Castro v. State

• Decision Date: 03 December 1999
• Docket Number: No. A99A1374.,A99A1374.
• Citation: 527 S.E.2d 12,241 Ga. App. 546
• Parties: CASTRO v. The STATE.
• Court: Georgia Court of Appeals

527 S.E.2d 12

241 Ga. App. 546

CASTRO v. The STATE.

No. A99A1374.

Court of Appeals of Georgia.

December 3, 1999.

Reconsideration Denied December 16, 1999.

Certiorari Denied May 1, 2000.

James C. Wyatt, Rome, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, C. Stephen Cox, Assistant District Attorneys, for appellee.

SMITH, Judge.

Maria Castro, along with her husband, Jose Castro, was convicted of the offenses of aggravated child molestation and child molestation involving their three-year-old daughter. Maria Castro filed a motion for new trial, which was denied. In this appeal, Castro contends that the trial court erred by refusing to grant her motion for directed verdict of acquittal on the aggravated child molestation count and erred by refusing to grant a mistrial after a witness improperly commented that she believed the victim was telling the truth.¹ We find no merit to either assertion. Although one of the State's witnesses improperly uttered a gratuitous remark about the victim's credibility, we do not find that the trial court abused its discretion in resolving the matter by employing appropriate curative instructions.

1. Castro contends that the trial court erred in denying her motion for directed verdict on the count for aggravated child molestation. We disagree.

Construed to uphold the jury's verdict, evidence showed that both Castro and her husband, Jose, sexually victimized their three-year-old daughter. After their daughter mentioned certain sexual activities engaged in by and with her parents to her babysitters, they contacted authorities, and the Floyd County Department of Family & Children Services instituted an immediate investigation. Dr. Susan Campbell, a clinical psychologist affiliated with Harbor House, interviewed the victim the day after DFCS received the initial report of the sexual abuse allegedly perpetrated by the child's parents. Dr. Campbell, an expert in the field of child psychology and forensic interviews of child abuse victims, spoke with the child.² Campbell's interview of the victim was preserved on a videotape that the jury was permitted to view. Dr. Campbell testified that "she described very easily sexual behaviors that had occurred between herself and her parents and between her parents that are things that she would not have knowledge about if she had not experienced them herself." According to Dr. Campbell, "[this child] actually put her mouth on the genitalia of the dolls, which I would say in less than five cases in the—of the 450 that we've seen at Harbor House is something that I've seen children do." During this initial interview, the victim indicated that she had taken her mother's underwear off and kissed her on the buttocks, that she had kissed her mother in her vaginal area, and that her mother had kissed her in her crotch area. Using anatomical dolls, the victim reenacted placing her mouth on her mother's vaginal area.

Eva Lovell, a clinical psychologist, provided counseling to the victim through more than 22 therapy sessions. The victim repeatedly and consistently described acts of sexual touching involving both her parents to Lovell during therapy.³ Lovell's supervisor, Dr. William Blackerby, testified that the victim's claims against her parents had been consistent "all the way along." Lovell testified that the child's explicit sexual knowledge and behavior exceeded 99.999 percent of typical children of her age.

The victim's foster mother confirmed that the child acted out sexually and behaved in a manner inappropriate for her age. According to the foster mother, she observed the victim repeatedly enacting scenes with dolls indicating intercourse and oral sex.

About six weeks after the preliminary interview, Dr. Campbell again met with the victim. Dr. Campbell's decision to conduct a second interview was prompted by remarks made by the victim after she was in foster care that seemed to possibly implicate two additional perpetrators. The purpose of the second interview was solely to investigate whether other persons may have also sexually abused the child. Dr. Campbell felt that she did not obtain reliable information concerning abuse by anyone other than the parents. Dr. Campbell testified that the victim's accounts of the aberrant sexual misconduct by her parents remained consistent over time. According to Dr. Campbell, the victim never retracted anything she had previously said about either of her parents. In Dr. Campbell's view, the victim "absolutely" exhibited symptoms and behaviors of a child who has been sexually abused. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to sustain Castro's conviction for aggravated child molestation. See Johnson v. State, 231 Ga.App. 823(1), 499 S.E.2d 145 (1998) (a victim's testimony alone can sustain a conviction). In light of the overwhelming evidence of Castro's guilt, the trial court properly denied the motion for directed verdict. Cantrell v. State, 230 Ga.App. 693, 694-695, 498 S.E.2d 90 (1998).

