Nembhard v. State

• Decision Date: 04 June 2021
• Docket Number: A21A0263
• Citation: 360 Ga.App. 568,859 S.E.2d 118
• Court: Georgia Court of Appeals
• Parties: NEMBHARD v. The STATE.

360 Ga.App. 568

859 S.E.2d 118

NEMBHARD

v.The STATE.

A21A0263

Court of Appeals of Georgia.

June 4, 2021

Reconsideration Denied July 12, 2021

Matthew K. Winchester, Jason Michael McLendon, Atlanta, for Appellant.

Daniel J. Porter, Lawrenceville, Patsy A. Austin-Gatson, Robby Alexander King, for Appellee.

Miller, Presiding Judge.

Following a jury trial, Andrew Jamaal Nembhard was convicted of two counts of child molestation ( OCGA § 16-6-4 (a) ) and two counts of sexual battery ( OCGA § 16-6-22.1 (d) ). He appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his convictions on two of the counts, (2) the trial court erroneously admitted hearsay and bolstering evidence, and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.... [W]e neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate's case, the jury's verdict will be upheld.

(Punctuation and footnotes omitted.) Goss v. State , 305 Ga. App. 497, 497-498 (1), 699 S.E.2d 819 (2010).

So viewed, the evidence shows that after Nembhard's former neighbors, John and Demetria Dargon, mentioned that they wanted to find a reading tutor for their eleven-year-old daughter N. D., Nembhard offered to tutor both N. D. and Z. D., the Dargons’ younger daughter. A few days later, Nembhard went to the Dargons’ home to tutor the girls. Nembhard and N. D. went to the family's study area while Demetria and Z. D. were in the living room. When their time was over, Nembhard brought N. D. to Demetria, who noticed that N. D. looked sad. After Nembhard took Z. D. to the study area for her tutoring session, Demetria asked N. D. what was wrong. N. D. got weepy and told her mother that Nembhard had touched her on her chest and between her legs. At trial, N. D. testified that Nembhard pulled her onto his lap and, when she read a word correctly, rubbed her chest with his hands. Nembhard also lifted N. D.’s skirt and put his hands "down there." N. D. felt uncomfortable and unsafe when Nembhard touched her, but she continued reading because she was scared.

Demetria took N. D. to her bedroom and called John, then she left the room to get Z. D. As she approached the study area, Demetria noticed that Z. D. was on Nembhard's lap, and she immediately took Z. D. into the living room. Z. D. later disclosed that Nembhard had touched her hips, "private part," and lower back while they were reading. John arrived home soon after Demetria and N. D. called him, and he spoke to N. D. in his car, recording part of their conversation, before entering the house. The Dargons called 911, and police officers responded to the scene.

Nembhard was charged with four counts of child molestation. As to Counts 1 and 2, those related to N. D., the jury convicted Nembhard of child molestation. As to Counts 3 and 4, those related to Z. D., the jury convicted him of the lesser included offense of sexual battery. The trial court imposed a 25-year sentence, with the first 12 years to be served in confinement and the remainder to be served on probation. Nembhard filed a motion for new trial, which the trial court denied. He then filed this appeal.

1. Nembhard contends that the evidence was insufficient to sustain his sexual battery convictions on Counts 3 and 4, those relating to Z. D., because the State failed to show that the touching of Z. D. was without her consent. Noting Z. D. testified that she sat on his lap consensually, Nembhard emphasizes that Z. D. did not testify that she was scared of him or that she told him to stop once the touching began. We are not persuaded that Z. D. consented to the touching.

