Algren v. State

• Decision Date: 10 November 2014
• Docket Number: No. A14A1098.,A14A1098.
• Citation: 764 S.E.2d 611,330 Ga.App. 1
• Court: Georgia Court of Appeals
• Parties: ALGREN v. The STATE.

330 Ga.App. 1

764 S.E.2d 611

ALGREN

v.The STATE.

No. A14A1098.

Court of Appeals of Georgia.

Nov. 10, 2014.

Reconsideration Denied Nov. 21, 2014.

Banks & Stubbs, Rafe Banks III, Cumming, for Appellant.

Penny Alane Penn, Dist. Atty., Ramsey Robertson Magaro, Asst. Dist. Atty., for Appellee.

Opinion

DILLARD, Judge.

Todd Algren was charged in one indictment with one count of statutory rape and was charged in a second indictment, pertaining to a separate victim, with two counts of child molestation. Following a joinder of the indictments and a consolidated trial, the jury found him guilty on the statutory-rape charge and not guilty on the child-molestation charges. Algren appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in joining the two indictments for trial, failing to charge the jury as to similar-transaction evidence, improperly charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, and sentencing him for felony statutory rape. For the reasons set forth infra, we affirm Algren's conviction.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that S.H. and her older brother had lived with their aunt and uncle since 2005. In June 2008, S.H.'s aunt and uncle, who were both avid scuba divers, planned a diving vacation to the Florida Keys. Consequently, they registered then 14–year–old S.H. and her 16–year–old brother for scuba diving lessons with Algren, who was a certified diving instructor and operated a local dive shop. On the morning of June 29, having completed most of their certification requirements over the course of the previous week, S.H. and her brother met Algren at a coffee shop and then went to a nearby swimming pool for some additional training.

Some time around noon, S.H., her brother, and Algren returned to the dive shop to unload their gear and other equipment, and after doing so, S.H.'s brother offered to go pick up some fast-food for lunch. A few minutes after her brother left the shop, S.H. and Algren, who had been flirting with each other for a couple of days via text messages and phone calls, began kissing. They then went to a room at the back of the dive shop, at which point Algren removed S.H.'s shorts and her bathing suit and had sexual intercourse with her. Subsequently, S.H. and Algren put their clothes back on, and returned to the front part of the dive shop just as S.H.'s brother returned from picking up their lunch.

A few days thereafter, Algren called S.H. at her home to discuss scheduling a time for her to fulfill one of the swimming requirements that she had yet to meet. And during this conversation, S.H. and Algren continued flirting and discussed their sexual liaison. Algren also asked S.H. if she wanted to have sex again and inquired as to whether there was any chance she could be pregnant, given the fact that they did not use protection during their first encounter. But while S.H. and Algren were talking, S.H.'s uncle, who was suspicious that S.H. was dating a former classmate despite being forbidden to do so, quietly picked up another phone in the house, heard nearly the entire conversation, and realized that S.H. was speaking with Algren.

Not long after S.H. and Algren ended their phone call, S.H.'s aunt and uncle confronted her regarding the conversation that her uncle overheard. Initially, S.H. denied that anything inappropriate occurred, but she eventually admitted that she and Algren had sexual intercourse. That same day, S.H.'s aunt and uncle reported the incident to local law enforcement, who then scheduled a forensic interview for S.H. and began an investigation into S.H.'s allegation against Algren.

While the investigation of S.H.'s statutory-rape allegation was pending, Algren was living with his girlfriend and her two young children. And on April 29, 2010, approximately a year and a half after S.H.'s allegation, K.R., the nine-year-old daughter of Algren's girlfriend, informed a counselor at her elementary school that one night, during the summer of 2009, Algren came into her bedroom and touched her breasts and privates. The counselor contacted K.R.'s mother and reported the child's outcry to DFCS and law enforcement, which then began a second investigation of Algren.

Subsequently, Algren was charged, via indictment, with one count of statutory rape, alleging that he engaged in sexual intercourse with S.H. And in a second indictment, he was charged with two counts of child molestation, alleging that he touched K.R.'s breasts and privates. Prior to trial, the State moved to join the two indictments and try all three charges simultaneously. Algren opposed joinder, but following a hearing on the issue, the trial court granted the State's motion and joined the indictments for trial.

The case was then tried and concluded with the jury finding Algren guilty on the statutory-rape charge but not guilty on the two child-molestation charges. Following a sentencing hearing, the trial court imposed a sentence of 20 years upon Algren with ten years to serve in confinement. Subsequently, Algren obtained new counsel and filed a motion for new trial, which the trial court denied. This appeal follows.

1. Algren first contends that the trial court erred in joining the separate indictments for trial in the same proceeding. We disagree.

The Supreme Court of Georgia has held that if charges against a defendant are “joined solely because they are of the same or similar character, a defendant has an absolute right to sever.”² This is so because of the “great risk of prejudice from a joint disposition of unrelated charges.”³ However, severance is not required where “the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind.”⁴ More precisely, offenses have not been joined solely because they are “of the same or similar character when the evidence of one offense can be admitted as similar transaction evidence during the trial of the other offense”;⁵ and “severance is not mandatory in such a case.”⁶

But this does not end a trial court's inquiry because,

while the fact that evidence of one offense would be admissible in a trial of another offense is a relevant consideration in determining whether to sever, a trial court must still determine if severance of the offenses would promote a fair and intelligent determination of guilt or innocence as to each offense.⁷

In doing so, the court should consider whether, “in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”⁸ Finally, we review a trial court's decision in this regard for an abuse of discretion.⁹

In the case sub judice, Algren's trial only involved one charge of statutory rape, which pertained to S.H.'s allegations, and two charges of child molestation, which pertained to K.R.'s allegations. And neither the facts surrounding the offenses, nor the evidence presented to prove such facts, was complicated.¹⁰ Consequently, Algren could not show that there was any danger that the jury would be confused or unable to distinguish the evidence and apply the law as to each offense.¹¹ Indeed, the verdict itself, including Algren's acquittal for the two child-molestation charges, shows that the jury fully understood the law and evidence.¹²

Furthermore, all of the indicted offenses involved the same type of conduct, i.e., inappropriate sexual conduct with young girls over whom Algren wielded some level of authority, and they occurred within nearly one year of each other. Thus, even if the trial court had not joined the indictments, the allegations of child molestation would have been admissible in Algren's statutory-rape trial as similar-transaction evidence.¹³ And as noted supra, when the evidence of one offense can be admitted as similar-transaction evidence during the trial of the other offense, “the decision of whether to sever the offenses for trial is within the discretion of the trial court.”¹⁴ Given these circumstances, we conclude that the trial court did not abuse its discretion in joining the separate indictments against Algren for trial.

2. Algren also contends that the trial court erred by failing to charge the jury on the law regarding similar-transaction evidence. Once again, we disagree.

Initially, it is important to note that Algren did not object to any portion of the trial court's jury charges, and under OCGA § 17–8–58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.”¹⁵ The failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties.”¹⁶ In such cases, as the Supreme Court of Georgia has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.”¹⁷ Thus, because Algren failed to object whatsoever to the jury charges, our review is limited to consideration in this regard.¹⁸

Here, Algren is correct that the trial court did not instruct the jury on the law regarding similar-transaction evidence. But this failure does not constitute error by the trial court because the State did not present any similar-transaction evidence against Algren. Indeed, as discussed at length supra, the State argued successfully in favor of joining the two indictments on the ground that the child-molestation charges would be admissible in the statutory-rape trial as similar-transaction evidence. Nevertheless, the simple fact is that once the trial court joined the indictments, Algren was actually tried(and acquitted) on the...