author: McMillian, Judge.

text:
    A15A0740.
    SCOTT v. THE STATE.
    (774 SE2d 137)
   McMillian, Judge.

Carol Scott was charged with driving under the influence to the extent it was less safe to drive in violation of OCGA § 40-6-391 (a) (1) (“DUI less safe”), driving under the influence with a blood alcohol concentration in excess of the legal limit in violation of OCGA § 40-6-391 (a) (5) (“DUI per se”), and failure to maintain lane in violation of OCGA § 40-6-48. A jury convicted Scott of DUI less safe and acquitted her of the remaining charges. Scott filed a motion for new trial, which the trial court denied following a hearing. She appeals, arguing that her trial counsel was ineffective and that the trial court erred in numerous ways, including by refusing to dismiss a juror, denying her motion in limine to exclude certain evidence, denying her motion for mistrial based on improper testimony, violating OCGA § 17-8-57, and refusing to give a requested jury charge. Having carefully considered these contentions, we now affirm.

The evidence, construed to support the jury’s verdict, shows that on the night of January 4, 2013, Trooper Thomas Bailey with the Georgia State Patrol initiated a traffic stop of the vehicle Scott was driving after he saw her cross at least one tire over the center line on four different occasions. Trooper Bailey noticed a very strong odor of an alcoholic beverage coming from inside the vehicle and asked Scott if she had been drinking. Scott told him that she had consumed one glass of wine, which Trooper Bailey did not think was consistent with the strong odor of alcohol he detected, and he asked Scott to step outside the vehicle. Trooper Bailey testified that the odor of alcohol coming from Scott’s person as she stood outside the vehicle was “very intense,” and that he noticed she had other signs of impairment, such as bloodshot, watery eyes. Based on these observations, Trooper Bailey asked Scott if she would submit to a preliminary roadside breath test. Scott said she would “rather not” take the roadside breath test, but agreed to submit to other field sobriety tests, including the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg-stand test. Trooper Bailey testified that based on his training and experience, Scott’s performance on all three tests plus the other signs he had observed indicated to him that she was impaired and “didn’t need to be driving.” He also testified that a recording of Scott performing the field sobriety tests was made by a video camera mounted inside his car, and that video was introduced by the State and played for the jury at trial.

Trooper Bailey placed Scott under arrest and read her the appropriate implied consent warning. Scott initially equivocated about whether she wanted to take the State’s breath test, but she agreed to take the test before they arrived at the police station. Although Scott appeared to blow into the machine, she failed to give a sufficient sample for testing, and Trooper Bailey asked Scott if she would consent to a blood test instead. Scott consented and was transported to a local hospital. Subsequent testing at the Georgia Bureau of Investigation Crime Lab revealed that Scott’s blood alcohol concentration level was 0.115 grams.

Other evidence will be set forth as necessary to address Scott’s specific claims of error on appeal.

1. Scott first contends that the trial court erred by refusing to dismiss a juror for alleged improper contact with Trooper Bailey, who was the State’s main witness at trial.

As to this issue, the transcript shows that immediately after the jury was selected, the trial court released the jurors for lunch with instructions that they not “discuss this case with anyone. You cannot discuss this case with any parties. You — and if anyone tries to talk to you about the case, you need to let the Bailiff know immediately upon reporting back for jury duty. But no one can talk to you.” However, when court reconvened, Scott’s trial counsel informed the trial judge that it had been brought to his attention that as they broke for lunch, one of the jurors had made a hand gesture to Trooper Bailey, whom the State had identified as the arresting officer in the case prior to voir dire. Trial counsel requested and was granted permission to question Trooper Bailey, who stated that a juror had approached him, but that he did not know the juror and immediately made a gesture back to the juror to indicate that he could not talk to him. The prosecuting attorney also stated on the record that he saw the juror approach Trooper Bailey and that he also indicated to the juror that “this doesn’t need to be occurring.” Both Trooper Bailey and the prosecuting attorney said there was no further communication between the juror and Trooper Bailey after this point.

Defense counsel then questioned the juror, who stated that he had approached Trooper Bailey and the State’s attorney during the lunch break to say “hello,” but that was the extent of the communication. The juror also testified that he had met Trooper Bailey once before at a gas station and that they talked about fishing for approximately ten minutes. The trial court asked the juror if this previous contact with Trooper Bailey would prevent him from being fair and impartial, and the juror replied “[n]ot one bit.” Without elaborating, defense counsel then made a motion to replace the juror with the alternate, and the trial court denied the motion.

Scott now argues that the trial court erred by not dismissing the juror for the improper contact with the State’s key witness. Additionally, Scott contends the improper contact issue is compounded by the juror’s “critical revelation” that he had failed to disclose during voir dire that he had met and conversed with Trooper Bailey in the past.

Although Scott now argues that the disclosure of the brief conversation between the juror and Trooper Bailey was in “complete contradiction” to the juror’s answers during voir dire, we do not have a transcript of the voir dire and thus can only rely on Scott’s representation that the juror failed to raise his hand when trial counsel asked if anyone knew Trooper Bailey. Moreover, trial counsel did not avail himself of the opportunity to question the juror about his apparently contradictory answer and did not make any specific argument or mention this failure to disclose in support of his motion to replace the juror. Accordingly, we do not believe the juror’s failure to disclose his prior, brief conversation with Trooper Bailey in response to an inquiry about whether he “knew” Trooper Bailey significantly impacts our analysis in this case.

In any event, we do not believe that the contact between the juror and Trooper Bailey entitles Scott to a new trial.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the (conduct is) so prejudicial that the verdict must be deemed “inherently lacking in due process.” Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury. Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996) (citations and punctuation omitted).

Simmons v. State, 291 Ga. 705, 707 (4) (733 SE2d 280) (2012). In this case, we have little hesitancy in concluding that to the extent there was an improper communication between the juror and the State’s witness, such communication was inconsequential. See Collins v. State, 290 Ga. 505, 506-507 (3) (722 SE2d 719) (2012). The juror testified that he was merely attempting to say hello to the Trooper and that he had briefly talked to him on a prior occasion about fishing. Trooper Bailey did not remember meeting the juror, and it was undisputed that there was no prior relationship between the two beyond the brief conversation. The brief contact during the court recess did not involve an exchange of information about the case, and it does not appear that the juror attempted to communicate about the case, which was in line with the trial court’s instructions. The juror unequivocally told the court that his prior contact with Trooper Bailey would not affect his ability to be a fair and impartial juror, and indeed the jury of which he was a member ultimately acquitted Scott of two of the three charges against her. The record before us thus leaves no reasonable doubt that the juror’s contact with the State’s witness caused no prejudice to Scott. Simmons, 291 Ga. at 707-708 (4); Collins, 290 Ga. at 507 (3).

2. Scott next contends that the trial court erred by denying her motion in limine seeking to prohibit the State from introducing evidence concerning an independent blood test. As to this issue, the record shows that on the eve of trial, Scott’s trial attorney made a motion to exclude any reference to the independent test, which had been requested by Scott’s previous attorney, arguing that the State had not provided him with any proof that an independent test was actually performed. Thus, he argued, any reference by the State to an independent test that “may or may not have taken place” would be impermissibly burden shifting. Noting that this argument seemed to ignore that Scott, rather than the State, would have the results of any independent test, the trial court denied Scott’s motion.

On appeal, Scott argues the trial court erred by denying her motion and points to “several instances throughout the trial where the independent blood test was referenced,” which she contends were highly prejudicial and improperly burden-shifting because in effect the jury was told that the State-administered blood test was in fact accurate or otherwise the defense would have introduced the results of the independent test. We find this argument unavailing for several reasons.

