Hubert v. State

• Decision Date: 26 March 2009
• Docket Number: No. A08A2318.,A08A2318.
• Citation: 297 Ga. App. 71,676 S.E.2d 436
• Parties: HUBERT v. The STATE.
• Court: Georgia Court of Appeals

676 S.E.2d 436

297 Ga. App. 71

HUBERT v. The STATE.

No. A08A2318.

Court of Appeals of Georgia.

March 26, 2009.

Angela Moore-Brown, Marietta, for appellant.

Patrick H. Head, Dist. Atty., Maurice Brown, John R. Edwards, Asst. Dist. Attys., for appellee.

BERNES, Judge.

Anthony L. Hubert appeals from his conviction on incest and four counts of child molestation. Hubert challenges the sufficiency of the evidence supporting his conviction and asserts that the trial court erred in denying his motion for directed verdict. He also argues that the trial court erred by forcing him to decide whether to withdraw his speedy trial demand or proceed to trial on the day that his case was called; by admitting a state's witness as an expert in forensic child interviews over his objection; and by ordering his trial counsel to move for directed verdict prior to the close of the state's case. Hubert further contends that the trial court's conduct during the trial indicated an undue bias against the defense and that he was denied the right to a fair trial due to juror misconduct. Finally, in several enumerations of error, Hubert asserts that he received ineffective assistance of counsel. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury verdict. Sullivan v. State, 295 Ga.App. 145, 671 S.E.2d 180 (2008). So viewed, the evidence presented at trial showed that Hubert is the father of the two victims, S.H. and Sh.H. In July 2006, S.H., then 14 years old, revealed to her dance teacher that Hubert had been sexually molesting her. Sh.H., then 13 years old, was present during her sister's outcry and told the dance teacher that she had also been sexually molested by Hubert. After discovering that the girls had not told their mother about Hubert and were reluctant to do so, the dance teacher encouraged S.H. to write a letter detailing the abuse and suggested that they give it to her mother together. Approximately a week and a half later, the dance teacher met with the girls and their mother, at which time S.H. presented her mother with the letter. The mother contacted law enforcement and an investigation ensued.

S.H. revealed in a recorded police interview, and later testified at trial, that Hubert started committing sexual acts against her when she was seven years old and he continued to do so until she was twelve years old. The abuse occurred in their family home and consisted of inappropriate touching and sexual intercourse. A video recording of the interview was played for the jury.

Sh.H. also gave a recorded police interview and testified at trial. She disclosed several incidents during which Hubert entered the bathroom as she showered and touched her "whole body," including her breasts and vagina. Sh.H. was in the fifth grade and this abuse occurred in their family home. A video recording of her interview was also played for the jury.

In addition to the above evidence, the jury heard testimony from a licensed clinical social worker who was admitted as an expert in child sexual abuse and its effect on children. The expert testified that the children's disclosures and their demeanor during their respective disclosures were consistent with that of children who had been sexually abused. The pediatric nurse practitioner who examined the victims also testified that, although the victims' physical examinations were normal, the results were consistent with their reports of sexual abuse.

1. Contrary to Hubert's assertion, the evidence set forth above was sufficient to authorize any rational juror to find Hubert guilty of the crimes charged beyond a reasonable doubt. See OCGA §§ 16-6-4(a);¹ 16-6-22(a)(1).² Indeed, the victims' testimony, standing alone, was sufficient to convict Hubert. See OCGA § 24-4-8 ("The testimony of a single witness is generally sufficient to establish a fact."); Baker v. State, 245 Ga. 657, 665(5), 266 S.E.2d 477 (1980); Keith v. State, 279 Ga.App. 819, 821(2), 632 S.E.2d 669 (2006); Cantrell v. State, 231 Ga.App. 629, 629-630, 500 S.E.2d 386 (1998). It follows that the trial court did not err in denying Hubert's motion for directed verdict.³ See Hester v. State, 282 Ga. 239, 240(2) 647 S.E.2d 60 (2007) ("[T]he standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.").

2. Hubert next asserts that the trial court "forced [him] to make a Hobson's choice" by requiring him to decide whether he desired to proceed to trial on the day his case was called. He contends that the trial court effectively prevented him from withdrawing his demand for speedy trial and requesting a continuance. Hubert's assertion is not supported by the record and completely lacks merit.

