State v. Crist

• Decision Date: 18 May 2017
• Docket Number: A17A0052
• Citation: 801 S.E.2d 545
• Parties: The STATE v. CRIST.
• Court: Georgia Court of Appeals

341 Ga.App. 411

801 S.E.2d 545

The STATE

v.CRIST.

A17A0052

Court of Appeals of Georgia.

May 18, 2017

Andrew J. Ekonomou, Atlanta, Jacquelyn Lee Johnson, Thomas Edward Buscemi, for Appellant.

Jonathan Pratt Lockwood, Nzingha Kiziwanda Hooker, for Appellee.

Dillard, Presiding Judge.

A jury convicted Carl Crist of three counts of sexual battery. Crist filed a motion for new trial, which the trial court granted because it found that, during the oral charge to the jury, it inadvertently omitted the elements of sexual battery. The State appeals, arguing that the trial court erred in granting Crist a new trial because he failed to carry his burden of establishing that the jury charge, taken as a whole, constituted plain error. We agree, and for the reasons set forth infra , reverse.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that on May 15, 2012, then-14-year-old D. M. reported to a teacher that her stepfather, Crist, had been molesting her. The school immediately contacted D. M.'s mother and the police, and D. M. made a report to a police officer.

When D. M. was approximately nine or ten years old, her mother began living with Crist. D. M. did not recall when the abuse began, but Crist frequently touched her on her chest, buttocks, and vagina with his hands. This happened more than 20 times. The abuse occurred in D. M.'s bedroom at night, while her mother was away at work.

When Crist touched her, D. M. would tell him to stop and go away, and she would hit him. Although Crist would occasionally listen to her pleas, he continued to abuse D. M. At the time of her outcry, D. M. shared a bedroom with her three sisters, then twelve-year-old I. M., then four-year-old S. C., and then two-year-old A. C. At trial, I. M. confirmed that Crist would come into their room at night and "mess with" D. M. I. M. witnessed Crist pick up the covers on D. M.'s bed, and she heard D. M. yell at Crist to leave her alone and get out of their bedroom. I. M. also told police that Crist "molested" D. M. Moreover, D. M.'s mother argued with Crist about him going into the children's bedroom at night. She also discovered, on Crist's cell phone, a picture he had taken of D. M., from the waist down, sleeping. D. M. was wearing shorts in the picture, but her underwear was also showing.

At trial, the court admitted, over his objection, a portion of Crist's statement to police. Crist admitted to an investigator that he had gone into D. M.'s bedroom at night, and that he had physical contact with the child while in her room. Notwithstanding these admissions, Crist denied touching D. M. inappropriately. Crist told police that he believed D. M. had confused other behavior—such as his looking in D. M.'s bed for his cell phone, moving her leg onto the bed, and touching her waist to wake her up—with molestation.

Thereafter, Crist was charged by indictment with three counts of sexual battery and three counts of child molestation. The jury convicted him on all the sexual-battery counts and found him not guilty of the child-molestation counts. Crist filed a motion for new trial, arguing, inter alia , that the trial court failed to fully instruct the jury on the elements of sexual battery, in that the charge given by the court omitted the element of lack of consent. Following a hearing, the trial court granted Crist's motion, finding that, when it read the written instructions at the conclusion of the trial, it had inadvertently omitted the page of the instructions defining the crime of sexual battery. The court found that this was an obvious error. Although the written instructions included the complete instructions on sexual battery,² the written instructions were provided to the jury before they began their deliberations, and the definition of sexual battery had been underlined by one of the jurors during deliberation, the trial court found that this was "unsubstantiated evidence that the error did not affect the outcome of the proceedings[.]" And the court declared that it would not "assume that all jurors read the definition of sexual battery in the jury room." The court further found that this error affected Crist's "substantial rights" and significantly affected the fairness, integrity, or public reputation of the judicial process because the jury should have been instructed on the elements of each crime at the same time to ensure fairness and "should not have been required to rely solely on the written charge." This appeal by the State follows.³

In its sole enumeration of error, the State argues that the trial court erred in granting Crist's motion for new trial because the jury instructions, taken as a whole, properly instructed the jury on the elements of sexual battery, such that the omission of the instructions during the oral charge did not constitute plain error. Specifically, the State asserts that Crist failed to show that the omission of the oral instruction on the elements of sexual battery likely affected the outcome of the trial and the court impermissibly shifted the burden to the State to show no plain error. We agree.

Although Crist does not directly challenge the sufficiency of the evidence as to his convictions for sexual battery, the evidence was sufficient to sustain the guilty verdicts.⁴ Additionally, while the "first grant of a new trial on general grounds is reviewed for abuse of discretion,"⁵ this Court reviews "de novo the trial court's first grant of a new trial on a special ground involving a question of law."⁶ And here, the trial court granted Crist a new trial on a special ground, namely that the court's failure to give an oral charge on sexual battery was plain error.

In beginning our analysis, it is important to note that under OCGA § 17–8–58, "[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate." But Crist did not object to any portion of the trial court's jury instructions. His failure to so object precludes "appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties."⁷ In such cases, the proper inquiry is whether "the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings."⁸ In this regard, our Supreme Court has adopted the four-part federal plain-error standard:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth

and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.⁹

Consequently, because Crist failed to object to the jury charges, our review is limited to determining whether plain error occurred.¹⁰ Moreover, as our Supreme Court has emphasized, satisfying the plain-error standard "is difficult, as it should be."¹¹ And the burden of establishing plain error falls squarely on the defendant.¹²

With these guiding principles in mind, we turn now to the State's specific claim of error. It is, of course, well established that "the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness."¹³ And for purposes of plain-error analysis, the "charge" includes "not only ... instructions given orally to the jury, but necessarily must apply to any written instructions given to the jury."¹⁴ In this regard, at the start of Crist's trial, the trial court read the indictment to the jury, including the three charges of sexual battery. In its relevant parts, the indictment charged that Crist: "intentionally made physical contact with the intimate parts of the body of D. M., a child under the age of sixteen years, by placing his hand upon" her buttocks, breast, and vagina, "without the consent of said child."¹⁵ After closing arguments, the court instructed the jury, "I'm going to give you the law that applies to this case. You're going to have a copy of this out with you, so you don't have to try to write it all down. It's a lengthy charge...." And the trial court reminded the jury that it had read the indictment and that the jury would have a copy of the indictment as well, before it further instructed the jury on the presumption of innocence and the State's burden to prove Crist's guilt beyond a reasonable doubt. The court then specifically instructed the jury: "The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime or crimes charged beyond a reasonable doubt." After giving additional instructions on the meaning of reasonable doubt, the consideration of the evidence, and criminal intent, the court charged the jury on the elements of child molestation and on the statute of limitation for child molestation and sexual battery, but failed to give any oral instructions on the elements of sexual battery. After the court explained the verdict form and gave its final instructions, the jury began deliberations.

Given the foregoing, even assuming that the trial court's failure to include the elements of sexual battery in its oral charge to the jury constituted an obvious error,¹⁶ Crist has failed to show that this omission likely affected the outcome of the proceedings. Notably, the indictment, including the elements of the charge of...