Chauncey v. State

• Decision Date: 08 January 2007
• Docket Number: No. A06A1725.,A06A1725.
• Parties: CHAUNCEY v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 217

641 S.E.2d 229

CHAUNCEY v. The STATE.

No. A06A1725.

Court of Appeals of Georgia.

January 8, 2007.

Melinda I. Ryals, George A. Bessonette, Homerville, for Appellant.

Catherine H. Helms, District Attorney, Erika S. Johnson, Assistant District Attorney, for appellee.

BERNES, Judge.

A Berrien County grand jury indicted Eddie Lee Chauncey on four counts of aggravated child molestation and four counts of aggravated sodomy for committing acts of oral and anal molestation against his two minor stepbrothers. After a bench trial, the superior court found Chauncey guilty but mentally retarded on all eight counts. On appeal from the denial of his amended motion for new trial, Chauncey contends that there was insufficient evidence to convict him. He further contends that the trial court erred by allowing physician testimony that identified the perpetrator and bolstered the victim's credibility; by admitting similar transaction evidence and child hearsay testimony; by permitting the state to ask the victims leading questions; by sentencing him without first having a psychological investigation performed; and by failing to grant a new trial when a witness recanted her trial testimony. For the reasons discussed below, we affirm.

"Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and on appeal, the appellate court construes the evidence in favor of the judge's findings of fact. The appellate court does not weigh the evidence or determine witness credibility but merely determines the sufficiency of the evidence." (Citation omitted.) Thomas v. State, 276 Ga.App. 79, 622 S.E.2d 421 (2005). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Construed in this light, the evidence reflects that from 2001 to approximately April 2002, 18-year-old Chauncey would babysit his stepbrothers P.H. and J.H. at their home in Berrien County while his father and stepmother were at work. P.H. was ten years old and J.H. was seven years old. According to P.H. and J.H., Chauncey penetrated them anally and forced them to perform oral sex on him on multiple occasions when he baby-sat them. Because the anal sodomy was painful, P.H. and J.H. would scream during the incidents and would attempt to put up resistance. However, Chauncey made P.H. and J.H. do squats if they did not participate in the sexual acts as instructed, and he threatened them with spanking if they told anyone about what had occurred.

Despite these threats, P.H. and J.H. revealed to their mother and stepfather that Chauncey had been molesting them over the past year, and, as a result, P.H. and J.H. were taken to the emergency room. Shortly thereafter, a child protective services investigator with the Berrien County Department of Family and Children Services interviewed P.H. and J.H. P.H. informed the investigator that Chauncey had repeatedly "pok[ed]" his "peter" into P.H.'s anus, that it hurt, and that he was scared of Chauncey. Similarly, J. H. informed the investigator that Chauncey stuck his penis in J.H.'s "butt" and forced J.H. to perform oral sex on Chauncey, and that these incidents had happened "a lot." J.H. also stated that on several occasions he had seen Chauncey anally penetrating P.H. and P.H. performing oral sex on Chauncey.

A pediatrician subsequently conducted a physical exam of P.H. and J.H. to look for signs of sexual abuse. During the examination, both P.H. and J.H. described to the pediatrician the acts of oral and anal sodomy. Although the physical exam revealed no conclusive signs of physical abuse, the pediatrician later testified at trial that such a result is not unusual in molestation cases because the anus heals very quickly after forced penetration.

1. Chauncey contends that there was insufficient evidence to convict him of aggravated child molestation and aggravated sodomy. "A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy." OCGA § 16-6-4(c). "A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." OCGA § 16-6-2(a)(2).

At the bench trial, P.H. and J.H. both testified about the allegations of oral and anal sodomy, and their testimony was corroborated by the testimony of the DFCS investigator who initially interviewed them and the pediatrician who later examined them. The state also introduced similar transaction evidence of prior incidents of oral and anal sodomy committed by Chauncey upon other siblings who were minors. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational factfinder could have found Chauncey guilty beyond a reasonable doubt of aggravated child molestation and aggravated sodomy. Jackson, 443 U.S. 307, 99 S.Ct. 2781. See Hines v. State, 277 Ga.App. 404, 405(1), 626 S.E.2d 601 (2006); Guzman v. State, 273 Ga.App. 819, 822-823(3), 616 S.E.2d 142 (2005); McKinney v. State, 269 Ga.App. 12, 16(2), 602 S.E.2d 904 (2004).

