Mullis v. State

• Decision Date: 25 June 2008
• Docket Number: No. A08A0416.,A08A0416.
• Parties: MULLIS v. The STATE.
• Court: Georgia Court of Appeals

664 S.E.2d 271

292 Ga.App. 218

MULLIS v. The STATE.

No. A08A0416.

Court of Appeals of Georgia.

June 25, 2008.

Smith & Cannon, Chester L. Cannon Jr., for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

BERNES, Judge.

On appeal from his conviction for aggravated child molestation and child molestation, Robert Mullis argues that the evidence was insufficient to support his conviction. He also contends that the trial court erred in denying his motion to quash the indictment, in admitting certain testimonial evidence, and in clearing the courtroom during the victim's testimony. Finally, Mullis asserts that his trial counsel rendered ineffective assistance. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that in 1995, the victim, then a nine-year-old child, lived at home with his mother and Mullis, his mother's boyfriend. Mullis began waking the victim during the night while the victim's mother worked by pulling down the victim's pants and putting the victim's penis in his mouth. Mullis often hit the victim and threatened to kill his mother if he told anyone of the abuse. Mullis also routinely forced the victim to put his mouth on Mullis's penis and to give and receive anal penetration. These assaults continued until the victim was 13.

Although the victim moved in with his biological father by 1999, Mullis continued to abuse the victim throughout the following year when the victim visited his mother, who by that time had married Mullis. Mullis and the victim's mother separated in September 2002, after which the victim told his mother about the abuse. The victim then made statements describing Mullis's attacks to officers of the Dodge County Sheriff's Office and Department of Family and Children Services. An examining physician later found that the victim lacked virtually all "anal tone," a condition consistent with multiple episodes of anal intercourse. Mullis was charged and subsequently convicted of two counts of aggravated child molestation and one count of child molestation. Mullis's motion for new trial was denied.

1. The evidence outlined above sufficed to sustain Mullis's conviction. See OCGA § 16-6-4(a), (c) (defining child molestation and aggravated child molestation); Berman v. State, 279 Ga.App. 867, 869(1), 632 S.E.2d 757 (2006) (victim's testimony was sufficient to sustain conviction for aggravated child molestation and child molestation; any discrepancies in the evidence "presented credibility issues for the jury, not this Court, to resolve").

2. Mullis argues that the indictment was defective because it did not specify the dates on which the charged offenses occurred and instead alleged that the molestation occurred between August 1, 1991 and June 25, 2002.

On a post-conviction appeal from a trial court's pretrial denial of a motion to quash an indictment, the question is "whether the failure to narrow the range of dates alleged in the indictment materially affected [the defendant's] ability to present a defense." (Citation and punctuation omitted.) Howard v. State, 281 Ga.App. 797, 799(1), 637 S.E.2d 448 (2006). Here, the victim, who was seventeen years old at trial, could recall only that the abuse began when he was "about nine years old," when his mother was working on a particular night shift, and that it ended when he was thirteen. The parties stipulated that the abuse had ended by the victim's sixteenth birthday.

"[W]here the evidence does not permit the [s]tate to identify a single date on which [an] offense occurred, the indictment instead may allege that the offense occurred between two particular dates." (Punctuation and footnote omitted.) Berman, 279 Ga.App. at 872(6), 632 S.E.2d 757. Given Mullis's concessions that he lived with the victim for much of the time between 1995 and 1999 and that the victim visited the house regularly thereafter, Mullis cannot show that he was prejudiced in the preparation of his defense by the indictment's range of dates concerning its three counts. This argument thus lacks merit. See Howard, 281 Ga.App. at 799(1), 637 S.E.2d 448 (rejecting post-conviction attack on indictment for child molestation which gave dates between which the acts of molestation occurred).

3. Mullis complains of various statements elicited from the state's psychologist. The psychologist was qualified as an expert without objection and testified about the effects of child abuse on the subjects of that abuse.

