Boyt v. State, A07A0025.

• Court: United States Court of Appeals (Georgia)
• Citation: 649 S.E.2d 589,286 Ga. App. 460
• Docket Number: No. A07A0025.,A07A0025.
• Parties: BOYT v. The STATE.
• Decision Date: 10 July 2007

286 Ga. App. 460 649 S.E.2d 589 BOYT
v.
The STATE. No. A07A0025. Court of Appeals of Georgia. July 10, 2007.

[649 S.E.2d 590]

James P. Theodocion, Augusta, for appellant.

Scott L. Ballard, Dist. Atty., Robert H. English, Asst. Dist. Atty., Josh W. Thacker, Griffin, for appellee.

[649 S.E.2d 591]

MIKELL, Judge.

Following a jury trial, Tony James Boyt was found guilty of false imprisonment, aggravated sexual battery, and sexual battery. He was acquitted of criminal attempt to commit rape. He appeals the denial of his amended motion for new trial, enumerating as error that his trial counsel rendered ineffective assistance; that the evidence was insufficient to support his conviction for aggravated sexual battery; and that the trial court improperly instructed the jury on prior consistent statements. For the reasons set forth below, we affirm.

1. Boyt argues that the evidence presented at trial was insufficient to support his conviction for aggravated sexual battery.¹ We do not agree.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury's verdict, is sufficient under Jackson v. Virginia.² We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.³

Viewed in the light most favorable to the jury's verdict, the record shows that the victim went to Boyt's house about 8:30 p.m. on March 14, 2003, in order to use the tanning bed he had in his garage, as she had done in the past. She testified that she was getting dressed after using the tanning bed when Boyt came in behind her and put his arms around her waist. As she protested and attempted to push his hands away, he reached into her underwear and inserted his fingertips into her vagina; then he pinned her arms at her side and kissed her breasts while she urged him to stop and screamed for his son to come [286 Ga. App. 461] help her. Finally, she bit him on the shoulder,⁴ whereupon he released her and went back inside the house. The victim quickly drove away. That evening she reported the attack to the police.

"A person who utilizes his finger to intentionally penetrate the sexual organ of another person without that person's consent commits the offense of aggravated sexual battery."⁵ At trial, the victim testified as follows:

Q. Did [Boyt] ever put his fingers inside of your vagina?

A. Not completely, no.

Q. Did any portion . . . of his fingers go inside of you?

A. The tips, I think.

Boyt asserts that this testimony is too uncertain to support his conviction for aggravated sexual battery. Under the appellate standard of review, however, "[i]t is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence."⁶ In general, the testimony of a single witness is sufficient to establish a fact.⁷ Corroboration is not required in an aggravated sexual battery case;⁸ even if it were, the bite mark on Boyt's shoulder provides sufficient corroboration.⁹ Accordingly, we conclude that the evidence is sufficient to support

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the jury's verdict that Boyt was guilty beyond a reasonable doubt of aggravated sexual battery.

2. In four enumerations of error, Boyt claims that he received ineffective assistance of counsel at trial. In order to succeed on this claim, he must satisfy the two-prong test set forth in Strickland v. Washington:¹⁰ first, he must prove that counsel's performance was deficient; second, he must show that counsel's deficient performance so prejudiced the defense that there is a reasonable probability that the outcome of the trial would have been different but for that deficiency.¹¹ "Failure to satisfy either prong of this test is fatal to an ineffective assistance claim, and we need not address the deficient [286 Ga. App. 462] performance prong if the showing on the prejudice prong is insufficient."¹² Moreover, Boyt "must overcome the strong presumption that his counsel's performance fell within the broad range of reasonable professional conduct and that his counsel's decisions were made in the exercise of reasonable professional judgment."¹³ In reviewing a claim of ineffective assistance,

[w]e will not reverse . . . unless trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Absent clear error and harm, we will affirm the trial court's finding that [Boyt] did not receive ineffective assistance of counsel.¹⁴

(a) In his first two enumerations of error, Boyt contends that his trial counsel provided ineffective assistance by failing to object to the admission of prior consistent oral and written statements made by the victim: first, the testimony of Jeff Turner, a sheriff's office investigator, concerning statements made to him by the victim during an interview conducted on the day of the attack, March 14, 2003; and second, the victim's handwritten statement of March 15, 2003, admitted on the state's motion after Boyt's trial counsel had cross-examined the victim based on that statement.

