Abernathy v. State

• Decision Date: 19 August 2020
• Docket Number: A20A1459
• Citation: 849 S.E.2d 489,357 Ga.App. 732
• Court: Georgia Court of Appeals
• Parties: ABERNATHY v. The STATE.

357 Ga.App. 732

849 S.E.2d 489

ABERNATHY

v.The STATE.

A20A1459

Court of Appeals of Georgia.

August 19, 2020

Reconsideration Denied November 12, 2020

Certiorari Denied June 21, 2021

Ashleigh Bartkus Merchant, Marietta, for Appellant.

George R. Christian, Macon, Anthony Daniel Pickett, for Appellee.

Per Curiam.

Following a jury trial, Michael Abernathy was convicted of child molestation and enticing a child for indecent purposes.¹ Abernathy filed a motion for new trial, which the trial court denied. Abernathy appeals, arguing that the admission of the victim's trauma narrative violated his rights under the Sixth Amendment's Confrontation Clause and that his trial counsel rendered ineffective assistance in failing to object to the admission of this evidence. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State , 263 Ga. App. 488, 488 (1), 588 S.E.2d 239 (2003). So viewed, the evidence here shows that around Thanksgiving 2016, S. A., who was then 12 years old, disclosed to a friend that Abernathy, her stepfather, forced her to have sex with him. S. A.’s mother learned of the disclosure and confronted Abernathy, who denied having sex with S. A. and claimed that she had climbed into bed with him, touched him, and tried to kiss him and make him touch her breasts.

S. A. participated in a forensic interview shortly after the incident. During this interview, S. A. struggled to talk about the incident but reported that Abernathy summoned her to bed, placed his arm over her, rolled her onto her back, laid on her, and forced her to have sex with him or touched her vaginal area with his penis area, and that afterwards she took a bath and he apologized and told her not to tell anyone.

S. A. subsequently attended therapy, during which she initially struggled to talk about the details of the incident but eventually prepared a trauma narrative describing it. S. A. stated in the narrative that:

[Abernathy] swung his leg over me. He straddled me. We were face-toface. He took off my underwear with his hands.... My nightgown was pulled up just below my breasts. He pulled it up. Pretty sure he did this with his hands. He was wearing a pair of gray boxers. He kept them on the whole time. They had a flap in the front. I wasn't able to tell if his penis was coming through there. His penis was near my vagina. I'm not sure if it went inside. His penis felt hard. I don't remember where his hands were. I'm almost positive he moved up and down when his penis was near my vagina. I don't remember how it felt. He didn't say nothing during it....

He got off me. He rolled on his side. He handed me my underwear, told me to put them back on, and said he was sorry. He told me not to tell anyone or he would go to jail. I went and took a bath.

Without objection from Abernathy, the narrative was admitted into evidence at trial pursuant to the child hearsay statute, OCGA § 24-8-820.

At trial, S. A. testified that Abernathy woke her up and told her to come to bed with him; while under the bedsheets, he placed his arm over her and rolled her onto her back; and he then did something inappropriate that made her feel uncomfortable. S. A. testified that after the incident she felt sad and needed to take a bath, and Abernathy apologized and told her he would go to jail if she told anyone about it. Abernathy's counsel cross-examined S. A., asking for further details of the incident, but she stated that it was too emotionally difficult for her to discuss such details.

In his motion for new trial, Abernathy claimed for the first time that the admission of the trauma narrative pursuant to OCGA § 24-8-820 violated his rights under the Confrontation Clause because (i) the child hearsay statute does not require that the child victim's statement bear indicia of reliability in order to be admitted at trial, and (ii) S. A. was not truly available for cross-examination because she refused to discuss the incident and essentially relied on her trauma narrative for details. Abernathy also claimed that his trial counsel rendered ineffective assistance by failing to object to the admission of the trauma narrative. The trial court denied the motion, and this appeal followed.

1. Abernathy reiterates his claim that the admission of the trauma narrative violated his Confrontation Clause rights because (i) the child hearsay statute does not require that the child victim's statement bear indicia of reliability, and (ii) S. A. was not truly available for cross-examination. Because Abernathy did not challenge the admission of the trauma narrative until his motion for new trial, this claim is only subject to review for plain error affecting his substantial rights.² See White v. State , 305 Ga. 111, 113 n. 2, 823 S.E.2d 794 (2019) ; Simpson v. State , 353 Ga. App. 568, 571 (2), 839 S.E.2d 47 (2020) ; Latta v. State , 341 Ga. App. 696, 702 (3), 802 S.E.2d 264 (2017) ; see also OCGA § 24-1-103 (d) ("Nothing in this Code section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court."). However, Abernathy cannot establish error, let alone plain error, for two reasons: (i) the Confrontation Clause does not guarantee the reliability of hearsay statements, and (ii) S. A. testified and was available for cross-examination at trial.

At the time of Abernathy's offenses in 2016, OCGA § 24-8-820, the child hearsay statute, provided:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another ... shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such outof-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child's testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

See Ga. L. 2013, pp. 222, 237-238, § 13. Previously, the statute had provided:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

See OCGA § 24-8-820 (Jan. 2013 - June 2013); former OCGA § 24-3-16.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford v. Washington , 541 U. S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court overturned the "indicia of reliability" test as laid out in Ohio v. Roberts , 448 U. S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980),³ and held that the Confrontation Clause bars the admission of out-of-court statements of an unavailable witness when (i) the statements are testimonial in nature, and (ii) the defendant does not have a prior opportunity to cross-examine the witness about the statements. The Supreme Court explained in Crawford that

when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

541 U. S. at 59 n. 9 (IV), 124 S.Ct. 1354 (citations and punctuation omitted); see also id. at 61 (V) (A), 124 S.Ct. 1354 ("Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."); Franklin v. State , 298 Ga. 636, 640 (2), 784 S.E.2d 359 (2016) (after Crawford , whether a hearsay statement bears sufficient indicia of reliability is irrelevant to a Confrontation Clause analysis).

Accordingly, even assuming that S. A.’s statements in the trauma narrative were testimonial,⁴ no Confrontation Clause violation occurred here because (i) the Clause does not require that hearsay statements be reliable in order to be admissible, and (ii) S. A. testified and was available for cross-examination at trial. See Cornell v. State , 349 Ga. App. 883, 884-885 (2), 827 S.E.2d 63 (2019) (admission of evidence pursuant to child hearsay statute did not violate defendant's rights under Confrontation Clause, where victim testified at trial and was cross-examined by defendant).

Abernathy relies on two Georgia cases, Hatley v. State , 290 Ga. 480, 722 S.E.2d 67 (2012), and Matabarahona v. State , 335 Ga. App. 25, 780 S.E.2d 731 (2015) (physical precedent only), to support his contention that the Confrontation Clause conditions the admissibility of a hearsay statement on its reliability. Abernathy's reliance on these cases is misplaced because they analyzed the prior versions of the child hearsay statute, which conditioned, as a matter of statutory law, admissibility of the child victim's statement on a showing of the statement's reliability. These cases did not hold that the Confrontation Clause itself...