Gathers v. State

• Decision Date: 16 June 2020
• Docket Number: A20A0097
• Citation: 844 S.E.2d 882,355 Ga.App. 761
• Parties: GATHERS v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 761

844 S.E.2d 882

GATHERS

v.The STATE.

A20A0097

Court of Appeals of Georgia.

June 16, 2020

Reconsideration Denied June 24, 2020

Howard Walton Anderson III, for Appellant.

Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Antonio Gathers on one count of child molestation. On appeal, Gathers challenges the sufficiency of the evidence supporting his conviction, arguing that the trial court erred in admitting hearsay testimony, improperly commenting on the evidence in its instructions to the jury, and sentencing him as a recidivist without submitting evidence of his prior convictions to the jury. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that in 2015, Gathers lived in an apartment in Augusta with his girlfriend, his girlfriend's own two children (then twelve-year-old C. D. and ten-year-old F. D.), and his and his girlfriend's daughter (five-year-old A. G.). On March 10, 2015, Gathers, his girlfriend, and the children went to a cookout at a relative's home, where Gathers apparently drank several alcoholic beverages. Then, after the cookout, they returned to their apartment, at which point Gathers fell asleep in a chair while his girlfriend and the children went to sleep in their bedrooms.

Later that night, F. D. woke up to find Gathers sitting on the edge of her bed and rubbing her buttocks with his hand. Moments later, F. D.’s mother—Gathers's girlfriend—walked into the bedroom, saw Gathers with his hand in F. D.’s pants, and demanded to know what he was doing. Gathers denied any wrongdoing. But unconvinced at his plea of innocence, F. D.’s mother moved her daughter to another room and away from Gathers. Nevertheless, F. D.’s mother did not immediately call the police because she was still processing what had happened and was upset that someone she loved could treat her daughter that way.

The next morning, F. D.’s mother asked her daughter what happened the previous night, and F. D. confirmed that Gathers touched her in an inappropriate manner. Then, after sending her children off to school, F. D.’s mother called the police, who advised her to take F. D. to the hospital for a physical examination. Once there, a pediatrician and a pediatric nurse conducted a rape-kit examination, during which F. D. recounted that Gathers inappropriately touched her buttocks the previous night.

Thereafter, the State charged Gathers, via indictment, with one count of aggravated child molestation and two counts of child molestation. And prior to trial, the State filed notice of its intent to seek recidivist sentencing based on Gathers's two prior felony convictions. The case then proceeded to trial, during which the State presented the foregoing evidence. The State also called a Richmond County sheriff's investigator, who testified regarding her forensic interview of F. D., in which the child recounted that Gathers inappropriately touched her. Similarly, an employee of a local child-advocacy group also testified as to her forensic interview of F. D., in which the child reiterated her outcry. The State played videos of both interviews for the jury. In addition, a GBI forensic biologist testified that DNA samples taken from F. D.’s rape kit were a close match to the samples taken from Gathers.

At the conclusion of the trial, the jury acquitted Gathers on the aggravated child molestation charge and one of the child molestation charges, but convicted him on the remaining child molestation charge. The State then presented evidence of Gathers's two prior convictions, and the trial court imposed a sentence of 20 years with all of it to be served in confinement. Subsequently, Gathers filed a motion for new trial, and the trial court conducted a hearing on the matter. After the hearing, the trial court resentenced Gathers to 20 years with 19 years to serve in confinement and the remaining year on probation,² but it otherwise denied his motion for new trial. This appeal follows.

1. In his first enumeration of error, Gathers contends that the evidence was insufficient to support his conviction on the charge of child molestation, arguing that F. D. and her mother's testimony lacked credibility. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.³ And, of course, in 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."⁴ Thus, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case[.]"⁵ With these guiding principles in mind, we turn to Gathers's claim regarding the sufficiency of the evidence supporting his child molestation conviction.

Under OCGA § 16-6-4 (a) (1), a person commits the offense of child molestation when he or she "[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person...." And the third count in the indictment, on which the jury convicted Gathers, charged him with child molestation by alleging that he "did perform an immoral and indecent act with [F. D.], a child under the age of sixteen (16) years, by touching the buttocks of [F. D.], with intent to arouse and satisfy the sexual desires of said accused ...."

In this case, F. D. testified that, on the night in question, she woke up to find Gathers sitting on her bed and rubbing her buttocks. Additionally, F. D.’s mother, the pediatric nurse, the sheriff's investigator, and the child-advocacy interviewer testified that F. D. informed them of Gathers's inappropriate conduct. Furthermore, F. D.’s mother also testified that she walked into her daughter's bedroom and saw Gathers with his hand in F. D.’s pants. Nevertheless, Gathers asserts that the evidence was insufficient to support his conviction, arguing that the jury acquitting him on two of the charges in the indictment demonstrates that F. D. and her mother lacked credibility. But as a general rule, a guilty verdict cannot be challenged on the ground that "the jury's verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count."⁶ Indeed, in considering Gathers's argument, "the issue before us is not whether an acquittal on one charge would logically necessitate acquittal on another charge on which the jury convicted the defendant; rather, the question is whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict."⁷ Indeed, it is the jury's role to "resolve conflicts in the evidence and determine the credibility of witnesses, and the presence of such conflicts does not render the evidence insufficient."⁸ And here, the jury obviously resolved the inconsistencies and resulting credibility issues in favor of finding Gathers guilty on the third count of the indictment.⁹ Accordingly, the evidence presented was sufficient to support Gathers's conviction on the relevant charge of child molestation.¹⁰

2. Gathers also contends that the trial court erred in admitting improper hearsay testimony. Again, we disagree.

As a general rule, admission of evidence is "a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse."¹¹ And here, Gathers claims that the trial court erred in admitting the testimony of the pediatric nurse, who examined F. D. at the hospital, in which she recounted that F. D.’s mother told her that she walked into her daughter's bedroom and saw her boyfriend with his hand down the child's pants. Gathers's counsel objected, arguing that the testimony constituted inadmissible hearsay. But the State countered that the mother's comment assisted the nurse in her medical treatment of F. D., and, thus, was admissible. The trial court agreed. Nonetheless, Gathers argues that the court erred in overruling his objection.

The relevant statute, OCGA § 24-8-803 (4) (‘‘Rule 803 (4)’’), provides:

The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness: ... Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment[.]

And in a case decided two years after Gathers's trial, the Supreme Court of Georgia construed Rule 803 (4) to mean that statements made to a healthcare provider for the purpose of medical diagnosis or treatment may be admissible, as an exception to the rule against hearsay, because the self-interested motivation of the declarant in wanting effective diagnosis or treatment, either for themselves or others about whose health they care makes it more likely that the statements made for that purpose are true.¹²

But setting aside whether the pediatric nurse's testimony amounted to inadmissible hearsay or fell within the Rule 803 (4) exception, F. D.’s mother testified at trial exactly as the nurse recounted. Additionally, F. D.’s testimony regarding the sexual assault was nearly identical to that provided by her mother and the two forensic interviewers. As a result, the nurse's testimony was cumulative, and even "[t]he erroneous admission of hearsay is harmless [when], as here, legally admissible evidence of the same fact is introduced."¹³ Accordingly, the trial court's admission of the nurse's testimony did not constitute...