Adams v. State, A19A0577
| Decision Date | 04 June 2019 |
| Docket Number | A19A0577 |
| Citation | 350 Ga.App. 340,829 S.E.2d 412 |
| Parties | ADAMS v. The STATE. |
| Court | Georgia Court of Appeals |
Jenny Carver Rose, for Appellant.
William Jeffrey Langley, Faizah Shabazz, for Appellee.
A jury found David Lewis Adams, Jr. guilty of rape, aggravated child molestation, incest, aggravated sodomy, child molestation (four counts), electronically furnishing obscene materials to a minor, and cruelty to children.1 Adams appeals the convictions entered on the verdict, contending that: the court erred by denying his motion to excuse a juror for cause; the court erred by allowing evidence to be published to the jury without the evidence having been properly admitted; and trial counsel provided ineffective assistance. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, McCord v. State , 305 Ga. 318, 825 S.E.2d 122 (2019), the evidence presented at trial included the following. Adams was the father of two girls, T. M. and A. P., and one son, J. A. The children had three different mothers. Adams did not have custody of the children, but they visited him on weekends and sometimes spent time with him during the week.
In February 2016, T. M., who was then about ten years old, reportedly told a classmate that Adams was having sex with her. In response to that report, an investigator with the Forsyth County Department of Family and Children Services ("DFACS") went to T. M.’s home and interviewed T. M., T. M.’s mother, and T. M.’s half-siblings who lived with T. M. (eight-year-old half-sister H. H., and six-year-old half-brother J. M.); H. H. and J. M. were not Adams’s children.
In the interviews, T. M. initially denied that Adams had sex with her. J. M., who did not typically go to Adams’s home, had no knowledge of any such acts. H. H., however, told the DFACS investigator that she witnessed sexual conduct between Adams and T. M., including seeing Adams make T. M. sit on him and "put his private parts in, her word, butt." H. H. said that Adams "would make them watch videos of people doing, in her words, bad things to each other[.]" A few days after being interviewed, T. M.’s mother informed the investigator that T. M. told her that "things ended up happening" between T. M. and Adams.
A victim services coordinator from the Lumpkin County Sheriff’s office interviewed T. M., and a videotape of that interview was shown at trial T. M. also told the interviewer that Adams made her and A. P. watch a video of naked people "humping," that there was a vibrating "egg," and that Adams broke the egg.
An investigator with the sheriff’s office obtained search warrants for the houses where Adams resided and where T. M. said the acts occurred, including a house in which Adams had a bedroom and others in which "he would crash on the couch." Searches of Adams’s bedroom revealed an egg-shaped vibrating device with a broken cord, pornographic DVDs, a pair of child’s underpants under his bed, a used condom, and bodily fluids on his bed sheet. Another used condom was found in a bathroom where T. M. said some of the acts occurred.
At trial, T. M. testified that on multiple occasions Adams made her perform oral sex on him, have sexual intercourse with him, and made her use a vibrating egg device on her genitals. T. M. stated that Adams put a "rubber thing" on his penis when he committed some of the acts; T. M. did not know what the rubber object was, but stated that it came in a small paper wrapper. Adams also made her watch videos of naked people doing "[t]he same thing that happened to [her]." The acts took place at Adams’s home, in his bedroom and bathroom, in a bathroom in her aunt’s home, in a car, and in an abandoned house. She stated that H. H. and A. P. were present during some of the incidents, and that Adams told H. H. to touch his genitals.
H. H., who was nine years old at the time of trial, testified that she spent the night at Adams’s home with T. M., and on two occasions she saw Adams’s "private parts" and saw Adams and T. M. engaged in various sexual acts. She also saw Adams and T. M. viewing a video of people "doing it."
A. P., who was 12 years old at trial, testified that she went to Adams’s home on weekends. She testified that Adams touched her vaginal area and buttocks on more than one occasion, and he offered to show her what "[she] didn’t want boys to do to [her]." Believing he meant something sexual, A. P. refused his offer. A. P. acknowledged at trial that she had previously denied that Adams had touched her inappropriately, but explained that she was uncomfortable telling people what he had done.
