Hambrick v. State

• Decision Date: 05 February 2020
• Docket Number: A19A2455
• Citation: 353 Ga.App. 666,839 S.E.2d 664
• Parties: HAMBRICK v. The STATE.
• Court: Georgia Court of Appeals

353 Ga.App. 666

839 S.E.2d 664

HAMBRICK

v.The STATE.

A19A2455

Court of Appeals of Georgia.

February 5, 2020

Reconsideration Denied February 18, 2020

Cara Clark, for Appellant.

Paul L. Howard Jr., Atlanta, Kevin Christopher Armstrong, for Appellee.

Markle, Judge.

Following a jury trial, Jason Hambrick was convicted of rape ( OCGA § 16-6-1 ); two counts of aggravated child molestation ( OCGA § 16-6-4 ); incest ( OCGA § 16-6-22 ) (2010); and cruelty to children ( OCGA § 16-5-70 ). He now appeals from the trial court’s denial of his motion for new trial, arguing that (1) the State violated the discovery rules when it failed to turn over an additional medical report from its expert, and the trial court erred in failing to grant a continuance in light of the discovery violation; (2) he received ineffective assistance of counsel due to (a) the failure to seek a continuance or properly investigate the medical evidence, and (b) the failure to object to hearsay testimony concerning another doctor’s examination; (3) the trial court erred in limiting the testimony of his expert; (4) the trial court improperly allowed hearsay evidence about a DNA test; (5) the State failed to prove venue with regard to three of the charges; (6) the trial court erred in refusing to merge the rape and cruelty to children convictions; and (7) the trial court’s written sentence conflicted with the oral sentence imposed.¹ After a thorough review of the record, and for the reasons that follow, we affirm the denial of the motion for new trial, but remand the case for correction of a scrivener’s error in the sentencing sheet.

Viewing the evidence in the light most favorable to the jury’s verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that when D. H. was two years old, she was living with her mother and her step-father, Hambrick. They lived in an apartment in Vine City for about a year before moving in with D. H.’s grandfather and his wife in Alpharetta. While they lived with the grandfather, the mother worked and Hambrick took care of D. H. During this time, D. H. often complained of pain and would cry when having a bowel movement, and the family thought that D. H. was constipated.

According to D. H., the abuse started when the family lived in Vine City, but it continued after they moved into the grandfather’s house in Alpharetta. She said that while she was living in Vine City, her "daddy put his penis in [her] butt" more than one time, and she was afraid to tell anyone. She also said that it happened more than one time while she was living with her grandfather in Alpharetta. D. H. further stated Hambrick placed his penis in her vagina and her mouth more than one time, that it hurt, and that she would cry.

One weekend around the end of July 2011, D. H. was playing at her great-grandparents house when her great-grandmother noticed her humping a pillow. The great-grandmother told her to stop, and D. H. said that’s "the way my daddy do when he puts his penis in my butt." The great-grandmother asked her what she was talking about, and D. H. repeated that Hambrick would place his penis in her butt. D. H. repeated the disclosure to her great-grandfather and her grandmother, and also stated that Hambrick would cover her mouth with tape when she cried.² The following morning, D. H.’s great-grandparents took her to the hospital. During an examination, D. H. informed the doctors that Hambrick placed his penis in her vagina as well.³ Based on these allegations, Hambrick was indicted for rape, two counts of aggravated child molestation, incest, and cruelty to children.

At trial, Dr. Ziegler, the attending physician who first examined D. H. at the hospital, testified that he observed some discoloration and redness along the labia that indicated possible bruising. There was also some discoloration of the hymen, which could have indicated a tear that had healed. He further noted some discoloration and disruption along the anus, for example the skin was not intact, which he explained could be consistent with something penetrating the anus. Ziegler opined that these findings were consistent with the allegations of molestation and abuse. He noted, however, that the genital area heals very quickly, which could explain why there were no other indications or abnormal findings. Nevertheless, he confirmed that he did not consider the results of D. H.’s examination normal, and accordingly, he recommended that she be seen for a more thorough forensic examination.

