Jackson v. State, A14A1374.

• Decision Date: 21 November 2014
• Docket Number: No. A14A1374.,A14A1374.
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

330 Ga.App. 108

766 S.E.2d 558

JACKSON

v.The STATE.

No. A14A1374.

Court of Appeals of Georgia.

Nov. 21, 2014.

Steven Mitchell Harrison, for Appellant.

Karl David Cooke, Jr., Dist. Atty., Jason Michael Wilbanks, Asst. Dist. Atty., for Appellee.

Opinion

BOGGS, Judge.

A jury found Gregory Leon Jackson, Jr., guilty on one count of aggravated child molestation, three counts of child molestation, and one count of sexual battery (as a lesser included offense of child molestation). Following the denial of his second amended motion for new trial, Jackson appeals, citing multiple claims of error, including several grounds of ineffective assistance of trial counsel. For the following reasons, we affirm.

1. Jackson argues that the State used its peremptory strikes to remove prospective African–American jurors in a racially discriminatory manner. Jackson complains specifically about the State's striking of Juror # 8 and Juror # 20.¹

The United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.E.2d 69, (1986),

established a three-step process for evaluating claims of racial discrimination in the use of peremptory strikes: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent's] discriminatory intent ... At Batson step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.

(Citation and punctuation omitted.) Heard v. State, 295 Ga. 559, 566(3), 761 S.E.2d 314 (2014). “We review the trial court's denial of the Batson motion under a clearly erroneous standard.” (Citation omitted.) Johnson v. State, 266 Ga. 775, 777(4), 470 S.E.2d 637 (1996).

Jackson established a prima facie showing of discrimination by demonstrating that the State used its strikes to remove five African–American members of the jury panel. He presents argument with regard to two of those removed. The State explained that it struck Juror # 8 because “[h]e was single. He doesn't have any children. He's young. We didn't have a lot of information about him.... And pretty much watching him, most of the time he was disinterested in what was going on and not paying attention. So we struck him for that.” Jackson argues that because the State struck this juror based upon the prosecutor's observation, and the trial court made no findings regarding the juror's demeanor, there is nothing in the record to support the State's proffered reason for the strike. But the record reveals that the State also struck this juror because he had no children, and explained in striking another juror for the same reason that “since we're dealing with children here, we wanted somebody that had at least some kind of dealing with children.” The Georgia Supreme Court has held that this explanation is race-neutral, Smith v. State, 264 Ga. 449, 452(3), 448 S.E.2d 179 (1994), and we must defer to trial court's conclusion that the State overcame the prima facie case of discrimination. See Floyd v. State, 281 Ga.App. 72, 73–74, 635 S.E.2d 366 (2006).

Jackson also complains about the State's explanation for striking Juror # 20:

[H]is wife was an OB/GYN, and since we don't have any specific evidence of any injury in this case, I don't know what knowledge he would have with his wife, OB/GYN, so we struck him ... [w]e don't have any knowledge what he knows about OB/GYN from his wife and injuries from rape cases or child molestation cases, so we wanted to strike him because there's no injuries that we'd show in this one.

Jackson asserts that this explanation is vague and could be used to strike anyone. But the “basis for a peremptory strike need not make sense or be persuasive; it must only be race[-]neutral and free from discriminatory intent.” (Citation and footnote omitted.) Hodge v. State, 287 Ga.App. 750, 751(1), 652 S.E.2d 634 (2007) (trial court authorized to find prosecutor's explanation regarding juror's spouse's unemployment met race-neutral requirement). Because this explanation was not based upon the race of the juror, the trial court did not clearly err in concluding that the State's proffered reason was race-neutral. See id.

2. Jackson contends that the evidence is insufficient to sustain his convictions. We disagree.

On appeal of a criminal conviction, this Court's duty is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury's assessment of the weight and credibility of the evidence.

(Citation and punctuation omitted.) Maurer v. State, 320 Ga.App. 585, 587 –588(1), 740 S.E.2d 318 (2013).

