McNeil v. State
| Decision Date | 16 March 2022 |
| Docket Number | A21A1769 |
| Parties | MCNEIL v. The STATE. |
| Court | Georgia Court of Appeals |
Ashleigh Bartkus Merchant, Marietta, for Appellant.
Anthony Brett Williams, Matthew Wayne Rollins, for Appellee.
After a jury trial, Dakota McNeil was convicted of aggravated sexual battery, rape, child molestation, and incest for acts committed against the victim, his niece. He filed a motion for new trial, which the trial court denied. On appeal, he argues that the trial court erred by denying his motion for new trial because the evidence was insufficient to support his conviction and he received ineffective assistance of trial counsel in several respects. We find no reversible error and affirm.
As an initial matter, we address the scope of the record that we may consider in ruling on this appeal. We do this because the appellate briefs cite materials that are not part of the appellate record.
In his order denying McNeil's motion for new trial, the trial judge expressly stated that he did not consider certain records of the Department of Family and Children Services ("DFACS"), which were in the trial court's possession after an in camera review, because those records had not been tendered or admitted into evidence or otherwise made a part of the trial court's record. Nevertheless, McNeil asked the trial court to transmit the DFACS records to this Court on appeal. The State did not oppose McNeil's request, and so the trial court provided the DFACS records to the clerk of court and ordered that the clerk transmit them to this Court under seal, "along with the official record."
Although the DFACS records are part of the materials sent to us by the trial court, we still must determine their "relevancy for appeal purposes[.]" McHugh Fuller Law Group v. PruittHealth-Toccoa , 297 Ga. 94, 99 (2) n. 4, 772 S.E.2d 660 (2015). And on appeal we may "consider only the facts and evidence that were before the trial court when it ruled upon [McNeil's motion for new trial]." Sherod v. State , 334 Ga. App. 314, 315 n. 9, 779 S.E.2d 94 (2015). The trial court determined that the DFACS records were not part of the evidence that was before it at the time of its ruling; and, while McNeil has offered some criticism of the trial court's treatment of those records,1 he has not challenged on appeal that aspect of the trial court's ruling. Consequently, we cannot consider the DFACS records in deciding this appeal.2 See Bailey v. State , 313 Ga. App. 824, 827 n. 1, 723 S.E.2d 55 (2012).
"When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and punctuation omitted.) Dunlap v. State , 351 Ga. App. 685 (1), 832 S.E.2d 667 (2019) (quoting Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).
So viewed, the evidence showed that at various times when the victim was between the ages of three and seven, she lived with her maternal grandparents. During much of that time, the victim was in the legal custody of DFACS and in the physical custody of either her grandparents or various foster parents. Many other members of the victim's extended family also lived in the grandparents’ household at various times while the victim was there, including McNeil, who was the victim's uncle.
McNeil preyed upon children at the grandparent's home, which seemingly had a rotating door of children of various ages, with minimal adult supervision. The victim stated that McNeil began sexually abusing her before she reached the age of five, and did so on a regular and consistent basis.
Multiple witnesses testified that beginning when she was three or four years old, the victim would regularly "hump" and "grind" her vagina against her hands, stuffed animals, furniture of all kinds, and various men as she would actively seek to sit in their laps. At age four, the victim was referred to a private psychologist by a DFACS caseworker for exhibiting extreme behaviors consistent with childhood trauma and anxiety, including constant bed wetting, aggression, defiance, and anger. The victim described that the abuse always took place at night, and McNeil threatened to hurt her if she told anyone about it.
In early September 2012, when the victim was seven years old, her grandparents surrendered physical custody of her to DFACS. A few days later, another member of the household, the victim's sixteen-year-old cousin, disclosed that McNeil had sexually abused her in the grandparent's home. The cousin stated that the abuse began when she was five years old, continued "all the time" until she was 13-years-old, and always occurred at night when McNeil snuck into her bed. She also testified that McNeil threatened to hurt her if she told anyone. She claimed to be so scared of McNeil that she placed barriers in front of her bedroom door or "hop[ped] beds" to sleep with others, and that she finally disclosed the abuse after she began throwing up in her sister's bed out of fear of McNeil's impending arrival. The cousin's outcry was met with anger on the part of the victim's grandfather, who expressly stated that he did not believe the cousin, and it resulted in the cousin being returned to a group home upon the grandfather's insistence.
The cousin's disclosure was prompted by yet another incident in which McNeil had sexually molested a child at the grandparent's house. That child, a friend of the cousin, lived nearby and had sexual intercourse with McNeil when she was 14-years-old.
In 2012, the victim was subjected to a forensic interview associated with the cousin's disclosure. During that interview, she expressly denied that McNeil had inappropriately touched her.
By mid-2013, the victim was living with foster parents who adopted her the following year. In 2014, before her adoption was finalized, the victim had an emotional outburst during a Sunday school lesson on lying and keeping secrets. The outburst was atypical for the victim.
In May 2014, on the day she received her new birth certificate reflecting her adoption, the victim disclosed to her adoptive mother that McNeil had sexually abused her. She said that was why she had been upset during Sunday school. The victim told her adoptive mother, "he hurt me," and provided specific details about the abuse. The victim said that McNeil had threatened to hurt her if she told anyone. She further explained that she had not said anything earlier because, before she received her new birth certificate, she had been afraid she would have to return to her grandparents’ house.
The next day the victim repeated that disclosure to her private psychologist, whom she had continued to see periodically since being referred by DFACS several years prior. The psychologist testified that the victim appeared relieved after making the disclosure, and opined that the timing of the outcry was "critical" in that the victim had a sense of safety and security with her new family.
The victim's adoptive mother reported the disclosure to law enforcement, and later in May 2014, the victim gave a second forensic interview with the same person who had interviewed her in 2012. In the second interview, the victim again repeated her disclosure. She stated that McNeil touched her genitals with his hands and penis, inserted his finger and penis into her vagina, and inserted his penis into her anus. He also made the victim touch his penis and anus. She also stated that she had been scared to disclose the abuse during her earlier interview in 2012 because she was afraid of McNeil.
Based on the victim's statements in the 2014 forensic interview, McNeil was arrested. After that disclosure, the victim's bed wetting stopped, her physical acting-out diminished, and her academic performance improved.
McNeil asserts that this evidence does not support his convictions, but he offers no meaningful argument for why the evidence was insufficient. We find that the evidence authorized the jury to find that McNeil was guilty of the crimes of which he was accused. See OCGA § 16-6-1 (a) (2) ( ); OCGA § 16-6-4 (a) (1) (); OCGA § 16-6-22 (a) (6) (); OCGA § 16-6-22.2 (b) ().
McNeil argues that he received ineffective assistance of trial counsel in several respects. Specifically, he argues that his trial counsel was ineffective for failing to secure an expert witness to challenge the reliability of the victim's disclosure that McNeil had sexually abused her; present evidence of the victim's allegedly false prior allegations of abuse; object to bolstering testimony by the lead investigator; and object to speculative testimony by the State's expert witness.
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