did not abuse its discretion by admitting the similar transaction evidence pertaining to A. D.’s sister. See Howard v. State, 287 Ga. App. 214, 215 (651 SE2d 164) (2007) (in case involving the sexual abuse of a female relative by the defendant, evidence of the defendant’s prior abuse of a young male relative was sufficiently similar to be admissible); Chauncey v. State, 283 Ga. App. 217, 221 (4) (641 SE2d 229) (2007) (evidence that defendant sexually abused other minor siblings was properly introduced as similar transaction evidence). Compare Perry v. State, 263 Ga. App. 670, 671 (2) (588 SE2d 838) (2003) (finding insufficient similarity between the defendant’s “violent rape of an adult” and his “nonviolent sexual encounter with a minor”).

2. Kirkland also contends that the trial court erred in admitting A. D.’s out-of-court statements about the sexual abuse through the testimony of her mother and great-grandmother and through her recorded forensic interview. According to Kirkland, A. D.’s prior statements constituted inadmissible hearsay. We disagree because the statements were admissible under Georgia’s former Child Hearsay Statute.

Kirkland argues that A. D.’s prior statements were inadmissible hearsay because “there was no showing that the ... statements were reliable.” Under Georgia’s former Child Hearsay Statute, the trial court must determine that the circumstances of a child’s prior statement “provide sufficient indicia of reliability’ for the statement to be admissible. OCGA § 24-3-16 (2012). Several factors may be considered by the trial court in deciding whether a child’s statement provides sufficient indicia of reliability:

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 therein; and (10) the consistency between repeated out-of-court statements by the child.

(Citations and punctuation omitted.) Tucker v. State, 208 Ga. App. 441, 442 (430 SE2d 811) (1993). See Weathersby v. State, 262 Ga. 126, 128 (4) (b) (414 SE2d200) (1992); Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

Viewing the totality of the circumstances surrounding the prior statements made by A. D. to her mother, great-grandmother, and the forensic interviewer, we conclude that there was a sufficient basis for the trial court to find that the statements had the requisite degree of reliability to be admissible under the Child Hearsay Statute. The record reflects that A. D.’s initial outcry statements to her mother and great-grandmother were made in a spontaneous manner without any apparent coaching and were consistent with her subsequent forensic interview. Furthermore, A. D. used age-appropriate language in describing what had occurred to her when speaking with her mother, great-grandmother, and the forensic interviewer, and there is no evidence that A. D. was coerced into making any of those statements. Nor is there any evidence of an ulterior motive for her statements, and no evidence that A. D. had ever previously been exposed to sexually explicit material or conduct from which she could have otherwise learned about the sexual act she alleged that Kirkland had committed. Based on these indicia of reliability, the trial court acted within its discretion in admitting A. D.’s prior statements made to her mother, great-grandmother, and the forensic interviewer. See Romani v. State, 303 Ga. App. 829, 830 (1) (695 SE2d 303) (2010); In the Interest of K. C., 258 Ga. App. 363, 365 (1) (a) (574 SE2d 413) (2002); Croy v. State, 247 Ga. App. 654, 656 (2) (545 SE2d 80) (2001).

Kirkland argues that, because A. D. was unresponsive to several questions posed to her about the abuse when she testified at trial, her prior statements were rendered inadmissible under the Child Hearsay Statute and the Confrontation Clause of the Sixth Amendment. We disagree. The fact that a child witness is unresponsive or evasive in response to certain questions on the witness stand does not render the child’s out-of-court statements inadmissible under the Child Hearsay Statute or violate the Sixth Amendment confrontation rights of the defendant. See Bright v. State, 197 Ga. App. 784, 785-786 (4) (400 SE2d 18) (1990). See also McGarity v. State, 212 Ga. App. 17, 20-21 (4) (440 SE2d 695) (1994); Blandburg v. State, 209 Ga. App. 752, 752-753 (1) (434 SE2d 510) (1993). As we have explained:

The thrust of the child [hearsay] statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive [on the witness stand], the jury must decide the child’s credibility.

