Graham v. State

Decision Date29 July 1999
Docket Number No. A99A0858, No. A99A0937.
Citation521 S.E.2d 249,239 Ga. App. 429
PartiesGRAHAM v. The STATE (Two Cases).
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Ronald G. Shedd, for appellant (case no. A99A0858).

William R. Thompson, Jr., Calhoun, for appellant (case no. A99A0937).

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee. ELDRIDGE, Judge.

Appellants Ellen Diane Graham and Steven Alton Graham each challenge their convictions on three counts of aggravated child molestation1 and nine counts of child molestation,2 which convictions followed a January 1998 jury trial. We affirm.

"On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, 195 Ga. App. 463, 464, 393 S.E.2d 737 (1990); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Kapua v. State, 228 Ga.App. 193, 195, 491 S.E.2d 387 (1997). Viewed in such light, the evidence showed that, on a single, undetermined date in February 1997, both appellants participated in a series of sexual acts in front of and including their seven-year-old son and nine-year-old daughter.3 Both children and both appellants testified at the trial, in addition to other witnesses. Statements that each of the four family members gave to police on May 5 and 6, 1997, were also admitted at trial; the investigating police officer also testified regarding the statements. The jury convicted both appellants of all 12 counts. The trial court denied both appellants' motions for new trial. Because the appellants' convictions arose out of the same trial, we have consolidated their appeals for the purposes of this opinion.

Case No. A99A0858

1. In her first enumeration of error, appellant Ellen Diane Graham contends that the trial court erred in refusing to allow evidence of violent acts and threats by co-defendant Steven Graham, her ex-husband, toward her and the children prior to the date of the child molestation. At trial, when Ms. Graham notified the trial court of her intention to present a defense based on prior domestic violence, the trial court expressly limited Ms. Graham to presenting evidence of "time relevant" acts, i.e., those which occurred on the day of the molestation. At trial, Ms. Graham did not deny that the molesting acts actually occurred, but asserted that her acts against the children were "justified" because she previously had been beaten and threatened by Mr. Graham. On appeal, she claims that she should have been allowed to assert a justification defense at trial in the form of a battered person defense,4 and that the trial court's refusal to allow this defense was reversible error. We disagree.

(a) Under OCGA § 16-3-20, a defendant is entitled to raise a justification defense for, inter alia, acts of self-defense, defense of property, entrapment, coercion, and in "all other instances which stand upon the same footing of reason and justice as those enumerated in this article." OCGA § 16-3-20(6). See also OCGA §§ 16-3-21; 16-3-23; 16-3-24; 16-3-25; 16-3-26. "In this state, the battered person syndrome is not a separate defense and [evidence supporting this syndrome] is admissible only to assist the jury in evaluating a defendant's claim of self-defense" under OCGA § 16-3-21. (Citations omitted.) Chester v. State, 267 Ga. 9, 10, 471 S.E.2d 836 (1996), overruled on other grounds, Smith v. State, 268 Ga. 196, 200, n. 5, 486 S.E.2d 819 (1997). See also Selman v. State, 267 Ga. 198, 475 S.E.2d 892 (1996); Chapman v. State, 259 Ga. 706, 707(4), 386 S.E.2d 129 (1989), overruled on other grounds, Smith v. State, supra, 268 Ga. at 200, n. 5, 486 S.E.2d 819; Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981); Pugh v. State, 191 Ga.App. 394, 382 S.E.2d 143 (1989).

However, self-defense is not an issue in this trial, where the criminal acts were directed toward non-aggressor victims. Accordingly, the battered person defense was not available to Ms. Graham, and the trial court did not err in excluding evidence thereof. See Freeman v. State, 269 Ga. 337, 339(1)(d), 496 S.E.2d 716 (1998).

(b) This Court also finds that the trial court appropriately allowed Ms. Graham to fully pursue a justification defense on the basis of coercion. Under OCGA § 16-3-26, a justification defense of coercion is available to show that a criminal act "is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury."

In order for duress or fear produced by threats or menaces[ ] to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.

( Citations and punctuation omitted; emphasis in original.) Holder v. State, 194 Ga.App. 790, 794(4), 391 S.E.2d 808 (1990). However, in order to assert a statutory affirmative defense, such as coercion, the defendant must admit all of the elements of the crime except intent; evidence of coercion is then presented to "justify, excuse, or mitigate [the crime] by showing no criminal intent." Hightower v. State, 224 Ga.App. 703, 705, 481 S.E.2d 867 (1997). "After evidence of [coercion] is presented, the State bears the burden of disproving that defense beyond a reasonable doubt. [Cits.]" Manning v. State, 231 Ga.App. 584, 585(3), 499 S.E.2d 650 (1998).

As to this defense, the trial court gave Ms. Graham substantial leeway in presenting extensive and graphic testimony that, on the day of the molestation, Mr. Graham threatened to kill her; brandished a handgun; pulled her hair; slapped her; and threatened to kill the children in her presence if she did not perform the molestation as he instructed. The children testified that Mr. Graham "made" their mother perform these acts; that Ms. Graham repeatedly told Mr. Graham that she did not want to perform the acts; that Mr. Graham hit and threatened Ms. Graham before and during the acts; and that Mr. Graham threatened to beat them with belts in Ms. Graham's presence if they did not do as they were told. Further, the trial court frequently allowed the witnesses to explain answers by referring directly or indirectly to relevant previous and subsequent threats or violent acts by Mr. Graham.

