Kirkland v. State

• Decision Date: 28 September 2015
• Docket Number: No. A15A1143.,A15A1143.
• Citation: 334 Ga.App. 26,778 S.E.2d 42
• Parties: KIRKLAND v. The STATE.
• Court: Georgia Court of Appeals

334 Ga.App. 26

778 S.E.2d 42

KIRKLAND

v.The STATE.

No. A15A1143.

Court of Appeals of Georgia.

Sept. 28, 2015.

Bentley C. Adams III, James C. Bonner Jr., for Appellant.

Thomas Craig Earnest, Ronald Steven Smith, for Appellee.

Opinion

BARNES, Presiding Judge.

A jury found Shawn Kirkland guilty of aggravated child molestation, and the trial court denied his amended motion for new trial. On appeal, Kirkland contends that the trial court erred in admitting certain similar transaction evidence because it was not sufficiently similar to the charged offense; erred in admitting the victim's recorded forensic interview and witness testimony regarding the victim's outcry because the recording and testimony constituted inadmissible hearsay; and erred in failing to declare a mistrial when the State elicited testimony from a witness that allegedly placed Kirkland's character in issue. Kirkland also contends that the evidence was insufficient to support his conviction and that his trial counsel rendered ineffective assistance.¹For the reasons discussed below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Towry v. State,304 Ga.App. 139, 695 S.E.2d 683 (2010). So viewed, the evidence showed that Kirkland lived with his girlfriend, the aunt of three-year-old A.D. Kirkland and his girlfriend had a pool and trampoline at their house, and A.D. and her older sister often would play there. When A.D. and her sister came over to the house, Kirkland would play video games in his bedroom. A.D. would sometimes watch Kirkland as he played video games, and the two would be alone in the bedroom with the door closed.

One day in early September 2011, A.D. was at her great-grandmother's house. As they sat at the kitchen table, A.D. “out of the blue” told her great-grandmother that Kirkland was “gross” and had “put his thing in [her] mouth.” A.D. said that when Kirkland put “his thing” in her mouth, “it was choking her.” The great-grandmother asked what she meant by “his thing,” and A.D. indicated that she meant Kirkland's front private part. The great-grandmother told A.D. to tell her mother what had happened.

A few days later, A.D. was with her mother folding clothes in their home. As they folded clothes, A.D. told her mother that Kirkland was “gross.” When her mother asked why Kirkland was gross, A.D. responded, “Because he made me stick his thing down there in my mouth.” A.D. said that Kirkland made her do it while she was with him in the bedroom.

After A.D.'s outcry, her mother contacted the sheriff's department, which opened an investigation into the abuse allegations. A forensic interview of A.D. subsequently was conducted. During the interview, A.D. repeated that Kirkland “stuck his thing down there in my mouth” while she was alone with him in the bedroom with the door closed.

Kirkland was arrested and charged with aggravated child molestation for placing his penis in the mouth of A.D. While he was being booked at the sheriff's office, Kirkland commented that he did not know he could be arrested for child molestation without any physical evidence.

During the trial, A.D.'s mother and great-grandmother testified as to A.D.'s outcry statements made to them, and the State introduced and played for the jury the video recording of A.D.'s forensic interview. A.D., then four years old, also testified at trial. A.D. testified that she went into the bedroom to watch Kirkland “playing a game,” the bedroom door was closed, Kirkland at some point paused the game, and she went over to Kirkland. However, when asked what specifically had happened in the room with Kirkland, A.D. gave no response. A.D. nodded affirmatively when asked if Kirkland had ever taken off his shorts, and also when asked, “Did [Kirkland] do anything?” When asked what happened when she “sat down in front of” Kirkland, A.D. responded, “I don't want to say.” A.D. again nodded affirmatively when asked if she remembered telling her great-grandmother what had happened, but responded “I forgot” when asked what she had specifically told her great-grandmother. When questioned further about what had occurred, A.D. responded “ I forgot” and nodded affirmatively when asked if she was embarrassed.

