Mealor v. State, A03A2282.

• Decision Date: 10 February 2004
• Docket Number: No. A03A2282.,A03A2282.
• Citation: 596 S.E.2d 632,266 Ga. App. 274
• Parties: MEALOR v. The STATE.
• Court: Georgia Court of Appeals

596 S.E.2d 632

266 Ga. App. 274

MEALOR v. The STATE.

No. A03A2282.

Court of Appeals of Georgia.

February 10, 2004.

Reconsideration Denied March 16, 2004.

Brennan & Wasden, Savannah, Christopher D. Elrod, Scott R. Tolbert, Jefferson, for appellant.

Timothy G. Madison, Dist. Atty., Robin R. Riggs, Asst. Dist. Atty., for appellee. MIKELL, Judge.

James Kenneth Mealor was convicted of one count of aggravated sexual battery and two counts of child molestation for sexually abusing his daughter. Mealor also was convicted of one count of contributing to the delinquency of a minor for buying cocaine in the presence of his daughter. The trial court sentenced him to 20 years confinement. Mealor appeals the trial court's denial of his motion for new trial, arguing that he was denied the effective assistance of counsel. We disagree and affirm Mealor's conviction.

Viewed in the light most favorable to the jury's verdict, the record shows that Mealor began sexually abusing his daughter, C.M., when she was nine years old, by getting in bed with her every night for a week and touching her. C.M. told her mother, Susan Mealor, who confronted her husband. He denied the allegations. C.M. testified that her mother refused to believe her. Mealor convinced C.M. to tell her mother that it was a bad dream and C.M. never spoke about it again. According to C.M., Mealor resumed touching her when she was in the sixth grade. C.M. testified that she was lying on the floor in the living room when Mealor asked if "he could put it in." Mealor unbuttoned and unzipped C.M.'s pants, but then stopped when C.M. protested. On another occasion, Mealor kissed C.M., putting his tongue inside her mouth. After Mealor kissed C.M., he asked her, "Why did you let me do that? Why did you let me kiss you?"

Mealor's molestation of C.M. progressed when the victim was in the seventh grade. Once, when C.M. and her family were living with her grandparents, C.M. fell asleep while Mealor was rubbing lotion on her back. When she awoke, she was lying on her back and Mealor was "fingering her." When Mealor realized C.M. was awake he stopped and asked her, "Why did you let me do that?" C.M. also testified that on a daily basis, Mealor gave her a "`titty hug' where he would put his head [on her chest] and rub [her] breasts together and squeeze them and hug." According to C.M., Mealor also came into the bathroom whenever she was taking a shower or getting out of the shower. On these occasions, Mealor gave C.M. a "titty hug," called her "baby," and squeezed her breasts and "derriere."

C.M. also testified that on several occasions, she accompanied Mealor to buy cocaine. Twice when C.M. was in high school, Mealor checked her out of school to do a drug test for him. According to C.M., she urinated in a bottle and Mealor hid the bottle on his person when he took the test.

C.M. twice told a friend/cousin, C.D., about the abuse. According to C.D., C.M. first mentioned that her father was touching her when the two were in seventh grade. In high school, C.M. told C.D. that the abuse was "still happening." C.M. eventually told her cousin J.C. about the abuse. According to C.M., she did not report Mealor's behavior because she did not want her mother to get in trouble and she knew it would rip her family apart. C.M. also testified that she was reluctant to report the abuse because, "in thinking back to fourth grade, [you] tell your mama then what just happened and she doesn't believe you, then nobody will." C.M. then told her aunt and uncle, who advised her to tell a school counselor. The school counselor contacted the authorities, who conducted an investigation and ultimately arrested Mealor. C.M. went to live with her grandparents.

