Damerow v. the State.

• Decision Date: 06 July 2011
• Docket Number: No. A11A0338.,A11A0338.
• Citation: 11 FCDR 2258,310 Ga.App. 530,714 S.E.2d 82
• Parties: DAMEROWv.The STATE.
• Court: Georgia Court of Appeals

310 Ga.App. 530

714 S.E.2d 82

11 FCDR 2258

DAMEROW

v.The STATE.

No. A11A0338.

Court of Appeals of Georgia.

July 6, 2011.

John G. Wolinski, for appellant.Joseph Kenneth Mulholland, Dist. Atty., Michael L. Bankston, Asst. Dist. Atty., for appellee.MILLER, Presiding Judge.

Following a jury trial, Jason George Damerow was convicted of child molestation (OCGA § 16–6–4(a)).¹ The trial court denied Damerow's motion for new trial. On appeal, Damerow (1) challenges the sufficiency of the evidence supporting his conviction. He further contends that the trial court erred in (2) failing to give the complete pattern jury charge on witness credibility and (3) admitting his prior convictions as impeachment evidence. In addition, Damerow asserts that (4) his trial counsel was ineffective. We discern no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.(Citations and punctuation omitted.) Fogerty v. State, 304 Ga.App. 546(1), 696 S.E.2d 496 (2010).

So viewed, the trial evidence shows that Damerow was the stepfather of the 15–year–old victim, J.S. J.S. testified that in 2006, when she was between 13 and 14 years old, Damerow began grabbing her buttocks. She stated that, eventually, the molestation escalated and Damerow would force her to kiss him. J.S. disclosed the incidents to her mother. Upon being confronted with the allegations, Damerow told the mother that J.S. had asked him to teach her how to kiss. The mother removed Damerow from the residence and obtained a divorce.

Later, in May 2007, Damerow began visiting the residence again. In September 2007, the mother allowed Damerow to move back into the residence. J.S. testified that when Damerow returned to the residence, the molestation continued and escalated further. On or about October 20, 2007, between the hours of 2:30 a.m. and 3:00 a.m., Damerow entered J.S.'s bedroom, laid on top of her, rubbed her breasts, and kissed her on the mouth, neck, and breasts. J.S. further testified that Damerow came into her bedroom and molested her almost every night. Damerow threatened to kill J.S. and her family if she told anyone about the molestation.

Eventually, J.S. disclosed the molestation to her friend, whose father was a police officer. Following J.S.'s disclosure, an investigation was launched. J.S. gave a statement to the police and further participated in a forensic interview concerning the molestation. The forensic interview was recorded by videotape and was played for the jury at trial.

J.S.'s family was referred to counseling by the Department of Family and Children Services (“DFACS”). During the counseling sessions, J.S. told the family counselor about the molestation and her fear of Damerow.

Damerow was arrested and charged with three counts of child molestation. During an interview with police, Damerow denied J.S.'s allegations. Damerow also testified at trial and again denied the molestation allegations. He also denied J.S.'s allegation that he had threatened to kill her and her family. Damerow claimed that J.S. had made up the allegations because he was the disciplinarian of the family and she wanted to have him removed from the residence.

Following the presentation of the evidence at trial, the jury convicted Damerow of one count of child molestation, but acquitted him of the other two counts.

1. Damerow contends that the evidence was insufficient to sustain his conviction. We disagree.

“A person commits the offense of child molestation when such person ... [d]oes 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[.]” OCGA § 16–6–4(a)(1). J.S.'s testimony at trial established that Damerow had entered her bedroom, laid on top of her, rubbed her breasts, and kissed her on the mouth, neck, and breasts. Based upon this testimony, the jury was authorized to find that Damerow was guilty of this offense as charged. See id.; Maddox v. State, 263 Ga.App. 507, 508–509(1), 588 S.E.2d 305 (2003).

Damerow nevertheless argues that the verdict was against the weight of the evidence, and therefore, he was entitled to a new trial.