(Citation and punctuation omitted.) Amerson v. State, 268 Ga. App. 855, 855 (1) (602 SE2d 857) (2004). Accordingly, any conflict between A. D.’s prior statements and her unresponsive testimony at trial simply presented a question of credibility to the jury; it did not render the prior statements inadmissible under either the Child Hearsay Statute or the Sixth Amendment’s Confrontation Clause. See id.; Blandburg, 209 Ga. App. at 752-753 (1); McGarity, 212 Ga. App. at 20-21 (4); Bright, 197 Ga. App. at 785-786 (4).

3. Kirkland also contends that there was insufficient evidence to support his aggravated child molestation conviction. We disagree. The evidence introduced at trial and summarized above was sufficient to authorize a rational jury to find Kirkland guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

Although A. D. was unresponsive to several questions posed to her at trial about the sexual abuse, the jury could consider her prior out-of-court statements about the abuse that she made to her mother, great-grandmother, and the forensic interviewer as substantive evidence of Kirkland’s guilt under the Child Hearsay Statute. See Anderson v. State, 315 Ga. App. 679, 681 (1) (727 SE2d 504) (2012). The jury also could take into account the similar transaction evidence of Kirkland’s sexually inappropriate conduct toward A. D.’s sister to prove, among other things, his intent, bent of mind, and course of conduct. See Alvarez, 309 Ga. App. at 464 (1). And while Kirkland took the stand and denied having committed the charged offense, “it was the exclusive role of the jury to determine witness credibility and to choose what evidence to believe and what to reject.” (Citation and punctuation omitted.) Id. The jury could further take into account Kirkland’s comment after his arrest that he was unaware he could be arrested for child molestation without any physical evidence.

Kirkland claims that the evidence was insufficient to support his conviction because it did not exclude every reasonable hypothesis except that of his guilt. But the reasonable hypothesis rule applies only where the evidence is entirely circumstantial, see Lowe v. State, 288 Ga. 662, 664 (2) (706 SE2d 449) (2011), and there was direct evidence of Kirkland’s guilt in the form of the victim’s prior statements to her mother, great-grandmother, and the forensic interviewer. See Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006). Hence, the reasonable hypothesis rule has no application in this case.

4. Kirkland contends that the trial court erred by failing to declare a mistrial after the prosecutor elicited testimony from Kirkland’s girlfriend on cross-examination that Kirkland was unemployed and received disability payments. According to Kirkland, a mistrial was required because his girlfriend’s testimony impermissibly placed his character in issue.

The record reflects that Kirkland did not object when his girlfriend was questioned about his employment status or when she was initially questioned about his receipt of disability payments. When the prosecutor went further and asked Kirkland’s girlfriend about the “nature of his disability,” Kirkland objected on the basis that it placed his character in issue. The trial court sustained the objection, and the prosecutor moved on to other questions. Kirkland never moved for a mistrial.

Where a “defendant fails to show that a motion for a mistrial was made, he has waived this issue for the purposes of appeal.” (Citation and punctuation omitted.) Little v. State, 332 Ga. App. 553, 555 (2) (774 SE2d 132) (2015). By failing to move for a mistrial on the ground that his character had been improperly placed in issue, Kirkland waived appellate review of this enumeration of error. See Andrews v. State, 293 Ga. 701, 704 (4) (749 SE2d 734) (2013); Coe v. State, 293 Ga. 233, 238 (4) (748 SE2d 824) (2013).

5. Lastly, Kirkland contends that his trial counsel rendered ineffective assistance. “To prevail on his ineffectiveness claim, [Kirkland] must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” (Footnote omitted.) Jackson v. State, 309 Ga. App. 450, 452 (2) (710 SE2d 649) (2011). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Kirkland fails to prove either the deficiency or prejudice prong of the test, we need not address the other prong. Russell v. State, 322 Ga. App. 553, 556 (3) (b) (745 SE2d 774) (2013). “[T]his Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Brewer v. State, 328 Ga. App. 801, 801-802 (762 SE2d 622) (2014). Mindful of these principles, we turn to Kirkland’s specific allegations of ineffective assistance.

