Blackmon v. State

• Citation: 336 Ga.App. 387,785 S.E.2d 59
• Decision Date: 24 March 2016
• Docket Number: No. A15A1834.,A15A1834.
• Parties: BLACKMON v. The STATE.
• Court: Georgia Court of Appeals

336 Ga.App. 387

785 S.E.2d 59

BLACKMON

v.The STATE.

No. A15A1834.

Court of Appeals of Georgia.

March 24, 2016.

Kevin Alan Anderson, for Appellant.

Joshua Daniel Morrison, Asst. Dist. Atty., Paul L. Howard Jr., Dist. Atty., for Appellee.

McFADDEN

, Judge.

After a jury trial, Willie Blackmon was convicted of two counts of rape, two counts of aggravated child molestation, and two counts of child molestation against minor child S.L. Blackmon appeals, asserting that his trial counsel was ineffective in failing to object to inadmissible hearsay that bolstered S.L.'s credibility, in failing to object to improper bolstering of S.L.'s credibility by witnesses opining as to her truthfulness, and in failing to object to an improper jury charge on prior consistent statements. We agree that trial counsel's performance was both deficient and prejudicial. Accordingly, we reverse the convictions, but find that Blackmon may be retried on the charges since there was sufficient evidence to support the convictions. See Williams v. State, 268 Ga. 488, 489, 491 S.E.2d 377 (1997) (retrial is not prohibited where reversal is due to trial error rather than the sufficiency of the evidence).

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004)

(citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Owens v. State, 334 Ga.App. 203, 778 S.E.2d 830 (2015).

So viewed, the evidence shows that Blackmon was the boyfriend of the mother of S.L. He began living with the mother and her three children, including S.L., in 2003 or 2004. In February 2008, when S.L. was 14 years old, she called her mother from school because she had stomach pains. The mother called Blackmon and asked him to pick her up from school. Blackmon picked up S.L. from school and took her to the doctor. S.L. was diagnosed with and given medications for a stomach ulcer and a yeast infection

.

When they arrived home, Blackmon told the mother that the doctor had said that S.L. was sexually active. The mother then questioned S.L., who said that she was having sex with a boy from the neighborhood. Approximately an hour later, after the mother had said that she would have to talk to the boy's parents, S.L. told her mother that she had lied about the boy. The mother sent S.L. to her room and told her that they would talk about it later.

Several days later, S.L.'s aunt questioned S.L. about the yeast infection

medication, and S.L. then told her aunt that Blackmon had been having vaginal and oral sex with her since she was approximately 12 years old. The aunt called S.L.'s mother and told her what S.L. had said. S.L. subsequently told her mother that Blackmon had sexually abused her. S.L. described discoloration on Blackmon's thighs that the mother testified was only visible when he was naked; and S.L. said she had once bitten Blackmon's penis, which was consistent with a mark the mother had seen on his penis. The police were contacted, and officers came to the mother's house, where they interviewed both S.L. and Blackmon, who denied any sexual abuse. The police seized a bedspread from S.L.'s bed for DNA testing, but the crime laboratory test results were negative for the presence of DNA. A doctor's physical examination of S.L. conducted approximately three weeks after the last alleged incident of abuse did not reveal any injuries or other physical evidence.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that S.L.'s “testimony standing alone [describing the alleged sexual abuse by Blackmon] was sufficient to support the verdict, and issues of consistency and credibility were for the jury to decide.” Jackson v. State, 334 Ga.App. 469, 473(2), 779 S.E.2d 700 (2015)

(citations omitted). See also Ruffin v. State, 333 Ga.App. 793 (1), 777 S.E.2d 262 (2015) (“victim's testimony, standing alone, would have been sufficient to authorize a verdict of guilty”).

2. Ineffective assistance of counsel.

Blackmon contends that his trial counsel was ineffective in failing to object to inadmissible hearsay testimony from multiple witnesses recounting out-of-court statements made by S.L., and in failing to object to the trial court's jury charge on prior consistent statements. To prevail on these claims, Blackmon must show both that his counsel's performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. See McDuffie v. State, 298 Ga. 112, 115(2), 779 S.E.2d 620 (2015)

; Long v. State, 287 Ga. 886, 891(4), 700 S.E.2d 399 (2010). Blackmon has made both of these showings.

a. Failure to object to inadmissible hearsay.

