Cobb v. State

• Decision Date: 01 June 2020
• Docket Number: A19A2170
• Citation: 843 S.E.2d 912,356 Ga.App. 187
• Court: Georgia Court of Appeals
• Parties: COBB v. The STATE.

356 Ga.App. 187

843 S.E.2d 912

COBB

v.The STATE.

A19A2170

Court of Appeals of Georgia.

June 1, 2020

Certiorari Denied April 5, 2021

Reconsideration Denied July 9, 2020

Clifford Louis Kurlander, for Appellant.

Kristopher Michael Bolden, Assistant District Attorney, Kenneth W. Mauldin, District Attorney, for Appellee.

Colvin, Judge.

On appeal from his conviction on four counts of child molestation, Kenneth Cobb argues that the trial court erred in failing to instruct the jury on his good character. Cobb also argues that the trial court made errors in sentencing, including failing to merge two counts and failing to impose a split sentence as to one of the counts. Because we agree with the last assertion only, we affirm in part, vacate in part, and remand for resentencing.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B) 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Thus viewed in favor of the verdict, the record shows that in late November 2011, Cobb began to molest both of his daughters. The 12-year-old daughter testified that at the first time, with her mother and sisters asleep in a different room, and then at other times over the following year and more, Cobb put his hand up her shirt and down her pants, touching her breasts and genitals. These touchings occurred more than 20 times. The 11-year-old daughter testified that during the same period, Cobb would come into her room while she was asleep and put his hands up her shirt, touching her chest. This happened at least five times. Neither child knew what Cobb was doing to the other.

In December 2012 or January 2013, more than a year after the abuse began, the older daughter told her boyfriend that her father had "raped" her. Later that same day, she told another friend about the abuse, adding that it had been going on for a year. The boyfriend told his grandmother about the abuse on the day he learned of it; the grandmother alerted police two weeks later. When a caseworker first asked the older daughter about the abuse, she began to cry and confirmed that her father had abused her, but said that she loved him and feared being blamed for disclosing the family's troubles. The younger daughter reported the abuse she had suffered to her grandmother shortly afterward and at trial.

Cobb was arrested in mid-January 2013 and charged with two counts of child molestation and one count of sexual battery for each child, for a total of six counts (Counts 1-3 concerning the older daughter and Counts 4-6 concerning the younger). At the conclusion of the November 2013 trial, the jury found Cobb guilty on all counts. The trial court merged the sexual battery counts into the child molestation counts and sentenced Cobb to 10 years on Count 1, 20 years with 10 to serve concurrently on Count 2, and an additional 20 years (10 running consecutively) on Counts 3 and 4, for a total of 30 years with 20 to serve. After Cobb moved for a new trial, the State conceded that as to Count 4 (concerning the touching of the younger daughter's genitals), the evidence was insufficient. The trial court directed a verdict on that count, denied the motion for new trial in other respects, and imposed the same total sentence by increasing the sentence on Count 3 (concerning the touching of the older daughter's genitals) from 10 years to serve to 20 years with 10 to serve, for the same total (after resentencing) of 30 years with 20 to serve. This appeal followed.

1. Although Cobb does not assert that the evidence was insufficient, we have reviewed the record and conclude that the evidence outlined above was sufficient to sustain his conviction for child molestation. See OCGA § 16-6-4 (a) (defining child molestation); Gunn v. State , 300 Ga. App. 229, 230-231 (1), (2), 684 S.E.2d 380 (2009) (evidence that a defendant touched a victim's genitals and breasts sufficed to sustain a conviction on two counts of child molestation, into which his conviction for sexual battery merged); Jackson , supra.

2. Cobb first argues that the trial court erred in failing to instruct the jury sua sponte on his sole defense of good character. We disagree.

Because Cobb did not request such an instruction, we review this assertion only for plain error, as follows:

First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Hampton v. State , 302 Ga. 166, 167 (2), 805 S.E.2d 902 (2017), quoting State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011). "Satisfying all four prongs of this standard is difficult, as it should be." (Citation and punctuation omitted.) Hampton , 302 Ga. at 168 (2), 805 S.E.2d 902.

The record shows that Cobb's principal strategy was to create reasonable doubt as to the veracity of his daughters’ testimony against him, which he himself characterized at trial as "inaccurate and deceptive." Cobb began to implement this strategy in opening argument, when he claimed that the older daughter had "pushed the boundaries" that he had set, and went on to elicit testimony concerning his disapproval of her relationship with her boyfriend, including her phone pictures and social media posts; arguments over her clothes and makeup; and her hostility to the rules that Cobb set. This evidence was elicited for the purpose of suggesting that because they resented his authority, his daughters had a motive to lie: "it's diametrically opposed what the girls say and what Mr. Cobb says. But that is enough to raise a question in your mind .... [T]wo diametrically opposed versions of events is enough to be a reasonable doubt." Witnesses testifying on Cobb's behalf spoke of his softball coaching and the lack of anything unusual in his public behavior concerning his daughters. They did not testify as to their personal knowledge of his good or law-abiding reputation in the community.

Because this record supports a determination that good character was not Cobb's sole defense, the trial court did not commit clear or obvious error when it failed to charge the jury on that defense in the absence of a request. See Pinkston v. State , 353 Ga. App. 88, 91 (3), 834 S.E.2d 571 (2019) (where accident was not defendant's sole defense to charges of child molestation, court's failure to sua sponte instruct jury on that defense was not obvious error). But even assuming that such error occurred, when references to Cobb's good character were scant at best, we cannot conclude that his substantial rights were affected by the absence of a sua sponte charge on that issue. Jackson v. State , 306 Ga. 69, 87 (5) (c), 829 S.E.2d 142 (2019) (no plain error in failing to give a good character instruction when, "[e]ven assuming that the testimony to which [the defendant] points can be characterized as admissible evidence of his good character, it was so scant and nebulous" that the absence of an instruction on good character "would not likely have made any difference in the jury's verdict").

For both of these reasons, Cobb has not shown that the trial court's failure to give an instruction on his good character was plain error.

3. As to sentencing, Cobb asserts that the trial court erred when it (a) considered his testimony on his own behalf as an aggravating factor; (b) failed to merge the two counts concerning the older daughter; (c) increased the sentence on Count 3; and (d) failed to impose a split sentence as to Count 1 under OCGA § 17-10-6.2 (b).

(a) Citing federal authority including United States v. Dunnigan , 507 U. S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), Cobb argues that the trial court deprived him of due process when it found that his testimony had been found untrue and was thus an aggravating factor in his sentence. We disagree.

As a preliminary matter, we note that Dunnigan is inapposite because the federal court there was required, under federal sentencing guidelines, to make specific findings of fact before it could enhance a defendant's sentence based on his untruthful testimony at trial. Dunnigan , 507 U. S. at 91, 113 S.Ct. 1111 (I) (citing U.S. Sentencing Guidelines Manual § 3C1.1 ). By contrast, Georgia law provides that a trial court may not impose a

sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant's guilt at trial rather than to enter a plea of guilty or nolo contendere.

Uniform Superior Court Rule 33.6 (B). As this Court has noted, this rule "does not require the trial judge to sentence the defendant to the same sentence that would have been appropriate if the defendant had pled guilty." West v. State , 241 Ga. App. 877, 878, 528 S.E.2d 287 (2000). "It is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at...