Ottley v. State

• Decision Date: 20 November 2013
• Docket Number: No. A13A1321.,A13A1321.
• Citation: 752 S.E.2d 92,325 Ga.App. 15
• Parties: OTTLEY v. The STATE.
• Court: Georgia Court of Appeals

325 Ga.App. 15

752 S.E.2d 92

OTTLEY

v.The STATE.

No. A13A1321.

Court of Appeals of Georgia.

Nov. 20, 2013.

Victoria Lynn Novak, for Appellant.

Julia Fessenden Slater, Dist. Atty., William Donald Kelly Jr., Robert Bradford Bickerstaff II, Asst. Dist. Attys., for Appellee.

McMILLIAN, Judge.

Winfred Ottley appeals the denial of his motion for new trial after a jury convicted him of three counts of cruelty to children, one count of sexual battery, two counts of aggravated assault, two counts of rape, one count of child molestation, one count of incest, and two counts of aggravated child molestation.¹ On appeal, Ottley argues that the evidence was insufficient to support his convictions and that he received ineffective assistance of counsel. Although we find the evidence sufficient to support his convictions, we reverse for a new trial because we find that Ottley has carried his burden of demonstrating that he received ineffective assistance of counsel.

Viewed in the light most favorable to support the verdict,² the evidence showed that at the pertinent time, Ottley was married to the victim's mother, but they separated in November 2008 and were in the process of divorcing at the time of the trial in May 2010. The victim was the mother's child from a previous marriage. On May 9, 2009, after the Ottleys separated, the victim reported to her mother and grandmother that Ottley had been molesting her since 2006, when she was nine years old. The victim told her mother that Ottley put a knife to her throat, threatened her, made her take off her pants and put his penis inside her. She later told her mother that the last time it had happened was January 2009 when she was visiting Ottley.

At trial, the victim testified that in May 2006, she was at home with Ottley and her younger brother while her mother was in Brazil on business. The first time Ottley touched her, he came into her room one night, put a knife to her throat, and ordered her to take off her pants or he would kill her. He then put his penis in her “private part” (the “First Incident”). She said that this happened again, but she could not remember how many times, in either his bedroom or hers, but he did not use a knife. The last time it happened, in January 2009, the victim was 12 years old, and Ottley was staying at a friend's house following his separation from the victim's mother. Ottley was hosting the victim and her little brother during a planned weekend visit. In that incident, Ottley put his mouth on the victim's private part (the “Last Incident”).

The victim's family members testified that the victim's behavior toward Ottley changed around the time of the First Incident. Although they had more of a father-daughter relationship before that time, the victim later began to avoid Ottley. She would hang her head, cast her eyes downward, tear up, and act nervous and frightened when he was around. Her mother said that at the time, she attributed the victim's behavior to her sensitivity to criticism and her ADHD (Attention Deficit Hyperactivity Disorder), and she outlined medications that the child had taken for that condition. The family members also testified that the victim's demeanor changed around the pertinent time: before, she was a happy child, but later became “sensitive,” “stiff,” “ withdrawn,” and “saddened.” And in the summer of 2009, the victim's stepmother caught her masturbating.

On May 12, 2009, a few days after the victim's outcry to her mother, the victim was examined by her family pediatrician, Dr. Richard Mansfield. After she described the incident with the knife to Dr. Mansfield, he conducted a pelvic examination. He had never conducted such an examination on the victim before because there was no reason to do so. During that examination, he noticed an irregularity or asymmetry on her hymen, which he described as a scar and which he said indicated blunt trauma to the area. Dr. Mansfield found that this evidence supported a finding of sexual trauma or abuse. He testified that the condition of her hymen would not occur from everyday child-like activities such as riding a bike, jumping, or gymnastics. Dr. Mansfield testified, however, that the child's hymen was intact.

