Pearce v. State, A09A1055.

• Decision Date: 05 November 2009
• Docket Number: No. A09A1055.,A09A1055.
• Citation: 686 S.E.2d 392
• Parties: PEARCE v. The STATE.
• Court: Georgia Court of Appeals

686 S.E.2d 392

PEARCE v. The STATE.

No. A09A1055.

Court of Appeals of Georgia.

November 5, 2009.

Macklyn A. Smith, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., for appellee.

BERNES, Judge.

Following a jury trial, James Pearce was convicted of aggravated sexual battery, incest, child molestation, and statutory rape. On appeal from the trial court's denial of his motion for new trial, Pearce contends that the trial court erred (1) in denying his motion for a directed verdict as to the aggravated sexual battery charge; (2) in failing to excuse a prospective juror for cause; (3) in failing to declare a mistrial sua sponte when a state's witness and the prosecutor made allegedly improper comments before the jury; (4) in sustaining an objection to defense cross-examination on a ground other than that propounded by the state; (5) in admitting carpet and DNA evidence when the state failed to establish a proper chain of custody; and (6) in admitting certain testimony from a nurse practitioner. He further contends that his trial counsel rendered ineffective assistance. We discern no error and affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence at trial showed that Pearce is the uncle of B.F. When B.F. was seven years of age, her mother passed away and she went to live with Pearce and his wife. B.F. testified that over the course of the five-year period that she lived at the residence, Pearce sexually abused her. The acts of sexual abuse that B.F. recounted at trial, included multiple acts of sexual intercourse, oral sex, and at least one occasion in which Pearce had penetrated his finger into her vagina. Pearce told B.F. that the sexual abuse was their "secret" and instructed her not to tell anyone.

During the summer of 2005, when B.F. was thirteen years old, she disclosed the sexual abuse to her two best friends. B.F.'s friends told their mothers about the disclosure, and the matter was reported to the Department of Family and Children Services ("DFACS").

DFACS and police investigations ensued. During initial interviews conducted in the course of these respective investigations, B.F. recanted her prior sexual abuse allegations. B.F. later testified at trial that she was afraid to disclose the incidents during the investigations because she was still living with the Pearces and feared being punished by them.

Several days after her initial interviews, however, B.F. called the DFACS caseworker again and reasserted her claims regarding the sexual abuse. The caseworker contacted a detective with the Gwinnett County Police Department's Special Victims Unit to conduct another investigation into the allegations. During subsequent interviews with the detective, B.F. disclosed the molestation incidents. B.F. was taken into DFACS custody and was removed from the Pearce residence.

B.F. received a medical examination by a nurse practitioner who specialized in child molestation and sexual assault examinations. While providing her medical history for the examination, B.F. again disclosed the sexual abuse. The nurse practitioner testified that she observed narrowing in B.F.'s vaginal hymen during the examination that was consistent with penetration and B.F.'s allegations.

During the investigation, B.F. identified the locations in the residence where the molestations occurred and related that Pearce had ejaculated on the carpet in the basement during one of the incidents. The detective obtained warrants authorizing the search and seizure of evidence in Pearce's residence and the procurement of Pearce's DNA sample. A piece of the soiled carpet from the basement of the residence, along with Pearce's DNA sample, were collected and sent to the Georgia Bureau of Investigation(GBI)Crime Laboratory for testing. The test revealed that the carpet contained seminal fluid, the DNA of which matched Pearce's.

Based upon the foregoing evidence, Pearce was convicted of the multiple sexual offenses.

1. On appeal, Pearce challenges the sufficiency of the evidence to sustain his aggravated sexual battery conviction. He contends that the trial court erred in denying his motion for a directed verdict on this charge. We disagree.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the [s]tate's witnesses, are a matter of credibility for the jury to resolve.

(Footnote omitted.) Hutchinson v. State, 287 Ga.App. 415, 651 S.E.2d 523 (2007). "A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2(b). A "foreign object" can include a finger. See Hutchinson, 287 Ga.App. at 417, 651 S.E.2d 523.