The transcript shows that from the beginning of the case, Scott challenged the process used to collect the blood, suggesting that the blood draw had been tainted. Further, Scott, who is an emergency room doctor, testified at length concerning what she perceived as irregularities in the collection and transmission of her blood samples, offering multiple reasons why the results of her tests may have been inaccurate, including agreeing with her counsel’s suggestion that it may not have been her blood that the State analyzed. Moreover, Scott argued in closing that “[something happened. Either it wasn’t her blood or something occurred that tainted that. . . test.”

Although Scott acknowledges that in Schlanger v. State, 290 Ga. App. 407, 414 (6) (659 SE2d 823) (2008) (physical precedent only), we previously held that testimony that a defendant had requested and had been permitted to obtain an independent test was properly admitted at trial after the defendant “hotly contested” the results of the State’s test, she argues that Schlanger is distinguishable. We disagree. Scott points out that in Schlanger, we noted that the State elicited only minimal testimony about the independent test and did not refer to the failure to produce the test results in closing argument, but she fails to mention that we appended this footnote to our statement in the opinion that the State would have been “further authorized to comment” on the defendant’s failure to produce the independent test results had it chosen to do so. Id.

Also contrary to Scott’s argument on appeal, the State in this case made only passing references to the independent test in its closing argument and in response to Scott’s closing argument that the blood tested was not her blood or that the draw was tainted, which unlike the cases Scott cites, did not rise to the level of being impermissibly burden-shifting. Compare State v. Mitchell, 326 Ga. App. 370, 372 (4) (756 SE2d 609) (2014) (impermissibly burden-shifting for the State to argue defendant failed to avail himself of the opportunity to prove his innocence by refusing to take the State’s breath test); Pinch v. State, 265 Ga. App. 1, 6 (4) (593 SE2d 1) (2003) (State attorney’s comments to the jury that defendant could have exonerated himself by taking that State’s breath test were improper). In sum, Scott is not entitled to a new trial on this basis.

3. Scott also argues that the trial court should have granted a motion for mistrial when Trooper Bailey testified about the “ultimate issue” at trial, pointing to two instances where Trooper Bailey was allowed to testify over objection that he believed Scott had an “obvious impairment” and that she “didn’t need to be driving.”

Again we find no error. This Court has held on numerous occasions that “[a] police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether he was under the influence to the extent it made him less safe to drive.” (Citation and punctuation omitted.) Jaffray v. State, 306 Ga. App. 469, 471 (1) (702 SE2d 742) (2010). E.g., Holman v. State, 329 Ga. App. 393, 401 (2) (c) (765 SE2d 614) (2014); Driver v. State, 240 Ga. App. 513, 515 (3) (523 SE2d 919) (1999); Church v. State, 210 Ga. App. 670, 671 (2) (436 SE2d 809) (1993). Additionally, the trial court gave the jury a curative or cautionary instruction to the effect that although Trooper Bailey was permitted to give his opinion concerning Scott’s level of impairment, including whether she was less safe to drive, it was solely for the jury to determine whether Scott was impaired to the extent she was a less safe driver. This enumeration is without merit.

4. Scott next contends that her conviction should be reversed because the trial court expressed an opinion and exhibited overall bias in violation of OCGA § 17-8-57. For a new trial to be required under this section, “the trial court’s comments must pertain to a disputed issue of fact.” State v. Gardner, 286 Ga. 633, 634-635 (690 SE2d 164) (2010).

Scott cites five instances where she alleges that it appeared that the trial court was assisting the State in its prosecution of the case and argues that these instances taken as a whole could demonstrate the trial court’s bias. We consider each of these instances in turn.

(a) Scott contends that the trial court improperly suggested the basis to exempt Trooper Bailey from the rule of sequestration when the trial court stated: “Well, Trooper Bailey is the prosecutor. Are you [the prosecuting attorney] asking that he be allowed to stay in the courtroom for the orderly presentation of your evidence?” However, this remark was made in the context of defense counsel’s request that Trooper Bailey be excluded from the courtroom until after the first witness testified, who was being called “out of turn” before Trooper Bailey. In order to rule on Scott’s objection, the trial court was required to exercise its discretion concerning whether to allow an exception in implementing the rule of sequestration. See Smith v. State, 324 Ga. App. 100, 103 (1) (749 SE2d 395) (2013); OCGA § 24-6-615 (2) (concerning the rule of sequestration). The trial court’s comments did not constitute a comment before the jury on a disputed issue of fact or intimate an opinion about Scott’s guilt, and the court’s ruling on this routine matter did not exhibit an unfavorable bias toward the defense.

(b) Scott also argues that it appeared that the trial court was improperly assisting the State when the trial court informed the prosecution of specific questions it needed to ask before a photograph could be introduced. This exchange occurred outside the presence of the jury as part of a colloquy in response to Scott’s objection to the introduction of an exhibit. The trial court asked the State if it had questioned the witness concerning whether the photograph was a true and accurate depiction of what was shown in the exhibit, noting that was the standard for admission. However, the trial court never expressed an opinion concerning whether the necessary showing had been made. Instead, the trial court indicated that he had not heard the witness testify to that effect and that he would not admit the photograph if the State could not lay the proper foundation or, in the alternative, would simply not rule on the objection if the State withdrew the exhibit. The State’s attorney responded that he had asked the witness the appropriate question, and the record discloses that the witness had in fact testified that the photograph was a fair and accurate representation of what was depicted. The State posed the question again when the witness resumed testifying, at which time the witness again testified that the photograph was a true and accurate representation, and the trial court admitted the exhibit following this testimony.

“Although we strongly discourage the giving of direction or the use of language that could create an appearance of alignment between the trial court and either the prosecution or defense,” the above exchange demonstrates that the trial court did not “express or intimate (its) opinion as to what has or has not been proved,” but instead engaged in a colloquy outside the presence of the jury concerning whether the standard for admission of certain evidence had been met. Gardner, 286 Ga. at 635. “The rule set forth in OCGA § 17-8-57 does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” (Citations and punctuation omitted.) Paslay v. State, 285 Ga. 616, 618 (3) (680 SE2d 853) (2009). Accordingly, this contention is without merit. See Allen v. State, 296 Ga. 785 (770 SE2d 824) (2015).

(c) Scott next contends that the trial court improperly assisted the State during Scott’s cross-examination of Trooper Bailey by interjecting what the appropriate objection should be to defense counsel’s line of questioning. As to this issue, the record shows that after the State objected on the basis that defense counsel was testifying, the trial court informed the State that it had failed to make a proper objection, and the prosecuting attorney rephrased the objection. The trial court then sustained the objection, but commented a hearsay objection would have been “better.” However, after Scott’s attorney offered an additional explanation of the nature of questions he was posing to the witness, the trial court reversed its ruling and actually aided the defense attorney in framing the question so it would not be objectionable before allowing the witness to answer the question. Viewed as a whole, we do not believe that the trial court exhibited improper bias or favoritism toward or against either the State or the defendant during this exchange.

(d) Scott also argues the trial court exhibited favoritism toward the State when during cross-examination by the State, the trial court interrupted Scott’s testimony to instruct her to answer “yes or no” before explaining her answers and cautioned her not to argue with the prosecuting attorney. Scott asserts the trial court’s conduct showed bias against Scott because the court allowed Trooper Bailey to give long narrative answers, while it curtailed Scott’s answers. The transcript reveals, however, that the trial court did not interrupt Scott while she was giving a long narrative answer and that her answer to the State’s question could in fact be viewed as nonresponsive and argumentative. Moreover, on the face of the record, the trial court appeared to act courteously toward Scott and exhibited no hostility against her. This exchange in no way violated OCGA § 17-8-57.

