McAllister v. State, A19A0613
| Decision Date | 25 June 2019 |
| Docket Number | A19A0613 |
| Citation | 830 S.E.2d 443,351 Ga.App. 76 |
| Parties | MCALLISTER, Jr. v. The STATE. |
| Court | Georgia Court of Appeals |
Steven Lee Sparger, Savannah, for Appellant.
Margaret Heap, Jennifer Parker Guyer, for Appellee.
Following a trial by jury, David Billy McAllister, Jr. was convicted of rape, incest, and making a false statement to law enforcement, and then sentenced as a recidivist. McAllister appeals from his convictions, arguing that the trial court erred by (1) admitting evidence of a prior conviction for statutory rape; (2) denying his motion in limine as to the State’s proposed cross-examination of an expert witness; (3) permitting the State to impeach him with prior convictions; (4) sustaining an untimely objection by the State to witness testimony; (5) failing to rebuke the State during closing argument; and (6) denying his motion for new trial when he received ineffective assistance of counsel in a number of instances. For the reasons set forth infra , we affirm.
Viewed in the light most favorable to the jury’s guilty verdict,1 the record shows that in December 2014, then six-year-old B. A. disclosed to a counselor at her after-school program that her father, McAllister, had "put his private on [her] private." Then, shortly after making this initial outcry, B. A. asked her mother about "yogurt stuff that comes out of daddy." Later, B. A.’s disclosure changed from McAllister placing his private on her private to placing it in her private, and was made to a social worker that she began to see for counseling. B. A. was subsequently questioned by a DFCS caseworker, and she again repeated that her father "put his private part in [her] ... private parts, and it hurt." B. A. also told the caseworker that McAllister told her not to tell anyone what he had done. B. A. then testified along these same lines at trial—that her father "put his private in mine," it made her "sad," and it made her body hurt.
McAllister denied having sexual contact with his daughter when he was questioned by police, and he testified in this same manner at trial. The jury ultimately convicted him of the counts set forth supra , and he was charged as a recidivist due to two prior convictions for statutory rape and violating conditions of the sex-offender registration. This appeal follows the denial of McAllister’s motion for new trial.
On appeal from a criminal conviction, we view the evidence in "the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent."2 Thus, in evaluating the sufficiency of the evidence, we do not assess witness credibility or weigh the evidence, but only determine "if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt."3 And the verdict will be upheld so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case."4 With these guiding principles in mind, we turn now to McAllister’s enumerations of error.
1. McAllister first contends that the trial court erred by admitting prior-acts evidence of a conviction for statutory rape, arguing that its probative value was substantially outweighed by its prejudicial effect. We disagree.
Here, the State provided pretrial notice that it intended to "introduce evidence of other crimes, wrongs or acts in the trial" under OCGA § 24-4-413, OCGA § 24-4-414, and OCGA § 24-4-404 (b). This notice, to which McAllister objected, included two separate acts by McAllister that resulted in an adjudication of juvenile delinquency and a criminal conviction for statutory rape.5 On appeal, McAllister narrows his challenge to the admission of the prior conviction for statutory rape. At trial, the State ultimately did not introduce or discuss the juvenile disposition because it was unable to locate the witness to present evidence as to that prior act. But as to the statutory-rape conviction, McAllister maintains that the probative value of the evidence was substantially outweighed by the prejudicial effect.
During the pretrial hearing on the State’s proposed prior-acts evidence, McAllister presented testimony by a licensed clinical social worker specializing in sexual deviancy, and who previously treated McAllister as part of a program from 2007 until 2011. This expert testified at length about what he considered McAllister’s progress in that treatment program, the prior acts of McAllister that the State sought to use at trial, and his conclusion that, upon completing treatment, he believed McAllister had a low risk of offending again as an adult.
On cross-examination, the expert agreed with the State that McAllister’s act of statutory rape was "situational" in that it was perpetrated against a victim to whom he had access. Additionally, the expert testified that a 17-year-old engaging in consensual sex with a 14-year-old "isn’t predatory" but "still indicate[s] that there’s poor judgment and crossing boundaries and typically, you know, a desire." Thus, although such an offense is not technically considered predatory, the social worker testified that "we really don’t look at an offense being consensual because technically an offense can’t be consensual," and that there "has to be more power and an advantage of the abuser on the other person," which would "make it not be consensual just by definition." At the conclusion of the expert’s testimony, the State presented nothing in rebuttal.
Ultimately, the trial court concluded that the State sought to admit the prior acts to show "lustful disposition, bent of mind, intent, and motive, and to corroborate the victim’s testimony." The court initially concluded that the proposed evidence met the criteria for admission under OCGA § 24-4-413 or OCGA § 24-4-414. Thereafter, the court also concluded that, under OCGA § 24-4-403, the prejudicial effect did not substantially outweigh its probative value and, in doing so, mentioned that McAllister could call his expert witness to testify at trial in order to "blunt the prejudicial effect of the evidence."
At trial, prior to the introduction of the testimony regarding the statutory rape, the trial court gave a limiting instruction to the jury as to its permissible use of the evidence.6 The State then presented testimony from a 31-year-old woman who knew McAllister when she was 13 and he was 17. She testified that while the two of them were alone together in a mutual friend’s bedroom, they engaged in sexual intercourse, which had been McAllister’s idea. She further explained that she "didn’t want to" and that "it wasn’t something [she] was interested in," but that she "didn’t exactly try to stop him." Her parents later discovered what occurred, and McAllister was subsequently charged with and convicted of statutory rape.
McAllister argues that the trial court erred in concluding that the probative value of this evidence was not substantially outweighed by its prejudicial effect. But he does not challenge the court’s conclusion that this evidence was permissible under OCGA § 24-4-413 or OCGA § 24-4-414. And under our "new" Evidence Code, which is applicable in this case,7 "[a] trial court’s decision to admit other acts evidence will be overturned only [when] there is a clear abuse of discretion."8
OCGA § 24-4-413 provides as follows:
In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.9
This Code Section goes on to provide that "offense of sexual assault," as used in the Code Section, "means any conduct or attempt or conspiracy to engage in" the following:
Similarly, OCGA § 24-4-414 provides that "[i]n a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant."12 And this Code Section goes on to define "offense of child molestation," as used in the Code Section, to "mean[ ] any conduct or attempt or conspiracy to engage in" the following:
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