Mulkey v. State
| Decision Date | 17 January 2023 |
| Docket Number | A22A1452 |
| Parties | MULKEY v. THE STATE |
| Court | Georgia Court of Appeals |
Following trial, a jury convicted John Mulkey on one count of child molestation. Mulkey now appeals his conviction and the denial of his motion for new trial, arguing the trial court erred in (1) admitting evidence of prior bad acts; (2) refusing to provide the jury with a limiting instruction regarding the evidence of prior bad acts; (3) failing to admonish the prosecution for allegedly improper remarks made during closing argument; and (4) denying his claim that trial counsel rendered ineffective assistance by failing to object to testimony bolstering the victim and the prior-bad-acts witness's credibility, as well as to the prosecution's improper remarks during closing argument. For the reasons noted infra, we affirm.[1]
Viewed in the light most favorable to the jury's verdict,[2] the record shows that at some point in the early 1990s, Mulkey was working in Idaho, where he met Candace Hawkins. The two dated for almost a year before breaking up, after which Mulkey moved to Cartersville Georgia, and married another woman, with whom he had a daughter. In the meantime, Candace remained in Idaho, married Robert Hawkins, and they adopted a daughter, D. H.
In 2004, Mulkey's wife became ill, and around this same time, Mulkey began sexually abusing his seven-year-old daughter, S. M. This abuse was eventually disclosed by S. M to her mother, who told Mulkey to stop the abuse but did not contact law enforcement about it. Subsequently, in 2008, Mulkey's wife passed away from her illness, and afterward, his then 10-year-old daughter, S. M., left Georgia and went to live with a maternal aunt in Washington. The following summer, S. M. traveled to Georgia to visit Mulkey, but she told her mother's family about the sexual abuse, and they reported this disclosure to the Georgia Division of Family and Child Services ("DFCS"). DFCS then removed S. M. from Mulkey's custody, and she ended up staying with the family of a childhood friend, whose mother-Tammy Shaw-later became her legal guardian. Bartow County authorities ultimately charged Mulkey with several sexual offenses, but those charges were dismissed after proceedings stalled for nearly two years.
A few years later, Candace and Robert Hawkins divorced, and in 2011, she and Mulkey reconnected and began dating again. One year later, Mulkey and Candace married in Idaho. The day after their wedding, Candace had to work, so D. H.-who was now seven years old-went to the hotel where Mulkey was staying to swim in the pool. Then, following her swim, D. H. went into Mulkey's hotel room to change clothes. And as she was changing out of her bathing suit, Mulkey entered the room, laid her down on the bed while she was still undressed, and began placing rose petals on her chest and vaginal area. A moment later, a hotel cleaning staff member knocked on the door; at which point, D. H. stood up and got dressed. And although D. H. felt "a little weird" about the incident, she initially did not tell anyone.
Not long thereafter, Candace and D. H. moved to Cartersville to live with Mulkey, and a year later, the family moved to a home in Douglasville, Georgia.
Typically, Candace worked during the day and Mulkey worked at night, and, as a result, Mulkey was around in the afternoon when D. H. returned home from school. During this time period, Mulkey began to sexually molest D. H. Specifically, on numerous occasions, Mulkey sat D. H. on his lap and would rub her vaginal area with his hand. On another occasion, Mulkey did the same thing while he and D. H. were sitting in a truck. And although D. H. was scared, Mulkey told her not to tell anyone about their "little secret."
By 2015, Candace and Mulkey's relationship became strained, and in October 2015, Candace and D. H. moved to a separate home in Cobb County. Even so, while they were in the process of ending their marriage, Candace and Mulkey continued to maintain contact; but D. H. declined any suggestion by Candace that she spend time with Mulkey. A little over two years later, on December 24, 2017, Candace and D. H. had an argument over some inappropriate texts Candace discovered on D. H.'s mobile phone, and as a result, Candace punished D. H. by taking her phone away and sending her to her bedroom. Later that same day, D. H.-now even more upset-gave Candace a note saying that Mulkey inappropriately touched her when they lived in the same home. And after pressing her for details, D. H. disclosed to Candace that Mulkey sexually molested her on numerous occasions. Two days later, after the holiday, Candace contacted law enforcement, and an investigator with the Douglas County Sheriff's Office conducted a forensic interview with D. H., during which she recounted the details of Mulkey's sexual abuse.
