Green v. State

• Decision Date: 17 June 2021
• Docket Number: A21A0353
• Citation: 359 Ga.App. 845,860 S.E.2d 140
• Court: Georgia Court of Appeals
• Parties: GREEN v. The STATE.

359 Ga.App. 845

860 S.E.2d 140

GREEN

v.The STATE.

A21A0353

Court of Appeals of Georgia.

June 17, 2021

Randall Paul Sharp, for Appellant.

Chad Andrew Pritchett, Louie Craig Fraser, Dublin, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Mark Holden Green guilty of aggravated child molestation and child molestation. Following the denial of his motion for new trial, Green appeals, contending that the trial court erred in admitting hearsay and other acts evidence, the evidence was insufficient to support his conviction for aggravated child molestation, and his trial counsel was ineffective. For the following reasons, we affirm Green's convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, with the defendant no longer enjoying a presumption of innocence. See Carolina v. State , 276 Ga. App. 298, 300 (1) 623 S.E.2d 151 (2005). We neither weigh the evidence nor determine witness credibility, which are tasks that fall within the exclusive province of the jury, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id. ; see also Whorton v. State , 318 Ga. App. 885, 885, 735 S.E.2d 7 (2012).

So viewed, the evidence shows that Green is the step-father of the victims, A. G. and E. G. The victims’ mother testified that when A. G. and E. G. were four years old, A. G. told her, "Mom, you know Mark has a long toot toot." The victims’ mother explained that A. G. and E. G. use the term "toot toot" to refer to their private area. The victims’ mother testified that A. G. said that Green "had stuck it in her mouth and did this motion," which she demonstrated, and "that yucky milk came out."

After the victims’ mother reported the allegation to police, she took A. G. and E. G. to a child advocacy center. At the child advocacy center, both children were interviewed by an expert in forensic interviewing. The forensic interviewer testified that she had conducted approximately 600 forensic interviews. Recordings of the forensic interviews of A. G. and E. G. were played for the jury. The forensic interviewer first testified about her interview of E. G. After explaining that E. G. referred to the male anatomy as a "toot toot tail" because it looks like a tail, she testified that E. G. told her that there was a "boo boo" on Green's "toot toot tail" and that she "bit him there on his toot toot tail." E. G. also referred to something being sticky like peanut butter, which the forensic interviewer testified she thought would have been ejaculation.

The forensic interviewer then testified about her interview of A. G. A. G. told the forensic interviewer about "yucky milk" and motioned with her mouth like she was spitting it out. When the forensic interviewer asked A. G. about Green's "toot toot," A. G. said, "He did like this." The forensic interviewer testified that she inferred from A. G.’s statements and gestures that Green put his penis in A. G.’s mouth.

A sexual assault nurse examiner testified that she had examined A. G. and E. G. A. G. told the nurse examiner, "Yucky milk came out of Mark's toot, toot.... He put it in my mouth." A. G. also told her that Green "has a long tail called a toot toot that yucky white milk comes out of," that "he puts the yucky milk in my mouth," and "it tastes bad and I spit it in the trash can." When the nurse examiner asked A. G. to describe what the "toot toot" looks like, A. G. said, "It's long like a tail and has a hole in the end of it. He does his hands like this." The nurse examiner testified that A. G. made motions with her hands as if masturbating a penis. A. G. told her, "That's when the yucky white milk comes out of the end.... I don't like it when he does that. It tastes bad."

At the end of E. G.’s exam, the nurse examiner asked E. G. if she had ever seen Green's private areas. The nurse examiner testified that E. G. told her, "He has a tail, he puts his hand around his ‘toot toot,’ " motioned with her hands as though masturbating, and said, "Pee pee came out of it. It went all over my shorts and I had to change clothes."

A nurse who examined Green testified that he has a condition referred to as hypospadias, where the urethral opening of the penis can be at various locations of the penis rather than the normal location, which is the tip of the penis. According to the nurse, Green's urethral opening is between the head of the penis and the area just below the head of the penis. She also testified that Green has a skin pigment condition referred to as vitiligo, and that he had pigmentation loss in an area that she pointed to in a picture showing Green's penis and on his scrotal sac.

Green was indicted for aggravated child molestation and child molestation. After a jury trial, Green was found guilty of both offenses. This appeal followed the denial of Green's motion for new trial.

1. Green contends that the trial court erred by allowing hearsay statements of A. G. to be admitted into evidence.¹ However, Green did not preserve this issue for appellate review.

At the time of Green's offenses in 2016, OCGA § 24-8-820, the child hearsay statute, provided:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child's testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

"[T]he trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements [under OCGA § 24-8-820 ] only if the trial court abused its discretion." Allison v. State , 356 Ga. App. 256, 261 (1), 846 S.E.2d 222 (2020) (citation and punctuation omitted).

When the victims’ mother testified, Green objected to the admission of hearsay statements by A. G. After the State responded that A. G. was present and able to testify, the trial court admitted the hearsay statements over trial counsel's objection. When A. G., who was six years old at the time of trial, took the stand, she answered voir dire questions from the State and Green's trial counsel. Green's trial counsel objected to A. G. being allowed to testify on the basis that he was not satisfied that A. G. knew the difference between the truth and a lie. The trial court allowed A. G.’s testimony, finding that she knew "the difference in right and wrong, truth and a lie." The prosecutor then attempted to swear A. G. in as a witness:

Q: Do you swear or affirm testimony or the conversation me and you are about to have in front of this jury, is the truth?

A: I don't know.

Q: You don't know? You're not [going to] tell the truth while we're talking?

A: No.

Q: You're not [going to] tell me the truth?

A: I just don't know some things are different.

Q: Some things are different? Can you tell me what's different?

A: Like, I never learned jump roping, because that's hard.

Q: Okay. I can get that. What if I said, I'm not [going to] ask you about jump roping or hula hooping in front of the jury today? Because I'm not [going to] ask you anything like that. I'm just [going to] ask questions [about] what happened between you and Mark. Is that okay? Will you tell the truth then?

A: Yes.

Q: Okay. Let's raise our hand again, the right one. There you go.

...

Q: Do you swear or affirm the testimony you are about to give, the conversation me and you are [going to] have today in front of the jury, concerning Mark, is the truth?

A: I don't know.

Q: You don't know again? No? You just don't know?

A: Yeah, because things are different, but I don't know how to do or I just don't know what it means.

Green's trial counsel requested a bench conference and stated, "I don't think she can testify on what's the truth and what's a lie." The trial court responded, "Okay." Neither the prosecutor nor Green's trial counsel pursued asking further questions of A. G., who was allowed to leave the witness stand.

Green argues that because A. G. "was incapable of taking the oath to tell the truth, she should be considered ... not being ‘available’ to testify at trial and therefore the child hearsay statute would not apply." Although Green objected to the admission of A. G.’s hearsay statements when the victims’ mother testified, he did not renew his objection when A. G. did not testify. By not renewing his objection, he failed to preserve this issue for appellate review. See Jackson v. State , 222 Ga. App. 843, 847 (4), 476 S.E.2d 615 (1996) (defendant failed to preserve the issue for appellate review when he did not renew his hearsay objection when the declarant did not testify).

2. In a closely related enumeration, Green argues the evidence was insufficient to support his conviction for aggravated child molestation because "[t]he only evidence concerning any inappropriate conduct in relation to A. G. came by way of hearsay statements[.]" We disagree.

"A person commits the offense of child molestation when such person ... [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[.]" OCGA § 16-6-4 (a) (1). "A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which ... involves an act of sodomy." OCGA § 16-6-4 (c). And sodomy is committed when a person "performs or...