A social worker conducted a forensic interview, which was recorded and played for the jury. In the interview, D. H. explained that Hambrick put his penis in her vagina, butt, and mouth on more than one occasion, and that this occurred while they were living in her grandfather’s house. D. H. stated that it hurt when Hambrick did this, and she used dolls to show the examiner how she was positioned when Hambrick abused her. The social worker testified that she saw no signs that D. H. had been coached or had fabricated the allegations, noting that D. H. was able to describe the position of her body, what she was wearing, where she was in the room, and how it felt.

Dr. Guidry testified that she was a nurse practitioner working with children of sexual abuse.⁴ She physically examined D. H. on three occasions beginning a few days after D. H. was seen in the emergency room. After reviewing the records from the emergency room examination, she testified that the bruising on the labia indicated some blunt force trauma, and the injury on the hymen was consistent with sexual abuse. She noted that there was no report of any previous accident or trauma that would otherwise explain those injuries. Dr. Guidry stated that, when she examined and spoke to D. H., the child told her that Hambrick put his penis in her vagina, butt, and mouth. On physical examination, however, Guidry did not observe any visible injury to the labia and hymen, although she explained that it would not be unusual for the injuries to have healed by then. When she examined the anus, she observed what appeared to be a tear and an injury, which could explain the painful bowel movements that D. H. experienced. Dr. Guidry acknowledged that the tear could be the result of trauma or constipation, but she opined that it was consistent with D. H.’s allegations and "[was] highly suspicious for sexual abuse," rather than constipation, because all reports indicated that D. H.’s stool was soft.

Dr. Guidry further testified that she re-examined D. H. two more times after the initial examination. In these examinations, she noted that there were no new complaints of pain when D. H. used the bathroom, but there remained some redness in the vaginal area. She opined that this could be the result of poor hygiene or friction from clothing, or it could have been a normal variation. The scar that had been visible on earlier examination had healed, and the redness around the anus was gone.

The defense called Dr. Tillitski, a licensed psychologist, in rebuttal. Dr. Tillitski criticized the manner in which the social worker conducted D. H.’s forensic interview. He noted that she used specific questions that were not neutral and which increased the risk of fabrication; that D. H. denied any abuse numerous times before affirming anything happened; the interviewer did not use questions designed to elicit a narrative; and the interviewer touched the dolls instead of letting D. H. demonstrate with them. He further opined that the interviewer allowed the interview to go on too long, and that D. H. did not allege any abuse until more than 20 minutes into the interview. He expressed concern that D. H. only received positive responses from the interviewer when she confirmed the allegations of abuse.

The jury convicted Hambrick of all counts. Thereafter, Hambrick filed a motion for new trial, which he twice amended. Following a hearing, at which trial counsel and a medical expert testified, the trial court denied the motion, but resentenced Hambrick to a term of imprisonment followed by probation, as required by OCGA § 17-10-6.2. Hambrick now appeals.

1. In his first enumeration of error, Hambrick argues that the State violated the discovery statutes by failing to turn over Dr. Guidry’s two follow-up examination reports prior to trial, and the trial court failed to remedy this violation when it did not grant a continuance to give counsel time to review the records and hire an expert to dispute them. This argument is without merit.

Under OCGA § 17-16-4 (a) (4), the State is required to turn over all expert reports prior to trial.⁵ To remedy an alleged violation of this statute,

[i]f at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

OCGA § 17-16-6. We review the trial court’s remedy for a discovery violation for abuse of discretion. Tubbs v. State , 276 Ga. 751, 753-754 (3), 583 S.E.2d 853 (2003).

In this case, before the jury was brought in on the second day of trial, Hambrick’s counsel alerted the court that, the day before, the State had turned over the medical records from Dr. Guidry’s two follow-up examinations and counsel had not had the chance to review them. Trial counsel acknowledged that the State had only received the records the day before and had provided them to defense counsel immediately. The State clarified that it was not seeking to admit the additional medical records, just the doctor’s testimony about the follow-up examinations. Trial counsel then argued that the doctor should not...