Bernier v. State
| Decision Date | 10 March 2020 |
| Docket Number | A19A2464 |
| Citation | 354 Ga.App. 339,840 S.E.2d 748 |
| Parties | BERNIER v. The STATE. |
| Court | Georgia Court of Appeals |
Kindall E. Browning, for Appellant.
Marie R. Banks, George Herbert Hartwig III, for Appellee.
A jury found Michael Bernier guilty of one count each of child molestation and aggravated child molestation. Bernier appeals from his judgment of conviction and the denial of his motion for a new trial, asserting (1) that the evidence was insufficient to support the convictions. Bernier also asserts trial court error, based on the: (2) denial of a motion for mistrial; (3) jury charge as to conflicts in testimony; and (4) finding that he waived his right to be present at bench conferences throughout the trial, or acquiesced to counsel’s waiver. Finally, Bernier asserts that (5) he received ineffective assistance of counsel, based on defense counsel’s: (a) failure to advise him of and preserve his right to be present at bench conferences; (b) failure to seek the suppression of the results of a search of his cell phone; (c) failure to object to the introduction of State’s Exhibit 5, which was a video depicting a purported act of child molestation; (d) failure to object to the introduction of State’s Exhibit 6, which was a video depicting a woman taking a shower; (e) eliciting testimony from witnesses that bolstered the victim’s testimony; and (f) failure to request a pre-sentence investigation and a downward departure from the mandatory minimum sentence. For the reasons set forth below, we affirm.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Williams v. State , 333 Ga. App. 879, 879, 777 S.E.2d 711 (2015) (citation and punctuation omitted).
Thus viewed in the light most favorable to the verdict, the record shows that in the early morning hours of February 1, 2014,1 at approximately 2:30 a.m., the victim, H. S., awoke to find her stepfather, Bernier, in her bed. H. S.’s mother worked the night shift and was not home at the time. H. S. felt Bernier kneeling on the mattress, and she believed he had his cell phone out, as she "heard buttons" and "saw flashes."
Bernier pulled down H. S.’s shorts and touched the area under her shorts with "his hands and his face." He then pulled up her shorts and tried to turn her over. At that point, she sat up in bed, and Bernier "shot up off the bed[.]" H. S. believed that Bernier "looked startled" but appeared to know what was going on. Bernier then began to talk to H. S. about household chores, telling her he had already taken the dogs outside. Bernier asked H. S. if he could sleep with her, and he cradled her in her bed. H. S. eventually got out of bed, and she and Bernier went downstairs to play video games, while Bernier "acted like nothing happened." After Bernier fell asleep on the couch, she used his cell phone to call her mother, D. B., to tell her what had happened. D. B. told H. S. that she was on her way home and would call the police.
The police were waiting outside the house when D. B. arrived home. D. B. drove H. S. to the police station, and later to a hospital. H. S. was examined by a nurse, and DNA recovered from H. S.’s shorts and anus matched DNA from Bernier. Although vaginal swabs taken from H. S. contained male DNA, there was not sufficient DNA present to match it to any specific person.
Two days later, H. S. gave a forensic interview, where she recounted the incident. The interviewer testified at trial, and the video of H. S.’s interview was played for the jury. In her recorded interview, H. S. explained in detail that Bernier touched her vagina and anus with his mouth, tongue, and hands. She also explained that Bernier had never done anything like this to her in the past, and agreed with the interviewer that the incident came out of the blue.
After H. S. gave her forensic interview, Sergeant Todd Shepard contacted Bernier for an interview. In an interview conducted on February 2, 2014, Bernier claimed that he had taken the prescription sleep drug Ambien
on the night in question, and did not remember parts of the evening, including any sexual contact with H. S. However, he gave detailed accounts of other parts of the late evening of January 31, 2014, and the early morning hours of February 1, 2014, after having taken the Ambien. For example, he recounted H. S. coming downstairs to ask for a blanket sometime in the 11 o’clock hour, and he brought a blanket into her bedroom, and spoke with her for a time in her bedroom. He specifically remembered her asking him about a chiropractor’s appointment he had the day before, and he touched H. S.’s back to show her how the chiropractor had touched his back. He also remembered H. S. coming downstairs again later to say that she could not sleep, and playing video games with her.
