Gresham v. The State

• Decision Date: 13 April 2010
• Docket Number: No. A10A0995.,A10A0995.
• Citation: 303 Ga.App. 682,695 S.E.2d 73
• Parties: GRESHAMv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 682

695 S.E.2d 73

GRESHAMv.The STATE.

No. A10A0995.

Court of Appeals of Georgia.

April 13, 2010.

COPYRIGHT MATERIAL OMITTED

Benjamin A. Pearlman, Jessica I. Benjamin, for appellant.

Kenneth W. Mauldin, Dist. Atty., Jon R. Forwood, Asst. Dist. Atty., for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Edward Frank Gresham was convicted on one count of child molestation ¹ and one count of statutory rape. ² He appeals, arguing that the trial court erred in failing to declare a mistrial based on juror misconduct, admitting similar transaction evidence, failing to instruct the jury on bare suspicion, and imposing a disproportionately severe sentence. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict Davis v. State,³ the evidence shows that in 2006, Gresham was the live-in boyfriend of Christen Wood. B.B. was Wood's 14-year-old female cousin. On May 20, 2006, some time after midnight, Wood, who suffered from endometriosis, was not feeling well. Because her boyfriend Gresham was out with friends, Wood called B.B.'s mother to ask her if she would accompany her to the hospital. B.B.'s mother declined but allowed B.B. to go with Wood instead. A few minutes later, Wood picked up B.B., and the two of them drove to Athens Regional Medical Center's emergency room. Shortly after Wood was called from the waiting room to meet with the doctor, B.B., who was holding Wood's cell phone, answered a call from Gresham and told him that they were at the hospital. Gresham responded that he would leave immediately to meet them. Less than an hour later, B.B. received another call from Gresham, who said that he had just arrived at the hospital and asked B.B. to meet him outside on the driveway to the entrance of the emergency room.

Subsequently, B.B. walked outside, found Gresham, and the two of them drove to the hospital's parking deck. Once there, Gresham told B.B. that he was too drunk to park his vehicle and asked her if she would do so. B.B. agreed, and after driving up and down the multi-leveled parking deck for a few minutes, she parked Gresham's vehicle between two other cars. Just as B.B. began to exit the vehicle, Gresham, who had pulled his pants down, grabbed B.B. by the waist, pulled her onto his lap, and pulled down the shorts she was wearing. After moving B.B. up and down on his lap for a few moments, Gresham pushed her face down across the vehicle's center console, put his fingers in her privates, and placed his privates inside her privates. When Gresham finished, B.B. put her shorts back on and ran back into the hospital. She did not tell Wood or anyone at the hospital what had happened and drove home with Wood after Wood had been treated. Two days later, however, B.B. told another relative and, ultimately, told her mother that Gresham had sexually molested her. That same day, B.B. and her mother met with police to report the incident, and B.B. met with a specially trained nurse, who examined her for evidence of sexual assault.

Gresham was indicted on one count each of child molestation, statutory rape, and aggravated child molestation. At trial, B.B. testified about the sexual assault, and her mother testified as to B.B.'s disclosure of the assault. Additionally, a former GBI forensic scientist testified that an analysis of the seminal fluid collected by the nurse during her examination of B.B. indicated that the DNA of the seminal fluid matched Gresham's DNA. The State also introduced similar transaction evidence in the form of Wood's younger sister, who testified that Gresham had made unwanted sexual advances toward her on three separate occasions after he appeared to have been drinking. At the conclusion of the trial, the jury found Gresham guilty on the charges of child molestation and statutory rape but found him not guilty on the charge of aggravated child molestation. Gresham filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. Gresham contends that the trial court abused its discretion in denying his motion for a mistrial because an alternate juror made improper comments about his guilt. We disagree.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, we have also recognized that some irregularities are inconsequential.

