Parker v. State

• Citation: 642 S.E.2d 111,283 Ga. App. 714
• Decision Date: 18 January 2007
• Docket Number: No. A06A1813.,A06A1813.
• Parties: PARKER v. The STATE.
• Court: United States Court of Appeals (Georgia)

283 Ga. App. 714

642 S.E.2d 111

PARKER v. The STATE.

No. A06A1813.

Court of Appeals of Georgia.

January 18, 2007.

Reconsideration Denied February 23, 2007.

Benjamin C. Free, Winder, for appellant.

Daniel J. Porter, District Attorney, Tracie J. Hobbs, Assistant District Attorney, Lawrenceville, for appellee.

BERNES, Judge.

A Gwinnett County jury found Walter Stephen Parker guilty of two counts of child molestation. On appeal from the denial of his amended motion for new trial, Parker argues that he was denied his constitutional right to a speedy trial; that the trial court erred in admitting certain similar transaction evidence; and that the two child molestation counts should have been charged as one count in the indictment and merged for purposes of sentencing. Finding no error, we affirm.

Viewed in the light most favorable to the jury verdict, the evidence adduced at trial shows that the female victim was best friends with Parker's daughter, J.P. It was not uncommon for the two girls to spend the night at each other's homes or for the two families to get together for dinner, shopping, or other activities. At the time of the alleged molestation, both girls were 13 years old.

J.P. lived with Parker in Gwinnett County, but would periodically visit her mother (Parker's ex-wife) in Texas. On June 11, 1999, J.P. was returning from a visit with her mother. The victim rode with Parker to pick up J.P. at the Atlanta airport. On the way, Parker leaned over the victim and locked the car door, intentionally causing his arm to move across the victim's chest. He then touched the victim's chest both over and under her clothes, and he rubbed her legs. Parker asked the victim if she liked what he was doing, and she said no. Nonetheless, after parking the car at the airport, Parker placed his mouth on the victim's breasts under her clothes.

After picking up J.P. from the airport, Parker drove back home with the two girls. The victim decided to spend the night at the Parker residence and catch up with J.P. Later that night, the victim told J.P. what had happened on her trip to the airport with Parker. However, neither of the girls told anyone else what had happened at that time.

Early the next morning, Parker went into J.P.'s room where the two girls were sleeping. The victim awoke as Parker touched her breasts and vagina both over and under her clothes. Although J.P. did not see what occurred, she woke up and saw Parker as he was leaving the room.

Later that morning, the victim told J.P. what Parker had done to her in the bedroom. The victim, visibly distraught, also told her parents what had occurred, and J.P. called her mother in Texas. The police were contacted, who commenced an investigation and took statements from J.P., the victim, and the victim's parents. During the investigation, J.P. disclosed that in 1998, Parker had repeatedly come into her bedroom at night and did the same things to her that he had done to the victim.

Parker was arrested on June 13, 1999 but subsequently was released on bond. Following his arrest, Parker was indicted on two counts of child molestation. Count 1 alleged that Parker committed child molestation on July 12, 1999 "by touching [the victim's] breast with his hand." Count 2 alleged that Parker committed child molestation on that same date "by touching [the victim's] vagina with his hand." Parker was tried and convicted on both counts in October 2003.

1. At trial, the victim took the stand and described what Parker had done to her on the way to the airport, in the airport parking lot, and in J.P.'s bedroom. The state also presented testimony from J.P., J.P.'s mother, the victim's parents, and the law enforcement officer who interviewed the victim. Although Parker did not raise the general grounds, we conclude that based on the evidence adduced at trial, any rational trier of fact could have found him guilty beyond a reasonable doubt of the two counts of child molestation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Tyler v. State, 279 Ga.App. 809, 811(1), 632 S.E.2d 716 (2006); Hines v. State, 277 Ga.App. 404, 405(1), 626 S.E.2d 601 (2006).

2. Approximately four weeks before trial, Parker moved to dismiss the indictment on the ground that his constitutional right to a speedy trial had been violated, given the lengthy delay between the time of his arrest and his trial. After conducting a pre-trial hearing, the trial court found that the length of the delay was unusual, but denied the motion based on its finding that Parker had asserted his right in an untimely manner and had suffered no prejudice as a result of the delay. On appeal, Parker contends that the trial court abused its discretion in denying his motion. We disagree.

