Fossier v. State

• Decision Date: 29 December 2021
• Docket Number: A21A1735
• Citation: 362 Ga.App. 184,867 S.E.2d 545
• Parties: FOSSIER v. The STATE.
• Court: Georgia Court of Appeals

362 Ga.App. 184

867 S.E.2d 545

FOSSIER

v.The STATE.

A21A1735

Court of Appeals of Georgia.

December 29, 2021

James Kenneth Luttrell, Woodstock, for Appellant.

Patrician B. Attaway Burton, Harold Alvin Buckler, Buford, Christopher Michael Carr, Atlanta, Lee Darragh, Gainesville, Paula Khristian Smith, Atlanta, for Appellee.

McFadden, Presiding Judge.

Bryan Fossier was charged by indictment with four counts of aggravated child molestation for acts of oral sodomy with a minor victim and one count of child molestation for touching the victim's penis. Fossier pled not guilty to the charges and was tried before a jury, which found him guilty on all counts. The trial court sentenced Fossier as a recidivist, imposing concurrent life sentences for each count of aggravated child molestation, with 35 years to be served in confinement and the remainder on probation. s The court also imposed a concurrent 20-year sentence for the count of child molestation. After Fossier's motion for new trial was denied, he filed this appeal.

Fossier challenges the sufficiency of the evidence supporting his convictions; but the record shows that there was enough evidence to authorize a rational trier of fact to find him guilty beyond a reasonable doubt of the charged offenses. Fossier also challenges the trial court's admission of evidence of his prior sexual assault conviction; but such evidence was admissible under OCGA § 24-4-413, which addresses the admissibility of evidence of prior offenses in criminal sexual assault proceedings. Fossier further contends that the court erred in allowing evidence of his other criminal convictions; but during his trial testimony, Fossier opened the door to such evidence. Fossier next claims ineffective assistance of trial counsel; but he has failed to show that counsel's performance was both deficient and prejudicial. Fossier's final claim of error is that the trial court should have merged the four aggravated child molestation offenses for purposes of sentencing; but those offenses did not merge because they were based on separate acts of oral sodomy. So we affirm the judgments of conviction.

1. Sufficiency of the evidence.

"On appeal from [a] criminal conviction, [the defendant] is no longer presumed innocent and all of the evidence is viewed in the light most favorable to the jury's verdict." Alvarado v. State , 360 Ga. App. 113, 860 S.E.2d 886 (2021) (citation and punctuation omitted). "[I]n evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt." Miranda v. State , 354 Ga. App. 777, 778, 841 S.E.2d 440 (2020) (citation and punctuation omitted).

So viewed, the evidence presented at trial showed that the 12-year-old¹ victim was watching a movie in the living room of his cousin's home when Fossier, who lived with the cousin, entered the living room and began looking for something in a closet. Fossier told the child that he was looking for a pornographic video involving gay sex and asked the boy if he was gay. After talking to the boy about his sexuality, Fossier led the child into the home's bedroom and removed the boy's pants. Fossier touched the victim's penis with his hand, kneeled on the floor, and put his mouth on the boy's penis. Fossier stood up, had the victim kneel in front of him, and put his penis in the child's mouth. The victim eventually ran from the bedroom, put his pants back on, and resumed watching a movie in the living room. About an hour later, Fossier came into the living room and directed the victim to lie on a couch, where Fossier placed his mouth on the child's penis and also inserted his penis into the victim's mouth.

In challenging the sufficiency of the evidence, Fossier argues that he was not identified by the victim in court. While the victim testified that he had not encountered Fossier prior to being molested by him and that he could not remember his face, he also testified that the assailant told him that his name was "Bryan" and that he was the boyfriend of the victim's cousin. Other evidence showed without dispute that Fossier was the boyfriend living with the victim's cousin at the time the child was molested, including testimony from both the cousin and Fossier himself confirming their relationship. See Roebuck v. State , 277 Ga. 200, 201 (1), 586 S.E.2d 651 (2003) ("[C]oncordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.") (citations and punctuation omitted). Fossier also admitted that while living with the victim's cousin he had seen the victim in the cousin's home. And multiple outcry witnesses, including a forensic interviewer, testified that the victim had identified Fossier as his assailant. See Hall v. State , 282 Ga. 294, 296 (2), 647 S.E.2d 585 (2007) (out-of-court identification admissible as evidence of identity of perpetrator).