(a) Kirkland argues that his trial counsel was ineffective for failing to object on hearsay grounds to the admission of A. D.’s out-of-court statements about the sexual abuse through the testimony of her mother and great-grandmother. As explained supra in Division 2, A. D.’s prior statements were properly admitted under Georgia’s former Child Hearsay Statute, and thus any objection on hearsay grounds would have been meritless. “[T]he failure to make a meritless objection cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Jones v. State, 329 Ga. App. 439, 448 (4) (765 SE2d 639) (2014).

(b) Kirkland also argues that his trial counsel was ineffective for failing to move for a mistrial when the prosecutor elicited testimony from Kirkland’s girlfriend that he was unemployed and on disability. According to Kirkland, his trial counsel should have moved for a mistrial on the ground that the girlfriend’s testimony constituted improper character evidence.

To prevail on his ineffective assistance claim, Kirkland must show that there is a reasonable probability that the trial court would have granted a motion for mistrial, if such a motion had been timely made by trial counsel. See Stubbs v. State, 315 Ga. App. 482, 485 (4) (727 SE2d 229) (2012); Pitts v. State, 260 Ga. App. 553, 561 (8) (a) (580 SE2d 618) (2003). A trial court has broad discretion in deciding whether to grant a mistrial, Wilcox v. State, 229 Ga. App. 192, 193 (2) (493 SE2d 600) (1997), and the grant of a mistrial is required only if “it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) York v. State, 329 Ga. App. 278, 278 (764 SE2d 866) (2014).

The trial court would not have abused its discretion by denying a motion for mistrial on the basis that Kirkland’s character had impermissibly been placed in issue by the prosecutor’s questioning of his girlfriend. As an initial matter, it is questionable whether the girlfriend’s testimony that Kirkland was unemployed and on disability put his character in issue. See Boyd v. State, 168 Ga. App. 246, 251 (6) (308 SE2d 626) (1983). But even if the girlfriend’s testimony could be construed as placing Kirkland’s character in issue, it did so only incidentally and said nothing about Kirkland’s prior criminal history or about whether he committed the crime of aggravated child molestation charged in this case. Consequently, the jury’s determination as to whether Kirkland committed the charged offense would not have been impacted by the girlfriend’s testimony. It follows that a mistrial was not essential to the preservation of Kirkland’s right to a fair trial. Kirkland therefore cannot show that there is a reasonable probability that the trial court would have granted a motion for mistrial, and thus cannot satisfy the prejudice prong of his ineffective assistance claim. See Stubbs, 315 Ga. App. at 485 (4); Pitts, 260 Ga. App. at 561 (8) (a).

(c) Kirkland argues that his trial counsel was ineffective for failing to call an expert witness to testify as to the flaws in A. D.’s forensic interview. In support of his argument, Kirkland relies upon the expert affidavit of a licensed marriage and family therapist with experience in the forensic interviewing of children that was filed in support of his amended motion for new trial. The therapist reviewed the recording of A. D.’s forensic interview and averred in her affidavit that “the interview methods used with [A. D.] did not follow standard and accepted protocols for how forensic interviews of children should be conducted and [were] inappropriately leading and suggestive, and, as a result, there is substantial risk that the statements of [A. D.] were unreliable.” The therapist pointed to aspects of A. D.’s forensic interview that she considered improper, including the use of anatomically correct dolls and the use of interview techniques that were allegedly leading and suggestive.

