Sneed v. State

• Decision Date: 07 July 2016
• Docket Number: A16A0328
• Citation: 337 Ga.App. 782,788 S.E.2d 892
• Parties: Sneed v. The State
• Court: Georgia Court of Appeals

337 Ga.App. 782

788 S.E.2d 892

Sneed

v.The State

A16A0328

Court of Appeals of Georgia.

July 7, 2016

Teresa Lynn Doepke, for Appellant.

Gerald Mason, Atlanta, for Appellee.

McMillian

, Judge.

In this out-of-time appeal, Lamarkas Sneed appeals the denial of his motion for a new trial after a jury convicted him of aggravated sexual battery. On appeal, Sneed asserts that the trial court erred in admitting certain evidence, in denying his motion for new trial on the grounds of ineffectiveness of counsel, and in failing to charge the jury on the issue of consent. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict,¹ the evidence shows that at the time of the incident, the victim lived with her mother and her two younger brothers, and Sneed was temporarily staying with the family. Sneed and the victim's mother had been involved in a romantic relationship, and Sneed is the father of the younger of the victim's brothers.

On January 24, 2011, Sneed, the victim, her mother, and her brothers were all watching a movie in her mother's bedroom. Everyone except the older of her two brothers was on the bed. Later, after the victim's older brother left the room, the victim, her mother, and her younger brother fell asleep. The victim, who was 17 years old at the time, testified that she was awakened by Sneed touching her buttocks and that he then put his fingers in her vagina. The victim said that she was too scared to speak at that point, but she tried unsuccessfully to wake up her mother by tapping her on the arm. The victim then got up and left the room without saying anything and went to her own bedroom.

Once the victim was in her room she texted her older brother to come in and also called her grandmother. The victim asked her grandmother to come over and told her that Sneed had touched her. When the victim's brother got to the victim's room, the door was locked and she was “balled up crying behind the door.” The victim refused to tell her brother what happened until their grandmother got there, but after she arrived, the victim said that Sneed had touched her.

The grandmother testified that when she arrived Sneed answered the door, at which time she confronted him about touching her granddaughter. Sneed denied doing anything wrong. The victim's mother heard the grandmother and Sneed talking and came upstairs, at which point the grandmother told the mother that Sneed was “messing with your daughter while you're asleep.”

At his grandmother's direction, the brother called 911. Officer T. Barnes arrived on the scene and detained Sneed. Officer Barnes proceeded into the house and spoke with the victim, whom he described as being “withdrawn” and “distraught.” The victim told Officer Barnes that everyone fell asleep watching a movie and that she woke up to Sneed “rubbing her vagina, her vaginal area, and then he placed his finger inside of her. She said she wanted to scream out, but she was afraid that she would not be believed by her mother.” The victim also told Officer Barnes that “she tried to stop him and he would not stop,” and that she attempted to remove Appellant's hands from her pants. Officer Barnes testified that the statements given by the brother and grandmother were consistent with what the victim had told him.

Officer Barnes contacted Detective Angela Finley of the DeKalb County Police Department's Special Victims Unit. Finley met the victim and Officer Barnes at police headquarters, where the victim gave two statements to the detective, one written and one verbal. The victim told Finley that her mother's boyfriend “had inappropriately touched her” and that “he had used his finger to rub on her vagina.”

The victim also testified that when she was around seven or eight years old, Sneed would come into her room while she was asleep and pull the covers off of her. She told her mother about this, but her mother questioned whether it had really happened. The victim's grandmother testified that the victim recently told her that the victim had reported to her mother when she was around eight that Sneed had come into her room and lifted the covers off of her. Officer Barnes stated that at the scene the victim said to him that an incident like this had happened before but her mother did not believe her, and Finley testified that the victim told her about two other incidents where Sneed touched her inappropriately when she was five or six years old but her mother did not believe her. The mother also testified that the victim told her that Sneed touched her on “the behind” when she was seven or eight, but the mother did not believe at the time that the touch was of a sexual nature.

