McNeal v. State

Decision Date05 January 2022
Docket NumberA21A1482
Citation867 S.E.2d 824
Parties MCNEAL v. The STATE.
CourtGeorgia Court of Appeals

Howard Walton Anderson III, for Appellant.

Joshua Bradley Smith, Jared Tolton Williams, Augusta, for Appellee.

Hodges, Judge.

Telly Dwight McNeal was convicted of incest ( OCGA § 16-6-22 ) and sexual battery ( OCGA § 16-6-22.1 (b) ).1 He now appeals from the judgment of conviction and the denial of his amended motion for new trial, asserting that (1) the evidence was insufficient to convict him; (2) the trial court erred in denying his motion for mistrial; (3) the trial court violated its duty under OCGA § 17-8-75 when the State's counsel made improper comments during closing arguments; (4) his trial counsel provided ineffective assistance in several respects; and (5) the combination of errors constitutes prejudice necessitating a retrial. For the reasons that follow, we affirm.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.... [W]e do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. The jury's verdict will be upheld, then, so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.

(Citations and punctuation omitted.) Smith v. State , 354 Ga. App. 882, 884 (1), 842 S.E.2d 305 (2020).

So viewed, the evidence shows that the victim, who was then about 20 years old, had a "falling out" with her grandmother, with whom she lived, shortly after midnight. Lacking a job and having nowhere else to go with her very young children, who were four months old and two years old at the time, she called a neighbor for a ride to her father's house. She spent the night at McNeal's house on an airbed, and the next day, he asked to speak with her in his bedroom while her baby was asleep and her toddler was watching television. McNeal checked to make sure that his stepson, who was also in the house, "wasn't looking," then shut and locked the bedroom door.

The victim testified that McNeal began "rubbing on my thigh. He was just saying how he was going to take care of me and make sure that I didn't need anything. He was ... saying I reminded him of my mom ...." The victim told McNeal to stop, but he did not, instead telling her that no one would find out. He then lay on top of her and told her that she "could ... take care of him and he'd take care of me." She told him no, but he pulled down her pants and touched her breasts. Then he penetrated her vagina with his penis. She tried to push him off, but she weighed only 98 pounds at the time and could not. She thought about screaming but did not, because she had nowhere else to live and, "I was desperate[.]" McNeal then told her to "catch" his ejaculate in her mouth. She did, and holding it in her mouth, she left the room, knocked on the door of McNeal's stepson's room, and wrote a note on a piece of paper asking the stepson to call someone. He did so, but the person was at work. The stepson testified that the victim "acted like she had something in her mouth." The victim went into the bathroom and spat the ejaculate into a green pitcher that was on the counter.

The victim then walked to a nearby store and called the police. Later, at the hospital, she submitted to a sexual assault kit and buccal swabs. The swabs showed DNA from the victim and another individual, but "the data was too limited to be able to make any full identification." A forensic biologist and a DNA examiner for the Georgia Bureau of Investigation, however, testified that the substance in the green pitcher contained semen, and the contents of the pitcher revealed the DNA of both the victim and McNeal. The odds that the DNA came from anyone other than McNeal were "one in 600 octillion."

1. McNeal argues that the evidence was insufficient to sustain his convictions. We disagree.

(a) Incest. McNeal contends that there was insufficient evidence that he was the victim's biological father because the State failed to present DNA evidence showing any biological relationship, and his name is not on the victim's birth certificate. We find the evidence sufficient.

OCGA § 16-6-22 (a) provides that "[a] person commits the offense of incest when such person engages in sexual intercourse or sodomy ... with a person whom he or she knows he or she is related to either by blood or by marriage as follows: (1) Father and child or stepchild[.]" The indictment charged McNeal with "unlawfully engag[ing] in sexual intercourse with [his] daughter, knowing that he is related to said daughter by blood[.]"