Mealor argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel. In this regard, Mealor complains that trial counsel (a) failed to object to evidence of a mock "Christmas gift" from C.M. to her boyfriend, which was left by Mealor at C.M.'s grandparents' home; (b) failed to object to the testimony of witnesses who testified as to statements made by C.M. about the abuse; (c) failed to object when witnesses testified as to C.M.'s veracity; (d) failed to file a motion to sever on his behalf; (e) called Mealor's son to testify about the mock "Christmas gift" and referred to the gift and Mealor as "warped"; and, (f) failed to reserve objection to the court's charge.¹

"To establish ineffectiveness, a defendant must prove that his trial counsel's performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel's unprofessional deficiencies." Hardegree v. State, 230 Ga.App. 111, 113(4), 495 S.E.2d 347 (1998), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Woods v. State, 271 Ga. 452, 453(2), 519 S.E.2d 918 (1999); Mitchell v. State, 220 Ga.App. 264, 265, 469 S.E.2d 707 (1996). "In evaluating an attorney's performance, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Where, [as here], trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption." (Citations and punctuation omitted.) Wilson v. State, 277 Ga. 195, 200(2), 586 S.E.2d 669 (2003). See also Herndon v. State, 235 Ga.App. 258-259, 509 S.E.2d 142 (1998) ("there is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel's actions are presumed strategic") (punctuation omitted). "A trial court's finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous." (Citations and punctuation omitted.) Williams v. State, 234 Ga.App. 191, 193(2), 506 S.E.2d 237 (1998). Bearing these principles in mind, we find no merit to Mealor's claims.

a. Mealor contends his trial counsel was deficient for not objecting to the admission of the mock "Christmas gift." Mealor argues that the evidence was irrelevant to the crimes for which he was charged. During C.M.'s testimony, the prosecutor asked whether she and Mealor had any contact since she reported the abuse. C.M. replied that Mealor had sent a Christmas gift to her grandparents' house. According to C.M., shortly after she moved in with her grand-parents, she noticed an unopened Christmas gift addressed, "To: Sean, From: [C.M.]" At the time, Sean was C.M.'s boyfriend. The package contained a bottle of red fingernail polish and a pair of pink panties with the phrase "queer sucks here" written on the crotch. C.M. recognized Mealor's handwriting on the panties. On cross-examination, C.M. testified that the gift made her mad because, "if I had not opened this package and saw this inside, I would have been humiliated if I took [the gift] to this boy and he had opened it up. He would have gotten mad at me. His whole family was there. I would not be able to look these people in the eye ever again."

The record reflects that part of Mealor's defense strategy was to convince the jury that C.M. fabricated the abuse because her father did not like Sean and her parents did not want her to move in with him. Absent testimony to the contrary, we presume that trial counsel's failure to object to the mock "Christmas gift" was part of his strategy to attack C.M.'s credibility and veracity.

Even if Mealor could show that trial counsel's failure to object to the mock "Christmas gift" was not part of his trial strategy, the evidence was otherwise admissible under Simpson v. State, 271 Ga. 772, 523 S.E.2d 320 (1999). In Simpson, the Supreme Court held that, "evidence of sexual paraphernalia found in defendant's possession is inadmissible unless it shows defendant's lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity." Id. at 774(1), 523 S.E.2d 320. Here, the mock gift showed Mealor's bent of mind to act in a sexual manner towards his daughter.

b. Mealor next argues that his trial counsel was deficient for failing to object to hearsay testimony. Specifically, Mealor points to the testimony of C.D., C.M.'s aunt, C.M.'s uncle, and C.M.'s grandmother, who merely recounted what C.M. had told them about the abuse. Mealor contends that since C.M.'s testimony was not impeached, the testimony was inadmissible as a prior consistent statement. We disagree.

A prior consistent statement is properly admitted as substantive evidence when the veracity of the witness's trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination. A witness's veracity is placed in issue only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.

(Citations and punctuation omitted.) Shamsuddeen v. State, 255 Ga.App. 326(1), 565 S.E.2d 544 (2002). During cross-examination of C.M., defense counsel questioned her about her delay in reporting the incident; questioned her motivation for reporting her father, including implying that she had been promised money from her grandmother in exchange for lying about her father; questioned whether she was having "intimate relations" with Sean; and questioned her about whether she welcomed "titty hugs" from her father. As we note in section 1(a) of this opinion, trial counsel's defense strategy was to show that C.M. fabricated the abuse because she was angry at her parents. Thus, it was necessary for trial counsel to raise the issue of C.M.'s veracity and trial counsel could not subsequently object to the hearsay testimony.

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