At the trial, the state presented six witnesses who testified about out-of-court statements made by S.L. when she was 14 years old describing the alleged sexual abuse by Blackmon. The first two witnesses presented by the state were S.L.'s aunt and mother, both of whom testified, among other things, about statements that S.L. had made alleging that Blackmon had sexually abused her by inserting his penis into her mouth and vagina. S.L. herself then testified, after which the state introduced testimony from four witnesses involved in the investigation who recounted statements that S.L. had made to them describing the alleged acts of sexual abuse by Blackmon. A police sergeant who interviewed S.L. testified about S.L.'s statements that Blackmon had forced her to perform oral sex and had engaged in sexual intercourse with her. A doctor testified that S.L. said Blackmon had forced her to have sex, and the doctor recited other statements made by S.L. describing the alleged abuse. A forensic interviewer testified about S.L.'s statements alleging sexual abuse by Blackmon. And the director of forensic services for the district attorney's office also gave testimony recounting out-of-court statements made to her by S.L.

“Hearsay is testimony in court ... of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Bates v. State, 322 Ga.App. 319, 327(5), 744 S.E.2d 841 (2013)

(citation, punctuation, and footnote omitted). Here, Blackmon's trial counsel failed to raise hearsay objections to any of the six witnesses' testimony about the out-of-court statements made by S.L. At the motion for new trial hearing, trial counsel admitted that there was no strategic reason why she failed to raise hearsay objections to such testimony. Instead, she acknowledged her mistakes, attributing her failure to object to her being “a bonehead,” “worn out,” and “overwhelmed.”

We note that in denying Blackmon's ineffective assistance claim on this ground, the trial court did not find that the out-of-court statements by S.L. were admissible under the Child Hearsay Statute. Presumably, the court made no such finding because, as Blackmon points out in his appellate brief, without any refutation by the state, the Child Hearsay Statute in effect at the time of his 2011 trial, former OCGA § 24–3–16, provided an exception to hearsay for 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 [.]” (Emphasis supplied.) See Cobb v. Hart, 295 Ga. 89 n. 1, 757 S.E.2d 840 (2014)

(noting that “[e]ffective January 1, 2013, the law governing child hearsay is now codified at OCGA § 24–8–820 ”). “The clear wording of the statute indicates that the age of the child at the time the statements were made is determinative of their admissibility under the statute. [Cit.]” Darden v. State, 206 Ga.App. 400, 401(1), 425 S.E.2d 409 (1992) (physical precedent). Thus, because S.L. was not under 14 years old at the time she made the statements, they were not admissible under the Child Hearsay Statute. See Currington v. State, 270 Ga.App. 381, 387(4), 606 S.E.2d 619 (2004)

(victim “was not a child under the age of 14 when she made the statement at issue, so the Child Hearsay Statute was inapplicable”). See also Cobb, supra at 90–91(2), 757 S.E.2d 840.

However, the trial court found, and the state argues on appeal, that Blackmon's counsel was not ineffective in failing to object to the testimony about S.L.'s out-of-court statements because such testimony was admissible as prior consistent statements. Indeed,

[s]ince 1985, Georgia law has allowed certain prior consistent statements of a witness to be admitted as substantive evidence. See Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985)

. In 1998, [the Georgia Supreme] Court clarified that a witness's prior consistent statement is ‘admissible only where (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.’ Woodard v. State, 269 Ga. 317, 320, 496 S.E.2d 896 (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012).

Cowart v. State, 294 Ga. 333, 339(4)(a), 751 S.E.2d 399 (2013)

.

In denying Blackmon's motion for a new trial, the trial court cited this standard and found that the veracity of S.L.'s testimony had been placed in issue during her cross-examination, thereby rendering her prior consistent statements admissible as substantive evidence. The trial court found: “The statements were introduced after S.L.'s credibility was placed into question and as such were not inadmissible hearsay.... In response, the [s]tate was allowed to introduce evidence of her prior consistent statements.” (Emphasis...