Carr v. State

• Decision Date: 07 March 2022
• Docket Number: A21A1391
• Parties: CARR v. The STATE.
• Court: Georgia Court of Appeals

363 Ga.App. 35

870 S.E.2d 531

CARR

v.The STATE.

A21A1391

Court of Appeals of Georgia.

March 7, 2022

Debra Kay Jefferson, Lawrenceville, for Appellant.

Flynn Duncan Broady Jr., Linda Jeanne Dunikoski, Samuel Richard d'Entremont, for Appellee.

Dillard, Presiding Judge.

David Carr appeals his convictions for numerous child-sex offenses, contending the evidence was insufficient to support them and the trial court erred in failing to merge some of his convictions for sentencing purposes. For the reasons set forth infra , we affirm in part, vacate in part, and remand this case for proceedings consistent with this opinion.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that during the relevant time period, Ta. C. lived with Carr, her mother, her sister (Ti. C.), and her brother. When Ta. C. was in sixth grade, Carr began inserting his finger into her vagina on numerous occasions. Then, when Ta. C. was in eighth grade, Carr would sometimes get into Ta. C.’s bed with her, lay behind her, and touch her vagina. Carr also touched Ta. C.’s chest area, both under and over her clothes. In early January 2016, Carr came into Ta. C.’s room and touched her under her clothes on her "breasts and on [her] vagina area[,]" which made her cry.

Shortly after that incident, when Ta. C. was upset about not being allowed to go out with friends, Carr told her that it did not matter to him if she was angry, the sexual abuse was going to end, and he did not care if she told her mom about the abuse or "if [he] went to jail tomorrow." After this conversation, Ta. C. called her boyfriend and told him about the abuse she suffered in detail, and he advised her to tell her mother about it. Ta. C.’s boyfriend also suggested that she tell her younger sister, Ti. C., but instead, she let him do it. And when Ti. C. learned Carr was sexually abusing her sister, she "broke down and told [Ta. C.] that it was happening to her too."

Ti. C. estimated that Carr began sexually abusing her in fourth grade, but she was not entirely sure. Carr touched Ti. C. on her "lower private area" over the clothes "more times than [she] could really count." He also touched Ti. C.’s "lower private area" under the clothes approximately five times. When he did so, he would place pressure inside of that area with his hands. Carr would occasionally stop the abuse for a month or two, and Ti. C. described the frequency of the abuse as "kind of like a cycle."

On the same day in early January 2016, when Ti. C. learned that Carr was also sexually abusing Ta. C., the girls’ mother came into the room and asked Ta. C.—who was crying—why she was upset. The girls did not want to tell their mother about the abuse verbally, so they both wrote notes describing what happened to them. Ta. C. wrote that she was in middle school when the abuse first occurred, and the most recent time Carr abused her was earlier that week. Indeed, according to Ta. C., Carr's sexual abuse continued periodically until she was a sophomore in high school. Ti. C. wrote a similar note describing the abuse detailed above. The girls’ mother reacted calmly, telling them they would act like everything was normal and go to the police after Carr fell asleep. And that night, after Carr fell asleep, Ta. C., Ti. C., and their mother went to the police station to report Carr's abusive conduct.

Thereafter, Carr was charged, via indictment, with aggravated battery, four counts of child molestation, four counts of sexual battery, and two counts of first-degree cruelty to children. And following trial, he was convicted of all charged offenses. Carr then filed a motion for a new trial, which was denied after a hearing. This appeal follows.

1. In describing his second claim of error (which we address first), Carr summarily states the evidence was insufficient to support all eleven of his convictions. But because he does not make any cognizable arguments to support this contention, he has abandoned it.

Despite arguing the evidence was insufficient to support all of his convictions, he does not discuss any particular conviction, their respective elements, or the evidence supposedly lacking at trial. Instead, he merely provides a laundry list of mostly irrelevant legal citations and statutes with no corresponding claim, discussion, or argument of any kind.

