Allison v. State

• Decision Date: 29 June 2020
• Docket Number: A20A0552
• Parties: ALLISON v. The STATE.
• Court: Georgia Court of Appeals

356 Ga.App. 256

846 S.E.2d 222

ALLISON

v.The STATE.

A20A0552

Court of Appeals of Georgia.

June 29, 2020

Reconsideration Denied July 15, 2020

Jana Whaley Jacobson, for Appellant.

David Parks White, District Attorney, Michael Martin Coveney, Assistant District Attorney, for Appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Madison County entered a judgment of conviction against Brandon James Allison for one count each of child molestation ( OCGA § 16-6-4 ), enticing a child for indecent purposes ( OCGA § 16-6-5 ), and false imprisonment ( OCGA § 16-5-41 ). Allison appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions and that the trial court erred in allowing into evidence a video recording of the child victim's interview and in its jury instructions. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, with the defendant no longer enjoying a presumption of innocence. See Carolina v. State , 276 Ga. App. 298, 300 (1), 623 S.E.2d 151 (2005). We neither weigh the evidence nor determine witness credibility, which are tasks that fall within the exclusive province of the jury, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id. ; see also Whorton v. State , 318 Ga. App. 885, 735 S.E.2d 7 (2012).

So viewed, the evidence shows that, in November 2016, the victim's mother lived in Danielsville with her four-year-old daughter, who was the victim; her younger son; and her boyfriend, who worked out of town. Allison, the mother's cousin, also lived with them, and he regularly watched the victim and her younger brother while the victim's mother worked from 4:00 p.m. until midnight or later. On the way home from pre-K one day, the victim asked her mother whether boys and girls were supposed to show each other their "no-no"; according to the mother, "no-no" is a term used by her family to refer to a person's private areas. When the mother confirmed that such action would be inappropriate, the victim told her mother that when she and Allison were in the mother's room, Allison "had his fat belly out[,] ... showed her his ‘no-no’[,] and placed her hand on it." The victim also told her mother that she started to cry and asked Allison to let go, but Allison would not let go until the victim promised that she would not tell her mother. After the victim promised him that she would not tell, Allison let go of her hand.

The mother confronted Allison that same day while they were at a local church. Allison threw up his hands, walked away, drove to the mother's house, packed up his belongings, and left before the mother returned home.¹ Later that day, the mother contacted law enforcement, and the victim was scheduled for an interview with a child forensic interviewer at Harmony House Child Advocacy Center. The mother brought to the meeting a number of pictures the victim had drawn representing "no-nos."

On December 1, 2016, the victim met with Adrienne Strickland, the chief forensic interviewer at Harmony House. According to Strickland, the victim's demeanor changed when Strickland began questioning her about Allison; the victim began looking down, shrugging, and saying she did not want to talk about it. Ultimately, the victim became comfortable with Strickland and used language consistent with younger children, such as "no-no," to describe that Allison made her slowly rub his penis. In fact, the victim provided specific details and corrected Strickland at times when Strickland repeated her details. The victim also demonstrated what was meant by "no-nos" on drawings that were admitted into evidence. Strickland opined that the victim's disclosure was consistent with a child who had suffered sexual abuse. In addition, a video of the victim's interview with Strickland was admitted into evidence. In the video, the victim told Strickland she was on the couch and Allison told her to go into her mother's room. When she went into the room, Allison took her hand, put it on his "no-no," which she indicated on an anatomical drawing meant his penis, and rubbed it with her hand. He rubbed it slowly and it took a long time.

A Madison County grand jury indicted Allison for one count each of child molestation, enticing a child for indecent purposes, and false imprisonment. At the conclusion of the trial, the jury found Allison guilty beyond a reasonable doubt of each count. Thereafter, the trial court entered a judgment of conviction and denied Allison's motion for a new trial. This appeal followed.

1. Addressing Allison's second enumeration first,² Allison contends that the trial court erred in allowing into evidence the video of the victim's interview at Harmony House. According to Allison, the video should have been excluded as child hearsay evidence because (1) the victim did not testify as required by OCGA § 24-8-820 (a) in that she merely acknowledged general identity information and then answered that she did not remember anything else, and (2) the victim should have been deemed "unavailable" under OCGA § 24-8-804, even though she took the witness stand at trial, due to her inability or unwillingness to recall the events at issue. We are not persuaded.

OCGA § 24-8-820 (a), which went into effect in 2013,³ provides:

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 or with or on another in the presence of such child 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 out-of-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.

Although OCGA § 24-8-804 (a) (3) defines an "unavailable" witness for purposes of hearsay as one who "[t]estifies to a lack of memory of the subject matter of the declarant's statement[,]" the Code section clearly limits that definition of unavailability to the exceptions included in the Code section. See OCGA § 24-8-804 (a) ("As used in this Code section, the term ‘unavailable as a witness’ includes ...").

In this case, Allison's argument conflates constitutional unavailability for Confrontation Clause purposes with the statutory definition of unavailability for purposes of the admissibility of hearsay. Here, the victim, who was six years old at the time of the trial, took the stand and answered a number of questions posed by the trial judge, indicating that she knew why she was in the courtroom and that she understood she needed to tell the truth. In addition, she answered questions posed by defense counsel, demonstrating she knew the difference between the truth and a lie. The victim answered some general questions, but did not offer any testimony about the incident. During her testimony, she stated that she did not remember going to Harmony House or speaking with Strickland two years before the trial. At this point, the prosecutor stated that he did not have any further questions. Defense counsel was invited to cross-examine the victim, but indicated she did not have any questions, and the victim was excused.

While there is a dearth of case law regarding what constitutes availability to testify under OCGA § 24-8-820, there are a number of cases decided under the former Code section that are instructive. Furthermore, we note that the Federal Rules of Evidence do not contain a specific equivalent to OCGA § 24-8-820, so "Georgia precedent should be principally referenced to interpret this Code section." Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 615 (6th ed. 2018). In that vein, we have held on a number of occasions that "to comport with the Confrontation Clause, the child whose statements are at issue must actually testify at trial[,] ... [b]ut former OCGA § 24-3-16 does not require the child to corroborate the hearsay testimony." (Citation and punctuation omitted.) Maurer v. State , 320 Ga. App. 585, 589 (2), 740 S.E.2d 318 (2013). Indeed, contrary to Allison's argument, "[t]he fact that a child witness is unresponsive or evasive in response to certain questions on the witness stand does not render the child's out-of-court statements inadmissible under [the former Child Hearsay Statute] or violate the Sixth Amendment confrontation rights of the defendant." Kirkland v. State , 334 Ga. App. 26, 32 (2), 778 S.E.2d 42 (2015) ; see also Stegall v. State , 297 Ga. App. 425, 426, 677 S.E.2d 441 (2009) ("the availability requirement of [the former Child Hearsay Statute] is met whenever the victim takes the stand, even if the victim is uncommunicative or unresponsive") (citation and punctuation omitted); Bell v. State , 263 Ga. App. 894, 896 (1), 589 S.E.2d 653 (2003) (holding that child victim's refusal to respond to questions did not make her an unavailable witness; rather, it merely affected her credibility); Bright v. State , 197 Ga. App. 784, 785 (4), 400 S.E.2d 18 (1990) ("So long as the witness is made available for confrontation and cross-examination, the defendant's rights are protected, even if the witness is uncommunicative or unresponsive.").

Instead, "[a] witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt." (Citation and punctuation omitted.) Jones v. State , 200 Ga. App. 103, 103, 407 S.E.2d 85 (1991) ; see also Bell ...