(a) First, Mullis asserts that the trial court erred in allowing the psychologist to testify about the methods that he used to evaluate and assess the victim. The psychologist explained that he had evaluated the victim using eleven different tests, eight of which had a proven scientific basis, and the other three of which were developed in the course of his clinical experience for the purpose of identifying "symptom patterns" associated with child sexual abuse. Based upon his evaluation, he concluded that the results were consistent with the state's theory of the case. The trial court authorized extensive cross-examination concerning each of the tests used by the psychologist, including the extent to which the psychologist was basing his opinion on each test. The trial court did not err when it allowed the psychologist to explain his conclusions based on tests developed either in the scientific community or from his own clinical experience. See Dean v. State, 252 Ga.App. 204, 205-206(2), 555 S.E.2d 868 (2001) (medical expert was not required to testify with a reasonable degree of medical certainty that child's injuries were caused by charged molestation).

(b) Mullis next argues that the trial court erred in allowing the psychologist to testify that the victim's symptoms and accounts were "highly consistent" with sexual abuse.

Under Georgia law, a psychologist ... can offer expert testimony that symptoms exhibited by a child are consistent with sexual abuse. And the fact that such testimony may also indirectly, though necessarily, involve the child's credibility does not render it inadmissible.

(Punctuation and footnote omitted.) Rogers v. State, 253 Ga.App. 675, 677(2), 560 S.E.2d 286 (2002). This testimony was therefore admissible. See Brownlow v. State, 248 Ga. App. 366, 367-368(2)(a), 544 S.E.2d 472 (2001); Odom v. State, 243 Ga.App. 227, 228(1), 531 S.E.2d 207 (2000) (psychologist's testimony concerning consistency of symptoms with sexual abuse was admissible and did not go to ultimate issue).

(c) Mullis next challenges the psychologist's opinion that a person with the victim's level of intelligence would have difficulty fabricating a detailed fictional account of abuse. The psychologist explained that the victim had a composite IQ score of 74, merely 5 points above what is considered mentally retarded. When Mullis objected to the psychologist's statement, the trial court allowed it, but admonished the psychologist not to give his opinion as to the ultimate issue of the victim's credibility. Because the trial court was authorized to conclude that one's ability to manufacture stories of abuse based upon his or her IQ level fell beyond the ken of the average juror, the challenged testimony was admissible. See In the Interest of B.H., 190 Ga.App. 131, 133-134(3), 378 S.E.2d 175 (1989) (allowing opinion testimony that a child of the victim's age would have difficulty making up a story of abuse). See also Eberhardt v. State, 257 Ga. 420, 422(4), 359 S.E.2d 908 (1987) (holding expert testimony proper as to whether a mentally ill victim was capable of distinguishing fact from fiction); Howell v. State, 278 Ga.App. 634, 643-644(8), 629 S.E.2d 398 (2006) (noting that expert opinion testimony on an issue that goes beyond the ken of the average juror is admissible, even if it indirectly comments on the victim's credibility).

(d) Finally, Mullis challenges the testimony from the psychiatrist concerning the victim's previous diagnosis as a schizophrenic. This testimony, however, was elicited by Mullis on cross-examination. Any error in the admission of this evidence was thus induced and has been waived on appeal. See Sams v. State, 239 Ga.App. 715, 717(3), 521 S.E.2d 848 (1999).

4. Mullis challenges certain testimony of the police investigator in which he referred to a diagnosis of the victim made by a person not appearing at trial, and also challenges testimony from the physician in which she referred to the results of the victim's stool culture. This challenged testimony was also elicited by Mullis on cross-examination. Thus, any error in its admission has been waived. Sams, 239 Ga.App. at 717(3), 521 S.E.2d 848.

5. Mullis contends that the trial court erred in allowing the police investigator to testify that a child the victim's age would not want to admit to having been anally penetrated. Because Mullis made no objection at trial, this contention has been waived as well. Slaughter v. State, 282 Ga.App. 276, 279(2), 638 S.E.2d 417 (2006).

6. Mullis also argues that the trial court abused its discretion and deprived him of his Sixth Amendment right to a public trial when it cleared the courtroom during the victim's testimony. We disagree.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the United States Supreme Court held that a trial court's grant of a prosecutorial motion to close a suppression hearing to the public was error mandating a new...