Brownlow v. State

• Decision Date: 08 January 2001
• Docket Number: No. A00A1868.,A00A1868.
• Citation: 248 Ga. App. 366,544 S.E.2d 472
• Parties: BROWNLOW v. The STATE.
• Court: Georgia Court of Appeals

544 S.E.2d 472

248 Ga. App. 366

BROWNLOW v. The STATE.

No. A00A1868.

Court of Appeals of Georgia.

January 8, 2001.

Reconsideration Denied March 2, 2001.

Certiorari Denied June 25, 2001.

Smith, Price & Wright, Charles G. Price, Rome, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge.

A Floyd County jury convicted Herschell Ed Brownlow of two counts of child molestation and two counts of aggravated sexual battery. On appeal, Brownlow claims the verdict was inconsistent with the evidence and that the trial court erred (1) in allowing expert testimony that the alleged victims exhibited symptoms consistent with child sexual abuse accommodation syndrome and major depressive disorder consistent with children who have suffered child abuse, (2) in charging the jury on child molestation as a lesser offense of aggravated child molestation, and (3) in refusing to allow an evidentiary hearing regarding juror misconduct.

Brownlow's two grandsons, C.M. and C.T., often stayed overnight in a camper parked in Brownlow's yard. C.T. testified that at night in the camper Brownlow had "[s]tuck his finger up my privacy part in the back." He also testified that Brownlow had bitten his "privacy part" in front, and that Brownlow had done the same to C.M. C.T. said that Brownlow had taken pictures of him while he was in the shower and had inserted pliers in his anus. The abuse allegedly occurred while C.T. was between three and six years of age. He was seven years old when he testified at trial.

C.M. also testified at Brownlow's trial. C.M. was thirteen years old when he testified and, according to the indictment, between nine and twelve years old at the time of the alleged abuse. C.M. said that Brownlow had "touched my butt" with his hand on several occasions. C.M. had observed Brownlow touching C.T. on the butt and on his "ding-a-ling" both on top of and underneath C.T.'s clothing. C.M. had also touched C.T.'s penis at the direction of Brownlow.

1. Brownlow argues that the evidence presented at trial was not sufficient to authorize a jury to convict him of the offenses charged. In support of this claim, he points out that the testimony of C.T. and C.M. was contradictory and inconsistent. Nevertheless,

that some evidence offered by a witness seems contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.

(Citations and punctuation omitted.) Royal v. State, 217 Ga.App. 459, 460(1), 458 S.E.2d 366 (1995). After a thorough review of the record, we find that the evidence was sufficient to authorize a rational trier of fact to find Brownlow guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. (a) Brownlow claims the trial court erred in allowing expert testimony that the children exhibited symptoms consistent with sexual abuse. A clinical psychologist interviewed C.M., and she also observed a police sergeant interview C.T. During these interviews, C.T. and C.M. denied being sexually abused. A few days after C.M. spoke with the clinical psychologist, C.M. told his parents that he had been sexually abused by Brownlow, causing C.M.'s parents to arrange for a second interview. During the second interview, C.M. reported that Brownlow had inserted a finger in his anus. Each of the above-mentioned interviews was videotaped, and the videotapes of the interviews were introduced into evidence and played for the jury.

The clinical psychologist testified as an expert witness. The prosecutor questioned her about sexual abuse accommodation syndrome, which the psychologist described as "a model for understanding the ways that children experience sexual abuse and how that impacts their disclosure process." The State then questioned the psychologist:

Q Okay. I'll ask you, in your expertise, do you have an opinion as to whether or not either [C.M.] or [C.T.] exhibit symptoms consistent with child sexu—sexual abuse accommodation syndrome? And again, the question is do they exhibit symptoms, char—consistent with the concept?

A Based on my understanding of the history of this case, as well as just this sample of the interviews that we saw, those behaviors of denying and then restating a disclosure are consistent with sexual abuse accommodation syndrome as I described it.

A psychiatrist also testified as an expert witness. She treated both C.T. and C.M. The psychiatrist diagnosed C.T. with a major depressive disorder. She also testified that C.T. manifested traits that were consistent with children that had alleged sexual abuse, including "excessive anxiety, inappropriate guilt, extreme irritability, and mood instability... [and] excessive nightmares." The psychiatrist diagnosed C.M. with a depressive disorder, an adjustment disorder, and an adjustment disorder with anxiety.

Brownlow argues that the clinical psychologist and the psychiatrist impermissibly bolstered the credibility of C.T. and C.M. and spoke to the ultimate issue of whether the children were sexually abused. In considering a comparable issue in Odom v. State, 243 Ga.App. 227, 228(1), 531 S.E.2d 207 (2000), we explained that:

What is forbidden is expert opinion testimony that "directly addresses the credibility of the victim," i.e., "I believe the victim; I think the victim is telling the truth," or expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the "ken" of the average juror, i.e., "In my opinion, the victim was sexually abused." Although the distinction may seem fine to a layman, there is a world of legal difference between expert testimony that "in my opinion, the victim's psychological exam was consistent with sexual abuse," and expert testimony that "in my opinion, the victim was sexually abused." In the first situation, the expert leaves the ultimate issue/conclusion for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion which invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?

(Citations omitted.)

Applying the foregoing principles, we find that the clinical psychologist did not give impermissible testimony when she gave her professional opinion that C.T. and C.M. exhibited symptoms "consistent" with sexual abuse accommodation syndrome. She did not testify that she believed C.T. or C.M. was telling the truth or that they were sexually abused. Similarly, the psychiatrist's testimony that C.T. showed traits consistent with sexual abuse and that she initially diagnosed C.M. with a depressive disorder did not impermissibly address the ultimate issue before the jury or the credibility of the children.

( b) Brownlow also claims the trial court impermissibly allowed the clinical psychologist to opine indirectly that Brownlow had sexually abused C.T. and C.M. through the following testimony: "In a case such as this one, when a perpetrator is someone who is close to the child and someone that the child counts on for good things, for pro—." This testimony was given as part of a lengthy response to a request by the State to explain the concept of child sexual abuse accommodation syndrome. In its context, given the question and...