Morris v. State

• Decision Date: 05 June 2017
• Docket Number: A17A0615
• Citation: 802 S.E.2d 13
• Parties: MORRIS v. The STATE.
• Court: Georgia Court of Appeals

341 Ga.App. 568

802 S.E.2d 13

MORRIS

v.The STATE.

A17A0615

Court of Appeals of Georgia.

June 5, 2017

John Travis Overocker, for Appellant.

Robert William Mooradian, Peter J. Skandalakis, La Grange, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted David Morris on one count each of aggravated child molestation, child molestation, and aggravated sexual battery. Morris now appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in (1) granting the State's motion in limine to prohibit cross-examination of the victim's father as to whether he suffered sexual abuse as a child, (2) failing to limit two witnesses' child-hearsay testimony to the specific facts to which the victim testified at trial, and (3) admitting into evidence a drawing made by the victim during a counseling session that the State did not produce during discovery. For the reasons set forth infra , we affirm Morris's convictions.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that in 2012, Morris was living in Senoia, Coweta County, Georgia, with his wife, Jennifer, his daughter from a previous relationship, and Jennifer's two children from a previous relationship, nine-year-old B. A. and her younger brother, H. A. On February 10, 2012, a friend of Jennifer's was babysitting B. A. and H. A. after they arrived home from school, and at some point that afternoon, the children began fighting. Consequently, the babysitter contacted Jennifer and Morris, and both told her to send B. A. and H. A. to their bedrooms. The children complied, but after a few minutes, H. A. walked into B. A.'s bedroom and the two began talking. During this conversation, B. A. confided to her brother that Morris had been touching her private parts. With B. A.'s permission, her brother told the babysitter about the sexual abuse, and when the babysitter asked B. A. if this was true, she confirmed it.

Immediately thereafter, the babysitter called Jennifer, who rushed home and began questioning B. A. about her allegations. Initially, B. A. denied that Morris had sexually abused her, but ultimately, she told her mother that what she had relayed to her brother and the babysitter was true. Although visibly upset, Jennifer told B. A. not to tell her father about the sexual abuse, when she and her brother went to her father's house later that day for their weekend visitation. The babysitter then drove the two children to the Pike County Sheriff's Office, as required by a court-ordered custody settlement, where their father and his girlfriend were waiting for them. At this time, neither the babysitter nor Jennifer informed law enforcement about B. A.'s outcry.

That same night, H. A. told his father about the sexual abuse B. A. had disclosed to him earlier in the afternoon. The children's father then asked B. A. if what her brother had told him was true, and although B. A. initially denied it, she eventually admitted to her father that Morris had, in fact, touched her privates. Immediately, the father called local law enforcement. And while he was reporting the incident to the authorities, B. A. recounted details of Morris's abuse to the father's girlfriend and also claimed that her mother warned her that if she told anyone else about her allegations, Morris would go to jail and her stepsister would have to move back to Texas.

The following day, a detective with the Senoia Police Department began an investigation of B. A.'s allegations and arranged for the child to be interviewed by a forensic social worker a few days later. During that interview, B. A. disclosed only one incident, in which Morris sexually abused her by placing his hand on her privates, and she claimed that this incident occurred when they lived in Pike County prior to moving to Senoia. Later, the investigating detective also interviewed B. A., but believing that the incidents of sexual abuse occurred in Pike County (rather than Coweta County), he closed his investigation after less than one month.

Despite the fact that law-enforcement authorities had closed their investigation of her allegations against Morris, B. A. began attending regular counseling sessions with a family therapist. And over the course of the next several months during those sessions, B. A. disclosed that Morris had sexually abused her on multiple occasions when the family lived in Pike County and after they had moved to

Senoia (located in Coweta County). Specifically, B. A. described multiple incidents in which Morris entered her bedroom late at night and then either put his fingers inside her privates and bottom, put his mouth on her breasts and her privates, or put his penis in her mouth. During one of these therapy sessions, B. A. drew a picture and described it to the therapist as depicting her crying while Morris was putting his penis in her mouth.

In July 2012, B. A.'s father showed the notes from the child's therapy sessions to the Senoia detective, and, as a result, the detective reopened his investigation. As part of the investigation, the detective arranged for B. A. to be interviewed by a licensed psychologist, who had significant experience in conducting forensic interviews of child sexual abuse victims. During those two September 2012 interviews, B. A. recounted many of the same details that she had disclosed to the family therapist regarding Morris's sexual abuse of her, including the allegations that, on multiple occasions, Morris placed his fingers inside her privates and buttocks and put his penis in her mouth. Following these sessions, the psychologist diagnosed B. A. as suffering from post-traumatic stress disorder

and opined that her disclosures were consistent with a child who had been sexually abused.

Shortly thereafter, the detective arrested Morris, and ultimately, the State charged him, via indictment, with one count each of aggravated child molestation, child molestation, and aggravated sexual battery. The case then proceeded to trial, during which the evidence referenced supra was introduced, and at the trial's conclusion, the jury convicted Morris on all three counts. Subsequently, Morris obtained new counsel and filed a motion for new trial, which the trial court denied following a hearing on the matter. This appeal follows.²

1. Morris first contends that the trial court erred in granting the State's motion in limine to prohibit him from cross-examining B. A.'s father regarding whether he suffered sexual abuse as a child. We disagree.

It is, of course, well established that "a defendant has the right to a thorough and sifting cross-examination, but the discretion of the trial court to determine its scope and the relevancy of the sought testimony is broad[.]"³ And indeed, the court's discretion will not be disturbed on appeal unless it has been abused.⁴ Bearing these guiding principles in mind, we turn now to Morris's specific claim of error.

Here, prior to trial, the State moved to prohibit Morris from cross-examining B. A.'s father regarding whether he was sexually molested as a child. Noting that there was some evidence in the discovery materials, in which B. A.'s father claimed to have suffered sexual abuse, the State, nevertheless, argued that such evidence was irrelevant. But Morris maintained that the evidence explained the zeal with which B. A.'s father fought to have the case reopened after the Senoia detective initially closed it. At the conclusion of the pretrial hearing, the court took the matter under advisement. Later, at trial (just before B. A.'s father testified), the State sought a ruling on the issue, and after hearing more argument, the trial court agreed that the evidence was irrelevant, as well as confusing and possibly prejudicial.

Under OCGA § 24–4–401,⁵ the term "relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In addition, OCGA § 24–4–402 provides:

All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.

And while our Supreme Court has held that the relevance standard codified by these statutes is a forgiving one,⁶ it is not limitless.⁷

Here, in arguing that the trial court erred, Morris's contention rests upon the assumption that B. A.'s credibility would be placed in question by evidence that her father suffered sexual abuse as a child, and thus, was overzealous in ensuring that law enforcement investigated the allegations. But there is no logical link between the fact that the victim had a father who also claimed to be a victim of sexual abuse and "a conclusion that the victim might therefore be an unreliable witness whose testimony regarding [Morris's] actions was not worthy of belief."⁸ Accordingly, the trial court did not abuse its discretion in finding that any evidence that B. A.'s father suffered sexual abuse was irrelevant.⁹

2. Morris also contends that the trial court erred in failing to limit the child-hearsay testimony of both the family therapist and the psychologist to the specific disclosures of sexual molestation to which B. A. testified at trial. Again, we disagree.

Under the former¹⁰ version of Georgia's Child Hearsay Statute, OCGA § 24–3–16,

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia

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