(e) Lastly, Scott points to a remark the trial court made during a discussion with trial counsel about where the jury would go for dinner. Scott’s trial counsel suggested that the jurors go to the “Linger Longer,” which was the restaurant where Scott admitted that she had a glass of wine the night she was stopped. The trial court made a remark about returning to the “scene of the crime” and then interjected “allegedly.” However, the trial court did not comment on a disputed fact, since Scott admitted she had a glass of wine at the restaurant the night she was stopped, and we do not believe that the jury conceivably would construe this statement made during a seemingly light-hearted exchange between defense counsel and the trial court as a commentary on the ultimate issue of whether Scott was guilty of driving under the influence. This contention thus also affords no basis for a retrial. Cf. Rouse v. State, 296 Ga. 213, 215 (2) (765 SE2d 879) (2014) (trial court’s statement “unambiguously suggested” that the essential element of venue had been established or was not in dispute).

In sum, having reviewed Scott’s contentions concerning the trial court’s alleged favorable bias toward the State, both individually and collectively, we conclude that a new trial is not warranted on this basis. Cf. Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012) (new trial required where trial judge’s remarks could he construed as a favorable comment on the credibility of a State’s witness); Johnson v. State, 278 Ga. 344, 346-347 (3) (602 SE2d 623) (2004) (new trial granted where trial court was unduly hostile to defense counsel, told counsel to “sit down and shut up,” interposed objections, berated counsel, referred to State’s witness as “our” witnesses, and instructed the State in an ex parte communication to develop the record on a certain issue).

5. Scott next enumerates as error the trial court’s refusal to give her request to charge to the effect that HGN and field sobriety tests cannot be used to quantify a blood alcohol content over 0.10 grams.

As an initial matter, we note a possible procedural impediment to our consideration of this issue. Although Scott apparently submitted her request in writing, the requested charge is not included in the record on appeal. Accordingly, we do not know the exact contents of the requested charge, which under certain circumstances might preclude our review of this enumeration. However, we will exercise our discretion to review this issue on the merits, since we are able to sufficiently glean the contents of the requested charge from the transcript.

Turning to the merits, Scott contends the trial court should have given her requested charge based on Bravo v. State, 304 Ga. App. 243, 246-249 (1) (696 SE2d 79) (2010), in which we held that the arresting officer’s testimony identifying a specific numeric blood alcohol content based solely on defendant’s HGN results should have been excluded. Thus, she argues her requested charge was authorized in this case based on Trooper Bailey’s testimony during direct examination that “in our studies and the way we were trained, just by the field sobriety alone, it is between [a] 93 and 95 percent success rate of them being a .1 or higher on the side of the road at that particular time.” However, Bravo did not concern a request to charge, and contrary to Scott’s argument on appeal, this Court has previously held that such testimony is admissible. See Kirkland v. State, 253 Ga. App. 414 (559 SE2d 161) (2002). Further, we specifically recognized this holding in Bravo, when we acknowledged that “we have previously concluded that field sobriety tests, . . . are admissible to show that a detainee’s BAC [blood alcohol content] exceeds a particular impairing level.” 304 Ga. App. at 247-248 & n. 15. The testimony we deemed inadmissible in Bravo was much narrower and more specific because it concerned the arresting officer’s identification of a specific numeric BAC level based solely on defendant’s HGN results. Accordingly, Scott has failed to show that the trial court erred by refusing to give her requested charge.

Decided June 18, 2015.

Haddad Law Group, Juwayn N. Haddad, for appellant.

Russell S. Thomas, Solicitor-General, for appellee.

6. Lastly, Scott contends that her trial counsel rendered ineffective assistance of counsel when he failed to object to other instances of Trooper Bailey’s testimony that she contends also went to the ultimate issue of whether Scott was impaired to the extent that she was less safe to drive. However, as we held in Division 3, such testimony was admissible; it therefore follows that Scott’s trial counsel was not ineffective for failing to make a meritless objection. E.g., Bonner v. State, 295 Ga. 10, 14 (2) (b) (757 SE2d 118) (2014) (defendant failed to establish ineffective assistance because he failed to show that a motion for mistrial would have been meritorious); Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010) (trial court did not perform deficiently by failing to make a meritless objection).

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs in Divisions 1, 3, 4, 5 and 6, and in judgment only in Division 2.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The trial court read on the record the order it had entered in response to this request, in which the court had ordered that Scott be provided with a sufficient portion of her blood sample to allow her to conduct an independent test.

       OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

       With express permission of Scott’s trial counsel, Trooper Bailey also gave a “guesstimate” of the level of alcohol concentration in Scott’s blood in order to answer defense counsel’s question concerning the rate at which Scott’s blood alcohol would have dissipated to the point she would be safe to drive. However, Scott does not cite to this testimony in her brief on appeal to support her argument that the trial court should have given her requested charge.

       As discussed in Division 3, trial counsel did object and move for a mistrial on two occasions during Trooper Bailey’s testimony on the basis that his testimony invaded the jury’s province to decide the ultimate issue.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A15A0473.
    EUBANKS v. THE STATE.
    (774 SE2d 146)
   DOYLE, Presiding Judge.

Following his conviction for child molestation, Roy Lucius Eubanks appeals from the denial of his motion for new trial. He contends that (1) the trial court erred by admitting evidence of a prior act of molestation because the probative value was substantially outweighed by its unfairly prejudicial effect, (2) the trial court erroneously charged the jury regarding the prior bad act evidence, and (3) the evidence was insufficient to prove intent. Finding no error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence.” So viewed, the evidence shows that 11-year-old M. T.’s family began living with Eubanks, a relative. One night, Eubanks invited M. T. and her two younger siblings to sleep in his bedroom while he slept in the living room. As M. T. was falling asleep, she felt Eubanks penetrate her vagina with his finger. Despite M. T.’s protest, Eubanks did not stop until M. T.’s stepfather happened to emerge from a nearby bedroom. At that point, Eubanks left his bedroom and resumed watching television in the living room.

The following day, M. T. reported the abuse to her stepfather, who took M. T. to see her great aunt, whom he knew to be “good with kids.” M. T. then described the abuse in more detail to the great aunt, who contacted the Department of Family and Children Services the following Monday morning. Based on an investigation by the sheriff’s department, including a forensic interview, Eubanks was arrested and charged with one count of child molestation. Eubanks was tried and found guilty by a jury, and his motion for new trial was denied, giving rise to this appeal.

1. Eubanks contends that the trial court erred by admitting evidence pursuant to OCGA § 24-4-414 (a) that he committed prior acts of child molestation. Specifically, he argues that the evidence should have been excluded under OCGA § 24-4-403 because the probative value of the evidence was substantially outweighed by its unfairly prejudicial effect. We review such an evidentiary ruling for an abuse of discretion, and we discern no such abuse here.

OCGA § 24-4-414 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” At Eubanks’s trial, the State introduced evidence that he had committed several acts of child molestation by digitally penetrating a girl from the time she was five to the time she was twelve years old, ending approximately seventeen years prior to Eubanks’s trial in this case. Eubanks argues that this evidence, while relevant, should have been excluded under OCGA § 24-4-403, which provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

This determination lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.

Here, the circumstances of the prior molestation were that Eubanks molested a niece during times she visited her father, who was Eubanks’s brother. The age of the victim during the abuse overlapped with the age of the victim in this case, and the manner of abuse was the same. These similarities make “the other offense highly probative with regard to the defendant’s intent in the charged offense.” Further, in the face of Eubanks’s attacks on the victim’s credibility, the State was able to use the evidence to show that Eubanks had a motive of seeking nonconsensual sexual contact with a minor, which was important in this case because the victim only complained of a single, isolated incident. Although somewhat remote in time, the remoteness itself did not require exclusion because of the similarity of the events and the resulting probative value of the challenged evidence. Finally, the trial court gave a limiting instruction to mitigate the risk of undue prejudice, reminding the jury “to keep in mind the limited use and the prohibited use of this evidence about the other acts of the defendant.” Under these circumstances, we discern no abuse of the trial court’s discretion in admitting the evidence of Eubanks’s similar prior sexual misconduct against a minor victim.

2. Eubanks next contends that the trial court erroneously instructed the jury that it could consider the evidence of his prior molestation to show a “disposition to commit the act of child molestation.” “On appeal, we read the jury charges as a whole to determine the presence of any error.”

