Mikell v. State

• Decision Date: 04 October 2006
• Docket Number: No. A06A1998.,A06A1998.
• Citation: 637 S.E.2d 142,281 Ga. App. 739
• Parties: MIKELL v. The STATE.
• Court: Georgia Court of Appeals

281 Ga. App. 739

637 S.E.2d 142

MIKELL v. The STATE.

No. A06A1998.

Court of Appeals of Georgia.

October 4, 2006.

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Martin G. Hilliard, Lawrenceville, for Appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for Appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Kenneth Mikell was convicted on one count of enticing a child for indecent purposes¹ and on three counts of child molestation.² He appeals his conviction and the denial of his motion for new trial, (i) challenging the sufficiency of the evidence and (ii) arguing that the trial court erred in (a) admitting similar transaction evidence, (b) allowing the State to make improper closing arguments, (c) admitting the testimony of the victim and her younger sister, (d) admitting hearsay testimony, and (e) denying his claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. We first address Mikell's contention that the evidence was insufficient to support his conviction. "On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Mikell] no longer enjoys a presumption of innocence." Berry v. State.³ When evaluating the sufficiency of the evidence to support a conviction, we 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. Jackson v. Virginia.⁴

So viewed, the record shows that on July 26, 2003, Althea McDonald, her six-year-old daughter N.M., and her five-year-old daughter J.M. were temporarily residing in a rental home when she called the property management company to request that a plumber repair a leaking sink. The management company told Mrs. McDonald that Mikell would be sent to make the repairs. Sometime before noon, Mikell arrived at the residence and was let in the front door by N.M. Mikell walked through the house to the back door to inform Mrs. McDonald, who was gardening in the backyard, that he had arrived. Mrs. McDonald showed Mikell which sink needed repairs, asked him also to inspect the hot water heater, and then returned to her gardening.

However, instead of repairing the sink, Mikell started up the stairs and quietly asked N.M. to follow him. As they reached the second floor landing, Mikell asked N.M. to kiss him, which she did. They continued up the stairs to the third floor, at which point Mikell exposed his genitals to N.M. and asked her to touch them. N.M. complied, and Mikell then asked her to perform oral sex on him. When N.M. refused, Mikell reached his hand under her shorts and began fondling her genitals. Unbeknownst to Mikell, N.M.'s younger sister, J.M., had followed them upstairs and had seen Mikell expose himself. When Mikell began fondling N.M., J.M. started back downstairs, which alerted Mikell to the fact that he had been seen. N.M. and Mikell quickly followed J.M. down the stairs, and as all three reached the first floor, they were met by Mrs. McDonald who had just come back inside after finishing her gardening. Mikell continued quickly toward the front door, and although both daughters were obviously agitated and trying to tell her something, Mrs. McDonald attempted to ask Mikell whether the repairs had been completed. He responded affirmatively and rushed out the front door at the same moment that Mrs. McDonald's daughters informed her that Mikell had exposed himself to them. After Mrs. McDonald calmed them down, both N.M. and J.M. recounted the entire incident. The police were called, and Mikell was later arrested.

Mikell was indicted on one count of enticing a child for indecent purposes, three counts of child molestation, and one count of aggravated sexual battery. At his jury trial, both N.M. and J.M. testified about the incident, and the consistency of their accounts of what occurred was corroborated by their mother as well as the two investigating police officers. In addition, the State presented evidence of Mikell's South Carolina conviction for committing a lewd act upon a child and evidence of his sexual relationship with a different 12-year-old girl. At the trial's conclusion, Mikell was found guilty on the count of enticing a child for indecent purposes and on the three counts of child molestation and was sentenced to life imprisonment without the possibility of parole pursuant to OCGA § 17-10-7(c). Subsequently, he was appointed new counsel and filed a motion for new trial, which after a hearing was denied. This appeal followed.

Mikell contends that the evidence was insufficient to support his conviction. We disagree. "A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." OCGA § 16-6-5(a). "A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a).

