Davis v. State

• Decision Date: 16 July 2013
• Docket Number: No. A13A0703.,A13A0703.
• Citation: 746 S.E.2d 890,323 Ga.App. 266
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

323 Ga.App. 266

746 S.E.2d 890

DAVIS

v.The STATE.

No. A13A0703.

Court of Appeals of Georgia.

July 16, 2013.

Brian Steel, Atlanta, for Davis.

Robert Brandon Faircloth, Louie Craig Fraser, for State.

BRANCH, Judge.

On appeal from his conviction for aggravated sexual battery and child molestation, Albert Davis argues that the trial court erred when it failed to charge the jury on accident, when it closed the courtroom during the victim's testimony, and when it received an ex parte communication from a juror. Davis also argues that the statute of limitation had run before he was indicted for aggravated sexual battery, that he was deprived of his right to effective and conflict-free counsel, and that his sentence on the aggravated sexual battery count was illegal. We affirm Davis's conviction but vacate his sentence and remand for resentencing because the rule of lenity requires that he be resentenced under the lesser penalty prescribed by the version of OCGA § 16–6–22.2 in effect before July 1, 2006.

“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.” (Citation omitted.) 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, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that in February 2010, the 13–year–old victim sent her cousin a number of text messages to the effect that Davis, her stepfather, had sexually abused her. When the cousin informed the Treutlen County sheriff of these messages, the sheriff went to the house the victim shared with her mother and Davis and saw the victim, who had just returned home from school, begin to cry. The victim's mother told the victim to go with the sheriff, “to tell the truth,” and that “it would be all right.” The sheriff drove the victim to the local courthouse and called in an agent from the Georgia Bureau of Investigation, who interviewed the victim in a judge's chambers. In the meantime, the sheriff called Davis and asked him to meet at the courthouse. When Davis arrived, he waived his Miranda rights and admitted that he often bathed with the victim, during which occasions he sometimes touched her breasts, buttocks, and inner thighs; that he regularly went into her room naked in the morning to “wake her up”; and that he might have touched the victim inappropriately while carrying her to her bedroom a few years earlier. The sheriff then arrested Davis for child molestation.

The GBI agent's interview of the victim was played for the jury at trial. In the course of the interview, the victim stated that when she was between the ages of 7 and 13, Davis would sometimes come into her room naked and kiss her while touching himself; that Davis often washed her body while she bathed; that he had once inserted his finger in her vagina while carrying her from her mother's room, where she had fallen asleep, to her bedroom; and that he once told her to squat in the shower and then checked her private parts for ticks, during which time he inserted his finger in her vagina. At trial, and in addition to confirming these incidents, the victim also testified that Davis would come into her room, lie down on top of her, and try to kiss her on the mouth. During his own interview with the same GBI agent, Davis admitted to scratching his privates at times when he walked into the victim's room naked to awaken her in the morning, to showering with and touching the victim, and to searching her pubic hair for ticks.

Davis was charged with one count of aggravated sexual battery for penetrating the victim with his finger without her consent between December 18, 2004, and December 18, 2006. Davis was also charged with two counts of child molestation—the first for masturbating in the victim's presence between October 1, 2008, and February 4, 2010, and the second for fondling her breast and vagina between October 1, 2009, and February 4, 2010. A jury found Davis guilty of aggravated battery and the second count of child molestation, but acquitted him of the first child molestation charge. Davis was convicted and sentenced to 40 years to serve with life on probation on the aggravated sexual battery charge and 20 years with 10 to serve, running concurrently, on the child molestation charge.

1. We have reviewed the record and conclude that the evidence was sufficient to sustain Davis's conviction for aggravated sexual battery and child molestation. See OCGA §§ 16–6–22.2(b) (defining aggravated sexual battery as the intentional penetration with a foreign object of “the sexual organ or anus of another person without the consent of that person”), 16–6–4(a) (defining child molestation as doing “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” committing the act); Jackson, supra.

