Driggers v. State, A08A1903.
| Decision Date | 27 January 2009 |
| Docket Number | No. A08A1903.,A08A1903. |
| Citation | 295 Ga. App. 711,673 S.E.2d 95 |
| Parties | DRIGGERS v. The STATE. |
| Court | Georgia Court of Appeals |
Harvey S. Wasserman, for appellant.
Robert W. Lavender, District Attorney, for appellee.
This case arises out of allegations by a minor male child that his mother and her boyfriend forced the child to engage in sexual acts with them. The jury convicted the boyfriend, Billy Driggers, of aggravated child molestation, child molestation, aggravated sodomy, furnishing harmful material to a minor, and two counts of cruelty to children.1 The trial court denied Driggers's amended motion for new trial. On appeal, Driggers contends that there was insufficient evidence to convict him of aggravated sodomy, and that the trial court erred by denying his motion to suppress and by allowing the child victim's psychologist to remain in the courtroom when the victim testified. He further contends that his trial counsel provided ineffective assistance in several respects and that his sentence for aggravated child molestation violated his equal protection and due process rights. For the reasons discussed below, we affirm.
On appeal from a criminal conviction, we construe the evidence in the light most favorable to the prosecution, and we defer to the jury's assessment of the weight and credibility of the testimony and documentary evidence. Walker v. State, 282 Ga. 406, 651 S.E.2d 12 (2007). So viewed, the evidence showed that in July 2001, the victim's mother moved in with Driggers. They lived together rent-free in a small outbuilding owned by Driggers's mother and stepfather, Gloria and George Lacey. The outbuilding was supplied electricity and phone service from the Laceys' home, which was located on the same property, and the outbuilding did not have an address separate from the Laceys' home.
Shortly after the victim's mother and Driggers moved in together, the twelve-year old victim came to live with them. From July 2001 until a few weeks before Christmas 2001, Driggers repeatedly sexually abused the victim, threatening to shoot and kill him if he did not engage in the requested sexual acts. On multiple occasions, Driggers made the victim smoke marijuana, snort Ritalin, and wear dresses, makeup, and panty hose with the crotch area cut out. Driggers likewise would wear dresses, panty hose, and women's underwear. Driggers then would touch the victim's penis with his hands, perform oral sex on the victim, and require the victim to perform oral sex on him, among other sexual acts. This sexual abuse occurred in the presence of the victim's mother. During these encounters, the victim's mother and Driggers also forced the victim to have oral, anal, and vaginal sex with his mother. Additionally, Driggers made the victim watch pornographic movies while the sexual acts were being performed.
A few weeks before Christmas 2001, the victim called the police after his mother and Driggers had a violent physical altercation. Although the responding police did not make an arrest at that time, the Franklin County Department of Family and Children Services ("DFCS") opened an investigation. In light of the reported domestic violence, the victim was placed in the custody of other family members. A DFCS investigator subsequently conducted a recorded interview with the victim, who disclosed the sexual abuse that had occurred. A transcript of the interview was provided to an investigator with the Franklin County Sheriff's Department.
In late December 2001, after the victim was removed from the home, the victim's mother and Driggers moved from the outbuilding in Franklin County to Florida, leaving behind many of their personal belongings in the outbuilding. In January 2002, the Laceys sent Driggers a letter advising that neither he nor the victim's mother were to return to the outbuilding. The Laceys cut off the water to the outbuilding and did not refill the empty propane tank. In March 2002, the Laceys sent Driggers a second letter advising him that the outbuilding was going to be demolished and that he had 30 days to remove his belongings from the building. Driggers did not respond to either letter and never returned to the outbuilding for his belongings. As a result, the Laceys entered the outbuilding and began bagging up trash to discard and boxing up some of the items to store in preparation for the demolition.
