Brown v. State
Decision Date | 31 August 2005 |
Docket Number | No. A05A0253.,A05A0253. |
Citation | 275 Ga. App. 281,620 S.E.2d 394 |
Parties | BROWN v. The STATE. |
Court | Georgia Court of Appeals |
Gregory J. Lohmeier, Lohmeier & Lohmeier, L.L.C., Franklin & Hubbard, Rodney A. Williams, Decatur, for appellant.
Jeffrey H. Brickman, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.
A DeKalb County grand jury returned an indictment against Troy Johnnie Brown, charging him with 14 counts of child molestation and 11 counts of aggravated child molestation.1 After a jury trial, Brown was convicted of each charge. On appeal, Brown argues that his motion for new trial should have been granted because of juror misconduct, that the trial court erroneously admitted similar transaction evidence, that his trial counsel was ineffective, and that the trial court should have granted his motion to recuse. We affirm.
"On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."2 So construed, the evidence shows that Brown was the pastor of the Greater Anointing Tabernacle Church in January 1998, when 11-year-old B.H., the victim herein, and his family became involved in the church. In June 2001, B.H.'s family relocated to Louisiana. Five months later, they moved back to Georgia after Brown asked them to return to the church. Brown paid for the family's moving expenses and arranged for them to move into an apartment.
B.H.'s mother testified that during the first quarter of 2002, she noticed that B.H. was in possession of large amounts of money, which he said that Brown gave to him. B.H.'s parents threatened to punish him if he continued to take money from Brown. After learning that B.H. ignored her threat, his parents punished him for one week. On the last day of his punishment, Friday, March 22, 2002, Brown picked up B.H. to take him to buy a suit for Easter Sunday. B.H.'s mother explained that different members of the church sponsored each of her children, and Brown was B.H.'s sponsor. Brown did not bring B.H. home until after 11:30 that night. On the next day, B.H. went to the church in the morning for choir rehearsal and church cleanup and did not come home until after 5:00 p.m. B.H.'s mother asked him if Brown had said or done something inappropriate to him. B.H. dropped his head and began to cry. B.H.'s parents notified the police that evening.
B.H. testified that prior to his family's move to Louisiana, Brown asked him if he ever looked at men and told B.H. that it was normal to do so and to come to him if he needed to talk to someone about it. B.H. further testified that Brown regularly gave him money; that he spent the night at Brown's house; that three boys lived with Brown at the time; that on one night, Brown masturbated while asking him about looking at men, told him to masturbate, and he complied; that Brown told him that he and his friends used to "run trains" on girls and videotape it; that Brown preached against homosexuality after the incident; that the next incident occurred on a Saturday, which he recalls because they had planned to go to the mall that morning to return some clothes that Brown had purchased for him; that instead of going to the mall they went to Brown's home where Brown played x-rated videos, masturbated, told B.H. to masturbate and to penetrate Brown's anus, and used his hand to masturbate B.H.
B.H. further testified that on March 6, he was assaulted at a MARTA bus station and called Brown for help since his parents did not have a car or a phone. Brown picked B.H. up and, before taking B.H. to his house, called to instruct the other boys to leave the house. When they arrived at Brown's house, Brown played the pornographic movies again, laid on top of B.H., performed oral sex on B.H. and penetrated his anus, and asked B.H. to perform oral sex on him. Afterward, Brown gave him $20 and had a church member take him to the church. B.H. testified that these same sexual acts occurred on another evening when Brown sent everyone else out of the house to look for his dogs.
B.H. recalled that on Friday, March 22, Brown took him shopping at a clothing store on Candler Road. Afterward, they went to Brown's house where the same sexual acts discussed above occurred again. On this particular occasion, however, B.H. told Brown that the penetration of his anus was painful, but Brown continued to penetrate him. Brown gave him $20 after they finished, and they went to the church to attend services. On the following day, B.H. went to the church in the morning and when he returned home, his mother began to ask him about Brown because another church member had told her that he did not like the way that Brown looked at B.H. B.H. told his mother what had happened between him and Brown. On the next day, he went to the hospital and on the following day, gave a videotaped statement at the Georgia Center for Children. Additional facts will be provided as necessary to address Brown's enumerated errors.
1. In his first error, Brown argues that the trial court erred in failing to grant his motion for new trial after determining that the jury had engaged in misconduct during their deliberations by using a cell phone to access information relevant to one of the incidents alleged in the case.
During a post-trial contempt hearing against the jury foreman on June 7, 2002,3 the trial court learned that one of the jurors used his cellular phone to access MapQuest on the internet to attempt to calculate the distance between the store that Brown took B.H. to on Friday, March 22, and Brown's home. According to the foreman, the information obtained from MapQuest differed from the evidence presented by one mile. The foreman testified that the information from MapQuest did not affect his deliberations and that he did not think it affected the other jurors.
The trial court held additional hearings on June 21, 2002, ordering the remaining jurors to testify about the MapQuest information. The juror who actually performed the MapQuest search testified that the jury had reached a guilty verdict on all twenty-five counts but when the foreman asked them if they were comfortable with their verdict, one juror indicated that she was not comfortable with the verdict on the last incident, which led the jury to resume deliberations on Counts 20 through 25; that he performed the search because that juror questioned the distances traveled by Brown on March 22, 2002 that the information from the internet was essentially the same as that presented at trial as to the distance between the store and Brown's house; that the juror did not appear to be influenced by the information from MapQuest but was influenced by the evidence as to the distance between Brown's house and the church, which was presented at trial; and that he did not think the MapQuest information helped her come to any decision in the case because they spent another three to four hours deliberating and the MapQuest information did not come up again.
Ten jurors appeared at the June 21 hearing, and the last juror appeared at a second hearing on July 7, 2002. Nine of the jurors testified that they were not influenced by the MapQuest information. Two of the jurors did not recall being told the MapQuest information.
"To upset a jury verdict, the misconduct must have been so prejudicial that the verdict is deemed inherently lacking in due process."4 "There must be a reasonable probability that the misconduct contributed to the conviction."5 In Butler v. State,6 some of the jurors visited a crime scene to determine the distance between several objects at the scene. Two of the jurors testified that the information had not affected their verdict and one raised the possibility that the information could have affected her verdict.7 Our Supreme Court "conclude[d] that the alleged irregular conduct was not so prejudicial so as to have rendered the trial fundamentally unfair and to have contributed to the conviction."8 In this case, the trial court painstakingly questioned every juror to determine if the MapQuest information influenced their verdict. Of the jurors who actually recalled receiving the information, all of them testified that they were unaffected by the information. Furthermore, there was evidence that the information received from MapQuest was cumulative of that admitted at trial. Therefore, we do not find that the trial court's denial of Brown's motion for new trial on this ground was erroneous.
2. Next, Brown argues that the trial court erred by admitting the similar transaction evidence offered by the state. "A trial court's determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion."9
The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim's testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.10
On the issue of similarity, "this court has held that the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible."11
Brown argues that the independent offenses testified to by four of the state's similar transaction witnesses were offered for an improper purpose and were not sufficiently similar to warrant their admission into evidence. At the pre-trial hearing on that evidence, the state proffered that it was introducing the evidence to show motive, plan, scheme, bent of mind, and lustful disposition, all of ...
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