McNeal's assertions challenge the victim's credibility as a witness and the proper weight to afford her testimony, but this Court "does not reweigh evidence or resolve conflicts in testimony[.]" (Citation and punctuation omitted.) Cox v. State , 306 Ga. 736 (1), 832 S.E.2d 354 (2019). It is well settled that "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8 ; see Stephens v. State , 305 Ga. App. 339, 340-341 (1), 699 S.E.2d 558 (2010) (finding evidence sufficient to sustain incest conviction where a single witness, the victim, testified that the defendant had sexual intercourse with her while married to her mother). "[C]orroboration of the victim's testimony is not necessary to support a conviction for incest ...." Raymond v. State , 232 Ga. App. 228, 229 (1), 501 S.E.2d 568 (1998).

In the instant case, the victim testified that McNeal was her biological father. In a recorded interview with law enforcement, McNeal referred to the victim as "my daughter," called her children his "grandkids," and said that she called him "Daddy." "This evidence was ... sufficient evidence from which the jury could conclude that [McNeal] and the victim were related by blood and that [McNeal] knew of his blood relationship to the victim at the time of the crime, as is required to support [McNeal's] conviction for incest." King v. State , 344 Ga. App. 244, 246 (1), 809 S.E.2d 824 (2018) (upholding incest conviction where defendant referred to victim as his niece and acknowledged blood relationship in interview with law enforcement).

To the extent that McNeal attempts to raise an inconsistent verdict contention by arguing that, because he was acquitted of rape involving sexual intercourse, the jury also should have acquitted him of the charge of incest involving sexual intercourse, this argument lacks merit. Pretermitting whether this would have amounted to an inconsistent verdict, see generally Hines v. State , 254 Ga. 386, 387 (2), 329 S.E.2d 479 (1985), the inconsistent verdict rule has long been abolished in Georgia. See Milam v. State , 255 Ga. 560, 562 (2), 341 S.E.2d 216 (1986). The evidence was sufficient.

(b) Sexual Battery. McNeal appears to raise another inconsistent verdict argument, contending that a reasonable jury that acquitted him of rape could not convict him of sexual battery. For the reasons outlined in Division 1 (a), this argument lacks merit.

OCGA § 16-6-22.1 (b) provides that "[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person." The indictment charged McNeal with intentionally making physical contact with intimate parts of the victim's body without her consent by "placing the hands of the accused on the breasts" of the victim.

The victim testified that McNeal "started touching on my breasts and stuff[,]" and that she tried to resist him and "kept telling him no." See generally McWilliams v. State , 304 Ga. 502, 505 (2) (b), (c), 820 S.E.2d 33 (2018) (affirming aggravated sexual battery conviction where victim told defendant "no" and that she "did not like it"). The evidence was sufficient.

2. McNeal contends that the trial court erred in denying his motion for a mistrial. We disagree.

McNeal moved for a mistrial on the second day of trial, arguing that the prior day , the victim's testimony had been "prejudicial" because she "had got up from the witness stand several times, trying to leave the courtroom. She had cursed several times." Counsel refused to answer the trial court's requests for more specific information and context surrounding the victim's behavior, and the trial court denied the motion, chastising counsel for his part in eliciting the behavior of which he complained.

As indicated above, McNeal did not make a contemporaneous motion for mistrial.

A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion. If the defendant did not make a contemporaneous motion for a mistrial at the time the defendant became aware of the matter giving rise to the motion, then the defendant has waived review of this issue on appeal.... Because [McNeal's] motion for mistrial was not made contemporaneous with the testimony that he complained about, the issue of whether the court abused its discretion in denying his later motion for mistrial is not properly before this Court for review. This enumeration of error therefore fails.

(Citations and punctuation omitted.) Thomas v. State , 310 Ga. 579, 581-582 (2), 853 S.E.2d 111 (2020) ; accord Coley v. State , 305 Ga. 658, 662 (3), 827 S.E.2d 241 (2019) (finding defendant waived appellate review of mistrial motion where he did not move for mistrial until after witness's testimony was complete, another witness had testified, and recess was taken for lunch); see also Adkins v. State , 301 Ga. 153, 156 (2), 800 S.E.2d 341 (2017) (a "defendant's invited error is neither plain nor reversible error") (citation and punctuation omitted).

3. In a two-part enumeration, McNeal argues that the trial court erred under OCGA §...

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