(Punctuation omitted.) Tolbert v. State.⁴ “We will not set aside a jury verdict based on such an irregularity ... unless the conduct was so prejudicial that the verdict is inherently lacking in due process.” (Punctuation omitted.) Arnold v. State.⁵ Finally, “[t]he decision to grant a mistrial or remove a juror lies within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of that discretion.” Wilkins v. State.⁶

In this matter, the record shows the following relevant facts. Immediately after the jury was chosen and sworn in, the court recessed to allow the jurors to eat lunch before opening statements. At that time, the bailiff informed the court that a member of the venire, who had not been chosen for the jury, had information about possible juror misconduct. After she was placed under oath, the venire member testified that on the previous day, during a break from voir dire proceedings, she heard a woman, who had now been chosen to serve as an alternate, say that the defendant should be hung and that if it were the woman's granddaughter who had been molested, she would beat the defendant with a two-by-four. The venire member further testified that the alternate loudly made such comments more than once, and that she believed that several other members of the venire heard her comments. Thereafter, the court placed the alternate juror under oath and asked her if she had made any comments about the defendant. Although she belligerently denied doing so, the court, the State, and Gresham's counsel agreed that she lacked credibility. Consequently, the court excused her from service.⁷

After the alternate was excused, Gresham moved for a mistrial, arguing that the alternate had potentially prejudiced the rest of the jury against him. Before ruling on Gresham's motion, the trial court questioned each juror individually, under oath, and outside the presence of the other jurors as to whether they had heard anyone commenting on the case. Six jurors testified that they had heard the alternate make improper comments about the defendant, but when questioned further by the court, each of those jurors stated that the comments would not affect his or her ability to fairly decide the case. In fact, one juror thought the alternate was crazy and another assumed she was joking. Based on this testimony, the court found that although the alternate engaged in improper conduct, the jurors who had heard her “ thoroughly discounted” her statements, and thus it was not necessary to declare a mistrial.

Gresham argues that the alternate's comments prejudiced the other jurors and that granting a mistrial, rather than excusing the alternate, was the only adequate cure for the misconduct. However, the record discloses no basis upon which to conclude that the misconduct was so prejudicial as to deny Gresham due process. See Arnold, supra, 243 Ga.App. at 123(2), 532 S.E.2d 458. Here, the trial judge thoroughly questioned each individual juror under oath about what he or she had heard, and whether he or she had the ability to remain fair and impartial, and found that each juror could remain impartial. Thus, Gresham's contention that the alternate's comments prejudiced the other jurors was unsupported. See Tolbert, supra, 300 Ga.App. at 55(2), 684 S.E.2d 120. Accordingly, the trial court did not abuse its discretion by refusing to declare a mistrial. See id.; Arnold, supra, 243 Ga.App. at 123(2), 532 S.E.2d 458.

2. Gresham contends that the trial court erred in admitting similar transaction testimony regarding his unwanted sexual advances toward Wood's younger sister. We disagree.

In order for similar transaction evidence

[t]o be admissible for the purposes of establishing motive, intent, course of conduct, or bent of mind, the State must show (a) sufficient evidence that the similar transaction occurred and (b) sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter.

(Punctuation omitted.) Evans v. State.⁸ Furthermore,

[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to

initiate or continue a sexual encounter without a person's consent.

(Punctuation omitted.) Hilliard v. State.⁹ “The decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous.” (Punctuation omitted.) Evans, supra, 300 Ga.App. at 182, 684 S.E.2d 311.

Prior to trial, the State filed the requisite notice of intent to introduce the similar transaction of Gresham's unwanted sexual advances toward Wood's younger sister. After a hearing, in which the testimony of Wood's younger sister was proffered and in which the State argued that the evidence was appropriate to show Gresham's bent of mind, the trial court ruled that the evidence was admissible. At trial, Wood's younger sister testified that Gresham had made unwanted sexual advances toward her on three separate occasions. She testified that the first incident occurred when she was either 16 or 17 years old and was sleeping over at Wood's and Gresham's home. After she had gone to bed, Gresham came into the spare bedroom where she was sleeping, pulled on the sweatpants she was...