Nelson v. State

Decision Date16 June 2006
Docket NumberNo. A06A0454.,A06A0454.
Citation279 Ga. App. 859,632 S.E.2d 749
PartiesNELSON v. The STATE.
CourtGeorgia Court of Appeals

Gerald P. Word, Johnson Word & Simmons, Carrollton, for Appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Stephen M. Gray, Assistant District Attorneys, for Appellee.

BERNES, Judge.

Patrick Henry Nelson appeals from his convictions following a jury trial on one count of child molestation and five counts of aggravated child molestation. On appeal, he alleges the following: (1) the trial court erred in admitting child hearsay that lacked sufficient indicia of reliability; (2) the trial court erred in denying his motion for new trial based on an alleged violation of Brady v. Maryland;1 (3) the trial court erred in denying his motion for mistrial made after a state's witness improperly commented on Nelson's right to remain silent; and (4) the trial court erred in permitting an unlicensed psychologist to testify as an expert. For the reasons that follow, we affirm.

Viewed in a light most favorable to the guilty verdict, the facts adduced at trial show that in January 2001, Nelson lured C.W., an 11-year old male, and his younger brother, S.W., into his apartment using fish aquariums and snacks. Within two weeks of their initial meeting, Nelson began sexually molesting the boys. C.W. testified at trial that the abuse started with kissing and progressed to acts of fellatio performed by Nelson on C.W., and anal sodomy performed by C.W. upon Nelson. The acts also included Nelson's rubbing of oil on C.W.'s penis, putting his penis in C.W.'s face, and bathing C.W., during which time he would touch C.W. on his "private" and "everything below [his] neck." C.W. also described an incident in which he attempted to insert a candlestick into Nelson's rectum.

S.W., who was approximately ten years old at the time, also testified to similar abuse. He stated that Nelson performed fellatio on him and that he performed fellatio on Nelson numerous times. S.W. also unsuccessfully attempted to insert his penis into Nelson's rectum several times at Nelson's direction.

At some point the boys introduced their cousin, A.W., to Nelson. A.W. was also approximately ten years old. Like his cousins, A.W. testified that he was "made [to] suck" Nelson's penis, and was subject to receiving fellatio from Nelson on more than one occasion.

C.W. testified that, in addition to being subject to the abuse himself, he actually witnessed Nelson "suck [S.W.'s] private" five or six times, and saw S.W. perform fellatio on Nelson. C.W. also testified that he witnessed Nelson's abuse of A.W., including Nelson performing fellatio on A.W.

S.W. corroborated the abuse of his brother, C.W., and testified that he witnessed the anal sodomy, the usage of lubricants on C.W.'s penis, and the incident involving the insertion of the candlestick into Nelson's rectum. Likewise, A.W. corroborated the testimony of his cousins regarding the incident involving C.W. and a candlestick.

In May 2001, the victims' aunt's suspicions were aroused because Nelson had bought C.W. numerous gifts and C.W. was spending an inordinate amount of time with Nelson. Consequently, on May 9, 2001, she notified police that she suspected that C.W. was being sexually abused by Nelson and an investigation ensued. C.W. initially denied any abuse during a recorded police interview in May 2001, although he did admit at that time that he had attempted to insert a candlestick into Nelson's rectum. A.W. also initially denied being abused himself, but he told an investigator in May 2001 that he saw C.W. insert a candlestick into Nelson's rectum while neither Nelson nor C.W. knew that he was watching. In June 2001, S.W. spontaneously told a Department of Family and Children Services ("DFCS") caseworker who was questioning him and A.W. about an unrelated incident involving C.W.2 that "[Nelson] told [C.W.] to take a bath, and the next thing you know [C.W.] has a candle up his butt. . . . [C.W.] has been acting worse since all of this happened." S.W. and A.W. also denied at that time that they were subject to abuse by Nelson, although the DFCS caseworker did not specifically inquire about any abuse.

C.W. ultimately admitted the abuse during a taped interview with a DFCS supervisor and a police investigator in August 2001. At trial, C.W. testified that he had initially denied being molested because he was "embarrassed and scared," and explained that Nelson had intimidated him and his brother by pointing a gun at his brother's "private." S.W. confirmed that Nelson had aimed a gun at his penis. Finally, A.W. testified that he was too "scared and nervous" to report the abuse. The experts for both the state and the defense testified that it is very common for children subjected to sexual abuse to initially deny that the abuse had taken place.

1. (a) Nelson maintains that the trial court erred by admitting child hearsay without sufficient indicia of reliability. Specifically, Nelson complains that the court should not have permitted the victims' aunt to testify that C.W. had admitted to her that "he used a candle to stick up [Nelson's] private." He contends that the statement lacked trustworthiness since she could not remember when C.W. made the statement and did not report it to the police.

The Child Hearsay Statute, OCGA § 24-3-16, provides that

[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 of reliability.3

"The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion." (Citation and punctuation omitted.) Fiek v. State, 266 Ga.App. 523, 524(1), 597 S.E.2d 585 (2004).