Eubanks argues that the court’s charge invited the jury to make an improper inference as to his character. But the General Assembly’s recent adoption of the new Evidence Code belies this argument. In child molestation cases, the new Code explicitly provides that “evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” Courts interpreting this language have concluded that, in this specific context, showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct: “[E]vidence that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.” We see no reason to depart from the Georgia legislature’s recent and clear statement of policy on this issue. Furthermore, the trial court cautioned the jury not to consider the evidence for an improper purpose. Taken as a whole, this charge was a correct statement of law and presents no basis for reversal.

3. Finally, Eubanks contends that the evidence was insufficient to prove that he acted with the intent to arouse or satisfy his own or the victim’s sexual desires. We disagree.

Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this. While a person is not presumed to act with criminal intention, intent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

Further, when an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

As noted above, there was properly considered evidence showing that Eubanks had a disposition to sexually molest underage girls, especially in the same particular manner of which he was accused here. Further, there was evidence supporting an inference that Eubanks attempted to conceal his behavior by ensuring the victim would be in his own bedroom and stopping when interrupted by another household member awakening. These facts, along with the victim’s unheeded protests, were sufficient to prove the requisite intent for the charged offense. Based on the record before us, this enumeration presents no basis for reversal.

Decided June 23, 2015.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

       OCGA § 16-6-4 (a) (1).

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       See United States v. King, 713 F2d 627, 631 (III) (11th Cir. 1983) (in making the determination as to the admissibility of evidence under Federal Rule 403, the trial “court is accorded broad discretion, which we review only for clear abuse”). Curry v. State, 330 Ga. App. 610, 613 (1) (768 SE2d 791) (2015) (“[B]ecause our new Evidence Code is comparable to the Federal Rules of Evidence, this Court will ‘give consideration and great weight to constructions placed on the Federal Rules by the federal courts.’ ”).

       (Punctuation omitted.) United States v. Perez, 443 F3d 772, 780 (II) (11th Cir. 2006).

        United States v. Brimm,_F3d._(I) (B) (11th Cir. 2015) (per curiam) (evidence of prior sex offense against a minor admissible in subsequent prosecution for same), quoting United States v. Ramirez, 426 F3d 1344, 1354 (II) (D) (11th Cir. 2005).

       See Brimm,_F3d at_(I) (D) (per curiam) (evidence of prior sex offense against a minor was “highly probative” of motive during prosecution for similar sex offense).

       See id. at (I) (A) (per curiam) (evidence of crimes committed in 1991, 1997, and 2001 deemed admissible in 2013 trial).

        Franklin v. State, 295 Ga. 204, 208 (3) (758 SE2d 813) (2014).

       (Emphasis supplied.) OCGA § 24-4-414 (a).

       The Supreme Court of Georgia recently held that where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance. Additionally, in the event of any conflicting interpretations between the Eleventh Circuit and other federal circuit courts, we must follow the Eleventh Circuit rule. The new Georgia evidence rule governing the admission of other crimes [in child molestation cases], OCGA § [24-4-414 (a)], tracks Federal Rule of Evidence [414 (a)]. .. .
      (Citations and punctuation omitted.) Amey v. State, 331 Ga. App. 244, 247-248 (1) (770 SE2d 321) (2015).

        United States v. Levinson, 504 Fed. Appx. 824, 827 (II) (a) (11th Cir. 2013), cert. denied by Levinson v. United States,_U. S._(134 SCt 129, 187 LE2d 38) (2013). This is conceptually consistent with Georgia’s prior case law regarding trials for child molestation under the old evidence rules, which extended the admission of similar transaction evidence most liberally in cases involving sexual offenses “because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent. [This was particularly true in cases involving] the sexual molestation of young children or teenagers, regardless of the type of act. . . .” (Citations and punctuation omitted.) Dean v. State, 321 Ga. App. 731, 734 (1) (b) (742 SE2d 758) (2013). See also Chapman v. State, 318 Ga. App. 514, 521 (3) (733 SE2d 848) (2012) (“It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for the purpose of establishing bent of mind. Evidence of an earlier assault on a woman is material to the issue of consent or lack thereof and has a direct bearing on a defendant’s bent of mind.”) (punctuation omitted).

       See OCGA § 16-6-4 (a) (“A person commits the offense of child molestation when such person . .. [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .”).

       (Punctuation and footnotes omitted.) Parrott v. State, 318 Ga. App. 545, 552 (3) (736 SE2d 436) (2012).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See Hunter v. State, 194 Ga. App. 711, 713 (3) (391 SE2d 695) (1990).


author: Boggs, Judge.

text:
    A15A0088.
    BENEDEK v. THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (774 SE2d 150)
   Boggs, Judge.

Dezso Benedek, a professor at the University of Georgia, appeals from the trial court’s order dismissing his complaint against the Board of Regents of the University System of Georgia, Michael Adams, and the University of Georgia (“the original defendants”) that alleged wrongdoing in connection with disciplinary actions taken against him. He contends the trial court erred by: (1) “denying amendment of [his] complaint to add Georgia RICO claims and parties and instead dismissing the action” based upon allegations in his original complaint; (2) finding that his proposed RICO claims were barred by sovereign immunity; (3) dismissing tort claims allowed by the Georgia Tort Claims Act; and (4) denying his motion for sanctions under OCGA § 9-15-14. For the reasons explained below, we reverse in part, vacate in part, and remand this case to the trial court for further proceedings.

A summary of the procedural history of this case from Fulton County State Court to federal court and back again would not only be lengthy, but also unnecessary to the resolution of the issues before us. The relevant facts show that Benedek initially filed a complaint against the original defendants, which he later amended on multiple occasions to add additional claims following the filing of a motion to dismiss by the original defendants. Benedek also simultaneously sought the trial court’s permission to add an additional plaintiff, as well as individual defendants, through various motions and amended motions seeking leave to file his amended complaints. On March 24, 2014, Benedek filed his last amended complaint titled “Second Amended Complaint for Damages.” After considering the pending motions, the trial court issued an order in which it overlooked the effectiveness of Benedek’s last amended complaint against the original defendants. Instead, it concluded as follows:

Based on Plaintiff’s statements regarding the purpose of his proposed amended pleadings, the Court finds that Plaintiff has abandoned his tort claims. Out of an abundance of caution, however, and because it appears that Plaintiff’s voluminous pleadings nevertheless continue to assert causes of actions sounding in tort, the Court also finds that any tort claims asserted by Plaintiff are barred by the doctrine of sovereign immunity.... Having determined that Plaintiff’s tort claims are barred by the doctrine of sovereign immunity, the question becomes whether Plaintiff can circumvent the [Georgia Tort Claims Act] and avoid dismissal by amending his pleadings to assert claims under Georgia RICO. The Court concludes that he cannot Plaintiff’s tort claims are barred by the [Georgia Tort Claims Act] and the doctrine of sovereign immunity. For this reason, Defendant [s’] Motion to Dismiss those claims is GRANTED. Because Plaintiff may not circumvent the [Georgia Tort Claims Act] by amending his pleadings to bring claims under Georgia RICO[ ] statute instead of tort claims, Plaintiff’s Motion for Leave to Amend, Amended Motion to Amend, and Motion to Substitute Amended Complaint for Damages are DENIED.

1. In a compound enumeration of error, Benedek asserts that the trial court erred by denying amendment of his complaint to add RICO claims and also to add additional parties. As the law governing each of these claims is different, we analyze them separately.

(a) OCGA § 9-11-15 (a) provides:

A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires____

Our Supreme Court has held: “The right to amend is properly broad, and there is no prohibition against pleading a new cause of action. [Cit.]” Hutto v. Plagens, 254 Ga. 512, 514 (2) (330 SE2d 341) (1985). And a pending dispositive motion will not preclude a party from amending his or her pleading. See Skylake Property Owners Assn. v. Powell, 281 Ga. App. 715, 720 (3) (637 SE2d 51) (2006). Finally, a motion for leave to amend a complaint to add additional claims against existing defendants is superfluous if it is made before entry of a pretrial order. Id.

