Duncan v. State

• Decision Date: 30 March 1998
• Docket Number: No. A98A0477.,A98A0477.
• Parties: DUNCAN v. The STATE.
• Court: Georgia Court of Appeals

500 S.E.2d 603

232 Ga. App. 157

DUNCAN v. The STATE.

No. A98A0477.

Court of Appeals of Georgia.

March 30, 1998.

Reconsideration Denied April 10, 1998.

Gregory A. Hicks, James K. Luttrell, Woodstock, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Michael S. Moody, Assistant District Attorneys, for appellee. ELDRIDGE, Judge.

The defendant, David Pirie Duncan, challenges his convictions on two counts of aggravated child molestation. We affirm the convictions.

The defendant and his wife adopted two boys, ages four and six, in 1987. At trial, the older child testified that, beginning in the summer of 1993, the defendant regularly punished him and his younger brother by forcing them to perform oral sex on the defendant. The child testified that he initially was afraid to tell anyone about the abuse, but after several episodes, he decided to tell his friend because he was "sick and tired of it."

In October 1993, he told his teacher that he needed to see the school counselor; the teacher testified that the child's request sounded "urgent." The school counselor met with the child and testified at trial that he seemed upset and embarrassed. She testified that he was hesitant to tell her what was wrong, so she suggested that he write down whatever was bothering him. The child then wrote a note that said, in part, the following: "My Dad makes me such his Dick. He also does it to [the younger child]...." The note also said that the only two people who knew of the abuse were the younger child and their friend, J.R. The counselor testified that the child seemed "relieved" after writing the note.

The counselor immediately contacted the Georgia Department of Family & Children Services ("DFCS"). The next morning, a Cobb County police detective, Officer Sandra Pope, and a DFCS child abuse investigator, Rose Parker, interviewed both children at school.¹

During the interviews and at trial, both boys gave similar accounts of the incidents of molestation. The older child said that he and his younger brother stayed at home alone during the summer of 1993 while both parents were at work. Both children said that their father, the defendant, would sometimes come home from work early and would punish the boys for various misdeeds by forcing them to perform oral sex on the father's penis. The older child stated that his father would sometimes ejaculate into his mouth. The older child testified that the defendant threatened the children that if they told anyone, he would go to jail and receive "three square meals a day," while the children would be worse off because there would not be much money for the family to live on. He also testified that he did not report the abuse immediately because he was "scared," but that he finally told his best friend because he was "sick and tired of it."

Following the interviews by Officer Pope and Parker, it was determined that the boys were at risk of further abuse, and they were removed from the defendant's home. Sandra Duncan, the defendant's wife, was contacted and interviewed by Parker. Based upon the investigation, Officer Pope secured a warrant for the defendant's arrest, and he was arrested and charged with three counts of aggravated child molestation.

A jury trial was held in January 1996, and the jury found the defendant guilty on two counts of aggravated child molestation, one count as to each of the boys. The defendant's motion for a new trial was denied, following a hearing on March 10, 1997. This appeal followed. Held:

1. In his first enumeration of error, the defendant asserts that the trial court erred in permitting the State to question the defendant's wife concerning their lack of sexual relations. The defendant claims that such testimony is protected by the spousal privilege, OCGA § 24-9-21(1). See also White v. State, 211 Ga.App. 694, 440 S.E.2d 68 (1994). While the defendant is correct that testimony regarding sexual relationships between spouses generally is protected by the spousal privilege as a matter of public policy, a spouse may waive his or her privilege by voluntarily taking the stand and testifying. Id. at 696, 440 S.E.2d 68. In this case, Mrs. Duncan expressly waived her spousal privilege, stating that "[w]e have nothing to hide."

Further, although the defendant claims on appeal that his spousal privilege should have excluded the testimony, the defendant affirmatively stated at trial that he was not going to exercise his spousal privilege.² The only objection to Mrs. Duncan's testimony was the defendant's assertion that it was irrelevant. Subsequent to this objection, both the State and the defendant questioned Mrs. Duncan about the couple's sexual practices without further objection. Accordingly, this enumeration is without merit.