The trial evidence in this case included the testimony of the nurse practitioner, who stated that B.F. had disclosed in her medical examination that Pearce had "put his fingers in her private part" during one of the sexual encounters.² This evidence established the offense. See OCGA § 16-6-22.2(b). While it is true that B.F. had recanted her allegations during the initial investigations and testified at trial that she could not recall whether Pearce had penetrated her with his finger, such inconsistencies and conflicting evidence only created a question of credibility for the jury's resolution.³ See Colton v. State, 297 Ga.App. 795 796-797(1), 678 S.E.2d 521 (2009); Harvey v. State, 295 Ga.App. 458, 460, 671 S.E.2d 924 (2009); Hutchinson, 287 Ga.App. at 417-418, 651 S.E.2d 523. Because there was some evidence establishing Pearce's commission of the aggravated sexual battery offense, the trial court's denial of the motion for directed verdict was proper.

2. Pearce further contends that the trial court erred in failing to excuse prospective juror no. 12 for cause.⁴ During voir dire examination, the prospective juror stated that he had been a victim of child molestation. When asked whether he "could set aside that experience and be fair and impartial listening to evidence in this case," the prospective juror responded, "I think I probably could." And upon further examination, the prospective juror confirmed that if selected to serve on the jury, he would be able to apply the law as the trial judge instructed and be fair to both parties. The prospective juror did not indicate that he had any feelings of bias against Pearce personally.

Pearce nevertheless argues that the prospective juror's bias was demonstrated by evidence that he told a fellow prospective juror that he wished that the case involved anything but child molestation. In denying Pearce's motion to strike for cause, the trial court reasoned that the alleged comment did not establish a bias or a fixed belief in the guilt or innocence of the accused, but rather reflected a common opinion of jurors in this type of case involving a difficult and unpleasant subject. In light of the prospective juror's responses that he could be fair and impartial, the trial court concluded that removal for cause was not required.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause.

(Punctuation and footnotes omitted.) Brown v. State, 243 Ga.App. 632, 632-633(1), 534 S.E.2d 98 (2000). Because the prospective juror had stated that he could set aside his prior experience and determine the issues fairly and impartially based upon the evidence and the court's instructions, the trial court did not abuse its discretion in refusing to strike him for cause. "A juror who expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service." (Punctuation and footnotes omitted.) Id. at 633(1), 534 S.E.2d 98 See also Roberts v. State, 258 Ga.App. 107, 109(3), 572 S.E.2d 744 (2002) (a prospective juror who had been a victim of child molestation was not disqualified from service in the case involving child molestation); Green v. State, 249 Ga.App. 546, 552-553(3), 547 S.E.2d 569 (2001); Gibbins v. State, 229 Ga.App. 896, 898-899(3), 495 S.E.2d 46 (1997).

3. Next, Pearce argues that the trial court erred in failing to declare a mistrial, sua sponte, based upon allegedly improper comments made by a state's witness and the prosecutor. He contends that the comments tainted the jury and deprived him of a fair trial.

(a) Pearce first complains that the DFACS case manager improperly commented that she believed "[t]hat there was more to the story" than what the victim revealed during her initial interview. Upon hearing the comment, the trial court immediately interrupted the questioning and called both counsel to the bench for a conference to address the matter. During the bench conference, trial counsel requested that a curative instruction be given to the jury to disregard the comment. The trial court gave the jury a curative instruction, as requested. No further relief was sought.

"Because [Pearce] failed to ask for a mistrial ..., the trial court did not err in failing to give one sua sponte." Morrison v. State, 276 Ga. 829, 834(4), 583 S.E.2d 873 (2003). See also Phagan v. State, 243 Ga.App. 568, 568-569(1), 533 S.E.2d 757 (2000). The trial court's curative instruction provided a sufficient remedy and a mistrial was...