On remand from the prior appeal, the trial court considered the expert affidavit of the therapist. The trial court found that Kirkland’s trial counsel was deficient for failing to call an expert witness to testify regarding the alleged flaws in A. D.’s forensic interview. However, the trial court concluded that, in light of the other evidence presented by the State, Kirkland could not prove that the failure to call an expert witness to challenge the forensic interview prejudiced his defense. Consequently, the trial court ruled that Kirkland was not entitled to a new trial on the ground of ineffective assistance.

Pretermitting whether trial counsel’s failure to call an expert witness was deficient performance, we agree with the trial court that Kirkland cannot establish that he was prejudiced by the alleged deficiency. Even if trial counsel had presented an expert to point out aspects of A. D.’s forensic interview that allegedly were flawed, the expert’s testimony would not have undermined the admissible evidence of A. D.’s spontaneous statements describing the sexual abuse that were made to her mother and great-grandmother before the forensic interview was conducted. Nor would the expert’s testimony have undermined the similar transaction evidence presented by the State or the admission of Kirkland’s comment after his arrest that he was unaware he could be arrested for child molestation without any physical evidence. In light of this combined evidence that would not have been undermined by an expert in forensic interviewing, Kirkland cannot show a reasonable probability that, but for the failure to call such an expert, the outcome of his trial would have been different. See Robinson v. State, 277 Ga. 75, 77 (2) (586 SE2d 313) (2003) (failure to secure expert in forensic pathology did not prejudice defense, where there was “additional compelling evidence” of the defendant’s guilt that would not have been refuted by the expert’s testimony); Barstad v. State, 329 Ga. App. 214, 220 (3) (764 SE2d 453) (2014) (failure to request funds to hire expert to challenge DNA evidence did not prejudice defense, where DNA evidence was not the “sole link” between the defendant and the crimes, and expert testimony would not have undermined the other compelling evidence of the defendant’s guilt). Cf. Whorton v. State, 321 Ga. App. 335, 342 (2) (741 SE2d 653) (2013) (improper admission of child’s statements made during forensic interview was harmless, where the child’s “statements to the forensic interviewers were cumulative of the admissible . . . statements [the child] made to her mother and her mother’s boyfriend”).

Decided September 28, 2015

Bentley C. Adams III, James C. Bonner, Jr., for appellant.

T. Craig Earnest, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       This is the second appearance of this case before this Court. The trial court previously-denied Kirkland’s amended motion for new trial without considering an expert affidavit filed in support of his ineffective assistance claim. Kirkland appealed that order, and we held in an unpublished opinion that the trial court should have considered the affidavit. Kirkland v. State, 326 Ga. App. XXVI (Case No. A13A1894) (decided March 20, 2014). We therefore vacated the trial court’s order denying Kirkland’s amended motion for new trial and remanded the case for the court to consider the affidavit. On remand, the trial court considered the expert affidavit and again denied Kirkland’s amended motion for new trial, resulting in the present appeal.

       Because Kirkland was tried in 2012, Georgia’s revised Evidence Code does not apply to any of the evidentiary issues discussed in this case. See Ga. L. 2011, p. 99, § 101.

       Kirkland failed to object to the introduction of A. D.’s statements to her mother and great-grandmother on hearsay grounds and thus waived any objection to their admission. See
        Brown v. State, 280 Ga. App. 884, 888 (3) (635 SE2d 240) (2006). But even if Kirkland had properly objected to admission of the statements, his objection would have lacked merit, as we explain in this division.

       OCGA § 24-3-16 was repealed by Ga. L. 2011, p. 99, § 2 (effective Jan. 1,2013). Georgia’s current Child Hearsay Statute is codified at OCGA § 24-8-820.

       We also note that A. D.’s statements to her mother and great-grandmother were not testimonial in nature and thus did not implicate the Sixth Amendment’s Confrontation Clause. See Hatley v. State, 290 Ga. 480, 485 (II) (722 SE2d 67) (2012); In the Interest of S. S., 281 Ga. App. 781, 783 (637 SE2d 151) (2006).