In this case, Count 1 of the indictment charged Mikell with enticing N.M. for indecent purposes by luring her upstairs so he could commit child molestation, and Counts 2 through 4 charged him with three separate acts of child molestation for exposing himself to N.M., having her touch his genitals, and asking her to engage in oral sex upon him. Both N.M. and her younger sister, J.M., specifically testified that Mikell committed the acts described in Counts 1 through 4 of the indictment. Given this testimony, as well as the testimony corroborating the girls' accounts of the incident, a rational trier of fact could have found the essential elements of the offenses charged beyond a reasonable doubt. See Carolina v. State⁵ (evidence that defendant enticed child to his house with the intention to engage in a sexual encounter was sufficient to support conviction of enticing a child for indecent purposes); Keith v. State⁶ (child molestation conviction was sufficiently supported by evidence that defendant exposed himself to victim); Duncan v. State⁷ (child molestation conviction was sufficiently supported by evidence that defendant had victim place her hand on his genitals); Hicks v. State⁸ (child molestation conviction was sufficiently supported by evidence that defendant verbally asked victim to "spread her legs"; "act" required by statute may be merely verbal). Accordingly, Mikell's challenge to the sufficiency of the evidence is without merit.

2. Mikell contends that the trial court erred in admitting (a) similar transaction evidence regarding his prior conviction in South Carolina for committing a lewd act upon a child and (b) similar transaction evidence of his sexual relationship with a different 12-year-old girl. Specifically, he argues that the similar acts were too remote in time, that they impermissibly placed his character at issue, that he was never charged with a crime for one of the acts, and that their probative value was outweighed by their prejudicial effect. We disagree.

In order to admit evidence of similar transactions, the State must show an appropriate purpose, sufficient evidence to establish that the defendant committed the similar act, and a sufficient connection between the similar act and the crime charged. Lewis v. State.⁹ "Appropriate purposes include showing motive, plan, scheme, bent of mind, and course of conduct." Cook v. State.¹⁰ "[I]n cases of sexual abuse of children, evidence of prior sexual acts performed on other children is admissible to show the lustful disposition of the defendant toward children, and, because there is seldom a competent witness other than the victim to what occurred, to corroborate testimony of the victim as to the acts charged." Lewis, supra, 275 Ga.App. at 42-43(2)(a), 619 S.E.2d 699. The trial court's decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion. Id. at 42(2), 619 S.E.2d 699.

Prior to trial, the State filed the requisite notice of intent to introduce the similar transaction evidence of Mikell's thirteen-year-old conviction in South Carolina for committing a lewd act upon then eight-year-old T.Y. and of his sexual relationship with then twelve-year-old A.S. After a hearing, in which the State argued that evidence was appropriate to show Mikell's bent of mind and lustful disposition toward young girls, the trial court ruled that the evidence was admissible. At trial, T.Y. testified that approximately 13 years earlier Mikell was living with a family friend with whom T.Y. and her family would also occasionally stay. Early one morning, a naked Mikell crawled into T.Y.'s bed and attempted to force intercourse with her but left when he realized that his fiancée was awake in a nearby room. T.Y. informed her parents of the incident that same day, and further informed them that on an earlier occasion Mikell had fondled her privates. Mikell eventually pled guilty to committing a lewd act upon a child.

At trial, the State also called A.S. as a hostile witness. She testified that nearly ten years earlier Mikell was in a relationship with her mother. That relationship ended after A.S.'s mother discovered that Mikell had been convicted of committing a lewd act upon T.Y. However, A.S. continued to see Mikell, and, in 1997, at the age of 15, gave birth to a child fathered by Mikell. Additionally, A.S.'s mother testified that A.S. had previously told her that she and Mikell had been having a sexual relationship since she was 12 years old.

Mikell argues that the similar acts were inadmissible because they were too remote. However, "[w]here, as here, the similar transaction evidence is otherwise admissible, a time...