"A speedy trial is guaranteed an accused by the Sixth Amendment to the Constitution of the United States, and also Art. I, Sec. I, Par. XI (a) of the 1983 Ga. Constitution." (Citation and punctuation omitted.) Roberts v. State, 279 Ga.App. 434, 436, 631 S.E.2d 480 (2006). Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) sets forth the four-part test for determining whether an accused's constitutional speedy trial rights have been violated. Under that test, we must consider

(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. The factors should be considered together in a balancing test of the conduct of the prosecution and the defendant. Absent an abuse of discretion, we must affirm the trial court's balancing and weighing of the four Barker factors.

(Citations, punctuation and footnote omitted.) Nusser v. State, 275 Ga.App. 896, 897, 622 S.E.2d 105 (2005). We will address the four factors each in turn.

(a) The Length of the Delay. As to the first Barker factor, the record reflects that the delay between Parker's arrest and the date of his trial was approximately four years and four months. "As a general rule, any delay approaching a year raises a threshold presumption of prejudice." (Citations omitted.) Nusser, 275 Ga.App. at 897, 622 S.E.2d 105. Hence, the trial court was entitled to treat the delay as creating a rebuttable presumption of prejudice.

(b) The Reason for the Delay. Regarding the second Barker factor, the transcripts of the calendar calls held in this case reflect that many of the delays were caused by requests for continuances, sometimes made by the state and sometimes made by defense counsel. At the hearing on the motion to dismiss, the state explained that the continuances it sought were due to logistical problems associated with obtaining the attendance of out-of-state witnesses. In other instances, the transcripts reflect that both parties announced ready at the calendar call, but the trial nevertheless was later delayed for reasons not explained in the record. Given the lack of explanation, the delay in these specific instances must be treated as caused by the negligence of the state. See State v. Yates, 223 Ga.App. 403, 404(2), 477 S.E.2d 670 (1996).

Based on this record, we cannot say that the delay was attributable to a deliberate effort by the state to delay the trial in order to impair the defense. Instead, it appears that the delay was caused in part by the negligence of the state, and in part by the defense. Under these circumstances, the reason for the delay is viewed as "relatively benign" and need not be weighed heavily against the state, although it does constitute a negative factor. Smith v. State, 275 Ga. 261, 263, 564 S.E.2d 441 (2002); Perry v. Mitchell, 253 Ga. 593, 594-595, 322 S.E.2d 273 (1984).

(c) The Defendant's Assertion of the Right. As to the third Barker factor, the record shows that although he was arrested in 1999, Parker did not assert his constitutional right to a speedy trial until approximately four weeks before trial in 2003. We have emphasized that

[w]hile the state has a duty to bring the defendant to speedy trial, the defendant has a responsibility to assert that right. Even though a defendant is not procedurally barred from raising a constitutional speedy trial claim at any time up to the point of trial, a defendant's failure to assert his claim in a timely manner can be weighed heavily against him as part of the Barker analysis.

(Citations, punctuation and footnote omitted.) Nusser, 275 Ga.App. at 898, 622 S.E.2d 105. See also Snow v. State, 229 Ga.App. 532, 533-534, 494 S.E.2d 309 (1997). Given Parker's over four-year delay in asserting his right, the trial court was entitled to weigh this factor heavily against him. See id..

(d) The Prejudice to the Defendant. Under the fourth Barker factor, courts consider three interests protected by the right to a speedy trial in determining whether the defendant has suffered actual prejudice by the delay, namely, "preventing oppressive pretrial incarceration, minimizing a defendant's anxiety and concern, and limiting the possibility that the defense will be impaired." (Footnote omitted.) Beasley v. State, 260 Ga.App. 74, 76(d), 579 S.E.2d 19 (2003). "The most important component of the prejudice analysis is whether the defendant's ability to raise a defense was impaired by the delay." (Citation omitted.) Nusser, 275 Ga. App. at 900, 622 S.E.2d 105.

Here, there was no risk of oppressive pre-trial incarceration because Parker was released on bond following his arrest. See Nusser, 275 Ga.App. at 900, 622 S.E.2d 105 As to the issue of undue anxiety and concern, Parker claims in his appellate brief that he "was hospitalized on two occasion[s] for heart problems and eventually placed on disability due to his heart condition caused, in large part, by the stress of these charges." But, "[f]actual assertions in briefs that are unsupported by the record cannot be considered in the appellate process." (Citation omitted.) Robinson v. State, 200 Ga.App. 515, 516( 1), 408 S.E.2d 820 (1991). Parker points...