However, the State countered this evidence with Ms. Graham's May 1997 statement to police, in which she recounted all of the molesting acts in detail and said that she was "tripped" out about what was happening. Although Ms. Graham alluded to threatening acts by Mr. Graham on that day, she also admitted that she left the bedroom at least one time to make lemonade and smoke a cigarette. Following the incident, she instructed the children not to tell anyone about the molestation, although she told her daughter that she was "proud" when the girl finally told the school counselor. It is undisputed that Ms. Graham never contacted authorities about the molestation or her claims of Mr. Graham's abuse of her or the children.

Following the presentation of evidence, the trial court gave a jury instruction on the coercion defense. Clearly, in convicting Ms. Graham of all 12 criminal charges, the jury determined that Ms. Graham's actions were not justified on the basis of coercion. This determination as to an affirmative defense is solely within the purview of the jury and will not be disturbed by this Court, as it is supported by sufficient evidence. See OCGA §§ 16-3-28; 24-9-80; Manning v. State, supra at 585(3), 499 S.E.2d 650; Hightower v. State, supra at 705, 481 S.E.2d 867; Luke v. State, 222 Ga.App. 203, 206(2), 474 S.E.2d 49 (1996); Pardue v. State, 214 Ga.App. 690, 448 S.E.2d 768 (1994).

2. Ms. Graham also contends on appeal that the trial court erred by failing to give her requested charge on justification under OCGA § 16-3-20. However, the trial court gave a comprehensive charge on coercion, which was the relevant portion of the justification defense. Accordingly, this enumeration lacks merit. See Chapman v. State, 258 Ga. 214, 216(3)(b), 367 S.E.2d 541 (1988).

3. In her third enumeration, Ms. Graham asserts that the trial court abused its discretion when it refused to sever the trial. "[T]he severance of [the] defendants' trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4." Dixon v. State, 268 Ga. 81, 83, 485 S.E.2d 480 (1997).

A defendant desiring severance has the burden of demonstrating more than the possibility that a separate trial would provide him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process in the absence of severance. [Cit.]

Berry v. State, 267 Ga. 605, 611, 481 S.E.2d 203 (1997). See also Dixon v. State, supra at 83, 485 S.E.2d 480.

In this case, Ms. Graham claims that her case was prejudiced when Mr. Graham's attorney repeatedly objected to her attorney's attempts to introduce evidence of prior episodes of spousal abuse in an effort to prove that Ms. Graham suffered from battered person syndrome. However, as established in Division 1, supra, such evidence was inadmissible in this case and already had been expressly excluded by the trial court. Regardless of whether the trial was severed, Ms. Graham would not have been allowed to introduce such evidence, so that she cannot demonstrate prejudice by the fact that the evidence also was excluded pursuant to Mr. Graham's objections.

Further, to the extent that she claims prejudice as a result of Mr....

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  • Virger v. State
    • United States
    • Georgia Supreme Court
    • February 18, 2019
    ...affirming the exclusion of expert testimony regarding the defendant's BPS to support her coercion defense); Graham v. State, 239 Ga. App. 429, 431-432, 521 S.E.2d 249 (1999) (same). Accordingly, the proffered expert testimony regarding Cave's BPS and PTSD also was not admissible to support ......
  • Pickle v. State, No. A06A0502.
    • United States
    • Georgia Court of Appeals
    • July 14, 2006
    ...562 S.E.2d 754 (2002). (a). Pickle first argues that she was not using the syndrome as an affirmative defense as in Graham v. State, 239 Ga.App. 429, 521 S.E.2d 249 (1999), but as probative evidence of her mental state and to explain her conduct and negate any criminal intent on her part. S......
  • Abernathy v. State
    • United States
    • Georgia Court of Appeals
    • March 30, 2006
    ...on Counts 1 through 10 of the indictment. See Wyatt v. State, 243 Ga. App. 882(4), 534 S.E.2d 431 (2000); Graham v. State, 239 Ga.App. 429, 434(6), 521 S.E.2d 249 (1999); OCGA §§ 16-6-4(a), (c); 16-6-22(a)(2). 3. Abernathy further contends that the trial court erred in denying his motion fo......
  • Youmans v. State, A04A1772.
    • United States
    • Georgia Court of Appeals
    • December 9, 2004
    ...for ransom included additional element of asportation and so was a greater offense than armed robbery); see also Graham v. State, 239 Ga.App. 429, 434-435, 521 S.E.2d 249 (1999) (aggravated child molestation cannot be merged into child molestation). We find no error as Judgment affirmed. RU......
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1 books & journal articles
  • Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 68-1, September 2016
    • Invalid date
    ...the Insanity Defense-an Ineffective, Costly, and Unconstitutional Eradication, 51 Idaho L. Rev. 575, 581-85 (2015).66. Graham v. State, 239 Ga. App. 429, 432, 521 S.E.2d 249, 252 (1999).67. Bailey v. State, 291 Ga. 144, 147, 728 S.E.2d 214, 216 (2012).68. Adams v. State, 288 Ga. 695, 697, 7......

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