The State also presented similar transaction evidence. Specifically, A.D.'s ten-year-old sister testified that Kirkland had shown her a vibrator, turned it on to demonstrate how it worked, and encouraged her to “try it” when she went to bed, but she had refused. A.D.'s sister further testified that on a different occasion, Kirkland had asked her if he could watch her change into a bathing suit, but she had said no, and then, on another occasion, had shown her sexually explicit photographs of his girlfriend that were on his cell phone. The sexually explicit photographs shown to A.D.'s sister, which were later obtained from Kirkland's cell phone pursuant to a search warrant, were introduced into evidence.

Kirkland testified in his own defense. Kirkland admitted that there had been times when A.D. was in the bedroom with him while he played video games, but denied that he had ever engaged in any inappropriate sexual contact with A.D. Kirkland also denied the allegations made by A.D.'s sister.

Kirkland's girlfriend also testified in his defense. She testified that Kirkland would always stay in the bedroom when A.D. and her sister came over to visit, and that the children were never allowed to go into that room.

After hearing all the testimony and viewing the forensic interview, the jury found Kirkland guilty of the charged offense. Kirkland filed a motion for new trial, as amended, which the trial court denied.

1. Kirkland contends that the trial court abused its discretion by admitting the similar transaction evidence of his conduct towards A.D.'s older sister.²According to Kirkland, those prior incidents were not sufficiently similar to the charged offense to authorize admission of the similar transaction evidence at trial. We disagree.

To obtain admission of similar transaction evidence, the State must show (1) that it seeks to introduce the evidence for a proper purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that sufficient similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and footnote omitted.) Alvarez v. State,309 Ga.App. 462, 464(2), 710 S.E.2d 583 (2011). See Williams v. State,261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). We will uphold the trial court's factual findings regarding the similarities between the independent offense or act and the charged offense unless clearly erroneous, and we review the trial court's ultimate decision whether to admit the similar transaction evidence only for an abuse of discretion. Reeves v. State,294 Ga. 673, 676(2), 755 S.E.2d 695 (2014); Reed v. State,291 Ga. 10, 14(3), 727 S.E.2d 112 (2012).

The record reflects that before trial, the State provided notice of its intent to introduce evidence of Kirkland's sexually inappropriate conduct towards A.D.'s ten-year-old sister for the purpose of showing Kirkland's bent of mind, common scheme and plan, motive, modus operandi, intent, and course of conduct. The trial court then conducted a pretrial hearing to determine the admissibility of the similar transaction evidence under Williams,261 Ga. at 642(2)(b), 409 S.E.2d 649, and ruled that the evidence would be admissible at trial for the purposes sought by the State. At the subsequent trial, as previously noted, A.D.'s sister testified about the incidents in which Kirkland showed her a vibrator and attempted to persuade her to use it, asked her to allow him to watch her change into a bathing suit, and showed her sexually explicit photographs of his girlfriend. The trial court gave a limiting instruction regarding the similar transaction evidence when A.D.'s sister testified and in the final charge to the jury.

As noted, Kirkland's sole claim on appeal is that there was insufficient similarity between his conduct towards A.D.'s sister and the charged offense to warrant its admission at trial. But “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Dean v. State,321 Ga.App. 731, 732(1), 742 S.E.2d 758 (2013). “Moreover, Georgia courts construe the rules regarding the use of similar transaction evidence liberally in cases involving sexual offenses.” (Citation omitted.) Alvarez,309 Ga.App. at 465(2), 710 S.E.2d 583. This is particularly true in cases involving the sexual molestation of young children, where we have held that differences “in the victims' ages, sex, and specific acts of molestation [do] not render the similar transaction inadmissible.” Collins v. State,310 Ga.App. 613, 617(2), 714 S.E.2d 249 (2011). See Waters v. State,303 Ga.App. 187, 190(2), 692 S.E.2d 802 (2010)(noting that “the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence”) (citation and punctuation omitted). Rather, “[t]o show sufficient similarity, there need only be a logical connection between the independent act and the crime charged.” (Citation omitted.) Mills v. State,319 Ga.App. 131, 133(1), 735 S.E.2d 134 (2012).

Guided by the liberal standard applicable in cases involving sexual offenses against children, we conclude that the trial court committed no error in finding that there was sufficient similarity and connection between Kirkland's inappropriate sexual conduct towards A.D.'s sister and his aggravated child molestation of A.D. Both the similar transaction and the charged offense involved instances where Kirkland preyed on young girls to whom he had access because of his relationship with his girlfriend and...