While we recognize the confusion caused by Benedek’s filing of a motion for leave to add additional parties at the same time he filed amended complaints to add new causes of action against the original defendants, the plain language of the trial court’s order denies Benedek’s request to amend his complaint to add additional claims against the original defendants. We must therefore reverse this portion of the trial court’s order; Benedek was entitled to amend his complaint as a matter of right before entry of a pretrial order or a ruling on a dispositive motion. Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556, 557 (1) (b) (332 SE2d 46) (1985) (reversing trial court’s grant of motion to dismiss and refusal to allow amendment to complaint).

(b) The record shows that the trial court denied Benedek’s motion to add new parties based upon a consideration of the merits of the claim against these parties. But this is not the proper analysis to be used by a trial court when considering a motion to add additional parties.

[W]hen a party wishes to add or drop a party by amendment, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21, which allows the dropping and adding of parties only by order of the court on motion of any party. In determining whether to allow an amendment to add a party, the trial court may consider whether the new parties will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new parties previously.

(Citation, punctuation and footnote omitted.) Riding v. Ellis, 297 Ga. App. 740, 742-743 (1) (678 SE2d 178) (2009). “Atrial court’s decision as to whether a party should be added to a lawsuit lies in the court’s sound discretion and will be overturned on appeal only upon a showing of abuse of that discretion.” (Citation and punctuation omitted.) Rasheed v. Klopp Enterprises, 276 Ga. App. 91, 92 (1) (622 SE2d 442) (2005). As the trial court failed to consider the proper standard for the addition of parties, we must vacate its order denying the motions to amend the complaint as they relate to the adding of parties and remand for the trial court to exercise the appropriate discretion in that regard. See Richards v. Wells Fargo Bank, 325 Ga. App. 722, 726-728 (5) (b) (754 SE2d 770) (2014).

Decided June 24, 2015.

Stephen F. Humphreys, for appellant.

Samuel S. Olens, Attorney General, C. McLaurin Sitton, Bryan K. Webb, Senior Assistant Attorneys General, for appellees.

2. In related enumerations of error, Benedek asserts that the trial court erred by dismissing his action. Based upon our review of the trial court’s order, we are able to discern that it intended to dismiss Benedek’s tort claims. We cannot ascertain, however, whether the trial court dismissed the tort claims asserted in the March 24, 2014 Second Amended Complaint for Damages, which replaced all other preceding complaints, because the trial court also denied Benedek’s motion to file this amended complaint in its entirety and did not analyze his request to amend the entire complaint separately from his simultaneous request to add parties. We therefore vacate the trial court’s order granting the motion to dismiss and remand this case for the trial court to consider whether the claims asserted against the original defendants in the March 24, 2014 Second Amended Complaint are subject to dismissal on the merits.

3. Benedek’s remaining claim of error in connection with his motion for sanctions is rendered moot by our holding in Divisions 1 and 2.

Judgment reversed in part and vacated in part, and case remanded with direction.

Phipps, C. J., and Doyle, P. J., concur.


author: BARNES, Presiding Judge.

text:
    A15A0062.
    PONDER v. THE STATE.
    (774 SE2d 152)
   BARNES, Presiding Judge.

A jury convicted Demacio Ponder of ten offenses, and the trial court sentenced him to life in prison on convictions for rape and two counts of aggravated child molestation, ten years to be served consecutively in custody followed by ten years on probation for cocaine possession with intent to distribute, with additional time for the other offenses to be served consecutively. After the trial court denied his motion for new trial, Ponder appealed, arguing that the evidence was insufficient to sustain his convictions for rape and one of the two aggravated child molestation counts and that his trial counsel was ineffective for failing to reasonably challenge the State’s DNA evidence and for failing to object to improper testimony and closing argument. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict,

and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) McMillian v. State, 263 Ga. App. 782, 783-784 (1) (589 SE2d 335) (2003).

So viewed, the evidence in this case established that the 15-year-old victim reported to her boyfriend that she had been molested by her father, Ponder. The victim’s mother testified that when she drove up to the boyfriend’s house to pick up her daughter, the boyfriend yelled out that the victim was pregnant by her father. The victim left with her mother, who flagged down a uniformed officer in a patrol car and reported to him that she just found out that her daughter had been sexually assaulted by her father and was pregnant. The officer directed the victim and her mother to police headquarters, and the case was assigned to a detective with the Special Victims Unit who primarily worked on sex crimes involving minors.

The victim was examined in a local children’s hospital by an emergency room doctor for the chief complaint of sexual assault. The victim admitted to vaginal and oral penile penetration, and tested positive for pregnancy. An examination revealed no physical findings or DNA related to sexual assault. The doctor testified that the victim reported that she had been physically assaulted a week or two previously, and the doctor found several bruises on the victim’s torso that were more than a day old.

The victim’s eight-week pregnancy was terminated and the products of conception were released to the detective and ultimately examined by a forensic biologist with the GBI crime lab who was an expert in DNA profiling. The expert explained that he was unable to obtain a complete DNA profile from the genetic material because it contained predominantly female DNA, which probably belonged to the victim, with only a very small portion containing male DNA, which probably belonged to the fetus. Being unable to develop a complete profile of all 23 pairs of chromosomes, which would have given a very exacting match, he was able to examine only the Y chromosome, or haplotype (meaning half of a chromosome pair), which establishes only paternal lineage. The expert determined that the haplotype was the same as Ponder’s but not the same as the victim’s boyfriend, thus excluding the boyfriend as a possible contributor to the genetic material he tested. He also testified that all males related to the father in any degree had this haplotype, and that, based on a formula applied to a limited database of male haplotypes in the United States, approximately one in 940 African-American men shared this particular haplotype.

The victim, who was 18 as of trial, testified that she did not have a relationship with Ponder until she was 13, after Ponder’s grandmother died in 2008. After that, she began to spend weekends with Ponder because her mother was concerned about the victim’s relationship with her boyfriend and thought she needed a male role model. Several people lived in the same house as Ponder, including his mother, his sister and her two children, two or three uncles, and occasionally Ponder’s son. In 2009, the victim began living at Ponder’s house during the week, normally sleeping in his room, sometimes in pajamas but sometimes in her street clothes because the house had “a lot of bugs.”

The victim testified that when she told Ponder that she wanted to be a criminal forensic specialist when she grew up, he said he would show her something else, and taught her “how to sell dope.” He taught her how to weigh the dope, put it into packages, and place the packages in the freezer “until somebody comes.” If Ponder was not present when someone came to buy the dope, she sold it to them.

The victim testified that she generally slept in Ponder’s bedroom when she stayed with him, and that Ponder had molested her there between five and ten times. Despite the State’s efforts to clarify which specific parts of Ponder’s body touched which specific parts of the victim’s body, the victim’s testimony was somewhat indirect. She testified that Ponder felt her with his hands over his clothes in her “lower area.” When asked to identify which part of her lower area Ponder touched, the victim said her “front side,” and when asked what she did with that area or what it was for, she responded, “To pee.” When asked if Ponder touched any other areas, the victim testified that Ponder got on top of her, removed both of their clothes, and “started having sex with me,” further explaining that he had inserted his penis into her. When asked what part of her body Ponder inserted his penis into, the victim replied, “In my pants area.” The State asked, “In your panties?,” and she responded yes. She also testified that Ponder’s penis touched her bottom and his mouth touched her “pants area.” Finally, when asked if her mouth touched any part of Ponder’s body, the victim said yes, and when asked “Besides his penis?,” she said no.