On the night of the incident in question, Sneed told the mother that “he didn't touch” the victim. However, a month or two later, the mother received a letter in the mail from Sneed, in which he admitted to sticking his finger in the victim's vaginal area. In the letter, Sneed claimed that the victim initiated the contact by rubbing her feet on his penis. Sneed claimed that the victim did not try to stop him from touching her vagina, and, in fact, she moved to make it easier for Sneed to take her pants off and that the victim was not wearing any panties. The mother testified that such actions were uncharacteristic of her daughter.

On September 29, 2011, Sneed was convicted of aggravated sexual battery, and on April 8, 2015, the trial court denied his motion for new trial. Sneed filed his notice of appeal 35 days later, on May 13, 2015. This Court dismissed the appeal because the untimely notice was insufficient to confer jurisdiction for appellate review. However, Sneed subsequently moved for an out-of-time appeal, and the trial court granted the motion. This appeal followed.

1. In his first two enumerations of error, Sneed argues that the trial court erred in admitting testimony and evidence of pretrial statements made by several of the State's witnesses. For this Court to reverse a trial court's decision to admit evidence, the objecting party must show “error triangulation,” that is, “(1) error, (2) contemporaneous objection, and (3) harm as a result of that error.” (Citation and punctuation omitted.) Scoggins v. State , 306 Ga.App. 760, 762, 703 S.E.2d 356 (2010)

. Because the record demonstrates that Sneed failed to properly object to the admission of the cited evidence, we find no error.

(a) Sneed argues that the trial court erred in admitting testimony from the victim's brother, grandmother, mother, and Officer Barnes

regarding statements the victim made about the events on the night in question and the earlier incidents involving Sneed when the victim was younger. Sneed asserts that no foundation was laid for the admission of either prior consistent or inconsistent statements by the victim and that this evidence improperly bolstered the victim's testimony. However, Sneed failed to raise any contemporaneous objection to the cited testimony at trial and thus failed to preserve these arguments for appeal. See Hatcher v. State , 286 Ga. 491, 493, 690 S.E.2d 174 (2010)

, overruled on other grounds by State v. Kelly , 290 Ga. 29, 718 S.E.2d 232 (2011) (argument that State failed to lay foundation for prior inconsistent statement waived where defendant raised no objection at trial); Moore v. State , 246 Ga.App. 163, 166, 539 S.E.2d 851 (2000) (appellate court will not address issue of whether cited testimony improperly bolstered other witness testimony where this argument was not presented to or ruled upon by the trial court).

(b) Sneed also asserts that the trial court erred in allowing into evidence written statements given by the victim's brother and grandmother at the police station on the night of the incident and in allowing those witnesses to read their statements to the jury. Sneed's counsel objected to the introduction of both statements on the ground of hearsay and added, in objecting to the brother's statement, that she “[hadn't] heard anything that's inconsistent.” The trial court overruled the objections. Although the stated basis for Sneed's objections was hearsay (and possibly the failure to provide a foundation for admission of the brother's written statement as a prior inconsistent statement), he argues on appeal the trial court erred in admitting the written statements as prior consistent statements, which improperly bolstered the witnesses' credibility. Sneed's failure to object on the grounds urged on appeal waives the issues for appellate review. “To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (Citation and punctuation omitted.) Scoggins , 306 Ga.App. at 762 (1), 703 S.E.2d 356

. See also Wallace v State , 302 Ga.App. 410, 411, 691 S.E.2d 557 (2010) (“Failure to object to evidence on a certain ground in the trial court waives consideration of that ground on appeal.”).

2. Sneed further asserts that the trial court erred in admitting testimony from Finley commenting on the victim's credibility and testimony from the victim's mother commenting on both the victim's and Sneed's credibility. Finley testified that she interviewed the victim twice. In the second interview, she sought to clarify the victim's first statement and thus the detective was “a little bit harder” on her and “interrogated her a little bit more.” The detective opined, “I think she was just more credible the second time when I interviewed her” because she was “more teary-eyed,” never deviated from her original statement, and gave more detail about the earlier incidents. Additionally, the mother agreed with the prosecutor during direct examination that as a mother she had the ability to get to the truth when she talked to her child one-on-one, and she stated, “I knew from the way my daughter was sounding and the look on her face and the way she was acting, I knew that she was telling me the truth.” In addition, the mother testified...