1. Adams contends that the trial court erred by denying his motion to strike a potential juror (Juror No. 7) for cause, forcing him to "waste a valuable peremptory strike" to remove her from the panel. He asserts that the juror admitted during voir dire that she was biased and was not sure if she could listen to the evidence and be fair, and that she believed Adams had the burden of proving his innocence.
For a juror to be stricken for cause, it must be established that the juror holds an opinion on guilt or innocence that is so fixed that the juror will be unable to set that opinion aside and decide the case based on the evidence or the trial court’s charge at trial. Menefee v. State , 270 Ga. 540, 542 (2), 512 S.E.2d 275 (1999), disapproved on other grounds by Willis v. State , 304 Ga. 686, 706, n.3 (11) (a), 820 S.E.2d 640 (2018) ; see Clark v. State , 246 Ga. App. 842, 542 S.E.2d 588 (2000).
On appeal, our inquiry is whether the trial court’s qualification or disqualification of the prospective juror is supported by the record as a whole. An appellate court must pay deference to the finding of the trial court; this deference includes the trial court’s resolution of any equivocations or conflicts in the prospective juror’s responses on voir dire. Whether to strike a juror for cause is within the discretion of the trial court and the trial court’s rulings are proper absent some manifest abuse of discretion.
Lewis v. State , 279 Ga. 756, 760 (3) (a), 620 S.E.2d 778 (2005) (citations and punctuation omitted).
Although Juror No. 7 initially expressed doubt as to whether she could be fair given the types and number of crimes alleged, she later stated that she could decide the case based on the evidence and understood that the State would have to prove Adams’s guilt. Thus, the court did not abuse its discretion in denying Adams’s motion to strike the juror for cause.
Willis v. State , 304 Ga. 686, 707 (11) (a), 820 S.E.2d 640 (2018) (citations omitted).
Adams asserts that he used one of his peremptory strikes to remove Juror No. 7 from the panel from which the jury was chosen. Adams has not shown that any challenged juror who served on the jury was unqualified. See Willis , supra. We note that Adams’s reliance on DeSantos v. State , 345 Ga. App. 545, 813 S.E.2d 782 (2018), is misplaced because the juror in DeSantos was not rehabilitated, and because DeSantos was expressly overruled on the pertinent ground by Willis , supra at 706 (n. 3), 820 S.E.2d 640. Adams has shown no basis for reversal. See generally Willis , supra.
2. Adams contends that the trial court erred by allowing Exhibits 21 and 23 to be published to the jury without having been properly admitted. Adams asserts that the transcript does not refer to those exhibits, that the parties discussed at trial whether those exhibits were actually admitted, that the record does not indicate whether the exhibits were admitted, and that the exhibits are absent from the record. Notably, while Adams states that the exhibits consisted of photographs, he does not indicate what the exhibits depicted.
Inasmuch as Adams has not shown by the record that the exhibits at issue were published to the jury, there is nothing for this Court to review. Duncan v. State , 342 Ga. App. 530, 537 (4), 804 S.E.2d 156 (2017) ( ) (citations and punctuation omitted). Further, given that we do not know what the exhibits depicted, Adams has not demonstrated harm. See generally Raines v. State , 304 Ga. 582, 592 (4), 820 S.E.2d 679 (2018) ; Andrews v. State , 331 Ga. App. 353, 356 (2), 771 S.E.2d 59 (2015).
3. Adams contends that trial counsel was ineffective because he failed to: (a) object to improperly published evidence; (b) investigate Adams’s real name; (c) object to "improper child hearsay notice"; and (d) call a necessary witness at trial. The contentions are without merit.
Duncan , supra at 537-538 (5), 804 S.E.2d 156. "If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong." Lawrence v. State , 286 Ga. 533, 533-534 (2), 690 S.E.2d 801 (2010). "In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo." Duncan , supra at 538 (5),...
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