2. Davis argues that the trial court erred when it failed to charge the jury on accident, which he characterizes on appeal as his sole defense to the charge of aggravated sexual battery. We disagree.

The record shows that Davis was charged with aggravated sexual battery in that he “did unlawfully and intentionally penetrate the sexual organ of [the victim] with ... his finger” without the victim's consent. Davis told the sheriff and the GBI agent, however, that he was not sure or could not remember whether he had penetrated the victim in the course of carrying her from her mother's bedroom to her own, and he conceded to the victim's mother only that he might have touched the victim's privates.

“[I]f a defendant does not admit to committing any act which constitutes the offense charged, [he] is not entitled to a charge on the defense of accident.” (Punctuation and footnote omitted.) Sevostiyanova v. State, 313 Ga.App. 729, 736(9), 722 S.E.2d 333 (2012). Here, Davis admitted to carrying the victim and to touching her privates during that act of carrying, but not to the act of penetration that was the basis of the charge of aggravated sexual battery. Because Davis did not admit to the act of penetration that was the basis of the charge of aggravated sexual battery, he was not entitled to a jury charge on accident as an affirmative defense to that charge. See OCGA § 16–6–22.2(b); Sevostiyanova, supra; compare Jones v. State, 161 Ga.App. 610, 612(4), 288 S.E.2d 788 (1982) (physical precedent only) (where defendant admitted to penetrating victim's vagina with his finger, and where accident was his sole defense to a charge of child molestation, a trial court erred in not charging the jury on that defense).

3. Davis also argues that the trial court erred when it closed the courtroom and excluded Davis's family for the duration of the victim's testimony. We disagree.

The record shows that when the trial court asked both sides for alternatives to closure, Davis's counsel affirmatively agreed to the closure. At the hearing on his motion for new trial, Davis testified that although he immediately informed counsel that he wished to have his family present during the victim's testimony, counsel ignored this wish on the ground that the victim, whom he found a “very sympathetic witness,” would likely be less defensive when not faced with those who had sided with Davis in this “very gut-wrenching, family-splitting incident.”

OCGA § 17–8–54 provides that a trial court “shall clear the courtroom of all persons except parties ... and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters” when a person under the age of 16 testifies about a sex offense. See Goldstein v. State, 283 Ga.App. 1, 4(2), 640 S.E.2d 599 (2006) (trial court's closure of a courtroom during the testimony of a victim of a sex offense does not violate the accused's right to a public trial).

Even if the trial court erred by violating the terms of the statute when it excluded Davis's family from the courtroom for the duration of the victim's testimony, Davis has waived this issue by failing to object. Sandifer v. State, 318 Ga.App. 630, 631(1), 734 S.E.2d 464 (2012). Moreover, even assuming that Davis had preserved this objection, the trial court's decision to remove Davis's family from the courtroom does not constitute reversible error because Davis has not shown how this error harmed him. Id. at 632(1), 734 S.E.2d 464. Specifically, Davis's assertion of prejudice ignores the fact that his conviction was founded not only on the victims' trial testimony but also on his own inculpatory statements to the GBI. In light of this evidence, we cannot say that Davis “was prejudiced by the fact that the trial court may have made it easier for the young victim[ ] to testify by removing all spectators, other than their immediate family members, from the courtroom.” Id. at 632(1), 734 S.E.2d 464; see also Driggers v. State, 295 Ga.App. 711, 716–717(3), 673 S.E.2d 95 (2009).

To the extent that Davis is suggesting that counsel was ineffective when he agreed to the closure, the Supreme Court of Georgia has held that even assuming that counsel could have raised a meritorious objection to a courtroom closure, a defendant “still must show that he was prejudiced by counsel's decision not to object” to that closure. (Citations omitted.) Reid v. State, 286 Ga. 484, 487(3)(c), 690 S.E.2d 177 (2010); compare Presley v. Georgia, 558 U.S. 209, 214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (trial court was “required to consider alternatives to closure even when they are not offered by the...