Payne v. State

• Decision Date: 26 March 2008
• Docket Number: No. A07A2244.,A07A2244.
• Citation: Payne v. State, 290 Ga. App. 589, 660 S.E.2d 405 (Ga. App. 2008)
• Parties: PAYNE v. The STATE.
• Court: Georgia Court of Appeals

290 Ga. App. 589

660 S.E.2d 405

290 Ga.App. 589

PAYNE v.The STATE.

No. A07A2244.

Court of Appeals of Georgia.

March 26, 2008.

Brian Steel, for Appellant.

David McDade, Dist. Atty., James Edward Barker, and James Alan Dooley, Asst. Dist. Attys., for Appellee.

BARNES, Chief Judge.

Christopher Payne appeals his convictions for two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children.He contends the State failed to prove venue, that the trial court erred by admitting evidence of a similar transaction, that his right to be present at every significant proceeding was violated, and that his defense counsel was ineffective.Finding no reversible error, we affirm Payne's convictions.

Viewed in support of the verdict, the evidence shows that the victim, Payne's adopted stepdaughter, approached a police officer at her school in Douglas County and reported that Payne had molested her and had been having sexual intercourse with her for many years.The officer took the victim to the Douglas County Sheriff's Office where she stated in a videotaped interview that Payne had molested her and had sexual intercourse with her in their home.The tape was played for the jury.In her statement the victim repeated her allegations, but 22 months later she recanted.Nevertheless, Payne was indicted for two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children.At trial, the victim admitted that she told the officers that Payne committed the sexual acts in her room at her house and that she told a friend that Payne had touched her sexually.

After the jury convicted Payne on all counts, he was sentenced to 40 years in prison with 20 to serve.

1.As Payne has not challenged the sufficiency of the evidence apart from his allegation regarding venue, no issue concerning the sufficiency of the evidence to prove the other elements of the crimes of which he was convicted is properly before us.Nevertheless, we find the evidence sufficient on all the other elements to sustain his convictions.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Payne contends the State failed to prove venue because it did not prove that the crimes alleged were committed in Douglas County where he was tried.Under our Constitution, proper venue in all criminal cases is the county in which the crime was allegedly committed and is a jurisdictional fact¹ that must be proved by the prosecution beyond a reasonable doubt.Jones v. State,272 Ga. 900, 901(2), 537 S.E.2d 80(2000).The prosecution may prove venue by direct and circumstantial evidence.Id. at 902-903, 537 S.E.2d 80.

The standard of review is whether, considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt.Jones v. State,supra, 272 Ga. at 902-903, 537 S.E.2d 80.Further, "because venue is an essential element of the State's case and must be decided by a jury, only evidence presented to the jury may be considered on appeal."Thompson v. State,277 Ga. 102, 586 S.E.2d 231(2003)(evidence showing that the act supporting child molestation charge occurred at residence and that the residence was in Houston County sufficient to prove venue).

The evidence shows that the prosecution proved that the victim's neighbor lived in Douglas County, the officials who investigated the crime were employed by the Douglas County Sheriff's Department, employees of the Douglas County Department of Family and Children Services("DFCS") were involved in the victim's case, the Douglas County Juvenile Court was involved in the proceedings, and a hospital report created by a nurse, detailing both the victim's and the investigator's statements, states that the victim's home where the molestation was alleged to have taken place was in Douglasville, Georgia, in Douglas County.The statements by the victim in this report, although arguably hearsay, are admissible under the child hearsay statute, OCGA § 24-3-16.

Most significantly, the victim's friend testified that she told them that Payne had molested her in their home, and the victim said in her statement to the authorities that Payne molested and had sexual intercourse with her in their home.She also admitted that she told a friend that Payne molested her in her bedroom.