"Contrary to [Fossier's] argument, even though [the victim did not] directly identif[y] him in the courtroom as the person who committed the crimes, there was sufficient evidence to authorize the jury to find that he was the perpetrator." Durden v. State , 293 Ga. 89, 91 (1) (b), 744 S.E.2d 9 (2013), overruled in part on other grounds by Jeffrey v. State , 296 Ga. 713, 718 (3), 770 S.E.2d 585 (2015). See also Junior v. State , 282 Ga. 689, 690 (1), 653 S.E.2d 481 (2007) (even though the victim who testified at trial did not identify the defendant in court, there was sufficient other evidence from which the jury could find the defendant guilty). Having viewed the evidence in the light most favorable to the verdict, we conclude that "the evidence was sufficient to enable any rational trier of fact to find [Fossier] guilty beyond a reasonable doubt of the crimes for which he was convicted." Ward v. State , 279 Ga. 581, 583 (1), 619 S.E.2d 638 (2005) (sufficient evidence to support guilty verdict even though victims could not identify defendant as their assailant). See also OCGA §§ 16-6-4 (a) & (c) (defining child molestation and aggravated child molestation).

2. Prior sexual assault conviction.

Fossier contends that the trial court erred in admitting evidence of his 2003 sexual assault conviction. The contention is without merit because the evidence was admissible under OCGA § 24-4-413.

OCGA § 24-4-413 (a) provides that "[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." Moreover, " OCGA § 24-4-413 creates a rule of inclusion, with a strong presumption in favor of admissibility, and the [s]tate can seek to admit evidence under [its] provisions for any relevant purpose, including propensity." Wilkerson v. State , 356 Ga. App. 831, 834 (1), 849 S.E.2d 677 (2020) (citation and punctuation omitted).

In this case, Fossier was accused of multiple offenses of sexual assault. "For purposes of OCGA § 24-4-413, the term ‘offense of sexual assault’ includes any crime that involves contact, without consent, between any part of the accused's body and the genitals of another person. OCGA § 24-4-413 (d) (2). [So Fossier's] act of touching [the minor victim's penis] falls within this definition." Latta v. State , 341 Ga. App. 696, 700 (2), 802 S.E.2d 264 (2017) (punctuation omitted). Furthermore, an offense of sexual assault under this code section also includes conduct that would constitute oral sodomy in violation of OCGA § 16-6-2. See OCGA § 24-413 (d) (1). Therefore, Fossier's various acts of oral sodomy with the victim were additional offenses of sexual assault as that term is defined in OCGA § 24-4-413.

As for his 2003 conviction, the evidence showed that in that case Fossier had penetrated the victim's vagina with his fingers. As explained above, such unwanted contact with the genitals of another person constitutes an offense of sexual assault for purposes of OCGA § 24-4-413. See OCGA § 24-4-413 (d) (2) ; Latta , supra (defendant's "act of touching [victim's] vagina" constituted an offense of sexual assault). So in the instant case, in which Fossier was accused of multiple offenses of sexual assault, evidence of his prior offense of sexual assault was admissible under OCGA § 24-4-413 (a).

But that is not the end of our analysis. We must also address OCGA § 24-4-403, which provides for exclusion of relevant evidence due to prejudice, confusion, or waste of time.

[E]vidence that is admissible under [ OCGA § 24-4-413 (a) ] may still be excluded under OCGA § 24-4-403 ... if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Wilkerson , supra at 833 (1), 849 S.E.2d 677 (punctuation omitted). Fossier contends that the probative value of the prior sexual assault evidence was substantially outweighed by the danger of unfair prejudice because there was a lapse of 15 years between the prior and current offenses and there were factual differences between the cases, including the age and sex of the victims. But "temporal remoteness and a difference in the victims' sex do not demand exclusion." Id. at 834 (1), 849 S.E.2d 677. Indeed, "[t]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility." Maner v. State , 358 Ga. App. 21, 24 (1), 852 S.E.2d 867 (2020) (citation and punctuation omitted). See also Kirkland v. State , 334 Ga. App. 26, 29-30 (1), 778 S.E.2d 42 (2015) (we have held that differences in the victims' ages, sex, and specifics of molestation do not render another act...