Harris v. State

• Decision Date: 28 January 2021
• Docket Number: A20A1795
• Citation: 854 S.E.2d 374,358 Ga.App. 204
• Parties: HARRIS v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 204

854 S.E.2d 374

HARRIS

v.The STATE.

A20A1795

Court of Appeals of Georgia.

January 28, 2021

Kenneth Wayne Sheppard, for Appellant.

Fani T. Willis, Atlanta, Claude B Rudder Rudder, Mathew Eli Plott, for Appellee.

Pipkin, Judge.

A jury found Charles Harris guilty of rape, child molestation, and false imprisonment, and he was sentenced to life in prison without the possibility of parole. Following the denial of a motion for new trial, Harris appeals challenging the sufficiency of the evidence and the trial court's failure to fulfill its role as the "Thirteenth Juror." Harris also contends that the trial court erred in admitting evidence and that he was entitled to a mistrial based upon a Brady violation. Finally, Harris argues that the cumulative prejudicial effect of the errors warrants the grant of a new trial. For the following reasons, we disagree with Harris's contentions and affirm.

1. As a threshold matter, we note that Harris's brief fails to comply with this Court's rules, which require, among other things, that a brief "contain a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal; a citation of the parts of the record or transcript essential to a consideration of the errors." See Court of Appeals Rule 25 (a) (1). Although Harris challenges the sufficiency of the evidence, he provides no meaningful statement of facts. Rather, he broadly contends that the evidence was insufficient and cites to the "Entire Trial Transcript." However, "[i]t is not the function of this Court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record." (Citation and punctuation omitted). Patterson v. State , 327 Ga. App. 695, 696 (1), 761 S.E.2d 101 (2014).

Our rules also require that a brief "contain the argument and citation of authorities[.]" See Court of Appeals Rule 25 (a) (3). Harris attempts to satisfy this rule, in part, by referring to "grounds, reasons and arguments as were stated, articulated and developed by Defendant's Trial Counsel on the record at Defendant's Jury Trial all of which are incorporated by reference as if fully restated herein." Such an attempt to bootstrap arguments raised below to an appellate brief does not satisfy this Court's requirement that a brief contain argument and citation to authority. See All Fleet Refinishing v. W. Georgia Nat. Bank , 280 Ga. App. 676, 682 (6), 634 S.E.2d 802 (2006).

Harris's failure to fully comply with this Court's rules has hampered our ability to consider the merits of this appeal. We will nevertheless – to the extent we are able – consider those arguments that were raised in the brief and supported by argument and citation of authority.

2. Harris contends that the evidence was insufficient to support the jury's verdict. Specifically, he asserts that there was no evidence other than the victim's testimony in what he describes as a "he said-she said" case.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation and punctuation omitted). Oates v. State , 355 Ga. App. 301, 301, 844 S.E.2d 239 (2020).

Viewed in this light, the evidence shows that the victim lived with her mother and younger sister and that Harris, who was a paternal uncle, lived with them. Harris would babysit the children while the mother worked overnight shifts. When the victim was seven, Harris began molesting her. The first time, the victim woke at night to find Harris on top of her, "pushing up on" her. The victim felt extreme pain and burning, and she began to cry. After Harris stopped, the victim went into the bathroom to wipe herself and found a "clearish red" fluid on the tissue. After that night, Harris forced himself on the victim on multiple occasions. According to the victim, Harris would pin her arms over her head and kiss her; he went "in and out of her privates" with his "privates," which caused pain. Harris threatened to harm the victim if she told anyone.

The victim's mother noticed changes in the victim's behavior. The victim began to say "mean and hateful things" to her mother and sister, and the mother asked the victim what was happening. At first, the victim was unwilling to tell her mother what was happening, but after Harris was arrested on unrelated charges,¹ the victim told her mother that Harris had been "touching her" and had "kiss[ed] her between her legs." The mother called the police.

Detective David Jones was assigned to the case, and he arranged a forensic interview. During the interview, which was recorded on video and played for the jury, the victim recounted the abuse she suffered at Harris's hands. She gestured to show how Harris would pin her arms over her head to try to kiss her.

The State also presented evidence from T. F., a similar transaction witness. In the 1980s and 1990s, T. F. lived with Harris, who was the common-law husband of T. F.’s grandmother. T. F. testified that, when she was five, Harris began molesting her. The first time, Harris took T. F. from her bed as she was sleeping, and he penetrated her anus with his penis. Two years later, Harris penetrated T. F.’s vagina. From that point, Harris continued to molest T. F. until she was twelve, when he was caught in an act of molestation.

Harris was charged with numerous offenses, including rape, child molestation based on kissing the victim on the mouth, false imprisonment, aggravated assault, and possession of a knife during the commission of a felony. The jury found Harris guilty of rape, child molestation, and false imprisonment, but acquitted him of the remaining charges.²

On appeal, Harris argues that the evidence was insufficient to sustain his convictions because the only "eye witness" testimony came from the victim. However, the victim's testimony alone is sufficient to sustain Harris's convictions. See Torres v. State , 353 Ga. App. 470, 476 (1), 838 S.E.2d 137 (2020) ; West v. State , 339 Ga. App. 279, 281 (1), 793 S.E.2d 180 (2016) ; Roberson v. State , 327 Ga. App. 804, 806 (1), 761 S.E.2d 361 (2014). Furthermore, the victim's testimony was not the only evidence presented. The jury also heard testimony from a similar transaction witness, which showed Harris's propensity to commit the crime of child molestation. Under these circumstances, the jury was authorized to find Harris guilty. See Tudor v. State , 320 Ga. App. 487, 490 (1), 740 S.E.2d 231 (2013).

3. In a related claim of error, Harris contends that he is entitled to a new trial based upon the trial court's failure to fulfill its role as the "Thirteenth Juror."

In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury. The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding. When properly raised in a timely motion, these grounds for a new trial – commonly known as the "general grounds" – require the trial judge to exercise a broad discretion to sit as a "thirteenth juror." In exercising that discretion, the trial judge must consider some of the things that [he or] she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.

(Citations and punctuation omitted). Massey v. State , 346 Ga. App. 233, 235-236 (2), 816 S.E.2d 100 (2018).

The trial court's order makes clear that the judge exercised discretion and considered the weight of the evidence in concluding that Harris was not entitled to a new trial on general grounds. Because the trial court acted within its discretion, we will not interfere with its ruling on appeal. See Dixon v. State , 341 Ga. App. 255, 264 (2) (b), 800 S.E.2d 11 (2017) ("A motion for new trial on [general grounds] is not properly addressed to this Court as such a decision is one that is solely within the discretion of the trial court.") (punctuation omitted).

4. Harris argues that the trial court erred in permitting T. F. to testify as a similar transaction witness. According to Harris, the prior acts were too remote in time and the prejudicial effect of admitting the evidence outweighed any probative value.

"In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant." OCGA § 24-4-414. Under this "rule of inclusion," there is a strong presumption in favor of admissibility of a prior act of molestation. See State v. McPherson , 341 Ga. App. 871, 873, 800 S.E.2d 389 (2017). Such similar transaction evidence is relevant to the issue of whether a defendant has a propensity to commit certain sexual offenses. Id. However, a trial court may still exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Citation and punctuation omitted). Sturgis v. State , 356 Ga. App. 219, 221, 842 S.E.2d 82 (2020). We review a trial court's admission of such evidence under a clear abuse of discretion standard. See id.

The trial court did not abuse its discretion in allowing T. F. to testify. The similarity between the...