Dority v. State

• Decision Date: 20 November 2015
• Docket Number: No. A15A1192.,A15A1192.
• Citation: 335 Ga.App. 83,780 S.E.2d 129
• Parties: DORITY v. The STATE.
• Court: Georgia Court of Appeals

335 Ga.App. 83

780 S.E.2d 129

DORITY

v.The STATE.

No. A15A1192.

Court of Appeals of Georgia.

Nov. 20, 2015.

Reconsideration Denied Dec. 3, 2015.

Mark Robert Jeffrey, for Appellant.

James Alan Dooley, for Appellee.

BRANCH, Judge.

Demarkius Dority appeals his conviction and sentence on counts of aggravated sodomy, aggravated child molestation, and child molestation and on three counts of enticing a child for indecent purposes in a case involving two victims. Dority was sentenced to 45 years with 35 to serve. On appeal, he contends the trial court erred by admitting certain evidence over objection; he also contends his trial counsel was ineffective for several reasons, including his failure to obtain and review the victims' DFCS and juvenile court records, therapy records, school records, and pediatric records and his failure to seek funds to obtain expert witnesses. Finally, Dority has moved to remand the case and order the trial court to review those records and for funds to obtain an expert to review them. For the reasons that follow, we affirm Dority's conviction and deny the motion to remand.

When the appellate courts review the sufficiency of the evidence, they do not "re-weigh the evidence" or resolve conflicts in the testimony; instead they defer "to the jury's assessment of the weight and credibility of the evidence." Greeson v. State, 287 Ga. 764, 765, 700 S.E.2d 344 (2010) (citations omitted). See also Glaze v. State, 317 Ga.App. 679, 680 –681(1), 732 S.E.2d 771 (2012) (footnote omitted). Appellate courts determine 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." Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted).

As for the first victim, the evidence presented at trial showed that when Dority was married to Erlande (a/k/a Minnie) Dority, who had two daughters from a prior relationship, Dority approached M.D.—Erlande's then nine-year-old daughter—as she was drying her hair after taking a shower; he put a towel over her face, led her to a bedroom, and had anal intercourse with her when no one else was at home.¹ The child testified that Dority performed this act with her on multiple occasions in different rooms; she gave a detailed description of these assaults, including that Dority would make her take off her clothes before the incidents; and she testified that his actions hurt her and made her feel bad emotionally. She added that Dority would sometimes use a lotion that had a name beginning with an "A" as a lubricant; that he sometimes put his green and blue bathrobe over her head instead of a towel; and that he would wash her afterwards with wipes. She also gave testimony to the effect that he forced her to give him oral sex on at least one occasion. On cross examination,² Dority's public defender established that M.D. first made an outcry as she was about to get a spanking and that she did not tell anyone other than her mother and grandmother about the alleged abuse during the following ten days while she was in Florida with her mother and sister.

Erlande testified that on or about September 19, 2011, as she was about to give a spanking to M.D. for riding the bus to a neighbor's house without permission and as Dority urged Erlande not to spank the child, M.D. started to try to tell her mother about Dority's actions. Erlande testified that the child was not clear and she therefore proceeded with the spanking, after which the child made clear that Dority had touched her in a bad way. Erlande took M.D. and her sister for a ride in a car and parked; Erlande testified that at that point, the child reported that on more than one occasion over the previous two weeks Dority had put a towel over her head, led her to her stepsister's room, and put something in her butt that felt like it was in her stomach, that hurt, and that made her cry. Erlande drove home, had the girls pack some belongings, and drove them all to meet with Joyce Drayton, Dority's mother, with whom Erlande was friends; M.D. told Drayton that Dority would put a towel over her head and give her a "checkup" on the bed. Erlande and her two daughters stayed at a hotel that night. Erlande testified that she had planned to fly to her best friend's wedding in Florida the next day without her daughters, but instead she skipped the flight and drove to Florida with her daughters and attended the wedding. As she was returning from Florida 10 days later, Erlande sent a text message to Dority that stated "I am relocating out of state and I wish you the best. Wish it ended in other ways and when you requested the divorce, we should have signed it. Too late now." When she and the girls got back from Florida, Erlande took the girls to a hotel, and the next morning Erlande went to work and the girls went to school. That day, September 29, 2011, Erlande left work early to intercept the girls coming home from school, took them to the motel, and later called the police.