While at the police station, Bernier consented to a search of his cell phone. A video file found on Bernier’s cell phone, which had been deleted but was recovered by a digital forensic analysis, showed that there was an additional incident of child molestation that occurred before H. S. woke up, at approximately 1 a.m. that same morning. When Bernier was shown screen shots from this video, he did not deny that it was him molesting H. S. in the video, but he asked the officer to take away the screen shots so he would not have to look at them.
Based on this evidence, Bernier was indicted on one count of child molestation, for touching H. S.’s vagina and buttocks, and one count of aggravated child molestation, for committing an act of sodomy on H. S., by putting his mouth on her vagina.
Bernier proceeded to trial. During jury selection, there were several bench conferences at which Bernier was not personally present. During these bench conferences, two potential jurors were excused by the court, after expressing their inability to serve on the jury because of their personal history with children or child molestation. Another potential juror explained that he was currently being prosecuted by the District Attorney’s office, but he was not excused as a juror.
Both the prosecutor and defense counsel asked potential jurors if any of them or a family member had been prescribed Ambien
, and several jurors responded affirmatively. The attorneys agreed to speak to those jurors separately at the bench about their experiences with the drug, and the court conducted a lengthy bench conference with the jurors, allowing both attorneys to question them. The court did not excuse any jurors based on their answers to these questions.
At trial, the State called several witnesses, including H. S. and D. B., both of whom testified that, before H. S. went to bed on the evening of the incident, at approximately 11 p.m., Bernier "made" her drink a glass of orange juice before bed. H. S. testified that, when Bernier gave her the orange juice, he said it was "a fear factor thing," and was daring her to drink the full glass. H. S. explained that she had not given this information to the police or at her forensic interview because she did not think it was relevant, but she mentioned it later because "every detail, it matters." On cross-examination, she testified that it was an unusual thing for Bernier to do, so it "raised an antenna" in her mind.
After H. S. and D. B.’s testimony, defense counsel moved for a mistrial based on their testimony about Bernier giving H. S. orange juice, asserting that it "came completely as a surprise" to the defense. The prosecutor explained that he had only just heard about the orange juice detail the week prior from D. B., and H.S. had reviewed her recorded interview and written a note about the orange juice the day before trial, which the prosecutor immediately provided to defense counsel. The trial court found that the lateness in giving the information to the defense did not change the defense’s case in any meaningful way, and denied the motion for mistrial. Further, to the extent that the new information might affect Bernier’s decision to testify in his own defense, the court noted that it would give the defense additional time if necessary for him to make his decision.
The State also called Lieutenant Darin Meadows as a witness, who was qualified as an expert in computer and digital forensic analysis. He received Bernier’s cell phone for examination two days after the incident with H. S. and conducted a digital forensic analysis. He found a video file that had been recorded on February 1, 2014, at approximately 1 a.m., which showed a man’s hand touching the exposed vaginal and buttocks areas of a woman or girl. Meadows did not testify or speculate about the identities of the people shown in the video. The video file had been deleted before Meadows received the phone, but he was able to recover it. This video was admitted without objection as State’s Exhibit 5 and was played for the jury.
Meadows testified about a second video file that was found in Bernier’s possession, which depicted a woman taking a shower. Earlier in the trial, D. B. had testified that Bernier had video taped her without her permission on several occasions. She had made him delete videos in the past, but she was recently shown a video by the police that depicted her naked in the shower. A thumb drive purportedly containing this video and others of D. B. in the shower was admitted into evidence as State’s Exhibit 62 without objection, but nothing from the thumb drive was shown to the jury.
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