Thereafter, the State charged Mulkey, via indictment, with one count of aggravated sexual battery and one count of child molestation based on the numerous incidents of his sexual abuse of D. H. Then, several months before trial, the State filed a notice of its intention to admit Mulkey's sexual abuse of S. M. as prior-bad-acts evidence. And prior to jury selection, the trial court held a hearing on the matter, in which defense counsel argued the Bartow County charges had been dismissed based on a violation of Mulkey's Sixth Amendment right to a speedy trial in that matter,[3]and therefore, such evidence should be inadmissible. The State argued to the contrary, and following that argument, the trial court disagreed with Mulkey and ruled from the bench that the evidence of his alleged sexual abuse of S. M. was admissible.
The case then proceeded to trial, during which the foregoing evidence was presented. In addition, the Douglas County Sheriff's Office investigator testified regarding her involvement in the case and forensic interview of D. H., and a Bartow County law enforcement officer similarly testified as to his investigation into S. M.'s allegations of sexual abuse and the forensic interview of S. M., detailing those allegations. S. M. also testified and recounted the details of Mulkey's alleged sexual abuse and her outcry.
After the State rested, Mulkey testified in his own defense and denied that he ever inappropriately touched either his daughter, S. M., or his step-daughter, D. H. Several character witnesses also testified on Mulkey's behalf, including S. M.'s guardian, Shaw. And an expert witness-with extensive experience conducting forensic interviews with child sexual abuse victims-testified that the forensic interviews of both S. M. and D. H. were seriously flawed, which rendered them unreliable. Nonetheless, at the conclusion of the trial, although the jury could not reach a verdict on the aggravated-sexual-battery charge,[4] it found Mulkey guilty on the child-molestation charge.
Subsequently, Mulkey obtained new counsel and filed a motion for new trial, in which he argued, inter alia, that his trial counsel rendered ineffective assistance.
But following a hearing, in which Mulkey's trial counsel testified regarding his representation, the trial court denied Mulkey's motion. This appeal follows.
1. Mulkey first contends the trial court erred in admitting evidence of his alleged prior sexual abuse of his daughter, S. M., under OCGA §§ 24-4-413 and 24-4-414. Specifically, he argues that because the charges related to this evidence were dismissed based on a violation of his right to a speedy trial, the admission was unfairly prejudicial. We disagree.
Turning to the statutes at issue, OCGA § 24-4-413 (a) provides: "In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." Similarly, OCGA § 24-4-414 (a) provides: "In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant." And this Court has held that OCGA §§ 24-4-413 ("Rule 413") and 24-4-414 ("Rule 414") are the "more specific statutes that supersede the provisions of Rule 404 (b) in sexual assault and child molestation cases."[5] Importantly, Rules 413 and 414 "create a rule of inclusion, with a strong presumption in favor of admissibility, and the State can seek to admit evidence under these provisions for any relevant purpose, including propensity."[6]Furthermore, a trial court's decision to "admit other acts evidence will be overturned only [when] there is a clear abuse of discretion."[7]
Here, Mulkey emphasizes that the charges arising from the evidence he sexually abused S. M. were dismissed based on a violation of his right to a speedy trial, and notes the delay in that prosecution resulted in the unavailability of critical defense witnesses.[8] From this, Mulkey reasons the admission of that evidence in this case was unfairly prejudicial under OCGA § 24-4-403, as he was forced to defend against the prior allegations without those critical witnesses. We find this argument unpersuasive.
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