2. Castro asserts that the trial court erroneously refused to grant her motion for mistrial after the State's expert improperly bolstered the credibility of the victim.

This witness, Lovell, an expert in clinical psychology and therapy of sexually abused children, treated the victim. She testified concerning her observations of the victim during play therapy, describing the victim as showing much aggression and violence, and explaining how the victim's behavior indicated that she had experienced sexual trauma. She also testified that the victim reported sexual abuse by her parents on more than one occasion.

While on direct, Lovell was asked a proper question: "Do you find it significant that this child consistently, over a year's time, has continued to name her mother and father as abusers?" At this point, Lovell supplied an unresponsive, impermissible answer: "Yes, I believe that she's telling the truth." Both Castros immediately moved for a mistrial, and a bench conference ensued. The trial court refused to grant a mistrial, electing instead to immediately give the jury this curative instruction:

Members of the jury, we have different professionals come in, and they have been qualified as an expert. The question of whether or not someone believes the child—is it may be important to somebody in the treating of the child, but there is no way that the law is going to permit any expert to come in, no matter how much training, and—and testify to the truthfulness of what the child is saying. That is the ultimate that the jury must decide, and it cannot be decided by—by an expert, and there has been a motion made, and I am excluding that from your consideration, the witness's last testimony—statement that she believes the child.

After so instructing the jury, the court then polled the jury to ensure that no prejudice had occurred. The court continued:

Now, it's so important that you be able to separate your decisions from what this witness told you in response to the last—her last response that I need to ask you a question. Can all of you set aside the witness's last statement that she believes the child and, then, make your own decisions as to whether or not you believe the child? If you cannot do that, please raise your hand.

After no juror responded, both defendants renewed their motions for a mistrial. The court then denied the motions and cautioned the witness as follows:

THE COURT: Doctor, I'm not trying to question you—.

THE WITNESS: Yes, sir.

THE COURT: [B]ut there is a line of demarcation between what you're able to do for this jury by way of helping them—.

THE WITNESS: Uh-huh (affirmative).

THE COURT: —[A]nd what you can do by—and—and—and you're prohibited from telling the jury what your opinion is for their purpose of opinion.

As the State concedes, Lovell's unresponsive comment that she believed the child was improper. Witness credibility lies exclusively within the province of the jury. OCGA § 24-9-80. A witness's credibility simply cannot be bolstered by the opinion of another that the witness is telling the truth. See, e.g., Buice v. State, 239 Ga.App. 52, 55-56(2), 520 S.E.2d 258 (1999); Hilliard v. State, 226 Ga.App. 478, 481-482, 487 S.E.2d 81 (1997); Lagana v. State, 219 Ga.App. 220, 221(1), 464 S.E.2d 625 (1995).

But in these circumstances, a mistrial was not mandated. The grant or denial of a motion for mistrial lies within the sound discretion of the trial court, and this discretion will not be disturbed unless manifestly abused. Mosier v. State, 218 Ga.App. 586, 589-590(4), 462 S.E.2d 643 (1995); see Davis v. State, 238 Ga.App. 84, 88-89(6), 517 S.E.2d 808 (1999). Unless it is obvious that a mistrial is essential to the preservation of the right to a fair trial, appellate courts will not interfere with the exercise of the trial court's discretion. Jones v. State, 226 Ga.App. 721, 725(2), 487 S.E.2d 618 (1997).

Here, recognizing the problem with this impermissible bolstering, the trial court took immediate remedial action to rectify the situation. The court provided a strongly worded curative instruction, polled the jury, then advised the witness to avoid giving her opinion. Jones, supra (by providing cautionary instructions and polling the jury, the trial court did not abuse its discretion in denying motion for mistrial); see Davis, supra; English v. State, 202 Ga.App. 751, 755(5), 415 S.E.2d 659 (1992). Given the court's curative efforts, the nature of the unresponsive comment, and the lack of apparent prejudice, we find no abuse of discretion in the denial of the motion for mistrial. James v. State, 270 Ga. 675, 677(4), 513 S.E.2d 207 (1999).

Moreover, here, as in Stamey v. State, 194 Ga.App. 305, 390 S.E.2d 409 (1990), sufficient other evidence implicated the defendant, permitting us to conclude that it is highly probable that the erroneous opinion...