Johnson v. State, No. A96A1431

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH; POPE, P.J., and ANDREWS
• Citation: 475 S.E.2d 918,222 Ga.App. 722
• Parties: JOHNSON v. The STATE.
• Decision Date: 11 September 1996
• Docket Number: No. A96A1431

Page 918

475 S.E.2d 918 222 Ga.App. 722 JOHNSON
v.
The STATE. No. A96A1431. Court of Appeals of Georgia. Sept. 11, 1996.
Certiorari Denied Jan. 17, 1997.

Page 919

[222 Ga.App. 729] Mark J. Nathan, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

[222 Ga.App. 722] SMITH, Judge.

Eric Henry Johnson was found guilty by a jury of four counts of rape, two counts of incest, and one count of child molestation. Judgments of conviction and sentences were entered thereon and Johnson's motion for new trial was denied.

1. Johnson contends the evidence was insufficient to support his convictions. Johnson lived in Savannah with his wife, her daughter from a previous marriage, and two daughters from this marriage. He also had

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three sons from a previous marriage. Construed to support the jury's verdict, the evidence presented at trial showed that Johnson molested his stepdaughter and the older of his two biological daughters from this marriage over an extended period of time. In 1993, when the girls were 18 and 16, each girl learned that Johnson was also molesting the other, and they immediately told their mother, who notified the police. She immediately separated from Johnson.

Both victims testified at trial. The older girl, who was Johnson's stepdaughter, testified that Johnson began touching her on her chest and between her legs while she was in bed when she was about nine years old. The molestation progressed to intercourse when she was about twelve and continued after she turned 14. It usually occurred in [222 Ga.App. 723] the basement of their home or in her bedroom, approximately every other day. The house consisted of three levels: the basement; the first floor, on which Johnson and his wife operated a record and tape store; and the second floor, where the family's living quarters were located, including six or seven bedrooms. Before having intercourse with her, Johnson would show her magazines depicting intercourse in "different positions."

The younger girl, Johnson's daughter, testified that she was ten when her father began touching her on her breasts and genitals and that these incidents usually occurred in her room or the kitchen. The girls' mother worked nights as a nurse at a local hospital at the time, and the touching occurred at night when their mother was working. Johnson's daughter testified that she protested, but Johnson persisted, telling her that her mother would kill him if she told. The molestation began with touching but progressed to intercourse when she was 12; it continued, against her will, after she turned 14. Although she could not say the exact number of times this occurred, she testified it was more than ten times.

The State also presented evidence of a number of similar transactions. Five witnesses were Johnson's stepdaughters from a previous relationship. Each testified that Johnson had molested her when she was a child while he lived with her mother, who worked nights. All testified to fondling and at least one testified to intercourse. The State also presented the testimony of another of Johnson's adult daughters, who never lived with him. She testified that Johnson showed her pictures of a sexual nature and fondled her during visits, when she was 11 or 12 years old.

Johnson's wife, in addition to testifying about her daughters' revelations that Johnson had been molesting them, testified that he had forced her many years ago to have sexual relations with a 13-year-old girl who worked in their shop, while he took Polaroid photographs of them. The girl, who was an adult at the time of trial, testified that Johnson essentially "blackmailed" her into having sexual relations with his wife and with another woman by taking pictures of her while she used the restroom at his shop. She testified that Johnson had been having sex with her from the time she was 11 until she left when she was 17, and that he threatened to reveal this to his wife.

A police officer testified that in a search of Johnson's home, x-rated videos and pornographic magazines were found in the shop and the basement, and other x-rated videos were found in the bedroom, along with a Polaroid camera and various items of sexual paraphernalia. The State also introduced into evidence the Polaroid photographs taken by Johnson depicting the sexual activity between his wife and the 13-year-old girl.

This evidence was more than sufficient to authorize the jury to [222 Ga.App. 724] convict Johnson of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Johnson contends the trial court erred in admitting into evidence the Polaroid photographs depicting sexual activity between his wife and a 13-year-old girl.

Johnson gave the photographs to the attorney representing him in the divorce action filed against him and instructed him to use them "as needed." In the midst of the divorce action, Johnson was arrested on these charges. His divorce attorney testified that although he did not represent Johnson in the criminal action, he did file a bond motion in

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order to get Johnson released from jail so that he could deal with the domestic relations case.

At the bond hearing, that attorney showed the district attorney the Polaroid photographs Johnson had given him. He testified that he did so in order to compromise the credibility of Johnson's wife, who he believed would be the State's "star witness." He was unaware at that time that Johnson had taken the photographs. When the district attorney insisted that the photographs be turned over as contraband, Johnson's attorney realized he was holding what he referred to as a "hot potato." He moved the court to seal the photographs and place them in the superior court clerk's office. The court granted the motion and the photographs were sealed. ¹ The court subsequently granted the State's motion to unseal the photographs and turn them over to the police department to be held as evidence in this case.

Johnson argues that the photographs were confidential communications protected by the attorney-client privilege and should not have been admitted in evidence. We do not agree.

OCGA § 24-9-24 provides that "[c]ommunications to any attorney ... pending his employment or in anticipation thereof shall never be heard by the court." But these photographs were not "communications." They were tangible evidence of a similar crime, and that similar transaction was ruled admissible at a pretrial hearing. ² Clearly, the photographs could have been seized had they been found in Johnson's possession. They illustrated Johnson's lustful disposition and his propensity for sexual activity with children, and they were admissible for that reason. See generally Cunningham v. State, 196 Ga.App. 68(1), 395 S.E.2d 330 (1990).

Nor were the photographs protected by any privilege. The fact that Johnson gave them to his attorney did not make them privileged. [222 Ga.App. 725] "It is axiomatic that one cannot render privileged that which is not privileged merely by placing it in the hands of his attorney." (Citations and punctuation omitted.) Atlantic Coast Line R. v. Daugherty, 111 Ga.App. 144, 150, 141 S.E.2d 112 (1965). Even if considered "communications," the photographs were not privileged; Johnson instructed his attorney to use them as he felt proper, an instruction that necessarily authorized Johnson's attorney to disclose their existence and content to others. Shelton v. State, 206 Ga.App. 579, 580(1), 426 S.E.2d 69 (1992). It is true, as pointed out by Johnson, that he did not specifically authorize his divorce attorney to disclose the photographs to the district attorney. He did, however, place them in the attorney's hands for use in the attorney's discretion, "as needed." He cannot now complain that the attorney made an unwise choice of strategy in revealing them to the district attorney. The trial court did not err in admitting these photographs.

3. Johnson does not challenge the similarity of the acts presented in the similar transaction evidence, but...