Construed in favor of the verdict, the evidence showed that the first victim S.C., and her younger sister T.D., lived with their adoptive mother and other siblings. Jackson, the mother's adult biological son, had lived with the family, moved out of the home when S.C. was 14 years old, but would often stay overnight on Sundays and Fridays. S.C. testified that Jackson began touching her breasts when she was 13 years old, that he later began touching her “below [her] pants,” and then progressed to putting his penis in her mouth and putting “his penis inside of [her]” on more than one occasion. S.C. explained that this activity took place during the day while everyone else in the house was downstairs. She stated further that Jackson told her not to tell anyone.

S.C. eventually wrote a letter to her mother. She testified that she wrote the letter because she “didn't want [Jackson] to come back over there.” The letter, admitted into evidence and read by the victim, stated:

Every time [Jackson] come over here to spend the night it started when we first started going to [H]oward Johnson. [H]e started touching me in a bad way then he started forcing me to do things after I said no. Then he ... me not to tell you[ .... ] He do [sic] it every time he come [sic] over here. That's why I don't want he [sic] over here. That's y[sic] he won't [sic] to spend the night all the time. [Y] [sic] I didn't tell you because I think you will fuse [sic] at me.

After reading S.C.'s letter, the mother questioned her other daughters. After first denying that Jackson touched her inappropriately, T.C. admitted to her mother that Jackson touched her breasts. She testified that this occurred only once when she was about 10 years old, and that Jackson told her not to tell anyone. T.C. explained further that on one occasion she saw Jackson go into S.C.'s room with S.C. and shut the door.

The mother testified that around the time S.C. gave her the letter, S.C. had “seemed very angry a lot of the times, very angry. And she started getting in trouble at school. She wouldn't do her work at school like the teachers would tell her.” The mother explained further that S.C. “would just lie about different things. Just a whole lot of stuff was going on, and she got in fights—well, almost fights ... arguments with children, so much so that I had to go to the school several times.”

S.C. was interviewed by a counselor at a children's advocacy center. The counselor did not provide details of her conversation with S.C., testifying only that S.C. told her “exactly what Mr. Jackson had done to her.”

Jackson denied any wrongdoing and agreed to take a polygraph examination. The examiner testified that he concluded that Jackson was being deceptive when denying that he molested S.C.² Jackson presented his own witnesses at trial, including his girlfriend with whom he had lived, and who had six children of her own. The girlfriend testified that no one had ever alleged that Jackson touched her children inappropriately, and that she had never witnessed Jackson do so. This witness' adult daughter testified that when Jackson lived with her family, he never tried to touch her inappropriately. A third witness testified that Jackson and her mother “used to talk” when she was a teenager, and that Jackson lived in their home for some time. This witness testified that Jackson never tried to touch her inappropriately, and that she never witnessed him touch her younger sister inappropriately.

The evidence presented here was sufficient to sustain Jackson's convictions for aggravated child molestation for placing his penis in S.C.'s mouth, child molestation for touching S.C.'s breast and vagina and for placing his penis on her vagina, and sexual battery as a lesser included offense to child molestation for touching the breasts of T.C. See OCGA § 16–6–4(a)(1) (child molestation); OCGA § 16–6–4(c) (aggravated child molestation involves physical injury or act of sodomy); OCGA § 16–6–22.1(a), (b) (sexual battery); see also Wofford v. State, 329 Ga.App. 195, 201(1), 764 S.E.2d 437 (2014) (evidence sufficient to sustain aggravated child molestation conviction when defendant placed his penis in victim's mouth; sufficient for child molestation for touching victim's vagina); Redd v. State, 232 Ga.App. 666, 666–667(1), 502 S.E.2d 467 (1998) (evidence of touching child victim's breast sufficient for child molestation conviction); Ellis v. State, 324 Ga.App. 497, 501(4), 751 S.E.2d 129 (2013) (touching breast of victim sufficient to sustain sexual battery conviction). While Jackson argues that S.C....