OCGA § 5–5–21 specifically empowers trial courts with the authority to weigh the evidence. It provides that a trial judge, in the exercise of a sound discretion, may grant a new trial “in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” On a motion for new trial alleging this ground, the court sits as a “thirteenth juror.” The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

(Citations and punctuation omitted; emphasis in original.) Rutland v. State, 296 Ga.App. 471, 476(3), 675 S.E.2d 506 (2009).

The trial court considered Damerow's arguments in the context of OCGA § 5–5–21, but ultimately decided this claim against him. We discern no error.

As there were no eyewitnesses to the alleged incident, resolution of the issue rested largely upon the testimony of [Damerow] and [J.S.]. Each presented his or her version of [whether the molestation had occurred], and the jury was allowed to consider the history of the relationship between the two and to consider their conduct before and after the incident.... This is simply not a case in which the evidence preponderates heavily against the verdict. The trial court did not err in refusing to grant [Damerow's] motion for new trial. (Punctuation and footnote omitted.) Taylor v. State, 259 Ga.App. 457, 460–461(2), 576 S.E.2d 916 (2003).

2. Damerow further contends that the trial court erred in failing to give the complete pattern jury charge on witness credibility. The Suggested Pattern Jury Instructions on the credibility of witnesses provides as follows:

You must determine the credibility or believability of the witnesses. It is for you to determine which witness or witnesses you believe or do not believe, if there are some whom you do not believe.

In deciding credibility, you may consider all of the facts and circumstances of the case, the manner in which the witnesses testify, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, and the occurrences about which they testify. You may also consider their personal credibility insofar as it may have been shown in your presence and by the evidence.

(Punctuation and footnote omitted.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.31.10.

The record shows that the trial court gave an abbreviated version of the pattern charge, which included the first paragraph of the aforementioned charge, but omitted the second paragraph setting forth the factors for determining witness credibility. Nevertheless, Damerow failed to present any jury charge requests. In the absence of a proper request, the trial court's omission of the rules by which to test the credibility of witnesses is not erroneous. See Benton v. State, 185 Ga. 254, 257(6), 194 S.E. 166 (1937); Giles v. State, 113 Ga.App. 629, 149 S.E.2d 432 (1966).

3. Damerow also argues that the trial court erred in admitting his prior convictions for impeachment purposes. Again, we discern no error.

OCGA § 24–9–84.1(a) governs the manner in which a defendant's credibility may be impeached if he elects to testify. Subparagraph (3) of the statutory provision pertinently states that “[e]vidence that ... the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement[.]” Here, Damerow testified in his own defense at trial. For impeachment purposes, the State introduced evidence that Damerow had prior convictions for felony forgery (OCGA § 16–9–1(a)), misdemeanor theft by deception (OCGA § 16–8–3(a)), and misdemeanor giving a false name to a law enforcement officer (OCGA § 16–10–25).² Although Damerow's counsel initially objected to the admissibility of the prior convictions, the trial court overruled his objection. Thereafter, when the prior convictions were formally tendered into evidence, Damerow's counsel stipulated to their admission.

In light of the stipulation, Damerow's instant challenge to the admission of his prior convictions has been waived. See Relaford v. State, 306 Ga.App. 549, 553(1), 702 S.E.2d 776 (2010) (trial counsel's failure to object to the admission of defendant's prior convictions waived the issue). See also Martin v. State, 251 Ga.App. 149(1), 553 S.E.2d 827 (2001) (concluding that any objection that defendant had to the admission of the challenged evidence was waived by his stipulation to its admission at trial).

Even if the claim had not been waived, however, the prior convictions were admissible under OCGA § 24–9–84.1(a)(3) since they each involved dishonesty or making a false statement, and bore directly upon Damerow's truthfulness and veracity. See Whatley v. State, 296 Ga.App. 72, 673 S.E.2d 510 (2009) (concluding that a witness's prior convictions for forgery and giving a false name to a police officer were admissible under OCGA § 24–9–84.1(a)(3)); Habersham v. State, 289 Ga.App. 718, 720–721(4)(a), 658 S.E.2d 253 (2008) (concluding that a defendant's prior conviction for giving a false name to a police officer was admissible for purposes of impeachment); Scott v....