       Kirkland also enumerates as error the trial court’s alleged failure to exercise its discretion to sit as a “thirteenth juror” and grant him a new trial on the general grounds, but provides no argument or citation of authority to support his position in his appellate brief. Kirkland therefore has abandoned this enumerated error. See Court of Appeals Rule 25 (c) (2); Myers v. State, 302 Ga. App. 753, 754 (1) (691 SE2d 650) (2010).

       See supra footnote 1 for a discussion of the procedural history in this case.

       Compare Darst v. State, 323 Ga. App. 614, 624-625 (2) (a) (iii), 629-630 (2) (b) (746 SE2d 865) (2013) (physical precedent only) (holding that a new trial was warranted in light of the collective effect of multiple errors by trial counsel, which included the failure to call an expert to criticize “the professionals in this case, including the therapist, the Department case manager, the police investigators, and the psycho-sexual evaluator, each of whom allowed the children to be subjected to repeated, suggestive questioning about the allegations, instead of ensuring that forensic interviews of the children were conducted without unnecessary delay”).


author: McMillian, Judge.

text:
    A15A1221.
    In the Interest of A. A., a child.
    (778 SE2d 28)
   McMillian, Judge.

A. A. appeals his adjudication of delinquency by the juvenile court on the offenses of obstruction of a law enforcement officer, illegally carrying a weapon without a license, loitering/prowling, and possession of a firearm while under the age of 18 years old. On appeal, A. A. argues that the State failed to present sufficient evidence of identity and venue and further failed to present evidence sufficient to adjudicate him for the delinquent acts of possessing a handgun while under 18 years old and without a license. We reverse for the reasons set forth below.

When reviewing the sufficiency of evidence supporting a juvenile court’s adjudication, we apply the same standard of review used in criminal cases. We view the evidence in favor of the juvenile court’s

adjudication to determine whether a rational trier of fact could have found beyond a reasonable doubt that a juvenile committed the acts charged. In the Interest of J. D., 305 Ga. App. 519, 519 (699 SE2d 827) (2010).

So viewed, on November 20, 2014, the juvenile court held a hearing on a motion to suppress filed by A. A. The evidence at that hearing showed that on July 18, 2014, at around 1:00 a.m., Special Agent Josh Pitts of the Spalding County sheriff’s office, dressed in his uniform, was conducting a foot patrol at the Northside Drive Apartment complex when he observed two individuals, wearing gang attire, standing between two of the apartment’s buildings. The apartment complex had a no loitering policy, which was communicated through signs posted on every building of the complex, and had authorized the sheriff’s office to patrol the property to enforce that policy. As Pitts approached the two individuals, A. A. apparently noticed Pitts and fled in contravention of the officer’s verbal command to stop. Pitts pursued him. During the pursuit, A. A. tumbled down a bank, and Pitts observed a firearm fall out of A. A.’s pants. Pitts and another officer were able to intercept A. A. and place him into custody. Pitts immediately returned to the location where the gun had fallen and retrieved it. After hearing this evidence, the juvenile court denied A. A.’s motion to suppress.

Immediately after that ruling, A. A.’s attorney requested that the juvenile court render its decision on the adjudication of delinquency based on the evidence presented at the motion hearing, because the State’s evidence at a “full-scale” hearing on the charges would be the same and because A. A. did not wish to present any evidence on his own behalf. The State posed no objection to this procedure, and the parties then presented evidence on the issue of whether A. A. should be committed to the Department of Juvenile Justice (the “DJJ”) if he were adjudicated for committing the delinquent acts with which he was charged. Following this evidence, the juvenile court adjudicated A. A. for committing all the delinquent acts charged in connection with the July 18 incident and committed him to the DJJ.

1. On appeal, A. A. asserts that the juvenile court erred in reaching this decision because the State failed to prove that he was the individual who committed the offenses charged as Pitts made no in-court identification of him during his testimony.