At the motion for new trial hearing, Hubert's trial counsel explained that Hubert wanted a trial quickly and, in accordance with Hubert's wishes, he filed a speedy trial demand. He then filed discovery on the state and, although the state did not delay in responding to the discovery, he received the responses only seven days prior to trial. Hubert's counsel visited Hubert in jail prior to the trial and expressed his belief that the trial court would grant Hubert a continuance based upon the short period of time between his receipt of the state's discovery and the scheduled trial date. See OCGA §§ 17-16-4 (the state must disclose and make available certain discoverable materials no later than ten days prior to trial); 17-16-6 (authorizing the court to grant a continuance when the time limitations set forth in OCGA § 17-16-4 are not met). Hubert and his trial counsel came to the mutual decision to move forward with the trial as scheduled.

Significantly, immediately prior to the commencement of the trial, Hubert's counsel announced to the court that he was ready and thoroughly prepared for trial, although he noted that additional time would allow for additional investigation. He wanted the record to be clear that he was willing to withdraw the speedy trial request and ask the court for a continuance if that was Hubert's desire. When asked pointedly whether he wanted a continuance, Hubert responded "[w]e're ready." The fact that he may regret now making that choice does not afford him the right to a new trial. See Bowe v. State, 288 Ga.App. 376, 379(1), 654 S.E.2d 196 (2007) ("[S]elf-induced error is not grounds for reversal.") (citation, punctuation and footnote omitted).

3. Hubert further argues that the trial court's behavior toward defense counsel during the trial indicated an undue bias and prejudice against the defense and partiality in favor of the state. He contends that the trial judge should have recused himself from the trial. Neither Hubert nor his trial counsel asked the trial judge to recuse himself at any time; therefore, this issue is waived for appeal. See Butts v. State, 273 Ga. 760, 762(3), 546 S.E.2d 472 (2001); Hall v. State, 235 Ga.App. 44, 45-46(2), 508 S.E.2d 703 (1998).

4. Hubert next argues that the trial court erred when it admitted over his objection the interviewing detective as an expert in forensic child interviews. He specifically challenges the trial court's admission of the detective's opinion that during the interview, S.H. appeared to be emotionally traumatized. We disagree.

"An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like." (Footnote omitted.) Fielding v. State, 278 Ga. 309, 311(3), 602 S.E.2d 597 (2004). The determination of whether to accept or reject an expert witness rests within the sound discretion of the trial judge, and we will not disturb the trial court's ruling absent a manifest abuse of that discretion. Taylor v. State, 261 Ga. 287, 290(1)(a), 404 S.E.2d 255 (1991).

The detective in this case testified that he was a member of the crimes against children unit of the police department at the time that he interviewed the victims. His training included two special courses designed specifically to teach techniques in interviewing children of sexual abuse. The detective testified that he had investigated between 75 and 100 cases involving children of sex crimes and that he had conducted at least 50 interviews of alleged sexually abused children.

Given the detective's training and experience, the trial court did not abuse its discretion in holding that the detective possessed a greater knowledge and experience in the area of forensic child interviews than that of the average juror and therefore did not err in qualifying the detective as an expert witness. See Thomas v. State, 239 Ga.App. 460, 462-463(3), 521 S.E.2d 397 (1999); Askew v. State, 185 Ga.App. 282, 283-284(5), 363 S.E.2d 844 (1987). Moreover, "[t]estimony regarding the victim's demeanor does not express an impermissible opinion on an ultimate issue of whether the victim was sexually abused." (Citation and punctuation omitted.) Chauncey v. State, 283 Ga.App. 217, 220(3), 641 S.E.2d 229 (2007).

5. Hubert contends that the trial court erred when it ordered him to move for a directed verdict prior to the close of the state's case. As the state prepared to close its case, Hubert's counsel requested a mid-morning recess in order to review certain notes after he finished cross-examining but prior to releasing the state's final witness. The trial court instructed him to make his motion for directed verdict at that time so as to avoid having to send the jury back out of the courtroom immediately after the break. Hubert made no objection to the judge's instruction and acquiesced to his request; therefore, this issue has been waived and is not subject to appellate review. See Agee v. State, 279 Ga. 774, 775(2), 621 S.E.2d 434 (2005).

6. Hubert further asserts that he was denied his sixth amendment right...