Douglas v. State

• Decision Date: 08 February 2017
• Docket Number: A16A1488
• Parties: DOUGLAS v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 168

796 S.E.2d 893

DOUGLAS

v.The STATE.

A16A1488

Court of Appeals of Georgia.

February 8, 2017

Ronald Richard Parker, for Appellant.

Andrew J. Ekonomou, Asst. Dist. Atty., Atlanta, Jacquelyn Lee Johnson, Dist. Atty., for Appellee.

Dillard, Presiding Judge.

Following a jury trial, James Vernon Douglas was found guilty on one count of child molestation for viewing a pornographic video with his then four-year-old daughter.¹ Douglas appeals from this conviction, arguing that the trial court abused its discretion by failing to (1) excuse a juror for cause and (2) allow the defense to question the victim's mother as to her own previous false allegation of child molestation. For the reasons set forth infra , we affirm Douglas's conviction.

Viewed in the light most favorable to the jury's verdict,² the record reflects that in the summer of 2011, Douglas's daughter, M. D., visited with him overnight at his girlfriend's home in St. Marys. Approximately one-and-a-half weeks after returning home to Florida, M. D.'s mother discovered the child with her pants removed, touching her genital area both inside and outside before licking her fingers. When the mother asked M. D. where she had learned to do such a thing, M. D. first responded with "nobody," which the mother found odd. But upon further questioning, M. D. admitted that "James, daddy" taught her that behavior. M. D. then made an outcry to her mother, describing sexual acts that Douglas allegedly performed on and with her, as well as a "dirty movie" that she watched with her father in which two adults engaged in various sexual acts. In the forensic interview that followed, M. D. repeated these same or similar allegations.

During the ensuing investigation by law enforcement, Douglas's cell phone was searched, and ten pornographic videos were discovered in which adults engaged in various sexual acts. These videos were downloaded to the phone between March and May 2011. Law enforcement also discovered two .pdf files of fictional stories downloaded from a child-sex-stories website, which graphically described raping girls five years old and younger. These stories were downloaded to the phone in May 2011.

At trial, Douglas's then ex-girlfriend testified that during the time period in question, Douglas had admitted to her that he would watch pornographic videos on his phone while away at his job as a truck driver. And Douglas, who testified in his own defense, also admitted to downloading pornographic videos to his phone, although he denied having knowledge about the child-rape stories, engaging in sexual acts with M. D., or showing M. D. pornographic videos.

The jury convicted Douglas of child molestation for "viewing a pornographic video with [M. D.] with the intent to arouse and satisfy [his] sexual desires...." He was acquitted of a charge of child molestation based upon an allegation that he placed his penis on M. D.'s vagina. And the jury was hung as to a count of child molestation based upon an allegation that he placed his hand on M. D.'s vagina. This appeal follows the denial of Douglas's motion for new trial, which was filed after the trial court granted his motion for an out-of-time appeal.

1. Douglas first argues that the trial court abused its discretion by failing to excuse a prospective juror for cause after that juror expressed bias against him. We disagree.

It is well established that before 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."³ And the decision to strike a juror for cause "lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion."⁴

Here, Douglas contends that the trial court abused its discretion by failing to strike a prospective juror who volunteered that he would feel uncomfortable serving as a juror because he was the father of "two young daughters." When pressed on the matter, the prospective juror agreed with the statement that, "whether or not [Douglas] did anything," he would have "negative feelings for [Douglas] just because [M. D.] had to come and testify." The prospective juror further agreed that "just the fact that [M. D.] [would] have to come and testify, irrespective of whether [Douglas] did what they say he did, [his] sympathy for the child [was] going to bleed over into some negative feelings against [Douglas] just because [M. D.] had to come [to court]." The prospective juror then explained that because he also had a granddaughter, "it will be very hard because [they are] about the same age."

When defense counsel continued to question the prospective juror as to whether or not he would be able to put his feelings aside, the juror responded that "it would be very hard being impartial because ... it's hard to hear a kid talking and—the innocence of a child is very powerful." Defense counsel then asked if the prospective juror would "hold it against [Douglas], it doesn't matter what the evidence is that comes out, just the fact that there's been a charge and [M. D.] had to come here, that is going to sway you to some degree or another?" To this, the prospective juror responded as follows (with intermittent interruptions by defense counsel, as denoted by ellipses): "What I'm saying is.... Well, now, let me be clear.... You know if the proof is different, I would have to go with that, but, you know, it will be harder....—you know, to come to that part, especially when, you know, you have a kid here."

When the defense moved to strike the prospective juror for cause, the trial court denied the motion because the court determined that the juror "indicated that [M. D. testifying] would cause him some discomfort, but that he could listen to the evidence, and depend[ ] on what the evidence reflected...." As the trial court determined, the record reflects that the juror was willing to consider the evidence and knew that "if the proof [was] different" he would "have to go with that," although he admitted that doing so would be more difficult due to the fact that a child would testify, i.e. , due to the nature of the crime as involving a child victim. And we have previously held that a juror who "expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service."⁵ Thus, under these particular circumstances, we cannot say that the trial court manifestly abused its discretion in failing to strike the prospective juror for cause.⁶

2. Finally, Douglas contends that the trial court abused its discretion by failing to allow him to question the victim's mother as to her own previous false allegation of child molestation. Once again, we disagree.

First, we note that because this case was tried after January 1, 2013, our new Evidence Code applies.⁷ And OCGA § 24–6–608 provides "very specific, limited methods for attacking or supporting the credibility of a witness by evidence in the form of opinion or reputation."⁸ Indeed, under that portion of the statute,

[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness; and

(2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.⁹

OCGA § 24–6–608 also provides that the use of "specific instances of a witness's conduct, for the purpose of attacking or supporting the witness's character for truthfulness, other than a conviction of a crime or conduct indicative of the witness's bias toward a party may not be proved by extrinsic evidence."¹⁰ In the trial court's discretion, however, evidence of specific instances of conduct,

... if probative of truthfulness or untruthfulness , [may] be inquired into on cross-examination of the witness:

(1) Concerning the witness's character for truthfulness or untruthfulness; or

(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.¹¹

And because OCGA § 24–6–608 (b)"places the decision whether to admit specific instances of conduct within the trial court's discretion, we will reverse the trial court's ruling only on a clear abuse of that discretion."¹²

In this case, Douglas takes issue with the trial court's failure to allow cross-examination of M. D.'s mother as to her own allegations of molestation by her stepfather, which Douglas's counsel contended were false allegations because the stepfather was acquitted of same. Douglas suggests that if the mother made a false accusation against her own stepfather, she was likely to have coached M. D. to make a false accusation against him. But regardless of whether such a line of inquiry would be permissible under OCGA § 24–6–608 (b) (when Douglas sought to use the mother's alleged prior false allegations of sexual misconduct not only to question her credibility but also to indirectly question M. D.'s credibility as well),¹³ we cannot say that the trial court abused its discretion in precluding any such cross-examination under the circumstances outlined in this opinion.¹⁴ Indeed, the fact that M. D.'s mother's stepfather was acquitted on charges of molestation does not necessarily mean that the mother's accusations against her stepfather were false, and Douglas offered no other proof of falsity during his proffer, such as a recantation by the mother.¹⁵

Additionally, this specific instance of conduct was temporally remote from M. D.'s allegations against Douglas, and there was no showing of any similarity between the mother's accusations against her stepfather and...