2. In his second enumeration, the defendant asserts that the evidence was insufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated child molestation. Under OCGA § 16-6-4(a), "[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person." Further, under OCGA § 16-6-4(c), "[a] person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy." Sodomy is defined as a "sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2(a).

The evidence presented at trial included the victims' testimony that the defendant punished them by forcing them to perform oral sodomy on him during the summer of 1993, when both victims were under the age of 14. While the defendant points to minor discrepancies in the victims' testimony, such discrepancies go to the weight, not the sufficiency, of the evidence. OCGA § 24-9-5(b); Nunn v. State, 224 Ga.App. 312, 480 S.E.2d 614 (1997); Jones v. State, 220 Ga. App. 236, 469 S.E.2d 379 (1996); Webster v. State, 185 Ga.App. 709, 365 S.E.2d 530 (1988).

The evidence also showed that both victims subsequently told a mutual friend about the abuse; the friend, who had not seen the victims since the children were removed from the defendant's home in October 1993, corroborated the victims' testimony at trial. The older victim also made an outcry to the school counselor, who notified law enforcement and DFCS officials. Although there was testimony that the interview of the victims by these officials was not conducted in strict compliance with Cobb County Child Abuse Investigation Protocol, such protocol is clearly directory, not mandatory.³ Further, once the trial court determines that the officials' testimony is sufficiently reliable, any failure to follow established protocol goes to the credibility of the witnesses, not the admissibility of the witnesses' testimony. OCGA § 24-3-16 (the Child Hearsay Rule); Knight v. State, 210 Ga.App. 228, 435 S.E.2d 682 (1993); Gregg v. State, 201 Ga.App. 238, 411 S.E.2d 65 (1991).

After carefully considering the record in the light most favorable to the verdict, we find that the evidence is sufficient beyond any reasonable doubt to enable a rational trier of fact to convict the defendant of two counts of aggravated child molestation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Chastain v. State, 180 Ga.App. 312, 349 S.E.2d 6 (1986).

3. In his third enumeration of error, the defendant complains that the trial court erred in excluding his expert witness from testifying regarding various psychological principles, including projection and pay back. However, the defendant did not object at trial to the court's limitation on this testimony, responding that "I'm not going into the particulars of the case. I do not intend to do that." Accordingly, there was no error.

Pretermitting whether or not the defendant waived any objection to the trial court's exclusion of this testimony, we note that there was no admissible evidence that supported the introduction of testimony regarding projection and pay back. See Division 5, infra. Further, the defendant's expert witness did not interview the victims in this case, but relied instead upon inadmissible hearsay in reaching his opinions. Compare State v. Butler, 256 Ga. 448, 449-450, 349 S.E.2d 684 (1986) (the State's expert witness was a pediatrician who questioned and examined the seven-year-old victim, and who concluded that the child had been sexually abused).

Moreover, the defendant was not precluded from questioning his expert witness regarding these principles, i.e., whether children make false allegations about sexual abuse and the possible reasons for this behavior. He was prevented from exploring how these principles specifically applied to this case, i.e., eliciting an opinion as to whether or not the victims' allegations in this case were a result of projection or pay back. During the trial, the defendant proffered the expert's testimony that recited, in detail, various inadmissible assertions regarding alleged prior abuse of the victims by unidentified third parties which led the expert to conclude that the victims' allegations of sexual abuse by the defendant were the result of projection and pay back and, thus, were not credible.

However, determination of issues of witness credibility are reserved exclusively for the jury. OCGA § 24-9-80. "[A]n expert may not testify as to his opinion as to the existence vel non of a fact unless the inference to be drawn from facts in evidence is beyond the ken of the jurors—that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing—from facts in evidence—such an inference for themselves. In the present case, the truthfulness or credibility of the victim[s] was not beyond the ken of...