The victim was also examined by Cathy Cooley, a nurse practitioner in public health and a sexual assault nurse examiner (“SANE”), on May 19, 2009. Cooley was qualified as an expert in sexual assault examinations of pediatric victims. Cooley explained that before examining the victim, she first got a history of the situation from the victim and her mother. The victim told Cooley that the incidents had happened numerous times over a three-year period, and she described some of the acts involved.

Cooley stated that the first thing she noticed during her physical examination of the victim was that the opening to her vagina was gaping open, and “normally you don't see that except on a [30–year–old] that's had a couple of children.” She observed that the labia was “stretched,” “flaccid” and “non-resilient.” In addition, she found evidence of a “wrinkle wound” in one area of the victim's vulva, which she said indicated repetitive, skin-to-skin friction. Cooley also observed scarring on the victim's hymen.³ She opined that the scarring was caused by blunt penetrating trauma. She further testified that the injuries could not have been caused by masturbation, horseback riding, gymnastics, or consensual sex.

Additionally, Detective Sherry Ziegler of the Columbus Police Department videotaped an interview she conducted with the victim, and that recording was played for the jury. In that interview, the victim described the First Incident and told Ziegler that it had happened around 15 or 20 times. She also described some of those other incidents. But in describing the Last Incident from January 2009, the victim told Ziegler that Ottley put his private part in her private part, and she said that the only place Ottley put his mouth was on her chest.

Following his convictions, Ottley filed a motion for new trial, and this appeal followed the denial of that motion.

1. Ottley enumerates as error that the evidence was insufficient to support his convictions. In support of this argument, he points to contradictions and inconsistencies in the evidence and attacks the victim's credibility.

However,

[w]hen the appellate courts review the sufficiency of the evidence, they do not re-weigh the evidence or resolve conflicts in the testimony; instead they defer to the jury's assessment of the weight and credibility of the evidence. Appellate courts determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Parker v. State, 320 Ga.App. 319, 319(1), 741 S.E.2d 159 (2013). And “as long as there is some evidence, even though contradicted, to support each necessary element of the [S]tate's case, the verdict will be upheld.” (Citation and punctuation omitted.) Anderson v. State, 315 Ga.App. 679, 682(1), 727 S.E.2d 504 (2012). Therefore, “[a]rguments about discrepancies in the victim's testimony and credibility and other factual issues relate entirely to matters within the exclusive province of a jury.” (Citation and punctuation omitted.) Parker, 320 Ga.App. at 321(1), 741 S.E.2d 159. “And any inconsistencies between the victim's trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this [C]ourt's sufficiency of the evidence review.” (Citation and punctuation omitted.) Chamblee v. State, 319 Ga.App. 484, 485, 735 S.E.2d 810 (2012).

Ottley also argues that the evidence was insufficient because it did not exclude every other reasonable hypothesis save that of his guilt. But “[Ottley's] reliance upon the reasonable hypothesis rule, set forth in [former] OCGA § 24–4–6, is misplaced, as this rule applies only when the evidence is entirely circumstantial.” (Citation omitted.) Cubia v. State, 298 Ga.App. 746, 748(1), 681 S.E.2d 195 (2009). “Because the victim's testimony provided direct evidence of [Ottley's] guilt, the reasonable hypothesis rule is not at issue here.” (Citation omitted; emphasis in original.) Mack v. State, 294 Ga.App. 518, 519, 669 S.E.2d 487 (2008).

Based upon our review of the record, we find that the evidence presented at trial, when viewed in the light most favorable to the verdict, was sufficient to authorize a rational jury to find Ottley guilty beyond a reasonable doubt of the crimes for which he was convicted and sentenced. See Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781.

2. Ottley next argues that he received ineffective assistance of counsel because his trial counsel failed to properly prepare for trial or to adequately test the expert medical evidence presented by Cooley and Dr. Mansfield on behalf of the State. He notes that his trial counsel failed to interview either of these witnesses before trial, asked only two questions of Dr. Mansfield on cross-examination, and failed to cross-examine Cooley at all.

In order to prevail on this claim, [Ottley] must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct, and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. We accept ...