Howell v. State
| Decision Date | 08 February 2006 |
| Docket Number | No. A05A2239.,A05A2239. |
| Parties | HOWELL v. The STATE. |
| Court | Georgia Court of Appeals |
William A. Adams, Jr., Thomaston, for appellant.
Scott L. Ballard, Dist. Atty., Cindy L. Spindler, Asst. Dist. Atty., for appellee.
After a jury trial, Carl Howell was convicted of one count of child molestation and sentenced to twenty years to serve. On appeal, Howell raises several enumerations of error, including that the trial court failed to grant a mistrial after one witness testified as to the victim's credibility, that it impermissibly admitted the testimony of the victim under the Child Hearsay Statute, that it failed to instruct the jury on sexual battery, and that it improperly charged the jury on the child molestation statute. Based on the reasons outlined below, we affirm.
"On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."1 So construed, the evidence shows that on the evening of November 9, 2002, Howell spent the night at the home of Christy Ellerbee, with whom he had two daughters, who were twelve and six years old.2 Also present in Ellerbee's home that night were Ellerbee's five-year-old niece, J.E., the victim herein, and Ellerbee's nephew. Ellerbee explained that her niece stayed with her that night because the child's mother was working. Ellerbee testified that once Howell decided to spend the night, he retired to her bedroom to watch television; that she later joined him; that Howell got up to use the bathroom; that after he did not return to her room, she decided to look for him; and that she found him in her youngest daughter's room lying on top of J.E. Ellerbee called the police.
Sergeant Jeff Little of the Thomaston Police Department investigated the incident. Little testified that he met Ellerbee and the victim at the Upson Regional Medical Center and took J.E.'s oral statement at approximately 1:00 a.m. on November 10. Little further testified that J.E. told him that Howell "put his ding-ding in her cootie-cat." Little conducted a videotaped interview of J.E. days later on November 13, which videotape was admitted into evidence.
In the written statement that Ellerbee gave to the police after the incident, Ellerbee said that when she saw Howell lying on top of J.E., he was "sleep rolling in the manner of having sex" and that J.E. told her that he pulled her underwear down. At trial, however, she testified that she remembered that Howell was lying on top of J.E., but she did not know what he was doing.
Dr. Kathy Davis, a pediatrician tendered as an expert in the area of child abuse by the state, testified that she examined J.E. on November 11; that J.E. told her that Howell "put his ding-ding inside me . . . he came into my room, [and] got on top of me" but denied oral or rectal penetration; that J.E. also told her that it did not hurt and that she did not experience any burning upon urination after the incident. Dr. Davis also testified that when she physically examined J.E., she found no evidence of penetration but she did find discharge in J.E.'s vaginal area. Dr. Davis opined that the discharge could have been caused either by poor hygiene, specifically "pushing poop into the hymen," by fondling or by the defendant placing his penis in J.E.'s vaginal area. Additional facts will be provided as needed below.
1. Howell contends that the trial court erred by failing to grant a mistrial or give a curative instruction after one of the witnesses testified as to the victim's credibility.
"We review a trial court's denial of a motion for mistrial under an abuse of discretion standard, and we will reverse the trial court's ruling only if a mistrial is essential to the preservation of the right to a fair trial."3
Defense counsel cross-examined Howell's oldest daughter to establish that she had not witnessed the alleged incident. During the course of the cross-examination, defense counsel asked, "You didn't see anything, did you?" The child responded, Defense counsel objected and moved to strike this testimony, which motion was denied. Defense counsel did not request a curative instruction at that time. At the close of testimony for the day, however, defense counsel moved for a mistrial on the grounds that the child's testimony was improper because she bolstered the victim's credibility. The trial court denied the motion. On the next morning, defense counsel presented a curative instruction to address the testimony at issue and the trial judge stated, "I'll look at it." But defense counsel did not request that the instruction be read at that time.
We agree that the credibility of a witness is a jury question4 and that it is improper for one witness to bolster the testimony of another.5 In this case, however, the trial court took remedial measures to ensure that Howell received a fair trial.6 At the charge conference, the trial court instructed defense counsel that it would adopt his curative instruction but would remove the language identifying the particular witness, and defense counsel acquiesced thereto. In accordance therewith, the trial court charged: In light of this instruction, we find that the trial court did not abuse its discretion when it denied Howell's motion for a mistrial.
2. Howell argues that the trial court erred when it permitted the state to introduce the testimony of the victim under the provisions of the Child Hearsay Statute despite the state's failure to prove the reliability of the testimony. Howell maintains that the admission of the testimony violated his right to confront and cross-examine the witness. We disagree.
The record shows that Howell's oldest daughter, Ellerbee, Little, and the pediatrician all testified that the victim told them that Howell put his "ding-ding" inside of her. OCGA § 24-3-16 provides that
[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.7
"The 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 § 24-3-16 only if the trial court abused its discretion."8
Howell maintains that under Crawford v. Washington,9 the statements and videotaped interview of the victim violated his Sixth Amendment right to confrontation because they were testimonial in nature. Rejecting a similar argument in Starr v. State,10 this court held
Assuming, without deciding, . . . that the interview was testimonial in nature, we find no basis for reversal. The United States Supreme Court explicitly stated in Crawford that if a (Citations omitted.) 124 Sct. at 1369. Although the victim did not testify, the record shows that she was available for cross-examination. The prosecutor stated that the victim was in the courthouse and "available if necessary." We therefore find no error with respect to this contention.11
In the instant case, the court inquired as to the child's availability to testify immediately after the state indicated that it wished to introduce the statements the victim made to others. The court also explained that both parties would have the opportunity to call the victim as a witness. When defense counsel was asked at the close of the state's case whether he intended to present any witnesses, he stated "only my defendant, possibly." Howell cannot decide not to call the victim as a witness at trial, then complain on appeal that his right to confrontation was violated. As the victim was available for cross-examination, the trial court did not abuse its discretion when it admitted the testimony.
Howell also argues that the state did not satisfy the prong of OCGA § 24-3-16 that requires a finding of sufficient indicia of reliability. To the extent that Howell is arguing that the statement was unreliable, he asserts no argument in support of this position. Therefore, this claim of error is abandoned.12 Additionally, we note that the statute does not place the burden of proving reliability upon the state. Rather, it provides that the court must find that the circumstances under which the statement was given provide sufficient indicia of reliability. In doing so, the trial court is not required to "make an express finding that the circumstances of the statement at issue provide sufficient indicia of reliability before admitting the statement, as this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding."13 The trial court viewed the videotape in camera before it was played for the jury, and though it was not required to do so, made an express finding that it contained an indicia of reliability. The record also supports the trial court's finding that the statements to the other witnesses were...
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