Finally, the victim testified that on the last occasion she saw Ponder before her outcry, they were at the house of her little brother’s mother, where Ponder asked her to clean her brother’s room. When she said no, Ponder punched her in the face and the back of the head and banged her head on the hardwood floor. She ran out of the door when Ponder went to the restroom and went first to her godmother’s house and then to her mother’s house. When asked why she had not returned to her mother’s house when the molestation first occurred, she responded that she did not know but that she did not want to be at her mother’s either because the two-bedroom residence was already crowded with her mother’s boyfriend and his two children, with whom she did not get along.

The detective testified that a search of Ponder’s bedroom pursuant to a warrant uncovered a bulletproof vest, identification and paperwork with Ponder’s name on it, a loaded .38 caliber handgun, small baggies, a scale, a plate with white residue on it, and 25 individual packages of cocaine in a freezer. Based on the detective’s experience, he testified that amount of cocaine was not for personal use but for distribution, and the scales and baggies were tools used by drug dealers.

After the State rested, the trial court granted Ponder’s motion for a directed verdict on two counts of the indictment, one that accused Ponder of child molestation for placing his hands on the victim’s breasts and one that accused him of sexual battery for making physical contact with the victim’s breasts. The jury then convicted Ponder on eight counts, finding him not guilty only on Count 10, which charged him with cruelty to children in the first degree for maliciously causing the victim cruel and excessive mental pain by forcing her to package and sell cocaine.

The jury subsequently considered Count 13 of the indictment charging Ponder with possession of a firearm after being convicted of theft by receiving stolen property. The State introduced a certified copy of that conviction, both sides argued, and the trial court charged the jury as to the law regarding that offense. The jury also found Ponder guilty on that count.

1. Ponder contends that the evidence was insufficient to sustain his convictions for rape and aggravated child molestation by placing his mouth on the victim’s female sex organ to arouse and satisfy his sexual desires.

(a) Although Ponder has not challenged the sufficiency of the evidence regarding the other eight counts for which he was convicted, we find that the evidence as summarized above was sufficient for a rational trier of fact to have found him guilty of those crimes — incest, sexual battery, a second conviction for aggravated child molestation, child molestation, sexual battery, cruelty to children in the first degree, contributing to the delinquency of a minor, cocaine possession with intent to distribute, and possession of a firearm by a convicted felon — beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); New v. State, 327 Ga. App. 87, 89 (1), n. 5 (755 SE2d 568) (2014).

(b) Ponder argues that the evidence was insufficient to sustain his rape conviction because the State failed to introduce evidence of the essential element of force. Ponder was indicted for violating OCGA § 16-6-1 by having carnal knowledge of the victim forcibly and against her will, and was not indicted for or convicted of statutory rape. The indictment thus charged the essential elements of the crime of forcible rape: (a) carnal knowledge, definedinOCGA § 16-6-1 (a) as “any penetration of the female sex organ by the male sex organ,” (b) forcibly, meaning with the use of “acts of physical force, threats of death or physical bodily harm, or mental coercion,” and (c) against the victim’s will, meaning without her consent. State v. Collins, 270 Ga. 42, 43 (508 SE2d 390) (1998).

In this case, as described previously, the victim testified that Ponder inserted his penis into her, and upon further questioning identified the part of her body into which Ponder inserted his penis as her “pants area,” which, along with other evidence that the victim became pregnant and thought the pregnancy was by Ponder, constitutes sufficient evidence of the element of carnal knowledge.

Further, “[t]he fact that a victim is under the age of consent may supply the ‘against her will’ element in a forcible rape case since it shows that the victim is incapable of giving legal consent.” Collins, 270 Ga. at 43. See also Drake v. State, 239 Ga. 232, 233 (236 SE2d 748) (1977), superseded by statute on other grounds. The State’s evidence that the victim in this case was 14 or 15 when the acts occurred is sufficient to establish that the act was committed against her will.

Finally, although the victim’s age of 15 does not establish the required element of force, the State was required to present only minimal evidence of force because the victim was under the age of consent. Thomas v. State, 306 Ga. App. 8, 9 (701 SE2d 525) (2010). In such a case, intimidation may substitute for force. “Further, force may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.” (Citation and punctuation omitted.) Wightman v. State, 289 Ga. App. 225, 228 (1) (656 SE2d 563) (2008).

After questioning the victim about the specifics of the acts for which Ponder was indicted, the State asked her, “Did you want to do those things with your father in his room?” The victim responded, “No, ma’am,” and the following exchange took place:

[STATE]: Why did you do those things if you didn’t want to?
[VICTIM]: I don’t know.
[STATE]: Did — tell me what was going on in your mind. Tell me what you were thinking.
[VICTIM]: In my mind I knew it wasn’t right and I knew I should tell somebody. But, like I said, I wouldn’t tell my sister because I knew that she would tell my mama. And everything would just come down to losing my mama. I didn’t want to lose my mama.
[STATE]: Did you want to help your dad sell the drugs?
[VICTIM]: No, ma’am.
[STATE]: So what was going through your mind when you were doing those things?
[VICTIM]: Nothing.
[STATE]: How did you feel about him back then?
[VICTIM]: How did I feel?
[STATE]: Uh-huh.
[VICTIM]: I just always felt like if a father loved his child, he wouldn’t make a child do things like that.
[STATE]: During any of the time that this was going on, did he ever say anything to you or talk to you about it?
[VICTIM]: No, ma’am.

(Emphasis supplied.)

As stated previously, “the quantum of evidence to prove force against a child is minimal. And such force may be proven by direct or circumstantial evidence.” (Citation and punctuation omitted.) Haynes v. State, 326 Ga. App. 336, 338 (1) (756 SE2d 599) (2014). The victim testified that she felt that if Ponder loved her, he would not make her do “things like that.” Based upon this and other evidence at trial, we find that the jury was authorized to find Ponder guilty of rape beyond a reasonable doubt.

(c) Ponder argues that the State failed to introduce sufficient evidence to sustain his conviction for aggravated child molestation, Count 3. The indictment charged Ponder with the offense of aggravated child molestation by placing his mouth on the victim’s female sex organ with the intent to arouse and satisfy his sexual desires, and Ponder contends that the only direct evidence pertaining to this charge was the following:

[STATE]: Did his mouth touch any part of your body?
[VICTIM]: Yes, ma’am.
[STATE]: In what part of your body?
[VICTIM]: My pants area.

Ponder further contends that the vague description “pants area,” absent additional testimony, is not enough to allow the jury to infer that the victim meant that Ponder placed his mouth on her female sex organ as charged in Count 3.

As previously described, while exploring the specifics of the victim’s testimony regarding the act of sexual intercourse, the State asked her, “What parts of your body did he insert his penis into?” She answered, “In my pants area.” From this testimony the jury could infer that when the victim subsequently testified that Ponder’s mouth touched her “pants area” she meant her female sex organ. See Hernandez v. State, 319 Ga. App. 876, 877-878 (1) (738 SE2d 701) (2013) (victim’s testimony that defendant placed his mouth on her “lower private area” was sufficient for jury to infer that victim was referring to her vagina). Accordingly, we conclude that the State presented sufficient evidence to sustain the conviction for this count of aggravated child molestation.

2. Ponder claims his trial counsel was ineffective in several respects. Ineffective assistance is a deficient performance by counsel resulting in actual prejudice to the client. Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). On appellate review of an ineffective assistance of counsel claim, this court accepts the trial court’s credibility determinations unless they are clearly erroneous, but reviews the trial court’s legal conclusions de novo. Lucas v. State, 328 Ga. App. 741, 745 (2) (760 SE2d 257) (2014).

(a) Ponder first contends his trial counsel was ineffective for failing to reasonably challenge the State’s DNA evidence by calling an expert to rebut the State’s interpretation of the test results. Before trial, Ponder’s trial counsel filed a motion in limine to exclude the DNA testing results. During a pre-trial hearing on the motion, he argued that because the mother’s DNA so “overwhelmed” that of the fetus at six weeks, it would have been extremely difficult to generate a complete DNA profile to determine whether Ponder was responsible for the conception. Instead, the “Y-STR” test that was performed determined only that the victim’s boyfriend could not have impregnated the victim but that Ponder could have, along with any other male relative of his, no matter how remote the relationship.