It is well settled that “[i]dentity is an essential element of the crime, which the State must prove beyond a reasonable doubt.” Worsham v. State, 304 Ga. App. 806, 807 (697 SE2d 917) (2010). But “[i]n-court identification is not the only way to prove that the [juvenile] is the person who committed [the delinquent acts].” Perry v. State, 222 Ga. App. 445, 446 (474 SE2d 199) (1996). Identity may be proven in other ways so long as the State meets its burden of proof. Id.

Based on our review of the record, we find that it contains sufficient evidence to establish beyond a reasonable doubt A. A.’s identity as the juvenile involved in the July 18 incident. When the juvenile court called the case for hearing, the judge identified it as the case of “A ... A ... ,” using A. A.’s full first and last names, and announced for the record that A. A. was present, referring to him by his first name. During Pitts’ testimony, he used the name “Mr. A...,” using A. A.’s surname, to identify the juvenile at the apartment complex who fled when Pitts approached, causing the officer to give chase. Pitts again used the name “Mr. A...” when he testified that the juvenile began to cry when Pitts told him that he would be submitting the firearm dropped during that chase to the crime lab at the Georgia Bureau of Investigation. In addition, Pitts responded in the affirmative to defense counsel’s question as to whether he could see “Mr. A...” in the light available at the apartment complex on July 18. The record contains no evidence of any other juvenile with the same last name being at the scene of the July 18 incident or in the courtroom at the time of the hearing. Under these circumstances, we find A. A.’s argument to be meritless. See Perry, 222 Ga. App. at 446 (witnesses referred to defendant only by his first name, along with other circumstantial evidence of identity); OCGA § 24-14-40 (a) (“Concordance of name alone is some evidence of identity.”).

2. A. A. next argues that the State failed to present sufficient evidence to demonstrate that the firearm that fell from his pocket met the requirements of the firearm offenses with which he was charged. We agree.

The juvenile complaint alleged that A. A. was in possession of a “handgun” in violation of OCGA § 16-11-132, which prohibits any person under the age of 18 from possessing or having under his control a “handgun.” The Georgia Code contains a very specific definition of the term “handgun” as used in OCGA § 16-11-132, defining it, in pertinent part, as “a firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged by an action of an explosive where the length of the barrel, not including any revolving, detachable, or magazine breech, does not exceed 12 inches.” OCGA § 16-11-125.1 (1). As A. A. points out, the State never introduced into evidence either photographs of the firearm recovered during the July 18 incident or the firearm itself. And Pitts referred to it only as a “firearm,” “weapon,” or “gun,” never identifying the recovered weapon as a handgun or describing the length of its barrel. Accordingly, we agree with A. A. that the State failed to carry its burden of proving that he was in possession of a handgun in violation of OCGA § 16-11-132, and we reverse his adjudication of delinquency as to that offense.

The complaint also charged A. A. with carrying a concealed weapon by possessing a “Lorcin .380” and carrying it in a concealed manner in violation of OCGA § 16-11-126, which prohibits, inter alia, the possession and carrying of a “handgun” or a “long gun” by persons prohibited by law from such possession. OCGA § 16-11-126. The same definition of “handgun” discussed above applies to this statute as well, and the Code defines the term “long gun” in specific terms based on the length of its barrel and its overall length, as well as by its design for or use of certain ammunition. OCGA § 16-11-125.1 (4). Once again, because the State failed to present any evidence with regard to the weapon recovered from A. A., we must reverse his adjudication of delinquency on the charge of violating OCGA § 16-11-126.