On April 1, 2002, the Laceys contacted the investigator with the Franklin County Sheriff's Department in charge of investigating the molestation allegations. The Laceys informed the investigator that they intended to demolish the outbuilding that day but that there were trash and other items still inside that he might want to look through as part of his investigation. Later that day, the investigator proceeded to the outbuilding, where he met with the Laceys. They informed the investigator that they owned the outbuilding, that the outbuilding was now vacant, and that they believed that Driggers had abandoned the personal property that remained in the building. After speaking with the Laceys, the investigator received their written consent to search the outbuilding and its contents. During the ensuing search, the investigator seized several items, including medicine bottles for Ritalin prescribed to Driggers and two videotape covers for pornographic movies.
A few days later, George Lacey contacted the investigator and advised that he had found a locked electrical box in the outbuilding that he had decided to break open. The box contained a black plastic bag, inside of which were several items of "unique female clothing." George Lacey gave the investigator the clothing items, which included several pairs of ladies underwear and panty hose with the crotch area cut out of them.
Driggers was arrested, indicted, tried, and convicted by a jury of multiple offenses relating to the alleged sexual abuse. At trial, the victim and his mother testified regarding the abuse, and the state published for the jury the recorded interview of the victim conducted by the DFCS investigator. Among other witnesses and documentary evidence, the state introduced the items seized from the outbuilding by the investigator and the clothing items found by George Lacey.
1. Sodomy is defined as "any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2(a)(1). Aggravated sodomy is an act of simple sodomy with the additional element of the sodomy being committed "with force and against the will of the other person." OCGA § 16-6-2(a)(2). In the present case, the indictment alleged that Driggers committed aggravated sodomy by forcing the victim against his will to perform oral sodomy upon Driggers.
Driggers argues that the evidence presented at trial was legally insufficient to convict him of aggravated sodomy as alleged in the indictment. According to Driggers, the only evidence of the victim performing oral sodomy upon him came from the uncorroborated testimony of the victim's mother, who was an accomplice to the sexual abuse. We disagree.
It is true that "in order to sustain a felony conviction based upon the testimony of an accomplice, there must be independent corroborating evidence which connects the accused to the crime." Edmond v. State, 267 Ga. 285, 287(2), 476 S.E.2d 731 (1996). See OCGA § 24-4-8. Such corroborating evidence, however, can be slight and may consist entirely of "evidence of an accused's conduct before and after the crime that infers he participated therein," Edmond, 267 Ga. at 287(2), 476 S.E.2d 731, including independent evidence of other crimes or injuries inflicted upon the victim by the defendant. See Givens v. State, 273 Ga. 818, 820-821(1), 546 S.E.2d 509 (2001) (); Jackson v. State, 178 Ga.App. 378, 343 S.E.2d 122 (1986) (). Here, the victim testified to other acts of sexual abuse committed upon him by Driggers on multiple occasions. This testimony was sufficient to corroborate the testimony of the victim's mother regarding the oral sodomy. See id.
Driggers also argues that there was insufficient evidence to prove the element of force. His argument is without merit. Only a minimal amount of evidence is necessary to prove that an act of sodomy involving a child was done with force and against the child's will, and such evidence can consist of "threats of death or physical bodily harm, or mental coercion, such as intimidation." (Citation and punctuation omitted.) Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18 (1999). The victim testified that Driggers kept multiple guns around the outbuilding where they lived, and that Driggers repeatedly threatened to shoot and kill him if he did not engage in requested sexual acts. This testimony was sufficient to prove that the victim was forced to perform oral sodomy upon Driggers against his will. See Smith v. State, 294 Ga.App. 692, 696(1)(a), 670 S.E.2d 191 (2008); Weldon v. State, 270 Ga.App. 574, 575-576, 607 S.E.2d 175 (2004).
For these reasons, we conclude that the evidence, when viewed in the light most favorable to the prosecution, authorized a rational trier of fact to have found the essential elements of aggravated sodomy beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(II)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-6-2(a)(2). The trial court, therefore, properly denied Driggers's motion for new trial on this ground.
2. Driggers filed a motion to suppress seeking to exclude from trial the items that the investigator seized from the outbuilding after the Laceys consented to the search of the building and its contents.2 Following a suppression hearing, the trial court found that at the time the investigator conducted the search, Driggers had abandoned...
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