Ponder’s counsel argued during the hearing that the anticipated testimony of the State’s GBI crime lab expert was that 1 in 940 male African-Americans had this particular Y haplotype, which meant that almost 500 out of Atlanta’s population of 500,000 African-American men would also have that haplotype. Without more specific profiling, he argued, the DNA evidence was more prejudicial than probative. After exploring the statistical evidence further, the trial court noted that Ponder was not challenging the validity of the science behind the test but was arguing that it was inadmissible because it was too prejudicial. The court denied the motion in limine, concluding that the evidence was relevant and probative, and that the prejudicial aspects of the evidence could be explored through rigorous cross-examination.

At trial, as noted earlier, the DNA profiling expert testified about why he could not perform a complete DNA profile on the genetic material and that his limited testing excluded the victim’s boyfriend but not Ponder or any of his male relatives. He also testified that this Y haplotype matched none of the haplotypes included in the largest database available, which contained a total of 8,487 haplotypes, 2,841 of which were from African-American males. He further testified that “the actual statistic generated of saying how common or how frequent would you find this type among the general population, or in this case the African-American population,” was 1 in 940. The State asked how he could estimate that the haplotype would be found in one of 940 African-American males when it matched none of the haplotypes in the database, he responded, obscurely, “The statistic takes the basically how frequent would you find this amongst in the database for the markers being put in [sic].”

On cross, Ponder’s counsel elicited details from the expert about the database, including how it was assembled and that it contained duplicates of some haplotypes. The expert also testified on cross that certain haplotypes could be clustered geographically depending on migration patterns and could appear in different numbers within “discrete racial groups.” On re-direct, confusingly, the expert testified that the database did not include duplicate haplotypes because that would skew the estimate of how frequently a particular haplotype occurred within the populations. In closing, trial counsel pointed out that the State presented no evidence that any of Ponder’s male relatives were even interviewed, that this haplotype did not appear in the database at all, and that no evidence showed where the haplotypes in the database came from or how frequently they might appear in the South.

At the hearing on his motion for new trial, Ponder called an expert in forensic DNA analysis to testify. The expert testified that the database from which the GBI expert derived his ratio of 1 in 940 consisted of all the Y haplotypes the federal government was able to gather from about 20 agencies around the country. The ratio was based on a formula, and when the formula was applied to a larger database, a single haplotype would appear to be rarer.

Ponder’s trial counsel testified that he had obtained from the GBI all of the information it had related to the DNA testing, reviewed it, researched the issue, retained a biologist at Georgia Tech who reviewed the material, discussed the issue with the biologist, and talked to the GBI biologist who did the test. The Tech biologist told him that the test did not exclude Ponder as the donor and briefly explained how the ratio of 1 in 940 was generated. Trial counsel admitted that he did not question the GBI expert in detail at trial regarding that ratio, and agreed it would have been helpful to the defense if he had brought out the fact that the ratio changed depending on the number of haplotypes contained in the database. However, based on his consultation with the biologist, who did not indicate that the GBI examiner had made any error in the testing, trial counsel testified that he saw no point in calling his own expert witness. He thought that belaboring the DNA results would not be in Ponder’s best interest because the evidence was very damaging and would not improve by having another expert draw more attention to it. Trial counsel noted that he had extracted a lot of testimony about numbers during his cross-examination of the GBI expert, and thought that the jury did not “seem particularly interested in the DNA by the time we were done.”

In its order denying Ponder’s motion, the trial court reviewed trial counsel’s testimony that the DNA evidence was “very damaging and simply would not get any better by having another expert come in to discuss it.” The court opined that, while the presentation of Ponder’s DNA expert at the motion for new trial hearing

was more sophisticated (and more accessible) than the GBI Crime Lab forensic analyst’s testimony at trial, the ultimate conclusion was the same: Defendant or a male blood relative of his had sex with [the] fifteen-year-old [victim]. And, as trial counsel made clear, because there were no alternative male relatives of Defendant that the defense could plausibly point to, emphasizing this scientific fact was not in his client’s best interest.

The trial court concluded that the decision whether to call an expert witness was a matter of trial strategy within the broad range of professional conduct afforded trial attorneys, citing Davis v. State, 290 Ga. 584, 586 (2) (a) (723 SE2d 431) (2012).

We agree with Ponder that the GBI expert’s explanation of how he derived the “1 in 940” ratio was less than clear, and that the testimony of Ponder’s expert at the post-trial hearing showed that this ratio was malleable. But regardless, the main point was that the test excluded the boyfriend and did not exclude Ponder.

Further, even if the jury had been thoroughly tutored about the fact that the formula does not literally establish how frequently the haplotype occurs in the population, the State still could have presented evidence that the application of the formula to the database was an accepted scientific method of estimating that frequency. As the trial court noted during the motion for new trial hearing, the database would only grow larger as time went on, and Ponder’s expert testified that applying the formula to a bigger database would only result in estimates that any particular haplotype was rarer, which was hardly helpful to Ponder’s defense. We conclude that the trial court did not abuse its discretion in holding that the decision of Ponder’s trial counsel not to call a DNA expert was not deficient performance and did not constitute ineffective assistance of counsel.

(b) Ponder contends his trial counsel was ineffective for not objecting to the testimony of the victim’s mother that vouched for her daughter’s credibility. The mother testified that when the victim’s boyfriend told her that the victim was pregnant by Ponder, she “instantly knew that because I had already had that woman instincts [sic].” When the State asked about her testimony that she knew about the crimes, she responded, “I had had that suspicion. I’m spiritual. And it just kept coming to me. And I would ask her, you know, I had — it was like God was preparing me.” Finally, she testified that she had been suspicious because she was “an older woman, knowing the promises that an older man will tell a girl. I just suspected it. Just — it was my gut instinct saying something is not right. But I couldn’t get the answer from her.”

Ponder argues that his trial counsel should have objected to this testimony because it constituted improper bolstering, particularly in this case where the primary evidence against Ponder was the victim’s testimony. Ponder is correct that the credibility of a witness is for the jury to determine, and that the mother’s testimony could be construed as bolstering the victim’s testimony. See Granger v. State, 320 Ga. App. 580, 582 (1) (740 SE2d 313) (2013). But trial counsel explained that his theory of defense was that the victim’s mother was so biased against Ponder that she was ready to believe whatever bad things the victim said about him, so he wanted her to keep talking as much as possible to display her bias. Additionally, he thought that the more the mother testified, the crazier she sounded and therefore he did not object when she testified about her suspicions, her gut instincts, her “woman instincts,” and her spirituality. Trial counsel testified at the new trial hearing that he used the mother’s testimony to his advantage during his cross-examination of her, which brought out that, despite her professed suspicions, she continued to let her daughter go stay with Ponder overnight. During closing, he argued that the fact that the victim’s mother did not like Ponder was apparent from her demeanor on the stand, and that she was “quite willing to believe the very worst of Mr. Ponder the second she heard” the victim’s accusations. Trial counsel’s decision not to object to the testimony of the victim’s mother that she believed her daughter was thus strategic in nature, and the trial court did not err in concluding that trial counsel was not ineffective on this ground.

