Johnson v. State, S02A0863.

• Citation: 276 Ga. 57,573 S.E.2d 362
• Decision Date: 25 November 2002
• Docket Number: No. S02A0863.,S02A0863.
• Parties: JOHNSON v. The STATE.
• Court: Supreme Court of Georgia

573 S.E.2d 362

276 Ga. 57

JOHNSON v. The STATE.

No. S02A0863.

Supreme Court of Georgia.

November 25, 2002.

Johnson Law, Todd Mitchell Johnson, Cohutta, for appellant.

Kermit Neal McManus, Dist. Atty., Stephen Eric Spencer, Andrew Brian Margolis, Asst. Dist. Attys., for appellee.

BENHAM, Justice.

At age 14, appellant Brandon Johnson was charged as an adult with aggravated sodomy, aggravated child molestation, and aggravated sexual battery in conjunction with his alleged acts involving a six-year-old girl who pretended to be asleep while appellant purportedly inserted his finger into her sex organ and put his tongue on her sex organ.¹ The jury convicted appellant of the three charges and the trial court imposed upon him the mandatory minimum sentences for each of the three crimes, 10 years' imprisonment, with the three sentences to run concurrently.² On appeal, appellant contends that the imposition of the mandatory minimum sentences required by OCGA § 17-10-6.1(b) on him constitutes cruel and unusual punishment. He also urges error in the trial court's failure to give certain requested jury instructions, and alleges trial counsel rendered ineffective assistance of counsel.

1. The State presented evidence that, in late July and early August 2000, the six-year-old victim spent several nights at her aunt's home while the victim's mother underwent and recovered from surgery. During her visit, the child slept in a full-size bed with her four-year-old cousin, Allen Michael. A week after her visit, the victim told her mother that appellant, the nephew of the victim's uncle, had come into the bedroom where she was sleeping with her cousin, stuck his finger in her sex organ and then put his mouth there. She pretended to be asleep, peeking to watch what he was doing, and then kicked him. The victim testified about the events, and her mother and the district attorney's investigator trained to interview children each testified the victim told her the same story. The State presented evidence that, a year earlier, a complaint of fondling a four-year-old girl had been lodged against appellant in juvenile court.³

Evidence that appellant's finger penetrated the sexual organ of the victim was sufficient for the jury to find beyond a reasonable doubt that appellant committed an act of aggravated sexual battery. "A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2(b). "Foreign object" is statutorily defined as "any article or instrument other than the sexual organ of a person" (OCGA § 16-6-22.2(a)), and a finger constitutes a "foreign object" for purposes of this crime. Burke v. State, 208 Ga.App. 446(1), 430 S.E.2d 816 (1993). The evidence that appellant's mouth and the sex organ of the six-year-old victim came in contact with each other was sufficient evidence to authorize the jury to find appellant guilty beyond a reasonable doubt of aggravated sodomy. OCGA § 16-6-2(a) defines aggravated sodomy as, among other things, "... sodomy with a person who is less than ten years of age." There was sufficient evidence for the jury to find beyond a reasonable doubt that appellant committed an act of aggravated child molestation. OCGA § 16-6-4(c) (offense occurs when a person "commits an offense of child molestation which act... involves an act of sodomy."). However, since the single act of sodomy involving the child was necessary to prove aggravated child molestation and aggravated sodomy, the two convictions merge and the defendant cannot be sentenced for both crimes. See Heidler v. State, 273 Ga. 54(15), 537 S.E.2d 44 (2000). Accordingly, the trial court must vacate the conviction and sentence for one of the two crimes. 2. Appellant asserts that his right to due process was violated when the trial court declined to permit the jury to be made aware that, if found guilty, appellant was required by law to be imprisoned for a minimum of ten years without any possibility of early release. While the record contains appellant's pre-trial motion requesting permission to make such a disclosure, the record does not contain a ruling on the motion. Accordingly, there is nothing to review. See Stroud v. State, 272 Ga. 76(3), 526 S.E.2d 344 (2000); Dover v. State, 250 Ga. 209(4), 296 S.E.2d 710 (1982).