In Gregg v. State, 201 Ga.App. 238, 240(3)(b), 411 S.E.2d 65 (1991), this Court set forth ten factors to be considered when determining whether a child's out-of-court statement provides sufficient indicia of reliability. These factors include: (1) the atmosphere in which the statement is made; (2) the spontaneity of the statement; (3) the age of the child; (4) the child's general demeanor; (5) the child's physical or emotional condition; (6) any threats or promises made to the child; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) any coaching by parents or other parties; and (10) the consistency between repeated out-of-court statements by the child. Id. at 240(3)(b), 411 S.E.2d 65. However, we warned that "[t]hese factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness." Id. Moreover,

while the trial court must find that the circumstances of the child hearsay statement provide sufficient indicia of reliability, such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding.

(Citation and punctuation omitted; emphasis in original.) Baker v. State, 252 Ga.App. 238, 241(1)(b), 555 S.E.2d 899 (2001).

The record here contains sufficient evidence to support the trial court's determination that C.W.'s statement to his aunt was trustworthy. Both C.W. and A.W. had related to police in May 2001 that C.W. had attempted to insert a candlestick into Nelson's rectum, even while they both denied that any other abuse had taken place. A.W., who had not been previously questioned, made his statement at the elementary school, with counselors present. S.W. spontaneously told the DFCS caseworker about the incident in June 2001. Moreover, all three of the victims testified at trial that the occurrence had taken place, and both S.W. and A.W. testified that they actually observed it happening.

Much of Nelson's argument centers around the fact that the victims' aunt had previously told the police that C.W. had denied any abuse. Nonetheless, Nelson had every conceivable opportunity to examine and cross-examine both C.W. and his aunt in front of the jury regarding their memories and the circumstances surrounding his out-of-court statement, and the jury had the opportunity to judge the alleged making and veracity of his statement. "Alleged inconsistencies or challenges to the truthfulness of the child [or others] are matters of credibility for the jury to resolve and do not render the admission of this relevant and material evidence erroneous." Knight v. State, 239 Ga. App. 710, 712(1), 521 S.E.2d 851 (1999).

Moreover, the record does not support Nelson's allegation that C.W. had been interviewed by and repeatedly denied abuse to "4 or 5 police officers, several DFCS workers, and at least one psychologist." The first officer who spoke to C.W. was sent to Nelson's house to retrieve C.W. in response to a call from C.W.'s grandmother. He testified that his sole job was to take C.W. home and not to investigate any allegations of sexual abuse. A second officer who spoke to C.W. the same day worked in the traffic division of the police department and had no experience interviewing children or investigating sexual assault cases. He woke C.W. up in the middle of the night, asked him if "he was involved in anything going on." C.W. responded negatively. He did not ask follow-up questions or encourage C.W. to discuss anything further.

The DFCS caseworkers to whom Nelson...

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18 cases
  • Smith v. the State.
    • United States
    • Georgia Court of Appeals
    • April 12, 2011
    ...Accordingly, the trial court could have concluded that Smith waived his right to raise this issue. See Nelson v. State, 279 Ga.App. 859, 864(2), 632 S.E.2d 749 (2006); Mondy v. State, 229 Ga.App. at 312(1), 494 S.E.2d 176. But even in the absence of waiver, Smith's argument provides no grou......
  • Anderson v. State
    • United States
    • Georgia Court of Appeals
    • April 19, 2012
    ...outside parents' presence). 18. See Kight v. State, 242 Ga.App. 13, 16(1), 528 S.E.2d 542 (2000). Accord Nelson v. State, 279 Ga.App. 859, 862(1)(a), 632 S.E.2d 749 (2006). 19. (Citation omitted.) Phillips, supra, 284 Ga.App. at 228(1)(b), 644 S.E.2d 153. Accord Hughes v. State, 297 Ga.App.......
  • Krirat v. State
    • United States
    • Georgia Court of Appeals
    • July 6, 2007
    ...Because Krirat cannot show harm resulting from the trial court's error, we find no basis for reversal. See Nelson v. State, 279 Ga. App. 859, 863(1)(b), 632 S.E.2d 749 (2006). 2. Krirat next argues that the trial court erred in allowing Deputy Lundy to read the statements of Kr.H., B.P. and......
  • St. Germain v. State
    • United States
    • Georgia Court of Appeals
    • January 14, 2021
    ...to make any objection on this ground at trial[, he] did not properly preserve this argument for appeal." Nelson v. State , 279 Ga. App. 859, 864 (2), 632 S.E.2d 749 (2006) (finding waiver of Brady violation claim).5. Cumulative error."Georgia courts considering whether a criminal defendant ......
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1 books & journal articles
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 59-1, September 2007
    • Invalid date
    ...(Barnes, J., concurring). 207. Id. at 317-18, 633 S.E.2d at 671. 208. Id. at 318, 633 S.E.2d at 671 (citing Ga. Ct. App. R. 33(a)). 209. 279 Ga. App. 859, 632 S.E.2d 749 (2006). 210. Id. at 866, 632 S.E.2d at 756. 211. Id. 212. 281 Ga. App. 129, 635 S.E.2d 402 (2006). 213. Id. at 131-32, 63......

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