Contrary to the State’s argument, the fact that the hearing began as a motion hearing and was later converted to an adjudicatory hearing at the request of A. A.’s counsel does not constitute “induced error” by the defense and does not alter this result. The State raised no objection to the procedure and thus acquiesced to it. “A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.” (Citation and punctuation omitted.) O’Rourke v. State, 327 Ga. App. 628, 632-33 (2) (760 SE2d 636) (2014). The State has pointed us to no evidence that A. A. made any admissions or stipulations with regard to the facts of the case or the elements of the charges against him. Thus, it is axiomatic the State bore the burden of proof to present evidence to support each element of the offenses charged. After the motion hearing was converted to an adjudicatory hearing, the State retained that burden of proof but nevertheless failed to present additional evidence or to ask that the defense enter into a stipulation as to any matters not previously addressed in Pitts’ testimony. As a result, the State failed to carry its burden of proof to establish the elements of the offenses set forth in OCGA §§ 16-11-126 and 16-11-132.

3. A. A. further contends that the State failed to prove venue.

Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. . . . Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

Jones v. State, 272 Ga. 900, 901-02 (537 SE2d 80) (2000).

A. A.’s hearing was held before the juvenile court of Spalding County. During the hearing, Pitts testified that he observed two individuals loitering outside the Northside Drive Apartment complex, but he never testified that the complex was in Spalding County or that his pursuit of A. A. occurred there. The State presented no other evidence of venue, and nothing in the record indicates that the trial court took judicial notice of the location of the apartment complex. See Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002).

Further, although A. A.’s counsel stated in summarizing the basis for the motion to suppress in her opening remarks that “[generally, this was on or about July 18th, 2014,” and “[a] juvenile was standing ... at Northside Hills apartment complex[] in Griffin, Spalding County,” such a statement does not relieve the State of its burden to present evidence establishing beyond a reasonable doubt that the apartment complex where the alleged offenses occurred was in Spalding County. It is well settled that “[a] defendant may stipulate to venue . . . , but the record must reflect that the defendant expressly authorized such stipulation and that the stipulation was intended to obviate the need for direct proof.” Tompkins v. State, 278 Ga. 857, 857 (1) (607 SE2d 891) (2005). Nothing in the record indicates that A. A.’s counsel intended her statements to be a stipulation of venue or that A. A. authorized such a stipulation. We find, therefore, that the State failed to establish venue, and “[a] court in which venue is not proved does not have jurisdiction over the crime.” Grier v. State, 275 Ga. 430, 432 (2) (569 SE2d 837) (2002). See also Tompkins, 278 Ga. at 857 (State failed to prove venue at stipulated bench trial). Accordingly, we must reverse A. A.’s conviction on the remaining charges of loitering and obstruction of an officer arising out of the July 18 incident for failure to prove venue.

Decided September 28, 2015.

Kimberly A. Gross, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Assistant District Attorney, for appellee.

“But [because] venue is not an element of the offense and does not prove or disprove the defendant’s guilt,” “the failure to establish venue does not bar re-trial in a court where venue is proper and proven.” (Citation and punctuation omitted.) Grier, 275 Ga. at 431 (1). Thus, the State may retry A. A. on the charges of loitering and obstruction of a police officer. See In the Interest of J. B., 289 Ga. App. 617, 619 (658 SE2d 194) (2008); In the Interest of A. C., 263 Ga. App. 44 (587 SE2d 210) (2003).

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       Hereinafter, these events will be referred to as the “July 18 incident.’

       The failure to describe or introduce the firearm at the motion to suppress hearing is not surprising as the focus of that hearing was whether the officer had reasonable articulable suspicion to detain A. A.

       If the State was not prepared at that time to present its case, it could also have objected to the proceeding and requested a continuance.

       “In order to take judicial notice of any fact, the trial court must first announce its intention to do so on the record, and afford the parties an opportunity to he heard regarding whether judicial notice should be taken.” (Citation and punctuation omitted.) In the Interest of J. E., 245 Ga. App. 770, 771 (538 SE2d 852) (2000).

       Pitts also referred to the apartment complex as “Northside Hills” at times in his testimony.

       We find, however, that the State’s evidence was sufficient to prove the elements of the offenses of loitering and obstruction of a police officer beyond a reasonable doubt. See OCGA §§ 16-10-24; 16-11-36.