Specifically, Carr recites the law regarding (1) the standard of review for sufficiency claims; (2) his right to an appeal; (3) his right to effective appellate counsel; (4) Georgia's ban on appellate attorneys in criminal cases filing Anders² briefs; and (5) the requirement that defendants must comply with trial and appellate procedures to be entitled to habeas corpus relief. Finally, he states that he is entitled to review of "any claim which affords him relief," and thus, the jury verdict should be reversed. Under these circumstances, Carr has provided us with no argument related to any of the legal authorities he lists, much less any argument regarding the sufficiency of the evidence underlying his convictions.³

In reaching the foregoing conclusion, we acknowledge the significant liberty interests at stake when reviewing the sufficiency of the evidence to support a conviction. Nevertheless, the Supreme Court of Georgia recently discontinued its practice of examining such claims when the issue is neither briefed nor meaningfully argued on appeal.⁴ In doing so, our Supreme Court advised that "it is almost always a better course to decide the appeal the parties bring us, rather than the appeal we might have brought were we in counsel's shoes."⁵ Lastly, and particularly relevant here, failing to acknowledge that an appellate attorney filed an insufficient brief in a criminal case "may ... frustrate future habeas corpus review."⁶ Thus, we decline to evaluate this abandoned claim of error on the merits.

2. Carr next argues the trial court erred in failing to merge several of his child-molestation and sexual-battery convictions for sentencing purposes. We agree the trial court erred in failing to merge some of the counts at issue.

Recently, in Scott v. State⁷ ( Scott I ), the Supreme Court of Georgia explained the law as to merger analysis. Merger usually occurs when "a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished—convicted and sentenced—for only one of those crimes."⁸ The Scott I Court explained that "[m]erger analysis often involves counts charging two different crimes,"⁹ and made clear "that is the context in which Drinkard's^{[10 ]} ‘required evidence’ test is applied."¹¹

But merger questions may also arise when "a defendant is charged with multiple counts of the same crime"¹² —which is the situation here because Carr was charged with and found guilty of four counts of child molestation and four counts of sexual battery. And this type of merger analysis "requires careful interpretation of the criminal statute at issue to identify the ‘unit of prosecution’—‘the precise act or conduct’ that the legislature criminalized."¹³ Indeed, whether a particular course of conduct "involves one or more distinct ‘offenses’ under the statute depends on this legislative choice."¹⁴

In some child-molestation cases, "where the acts ... appear to have occurred in discrete incidents," the Scott I Court explained that "precisely identifying the applicable unit of prosecution may not affect the merger decision."¹⁵ On the one hand, when a rational trier of fact could conclude the criminal acts "occurred in discrete incidents over a relatively long period, ... the State [is] authorized to charge the two crimes in two separate units of prosecution."¹⁶ On the other hand, when the criminal acts alleged in different counts of the indictment "were part of a single course of conduct occurring in a relatively short time frame, the unit of prosecution could determine if the defendant faces multiple, consecutive ... sentences or only one sentence."¹⁷ As a result, the course-of-conduct evaluation "may involve examining whether the defendant acted with the same or differing intents, whether the crimes occurred at the same place, and whether the crimes occurred at the same time or were separated by some meaningful interval of time."¹⁸ Finally, whether offenses merge is "a legal question, which an appellate court reviews de novo."¹⁹ With this analytical framework in mind, we will address each of Carr's merger arguments in turn.

(a) Child Molestation. As to Carr's child-molestation charges, this Court's recent holding in Scott v. State ( Scott II )²⁰ determined the unit of prosection provided for in OCGA § 16-6-4 (a) (1) —"a single unit of prosecution for which [a defendant] is subject to only one conviction and sentence."²¹ In doing so, we explained that—despite the statute's failure to set forth a unit of prosecution—the General Assembly had not, "by clear and unambiguous language, provided that multiple touches to a victim, during a single uninterrupted course of conduct, authorize multiple prosecutions and convictions for separate acts of child molestation."²² And given the foregoing, we must now consider whether the criminal acts alleged in the relevant child-molestation counts "[w]ere part of a single course of conduct occurring in a relatively short time frame ... [,]"²³ or whether those acts appear "to have occurred in discrete incidents over a relatively long period, [such that] ... the State [is] authorized to charge the two crimes in two different units of prosecution."²⁴

(i) Counts Two and Three. Carr first argues counts two and three of the indictment should have merged for sentencing purposes because they both alleged that he committed the offense of child molestation by touching Ti. C.’s vaginal area and her breasts, respectively, during the same two-month period. But as explained by our Supreme Court, "it is an old and sound rule that error to be...