"In light of the well-settled principle that public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise, the jury was authorized to find the [DFCS employees] acted within the territorial jurisdiction in which [they] testified [they were] employed."Chapman v. State,275 Ga. 314, 317-318(4), 565 S.E.2d 442(2002).While evidence that authorities from Douglas County investigated the case would not be sufficient by itself to prove venue in Douglas County, In the Interest of B.R.,289 Ga.App. 6, 8(2), 656 S.E.2d 172(2007), nor would evidence that the neighbors' home is in Douglas County, Jones v. State,supra, 272 Ga. at 903-904, 537 S.E.2d 80;King v. State,271 Ga.App. 384, 387(1), 609 S.E.2d 725(2005), the victim's videotaped statement and her statements to her friends that she was molested in her home, when coupled with the other evidence that the home was located in Douglas County, was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the crimes were committed in Douglas County.Franklin v. State,279 Ga. 150, 153(3), 611 S.E.2d 21(2005)(venue established on admission of appellant's property survey showing location in county as well as license for business on that property);Thompson v. State,supra, 277 Ga. at 104(3), 586 S.E.2d 231.

3.Payne also contends the trial court erred by admitting evidence of his prior "unrelated" rape of an adult woman and burglary of her apartment.We find no error.

When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.SeeHarris v. State,222 Ga.App. 52, 53(2), 473 S.E.2d 232[ (1996) ].Similar transaction evidence can be introduced to prove bent of mind when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense.SeeBanks v. State,216 Ga.App. 326, 327(2), 454 S.E.2d 784[ (1995) ].

Fields v. State,223 Ga.App. 569, 571(2), 479 S.E.2d 393(1996).This rule allowing the admissibility of similar transactions is most liberally extended in the area of sexual offenses, particularly sexual offenses against children.Johnson v. State,242 Ga. 649, 653(3), 250 S.E.2d 394(1978).

4.Payne further alleges that his right to be present at all critical stages of his trial was violated because the trial court addressed the venire panel and spoke to one of the jurors individually without him or his counsel present.SeeArt. I, Sec. I, Par. XII, Ga. Const.(1983).The right of the defendant to be present at all proceedings against her is an important right guaranteed by our State Constitution, Wilson v. State,212 Ga. 73, 74, 90 S.E.2d 557(1955), and if a defendant is denied the right to be present at a critical stage, prejudice is presumed and a new trial is mandated.Pennie v. State,271 Ga. 419, 422, 520 S.E.2d 448(1999).Additionally, the appellate courts of this state have emphasized the importance of trial courts not engaging in any type of ex parte communications with jurors.See, e.g., Hanifa v. State,269 Ga. 797, 807, 505 S.E.2d 731(1998);Berryhill v. State,235 Ga. 549, 554(12), 221 S.E.2d 185(1975).

This record shows, however, that Payne's right to be present at all critical stages of the proceedings was not denied.The trial court's order denying Payne's motion for a new trial reveals that

during the term of court at which this matter was tried, the [trial judge] was the Presiding Judge for the Circuit.In that capacity it was the undersigned's responsibility to address the entire array of all the jurors who had been summoned for any trials for that week in the jury assembly area on the main level of the courthouse to ascertain whether or not any of the jurors should be excused or postponed to another week due to their circumstances.Further, the juror at issue was excused for cause on the defendant's motion.As far as this court is aware, there is nothing improper about this practice, and the defendant did not raise any request to be present during such process prior to the motion for new trial to object to that method of dealing with juror excuses.

The record also reflects that on the first session of the first day of Payne's trial the judge went to where the potential jurors were assembled for the administrative matters noted in the order and when he returned, he said that he had "one police officer that asked to be excused.I think — presumed you would have wanted him excused for cause, so I let him be excu — well, actually he was not excused.We postponed him to a civil week, but I presume that you wouldn't want a police officer on there."Later, the court welcomed the potential jurors to the courtroom, and after reading the indictment to them, the transcript shows the voir dire oath was administered and the court asked whether any of them had formed or expressed any opinion in regard to the guilt or innocence of the accused.One potential juror, Mr. Adams, answered in the...