Although such prior consistent statements are generally admissible only where the witness's veracity has been attacked in certain specific ways,¹⁵ trial counsel testified at the new trial hearing that he chose not to object to these statements as part of his trial strategy to demonstrate the inconsistencies in the stories presented by the victim at different times, as well as to show the contrast between the victim's version of events and Boyt's. He also testified that he discussed the trial strategy with Boyt on more than one occasion before the trial began. "With the benefit of hindsight, it would appear that [trial counsel's] strategy may have backfired. But that is not to say that it was ineffective."¹⁶ Such trial tactics and strategy are not [286 Ga. App. 463] susceptible to attacks of ineffective assistance;¹⁷ therefore, this enumeration is without merit.

(b) Boyt argues that his trial counsel rendered ineffective assistance in failing to object to opinion testimony from investigator Turner concerning ultimate issues of fact. Turner testified that, on the evening of the attack, the victim told him that "Boyt had

649 S.E.2d 593

attempted to rape her, had held her against her will, had kept her from leaving his residence[, h]ad placed his fingertips inside of her vagina and had fondled her breasts with his hands." At the new trial hearing, trial counsel testified that he did not object to Turner's testimony because he had determined as part of his trial strategy not to object to the victim's prior statement, as discussed above in Division 2(a). It is well settled that "the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness";¹⁸ nonetheless, "the law does not mandate that trial counsel object when the prosecutor poses a question that allegedly violates that rule. . . . [T]he decision of whether to interpose certain objections is a matter of trial strategy and tactics."¹⁹

Moreover, even if trial counsel's failure to object to this testimony amounted to deficient performance, this testimony was not so significant as to have contributed to the jury's verdict, in light of the victim's testimony and the physical evidence presented, i.e., the bite mark.²⁰ Thus, Boyt has failed to show a reasonable probability that the result of the trial would have been otherwise but for trial counsel's failure to object.

(c) Boyt alleges that trial counsel was ineffective in failing to object to hearsay testimony concerning a statement made by Boyt's son, Talmadge ("Tal"), who was not called as a witness at trial. The victim testified that, when she screamed for help, Boyt told her that Tal was "dead asleep" and could not hear her. Investigator Turner testified that during an interview, Tal said he was asleep at the time of the incident. At the new trial hearing, trial counsel testified that he did not object to this testimony as hearsay because it confirmed that Tal was at home that evening, and counsel intended to cast doubt on [286 Ga. App. 464] the victim's version of events by showing that, awake or asleep, Tal would have heard her alleged outcry. The court was authorized to find that counsel's decision not to object to this hearsay testimony was based on reasonable trial strategy.²¹

3. Boyt's third enumeration of error complains that the trial court instructed the jury concerning prior consistent statements "when no such statements were properly in evidence." We find no reversible error.

Boyt argues convincingly in his appellate brief that the state bolstered its case by introducing through the testimony of a police investigator a considerable amount of cumulative evidence, including oral statements to the investigator by the victim and one written statement by the victim. Because no objection was made to the evidence when it was offered, however, the trial court had no opportunity at the time to rule on the propriety or impropriety of allowing these matters into the sight and hearing of the jurors. Thus, we do not know under which exception to the general rule against bolstering this evidence was admitted.

With the benefit of hindsight, all counsel involved in this case (Boyt's trial counsel, his appellate counsel, and counsel for the state) assume that this testimony was admitted under the Georgia exception to the evidentiary rule against bolstering a witness's trial testimony, which exception permits bolstering "only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination" of the declarant.²² This Georgia exception, which is

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similar to Fed.R.Evid. 801...