Creed v. State

• Citation: 255 Ga. App. 425,565 S.E.2d 480
• Decision Date: 17 April 2002
• Docket Number: No. A02A0287.,A02A0287.
• Parties: CREED v. The STATE.
• Court: United States Court of Appeals (Georgia)

565 S.E.2d 480

255 Ga. App. 425

CREED v. The STATE.

No. A02A0287.

Court of Appeals of Georgia.

April 17, 2002.

Reconsideration Denied May 20, 2002.

Kenneth L. Gordon, Franklin H. Thornton, La Grange, for appellant.

Peter J. Skandalakis, Dist. Atty., Nigel R. Lush, Asst. Dist. Atty., for appellee.

MIKELL, Judge.

Buford Lee Creed was convicted of one count of aggravated child molestation and three counts of child molestation for sexually abusing his niece. The court sentenced him to ten years confinement. Creed appeals the court's denial of his motion for new trial, arguing that he was denied a competent jury and the effective assistance of counsel, that the court did not follow proper procedure in polling the jury, and that the trial judge improperly expressed an opinion on the case. We disagree and affirm the conviction.

Viewed in the light most favorable to the jury's verdict, the record shows that Creed's abuse of his niece, J.W., began when the victim was nine years old and continued until she was fourteen, when she reported the abuse to her parents. The evidence further shows that J.W. spent a significant amount of time with her uncle over the years. J.W. testified that when she was nine, Creed began the practice of putting his hand under her shirt and rubbing her chest and that this behavior went on for approximately one year. According to J.W., Creed resumed touching her when she was in the seventh grade. J.W. testified that Creed put his hands inside her shirt and fondled her chest on numerous occasions in his truck, in his home, and in her parents' home. Creed often kissed the victim, putting his tongue inside her mouth. J.W. testified that she would normally just "sit there" when Creed touched and kissed her, because she was afraid of him. J.W.'s testimony revealed that Creed began purchasing alcohol and cigarettes for her and her friends, and that he would often touch her on nights that he bought her alcohol.

Creed's molestation of J.W. progressed when the victim was in the eighth grade. Once when J.W. was staying at Creed's home, he came into her bedroom, removed her pants and panties, and licked her "private parts." J.W. testified that on another occasion when she was riding with Creed in his truck, Creed pulled over, kissed her, removed her pants and undergarments, and "licked [her] private parts." J.W. described other incidents in which Creed penetrated her by putting his fingers inside her "private parts." She estimated that he penetrated her with his fingers on between six and eight occasions and testified that the incidents normally occurred in his truck. According to J.W., she did not report Creed's behavior to her parents because she loved her uncle and did not want him to get into trouble.

The record also reveals that J.W. told three friends about the abuse. According to K.B., a close friend of J.W., J.W. asked her to keep the abuse a secret and occasionally begged K.B. to spend the night at Creed's home with her so that J.W. would not be alone with her uncle. Another friend, H.U., testified that during the summer after the girls were in the eighth grade, J.W. told H.U. that Creed "molested her, that he went down her pants and up her shirt and kissed her." Additionally, B.M., J.W.'s former boyfriend, testified that J.W. told him on several occasions that Creed "felt on her breasts and went down her pants and felt on her private area and stuff." The record shows that B.M. attempted to convince J.W. to report the abuse, but she insisted that it be kept a secret. B.M. further testified that he and J.W. did not engage in sexual intercourse and that he never touched her private area.

J.W.'s parents discovered Creed's sexual abuse of their daughter in September 1999. The evidence shows that when J.W. was in the ninth grade, she and her friends had a "pool party" at Creed's home while he and his wife were out of town. Creed's wife became upset because the children left trash on the premises, and she contacted K.B.'s mother to complain. K.B.'s mother testified that she confronted her daughter and that K.B. responded that "there's a lot of things that goes [sic] on over there that you're not aware of that I need to talk to you about." K.B. then informed her mother of Creed's sexual abuse of J.W. K.B.'s mother told her daughter that if J.W. did not report the abuse to her parents, then she would. J.W. told her mother about Creed's actions the next day. J.W.'s parents contacted the authorities, who conducted an investigation and ultimately arrested Creed.

