Cowan v. State, No. A06A0115.
| Court | Georgia Court of Appeals |
| Writing for the Court | Ruffin |
| Citation | 631 S.E.2d 760,279 Ga. App. 532 |
| Parties | COWAN v. The STATE. |
| Docket Number | No. A06A0115. |
| Decision Date | 24 May 2006 |
v.
The STATE.
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Glynn R. Stepp, Lawrenceville, for appellant.
Daniel J. Porter, District Attorney, Tracie J. Hobbs, Assistant District Attorney, for appellee.
RUFFIN, Chief Judge.
A jury found Stephen Cowan guilty of child molestation. On appeal, Cowan challenges the sufficiency of the evidence. Cowan also contends that the trial court erred in: (1) overruling his Batson challenge; (2) failing to strike several jurors for cause; (3)
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admitting similar transaction evidence; and (4) denying his motion for new trial based upon newly discovered evidence. Finding no error, we affirm.
1. "`On appeal from a criminal conviction, we view the evidence in a light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence.'"1 In so doing, we ascertain merely whether the evidence was sufficient to support the verdict; we do not weigh the evidence or determine witness credibility.2
Viewed in this manner, the evidence shows that Cowan was married to J.W.'s mother, with whom he had a daughter, Kelsey. Although Cowan and the mother divorced, ten-year-old J.W. would visit Cowan while in the company of her half-sister, Kelsey. When the two girls spent the night with Cowan, they slept on an air mattress in the living room. On August 4, 2001, J.W. and Kelsey stayed overnight with Cowan. According to J.W., after she and her sister had fallen asleep, Cowan laid on the air mattress, took her hand, placed it on his penis, and "moved it around a little bit." J.W. jerked her hand away and went to the bathroom.
When J.W. returned home the next day, she told her mother what had transpired. Upon hearing J.W. recount the incident, J.W.'s older sister, H.T., began to cry. According to H.T., when she was 11, Cowan began touching her inappropriately, including touching her high on her leg and on her chest in such a way that she felt uncomfortable. [279 Ga. App. 533] H.T. testified that on one occasion, Cowan placed her hand on his penis. Based on this and other evidence, the jury found Cowan guilty of child molestation.
On appeal, Cowan contends that this evidence was insufficient to support a finding of guilt. Pursuant to OCGA § 16-6-4(a), "[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." Here, the evidence that Cowan grabbed J.W.'s hand and rubbed it against his penis — along with the similar transaction evidence — is sufficient to establish his guilt.3
Nonetheless, Cowan maintains that his conviction should be reversed because of contradictions in the testimony and because the evidence showed that the victim "demonstrated an incredibly strong racial animus."4 These contentions, however, are without merit, as this Court does not reweigh evidence.5 Because competent evidence supported each fact necessary to prove the State's case, we uphold the jury's verdict.6
2. Cowan also asserts that the trial court erred in overruling his Batson challenge in which he claimed the State exercised its peremptory strikes in a racially discriminatory manner.7 Specifically, Cowan asserts that the State struck the only African-American juror for an allegedly race-neutral reason, but did not strike similarly situated white jurors.
The record reveals that the State struck the sole African-American juror after she revealed that her brother-in-law had committed armed robbery and had possessed drugs and both her nephew and cousin had committed murder. The prosecutor asserted that, because of the nature of the convictions, "the State felt that [the woman] would not be an appropriate juror." Nonetheless, the State accepted three white jurors whose friends or family members had also been arrested
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and/or convicted of various offenses. During voir dire, one juror testified that his stepson had pleaded guilty to theft and received community service;8 a second juror admitted that her brother-in-law had been arrested for spousal abuse and contempt of [279 Ga. App. 534] court; and a third juror had a boyfriend who had been arrested for drugs. Two of these jurors served on the jury.
After Cowan raised his Batson challenge and the prosecutor stated his reason for striking the sole African-American juror, the trial court found that the State had offered a "valid, nonracial reason" for striking the juror. In so doing, the trial court noted that the African-American juror was the only member of the petit venire who had family members arrested for — and convicted of — capital felonies. We find no basis for reversal.