Trial counsel cross-examined Erlande primarily on the fact that there were some discrepancies in the evidence regarding in which room the child said the incidents occurred; the fact that M.D.'s sister T.D. had once sent pictures of herself to a 17–year–old male and that she was viewing pornography on a computer; the fact that Erlande did not call the police for 10 days after the child's initial outcry and went to Florida during that time; and on the fact that she sent the girls to school after returning from Florida before calling the police.

After Erlande made a report, Detective Christopher Bertera met with her and then contacted a children's hospital to set up a forensic interview for M.D., which occurred on October 7, 2011. Bertera observed that interview on closed circuit television. A redacted form of that interview was authenticated by Bertera, admitted into evidence, and played for the jury, but the interviewer did not testify. In the interview, the child gave very similar testimony about Dority's actions as she did at trial, including significant detail about exactly what happened. The video reflects that the interviewer asked open-ended and non-leading questions throughout.

Bertera then interviewed Dority and later searched his house pursuant to a warrant. A redacted video recording of the Dority interview was played for the jury. The detective also testified that he tried to set up an additional meeting with Dority but that Dority cancelled, saying that his wife had been in a bad accident and was being rushed to the hospital. At a subsequent meeting with Dority, and after reading Dority his Miranda rights, the detective confronted Dority about his excuse for cancelling the second meeting and accused him of lying. Dority responded that his wife had chosen not to go the hospital and that, instead, he had to handle some related insurance matters.

When officers searched Dority's home they recovered a bottle of almond oil from a kitchen table, a container of Vaseline cocoa butter lotion, and a blue and green striped bathrobe from the master bedroom; the officers also took a photograph of a box of baby wipes. Dority was arrested and placed in jail on November 18, 2011. Trial counsel cross-examined Bertera about how Bertera did not run any forensic testing on Dority's cell phone; how he did not take fingerprints from the bottle of almond oil; how Erlande and M.D. were in Florida for ten days between the outcry and calling the police; how there was evidence that M.D.'s sister had been texting an older boy and looking at pornography; how there was an error in Bertera's report regarding the room in which the incidents occurred; how Dority was under no legal obligation to appear at the second scheduled meeting with Bertera; and how Dority cooperated with the investigation.

Kelley Gaskin, a pediatric nurse practitioner with significant experience in evaluating and treating children suspected of being victims of sexual and physical abuse, was qualified at trial as an expert in child sexual abuse. She testified that on October 7, 2011, after M.D.'s forensic interview, she gave M.D. a medical exam in connection with the allegations against Dority. Gaskin reported that the child complained of pain and bleeding following bowel movements, but the physical exam did not show any injuries related to the allegations against Dority; Gaskin noted, however, that most such injuries would heal within 72 hours. Trial counsel cross-examined Gaskin on how a person who had not suffered the alleged crimes would also present with a normal exam.

The second victim, C.S., is the child of Chad Spriggs and Loria Rogers. Spriggs was married to Tressa Spriggs, and, at the time of the allegations described below, the Spriggs and Rogers families were in a custody dispute regarding C.S. that concerned whether Rogers could properly care for the child given her job as a truck driver. Rogers, who previously had been in a relationship with Dority, had a child with Dority named S.D. Thus, C.S. and S.D. were half sisters.

C.S., age six at the time of the incidents, testified that she and her half-sister S.D. frequently went to Dority's house³ to play. C.S. testified that on occasion, Dority showed pornographic movies in his bedroom with the child in the bed with him and that, during the movie, Dority touched her privates under her underwear with his hand and it made her "feel like hell." At times, Dority would also join the child in the shower and bathe her, including her privates. Trial counsel cross examined C.S. on whether anyone else ever gave her a bath at Dority's house and on how C.S. did not like living with her mother, i.e., Rogers.

Tressa Spriggs testified that on September 23, 2012, C.S. made an outcry to her; Dority had been in jail for over 10 months at this time based on the charges related to M.D. In this outcry, C.S. told her stepmother...