(c) Ponder asserts his trial counsel was ineffective for failing to object when the State in closing referred to facts not in evidence (standing in the victim’s closet and picking a dress for her to wear and the victim having to take a break to go hug her mom in the hall) and violated the Golden Rule by asking the jurors to place themselves in the victim’s position (asking the jurors to imagine how hard it would be to tell strangers that your father raped you). Counsel testified that he made a deliberate strategic choice not to object at this point because he had emphasized in closing that the victim cried during her direct examination but had a different, “fairly confrontational” demeanor during cross-examination. He “made a big deal” in his closing about how genuine the victim’s emotions were, so he thought that if the State wanted to argue that the victim “was emotionally-upset the whole time, when clearly she was not, then that was fine.” Further, he argued in closing that the prosecutor had told the victim how to wear her hair and had picked out a dress for her. The decision not to object was therefore clearly strategic. The trial court did not err in concluding that Ponder did not show “that no competent attorney, under similar circumstances, would have made” that decision, citing Bowie v. State, 286 Ga. 880, 883 (3) (b) (692 SE2d 371) (2010), and that trial counsel’s performance was not ineffective on this ground.

(d) Finally, Ponder argues his trial counsel was ineffective for failing to object when the State argued in closing that “[t]elling someone that you participated in incest with your father is not a lie that people tell.” He also contends trial counsel should have objected when the State argued that it would have done no good to test the DNA of every male in the house because “if there was any man on the planet that was going to come in here and say, I did it, here is my DNA and it matches, then that would have been the first thing you heard.” Ponder contends that the State improperly vouched for the victim’s credibility in these instances and that it was unreasonable for trial counsel not to object.

It is improper for the State to vouch for a witness’s credibility. Collier v. State, 266 Ga. App. 345, 357 (3) (b) (596 SE2d 795) (2004). The State argues here that it was not vouching as to the victim’s credibility but was rather drawing an inference from the evidence presented, but trial counsel admitted in the motion for new trial hearing that the arguments could be seen as vouching and that he had no strategic reason not to object.

But even assuming counsel’s conduct was deficient in this respect, the vouching in this case was only implied and occurred [during closing argument]. The jury was properly instructed that the credibility of the witnesses was for them to determine considering all the facts and circumstances of the case, and that the evidence in the case does not include the opening statements or closing arguments by the attorneys or the questions asked by the attorneys. Given the substantial evidence of [Ponder’s] guilt, we agree with the trial court’s conclusion that failure to object to the complained-of question in this case did not undermine the fundamental fairness of the trial.

Bell v. State, 294 Ga. 443, 445-446 (2) (754 SE2d 327) (2014).

Judgment affirmed.

Ray and McMillian, JJ., concur.

Decided June 25, 2015.

Margaret E. Flynt, for appellant.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

       Ponder was also convicted of incest, child molestation, sexual battery, cruelty to children in the first degree, contributing to the delinquency of a minor, and possession of a firearm by a convicted felon.

       While our court has stated in Haynes v. State, 326 Ga. App. 336, 338 (1), n. 3 (756 SE2d 599) (2014), Thomas v. State, 306 Ga. App. 8, 9, n. 2 (701 SE2d 525) (2010), and Stover v. State, 293 Ga. App. 210, 212 (1) (a), n. 2 (666 SE2d 602) (2008), that Collins was superseded by statute, citing State v. Lyons, 256 Ga. App. 377 (568 SE2d 533) (2002), Lyons did not so hold. Rather, this court in Lyons noted that, pursuant to a suggestion in Collins, the legislature amended the forcible rape statute to remove the force element ifthe victim is younger than ten. OCGA § 16-6-1 (a) (2). Collins remains good law. See Mangrum v. State, 285 Ga. 676, 682 (9) (681 SE2d 130) (2009).

       The age of consent at common law was 10. The codification of statutory rape in the Georgia Penal Code of 1910 raised the age of consent to 14, and a subsequent revision to OCGA § 16-6-3 (a) in 1995 raised the age to 16, where it now stands. Collins, 270 Ga. at 49 (Hunstein, J., dissenting).

       “Y” refers to the fact that the test looks at only the Y chromosome rather than the other 45 chromosomes that comprise human DNA, and “STR” stands for “short tandem repeats,” a method of amplifying the available genetic material for testing.


author: Branch, Judge.

text:
    A15A0162.
    CARAWAY et al. v. SPILLERS.
    (774 SE2d 162)
   Branch, Judge.

Phillip and Wendy Caraway and Matt Toland Spillers have deeds to the same property. Spillers filed suit to cancel the Caraway deed and for declaratory relief, and the trial court granted summary judgment in favor of Spillers because Spillers recorded his deed first. On appeal, the Caraways contend that there is an issue of fact as to whether their possession of the property put Spillers on notice of their claim of title to the property. We agree and reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of the Caraways, the record shows that Nettie Spillers is the mother of Spillers and the grandmother of Wendy Caraway; Spillers is Wendy Caraway’s uncle. In 1988, Nettie deeded two acres of real property to the Caraways. Immediately upon obtaining the deed, the Caraways went into possession of the property, placed a manufactured home on the property, and began to maintain their residence on the property. The Caraways did not, however, record the deed at that time. The Caraways “openly, peaceably and notoriously” lived on and maintained the property from 1988 until approximately 2011, a period of approximately 23 years. During that time, Spillers was fully aware that the Caraways lived on the property. In fact, Spillers visited the property at least once a year through the date this civil action was filed.

On April 11, 2003, Nettie deeded the same two acres of real property to Spillers, and Spillers caused the deed to be recorded three days later. Spillers avers that at the time, he was unaware of the existence of the Caraway deed. The Caraway deed was finally recorded on May 15,2003, approximately one month after Spillers recorded his deed.

On February 4, 2011, Spillers filed a verified complaint seeking cancellation of the Caraway deed, a declaration that he is the true and lawful owner of the property, and attorney fees. The Caraways filed a verified answer and raised certain defenses, including that they had acquired title by adverse possession.

Following discovery and a hearing on Spillers’s motion for summary judgment, the trial court found as a matter of fact that although the Caraway deed preceded the Spillers deed, it was not recorded until after the execution and recording of the Spillers deed. The court then concluded that as a consequence of being recorded after the Spillers deed, the Caraway deed was null and void. The court therefore granted the motion for summary judgment and declared that Spillers had a fee simple interest in the property free and clear of any claim by the Caraways. The Caraways appeal.

It is true that in Georgia, “a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed.” OCGA § 44-2-1. But it is also true that “[possession of land shall constitute notice of the rights or title of the occupant.” OCGA § 44-5-169. And such notice “is not limited, as notice, to what would be discovered by an examination of the public records.” Wren v. Wren, 199 Ga. 851, 856 (1) (36 SE2d 77) (1945) (citations omitted). Moreover, Georgia law provides:

Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.

OCGA § 23-1-17. And “[h]e who takes with notice of an equity takes subject to that equity.” OCGA § 23-1-16. Thus, in Terrell v. McLean, 130 Ga. 633 (61 SE 485) (1908), the Supreme Court held:

The notice of the occupant’s title given by possession is analogous to the constructive notice afforded by the registration of the deed. It is incumbent upon one who purchases or contracts for a lien on land to inquire into the right of any person in possession thereof; and such possession charges the former with notice of whatever title or right the occupant really has in the premises.

Id. at 636 (citations omitted). In other words, actual, open, visible, exclusive and unambiguous possession puts another on notice of the possessor’s prior deed, whether recorded or not. Id.; see also McDonald v. Taylor, 200 Ga. 445, 450-451 (1) (37 SE2d 336) (1946) (actual, open, visible, exclusive and unambiguous possession at the time a third party purports to purchase the property puts the third party on notice of inquiry as to the possessor’s interest and will defeat the third party’s claim even if the third party records his interest prior to the possessor’s interest).

Decided June 25, 2015.

Pasley & Nuce, Adam R. Nagel, for appellants.

Smith, Welch, Wehb & White, L. Scott Mayfield, for appellee.

Construed in favor of the Caraways, the record shows that there is an issue of fact as to whether the Caraways’ possession of the property put Spillers on inquiry notice of the Caraways’ title in the property. Accordingly, the trial court erred by granting summary judgment in favor of Spillers. Because we reverse, we need not reach other arguments raised by the Caraways.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.