3. Appellant takes issue with the trial court's refusal to give his requested charge on the credibility of a child witness.⁴ The trial court gave the pattern jury charge on the credibility of witnesses (Suggested Pattern Jury Instructions, Volume II, Criminal Cases (2nd ed.), Part 2E), which instructs the jurors that, when passing on witness credibility, they may consider all the facts and circumstances of a case, including a witness's manner of testifying, their intelligence, their interest or lack of interest, their means and opportunity for knowing the fact, the probability or improbability of their testimony. "It is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles." Parker v. State, 270 Ga. 256(3), 507 S.E.2d 744 (1998).

4. Appellant contends trial counsel rendered ineffective assistance of counsel because he was unable to convince the child to admit to illegal conduct in order to enter a guilty plea to a child molestation charge,⁵ and because he did not ensure the attendance at trial of the physician who examined the child victim. To prevail on the claim of ineffective assistance, appellant "must show that counsel's performance was deficient and that the deficient performance prejudiced him such that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. [Cit.]" Mobley v. State, 271 Ga. 577, 523 S.E.2d 9 (1999).

(A) After being provided informed legal advice, it is the defendant, not the attorney, who makes the ultimate decision about whether or not to plead guilty. Morrison v. State, 258 Ga. 683(3), 373 S.E.2d 506 (1988). At the hearing on the motion for new trial, trial counsel testified that he and appellant discussed at length the risks of going to trial, including the evidence against him, the effect of evidence of the prior similar incident, the differences in the possible punishments, and the mandatory nature of the punishment should he be found guilty at trial. See Fults v. State, 274 Ga. 82(6), 548 S.E.2d 315 (2001). Inasmuch as appellant has not established that trial counsel was deficient in his duty to provide informed legal advice, appellant has not proven the first prong of a claim of ineffective assistance of counsel. See Mobley v. State, supra.

(B) Appellant's contention concerning the missing witness is based on trial counsel's failure to have an out-of-state material witness subpoena issued for the Tennessee pediatrician who conducted the physical examination of the child a week after the crimes purportedly occurred. At the motion for new trial hearing, trial counsel testified he believed the pediatrician was "a crucial witness for the defense" after reading the physician's handwritten report of his examination of the child and talking with the physician several times.⁶ While trial counsel knew well in advance of trial that the State was not going to call the doctor and knew that the physician was concerned about the timing of the trial, counsel did not obtain the subpoena necessary to compel the doctor's attendance at trial. Appellant contends the physician's testimony, which appellant presumes would have been consistent with the written report, would have impugned the victim's credibility because the child, in a videotaped interview with the district attorney's investigator that was played for the jury, had indicated that no prior incidents had occurred. While such evidence has been ruled admissible to show someone other than the defendant caused the injury where there was an offer of proof concerning another incident of molestation of the victim not involving the defendant (Lemacks v. State, 207 Ga.App. 160, 427 S.E.2d 536 (1993)), no such proffer was made in the case at bar at the hearing on the motion for new trial. As a result, even assuming trial counsel's performance was deficient, appellant has failed to establish the prejudice necessary to prevail on the claim. Duncan v. State, 271 Ga. 704, 524 S.E.2d 209 (1999); Hearst v. State, 212 Ga.App. 492(2), 441 S.E.2d 914 (1994).

5. Appellant contends his sentence violates the constitutional prohibition against cruel and unusual punishment. He concedes that the mandatory nature of the penalty does not per se render it cruel and unusual (Ortiz v. State, 266 Ga. 752(2), 470 S.E.2d 874 (1996)), but that, as applied to him, imposition of the mandatory penalty constitutes cruel and unusual punishment. At a hearing on the subject, appellant presented the testimony of several detention officers at the youth detention facility where he had been incarcerated for the seven-month period since his arrest. The officers described appellant as a child who was well-behaved and respectful of authority, and one who had achieved the highest level of good behavior obtainable at the facility and had maintained that level for 32 consecutive 5-day periods, an achievement not accomplished by any other student. The officers testified that appellant was attending school and they believed he could be rehabilitated with counseling. The professional therapist at the YDC testified that appellant was an "excellent candidate" for treatment and believed the outcome would be "excellent." She noted that the recidivism rate of juvenile sexual offenders was very low (2-8%) if they received appropriate multi-systemic treatment.

Both the Georgia and the federal constitutions categorically prohibit inflicting cruel and unusual punishments. A punishment is cruel

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