Courts employ a three-step analysis in addressing a defendant's Batson challenge.9 First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination.10 Then, the burden shifts to the proponent of the strike to provide a race-neutral reason for the strike.11 "[T]he trial court then decides whether the opponent of the strike has proven discriminatory intent."12 In this case, the trial court focused on the second prong of the test, concluding that the reason provided was race-neutral. Given the disparate nature of the crimes involved, we cannot say that the trial court's decision was clearly erroneous.13
Under Batson, failure to treat similarly situated jurors in a like manner may support a finding of discrimination.14 Whether discriminatory intent exists is generally a matter for the trial court, as such finding "rests largely upon assessment of the prosecutor's state of mind and credibility."15 And a trial court's factual findings in this regard are entitled to great deference.16 Here, the trial court concluded that the African-American juror was not similarly situated to the remaining jurors. Although we find this a close case, given the appropriate appellate standard, we cannot gainsay the trial court's findings in this regard.17
3. On appeal, Cowan argues that the trial court erred in failing to strike five jurors for cause. Each of the five jurors stated during voir dire that either they or one of their family members had suffered some form of abuse. According to Cowan, based upon the nature of the case [279 Ga. App. 535] and the jurors' revelations, the trial court abused its discretion in failing to excuse them for cause.
As this Court recently reiterated, "[b]efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence."18 And we will affirm a trial court's decision not to strike a prospective juror unless that court has abused its discretion in so ruling.19 We find no abuse of discretion here as each of the jurors testified unequivocally that their experiences would not hamper their ability to serve as impartial jurors.20
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Hilliard v. State, No. A09A0131.
...279 Ga.App. at 855-856(2)(b), 632 S.E.2d 730. 17. Payne v. State, 285 Ga. 137, 138, 674 S.E.2d 298 (2009). But see Cowan v. State, 279 Ga.App. 532, 535(4), 631 S.E.2d 760 (2006) (reviewing trial court decision to allow similar transaction evidence under the abuse of discretion 18. (Citation......
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Parker v. State, No. A06A1813.
...challenged evidence was admissible for the appropriate purposes of showing Parker's intent and lustful disposition. See Cowan v. State, 279 Ga.App. 532, 535(4), 631 S.E.2d 760 (2006); Lewis v. State, 275 Ga.App. 41, 42-43(2)(a), 619 S.E.2d 699 Second, there was sufficient evidence that Park......
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Brown v. State, No. A11A1963.
...citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 6. (Footnote and punctuation omitted.) Cowan v. State, 279 Ga.App. 532, 535(3), 631 S.E.2d 760 (2006). 7.250 Ga.App. 259, 549 S.E.2d 797 (2001), affirmed in part and disapproved in part by Kim v. Walls, 275 Ga. ......
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Franklin v. The State, No. A10A1160.
...race-neutral and denied Franklin's Batson challenge. A Batson claim is resolved using a three-step analysis. See Cowan v. State, 279 Ga.App. 532, 534(2), 631 S.E.2d 760 (2006). A defendant who raises a Batson challenge to the State's jury strikes must first make a prima facie showing of rac......
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Hilliard v. State, No. A09A0131.
...279 Ga.App. at 855-856(2)(b), 632 S.E.2d 730. 17. Payne v. State, 285 Ga. 137, 138, 674 S.E.2d 298 (2009). But see Cowan v. State, 279 Ga.App. 532, 535(4), 631 S.E.2d 760 (2006) (reviewing trial court decision to allow similar transaction evidence under the abuse of discretion 18. (Citation......
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Parker v. State, No. A06A1813.
...challenged evidence was admissible for the appropriate purposes of showing Parker's intent and lustful disposition. See Cowan v. State, 279 Ga.App. 532, 535(4), 631 S.E.2d 760 (2006); Lewis v. State, 275 Ga.App. 41, 42-43(2)(a), 619 S.E.2d 699 Second, there was sufficient evidence that Park......
-
Brown v. State, No. A11A1963.
...citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 6. (Footnote and punctuation omitted.) Cowan v. State, 279 Ga.App. 532, 535(3), 631 S.E.2d 760 (2006). 7.250 Ga.App. 259, 549 S.E.2d 797 (2001), affirmed in part and disapproved in part by Kim v. Walls, 275 Ga. ......
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Franklin v. The State, No. A10A1160.
...race-neutral and denied Franklin's Batson challenge. A Batson claim is resolved using a three-step analysis. See Cowan v. State, 279 Ga.App. 532, 534(2), 631 S.E.2d 760 (2006). A defendant who raises a Batson challenge to the State's jury strikes must first make a prima facie showing of rac......