Chauncey contends that the evidence was insufficient because the sexual abuse exam of P.H. and J.H. allegedly was "brief" and failed to uncover physical evidence of abuse; there were purported conflicts in the testimony of P.H.; and there was purported evidence of J.H. having a motive to lie about the molestation.¹ These matters, however, concern the weight of the evidence and the credibility of the witnesses, and, as such, they provide no basis for reversal. "Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the ... verdict." (Punctuation and footnote omitted.) Anthony v. State, 275 Ga. App. 274, 275(1), 620 S.E.2d 491 (2005).

2. In several enumerations of error, Chauncey contends that the trial court erred by allowing two physicians called by the state "to testify as to the identity of the alleged perpetrator in violation of OCGA § 24-3-4"; by permitting child hearsay testimony that failed to comply with requirements of the Child Hearsay Statute, OCGA § 24-3-16; and by allowing the state to ask P.H. and J.H. leading questions. In each instance, however, Chauncey failed to raise an objection in the trial court. Accordingly, he has waived these claims of error for purposes of appeal. See Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992); Berman v. State, 279 Ga.App. 867, 869(2), 632 S.E.2d 757 (2006); Capps v. State, 273 Ga.App. 696, 697(1), 615 S.E.2d 821 (2005); Brock v. State, 270 Ga.App. 250, 252-253(4), 605 S.E.2d 907 (2004).

3. Chauncey claims that the trial court committed plain error by allowing the pediatrician who performed the sexual abuse exam to improperly bolster the credibility of P.H. and J.H.² "It is well settled that in no circumstances may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. The credibility of a witness is a matter exclusively for determination by the [factfinder]." (Citations and punctuation omitted.) Buice v. State, 239 Ga.App. 52, 55(2), 520 S.E.2d 258 (1999).

During the bench trial, the pediatrician testified that P.H. and J.H. maintained "good eye contact" with him throughout the examination, and that nothing he observed during his sexual abuse exam was inconsistent with what P.H. and J.H. had told him. When asked whether P.H. was "consistent with what he was saying" throughout the examination, the pediatrician answered in the affirmative. Finally, with respect to J.H.'s statements to him, the pediatrician testified, "No matter how we asked the questions, it was very consistent all the time."

We decline to find plain error based on the admission of this testimony. As an initial matter, the pediatrician's testimony concerning the children's eye contact and the consistency of their statements with the sexual abuse exam did not constitute improper bolstering. See Harris v. State, 279 Ga.App. 570, 572(1), 631 S.E.2d 772 (2006) (holding that it is not improper bolstering for a witness to "express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story") (punctuation and footnote omitted); Morris v. State, 268 Ga.App. 325, 328(2), 601 S.E.2d 804 (2004) ("[T]estimony regarding the victim's demeanor [does] not express an impermissible opinion on an ultimate issue of whether the victim was sexually abused.").

It is a closer question whether the pediatrician's testimony that P.H. was "consistent with what he was saying" and that J.H. was "very consistent all the time" constituted improper bolstering. Nevertheless, even if the testimony was improper, it did not rise to the level of plain error.

Plain error is error that is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or one that seriously affects the fairness, integrity, or public reputation of a judicial proceeding. Although our Supreme Court has restricted application of the plain error doctrine to death penalty cases and cases in which the court has allegedly opined on the guilt of the defendant, this court's application of the doctrine has been less restrictive. We have, however, generally restricted application of the doctrine to cases presenting exceptional circumstances. The alleged error here was simply the admission of evidence bolstering a witness's credibility. This is not the kind of error that seriously affects the fairness, integrity, or public reputation of a judicial proceeding.

(Citations, punctuation and footnotes omitted.) Frazier v. State, 278 Ga.App. 685, 687(1)(a), 629 S.E.2d 568 (2...