To establish the offense of sexual battery, the State must prove three elements: "(1) physical contact with the victim's intimate body parts; (2) intent to have such contact; and (3) lack of consent on the part of the victim." Watson v. State , 297 Ga. 718, 719 (2), 777 S.E.2d 677 (2015). The Supreme Court has determined that the State must establish "actual proof of the victim's lack of consent, regardless of the victim's age." Id. at 720 (2), 777 S.E.2d 677. The Supreme Court has also acknowledged, however, that in some circumstances, no rational juror would be able to find that the contact was consensual. See State v. Williams , 308 Ga. 228, 232-233 (2), 838 S.E.2d 764 (2020). In Williams , the defendant was convicted of aggravated sexual battery for touching his four-year-old granddaughter's vagina with his finger. Although, the trial court failed to charge the jury that the State was required to prove a lack of consent, the Supreme Court of Georgia nevertheless affirmed his conviction. The Court reasoned that this omission did not affect the defendant's substantial rights as no rational juror could have found that the State failed to prove a lack of consent because "the victim was so very young, the conduct was clearly sexual in nature, the adult was an authority figure in the child's life, and the evidence was strong [that the touching actually occurred]." Id. at 233 (2), 838 S.E.2d 764.

We believe that in this case, as in Williams , no rational juror could have found that the State failed to prove a lack of consent. Z. D. was only eight years old at the time of the incident, the touching of her "private part" had no benign or non-sexual purpose, and Nembhard was in an authority position as Z. D.’s tutor. Further, although Z. D.’s testimony may suggest that she voluntarily sat on Nembhard's lap – as she testified that "he told me to come sit on his lap, and so I did" – her testimony does not suggest that she knew Nembhard would start touching her once she was on his lap. Importantly, Z. D. recalled that, when they were reading their first page, Nembhard started touching her hips, "private part," and lower back around her waist. Z. D. testified that she felt uncomfortable from the touching and that she "didn't really know what he was doing." If Z. D. had expected the touching when she decided to sit on Nembhard's lap, she would not have felt uncomfortable and confused by it. Accordingly, we reject Nembhard's argument that there was insufficient evidence that the touching of Z. D. was without her consent.

2. Nembhard contends that the trial court erred in overruling his objections to State's Exhibit 4, a recorded audio statement N. D. made to her father on the day of the outcry. Nembhard maintains that the recording was hearsay that did not fall within any exception to the hearsay rule and asserts that it improperly bolstered N. D.’s trial testimony. We conclude that the trial court correctly admitted this evidence under the Child Hearsay Statute, which provides:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child's testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

OCGA § 24-8-820 (effective July 1, 2013). Here, N. D.’s father testified that, after N. D. told him Nembhard had touched her, he used a tape recorder to record her detailed account of the events. He identified State's Exhibit 4 as the audio recording he made, and he summarized the contents of the recording. N. D. also testified at trial.

Nembhard contends that the recording does not fall within the Child Hearsay statute because it was not admitted through the testimony of the person to whom it was made. The record belies this assertion, however, as the trial transcript clearly reflects that the recording was admitted through the testimony of Mr. Dargon, the individual who made the recording and the individual to whom N. D. recounted her story. Nembhard's contention that the recording improperly bolstered N. D.’s credibility is equally unpersuasive. The Statute itself contemplates testimony from both the child and the individual to whom the child made the out-of-court statement, and our law is clear that, when a recording is admitted under the statute, the interviewer may testify as to what the victim told him about the incident. See Leggett v. State , 331 Ga. App. 343, 347 (4), 771 S.E.2d 50 (2015) (rejecting claim of bolstering because forensic interviewer's testimony merely recounted her interview with the victim and the victim's statements about the incident and did not include any testimony that the interviewer believed the victim). Here, N. D.’s father, Mr. Dargon, testified as to the circumstances under which he made the recording and recounted what N. D. told him about the incident, but he did not testify that he believed N. D. was telling the truth. Accordingly, there was no improper bolstering, and the trial court did not abuse its discretion by admitting this evidence.

3. Nembhard contends that his trial counsel was ineffective for (a) failing to use a peremptory strike on a prospective juror who knew defense counsel and (b) failing to object to the trial court's sequential unanimity jury...