Dr. Suzanne Schuessler, a pediatrician who examined J.W. immediately after the abuse was reported, testified that J.W. exhibited physical signs of sexual abuse. According to Dr. Schuessler, she performed a pelvic examination on J.W. which revealed a tear in the opening of the vagina "at the five o'clock position" and a fleshy mass that was possibly scar tissue. The doctor testified that a tear in that position was significant because it was usually caused by vaginal penetration by someone other than the victim. Dr. Schuessler further testified that J.W. explained that Creed touched her and that he "was sticking his finger in [her]." When asked by the doctor, J.W. denied having any prior sexual activity with boyfriends or male acquaintances other than Creed. Dr. Schuessler confirmed that J.W.'s description of the abuse was consistent with her physical findings.

1. First, Creed argues that the trial court erroneously commented on the evidence and expressed its opinion in violation of OCGA § 17-8-57. Specifically, Creed contends that the court expressed an opinion in the course of an exchange with defense counsel. During the defendant's cross-examination of J.W., the state objected three times to the relevance of a line of questioning concerning the pool party J.W. and her friends had at Creed's home. The court gave the defense some latitude and expressly overruled the first two objections. Eventually, after the state's third objection, the trial judge urged defense counsel to move on:

THE COURT: Mr. Thomas, where are you going with all of this? You've just been going over and over this same thing.

MR. THOMAS: I'm going to get to the truth, Your Honor.

THE COURT: About what? About a pool party? There are no charges related to a pool party, Mr. Thomas. Move on if you would and try to get to something that's relevant to the case.

MR. THOMAS: Your Honor, Ms. Kirby [the prosecutor] says that this lady's telling the truth. I want to find out if she is honest or not. And to do that, I have to ask questions, and that's what I'm doing is asking questions.

THE COURT: I have overruled three relevancy objections, and we are still on the same subject. Now, I don't mind giving you a lot of latitude; you've got a client who's charged with very serious offenses, and I want to give you all the latitude I can give you, but you just keep asking the same questions over and over about the same subject matter. Let's try to move on.

Contrary to Creed's argument, we conclude that the colloquy between the trial judge and defense counsel did not constitute a violation of OCGA § 17-8-57. Under that statute, it is error for a judge to "express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused."

Unlike the judge in Paul v. State, 272 Ga. 845, 846(1), 537 S.E.2d 58 (2000), who "intimated his opinion as to the credibility of witnesses and the guilt of the defendant," the trial judge in this case did not comment on the evidence or the guilt of the defendant. Instead, the court inquired as to the direction defense counsel was going with a particular line of questioning and encouraged counsel to move forward. There is no indication in the record that the court expressed an opinion as to the sufficiency of the evidence or the guilt of the defendant.

Furthermore, in Rowe v. State, 266 Ga. 136, 139(2), 464 S.E.2d 811 (1996), the Supreme Court expressly stated that "the rule which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proved, OCGA § 17-8-57, does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence." (Citations and punctuation omitted.) In addition, it is well settled that "[r]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence." (Citations and punctuation omitted.) Johnson v. State, 234 Ga.App. 58, 59(1), 506 S.E.2d 212 (1998). See also Cammon v. State, 269 Ga. 470, 475(9), 500 S.E.2d 329 (1998); Waldrip v. State, 267 Ga. 739, 751(20), 482 S.E.2d 299 (1997); Dickerson v. State, 241 Ga.App. 593, 595-596(3), 526 S.E.2d 443 (1999).

Finally, at the close of the trial, the judge charged the jury as follows:

[B]y no ruling or comment which I may have made during the course of this trial have I intended to express any opinion whatsoever about the facts of the case, the credibility of any witness, or the guilt or innocence of this Defendant, as these are solely matters in your province to decide. My only interest in the case has been to see that it be tried fairly and in accordance with the law, and that you be enabled, insofar as humanly possible, to arrive at a verdict which speaks the truth and which does justice under the law.

Accordingly, we find no error. See Hunt v. State, 247 Ga.App. 464, 469(5), 542 S.E.2d 591 (2000).

2. Next, in two related errors, Creed argues that the court erred in failing to follow the proper procedure for polling the jury and in denying his motion for a new trial, because the Troup County Board of Jury Commissioners failed to "compile, maintain, and revise a trial jury list of upright and intelligent citizens of the County to serve as trial jurors" as required by OCGA § 15-12-40(a)(1). Specifically, Creed contends that juror Ruby Rosser was incompetent to serve because she did not meet the...