Towry v. The State

• Citation: 304 Ga.App. 139,695 S.E.2d 683
• Decision Date: 20 May 2010
• Docket Number: No. A10A0293.,A10A0293.
• Parties: TOWRYv.The STATE.
• Court: United States Court of Appeals (Georgia)

304 Ga.App. 139

695 S.E.2d 683

TOWRYv.The STATE.

No. A10A0293.

Court of Appeals of Georgia.

May 20, 2010.

COPYRIGHT MATERIAL OMITTED

M. Paul Reynolds, Decatur, for appellant.

David McDade, Dist. Atty., James A. Dooley, Asst. Dist. Atty., for appellee.

BERNES, Judge.

This case arises out of allegations that Paul Eric Towry fondled the genital area of J.L., his six-year-old granddaughter, during a weekend campout at his home. The jury found Towry guilty of child molestation, and the trial court denied his amended motion for new trial. On appeal, Towry contends that his trial counsel was ineffective by failing to object to testimony of a child therapist that allegedly bolstered the credibility of J.L. and went to the ultimate issue in the case; by failing to request that the video recording of his police interview be redacted to exclude certain allegedly prejudicial comments made by the interviewing investigator; by failing to object to testimony by the investigator that allegedly bolstered the credibility of the similar transaction witnesses; by failing to object when the prosecutor asked certain defense witnesses to comment on the veracity of other witnesses; by failing to prepare and present testimony from an expert in child interviewing techniques; and by failing to request jury charges on the defenses of accident and mistake of fact. For the reasons discussed below, we affirm.

Following a criminal conviction, we construe the evidence in the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent. Johnson v. State, 289 Ga.App. 206, 656 S.E.2d 861 (2008). So viewed, the evidence showed that Towry and his wife are the parents of two adult daughters, Jennifer and Sonja. According to both daughters, Towry repeatedly molested them in their pre-teen and early teenage years by fondling their private parts while their mother was absent from the residence working the night shift. In the years that followed the molestation, Jennifer and Sonja moved out of their parents' home and had their own children. Jennifer had two children: a son, M.L., and a younger daughter, J.L., the victim in this case.

On Saturday, August 9, 2003, M.L. and J.L. were spending the night with their grandparents, Towry and his wife. Two other grandsons also were present, and the plan was for M.L. and the other two grandsons to sleep outside in a tent. J.L., who was six years old, also wanted to sleep in the tent, but her grandmother did not believe that it was a good idea for a little girl to sleep in a tent with three older boys. On the other hand, Towry, who had been drinking heavily that day, said that J.L. could sleep in the tent. Towry also suggested that the three boys sleep naked in the tent. After the four grandchildren entered the tent, Towry joined them inside, wearing only his underwear. Once inside the tent, J.L. kept on her nightgown, but the three boys decided to sleep naked as Towry had suggested. Although J.L. wanted to sleep beside her brother M.L., Towry insisted that she sleep on the other side of the tent next to him. While Towry remained in the tent, his wife went back inside their home to sleep.

At some point during the night, Towry reached over and began rubbing J.L. all over her body, including her genital area and buttocks, while she was lying beside him. J.L. told Towry to stop, but he would not. When J.L. attempted to leave the tent, Towry would not let her go. After Towry stopped rubbing J.L., he exited from the tent and spent the rest of the night inside his home with his wife.

The following day, Jennifer learned for the first time that her ex-husband, with whom M.L. and J.L. had been staying for the weekend, had allowed the children to spend the night at their grandparents' home. Jennifer went to pick up the children. Upon her arrival, Towry waited until they were alone and then told Jennifer that he needed to speak with her. He told her, “I've done something I'm really ashamed of and I feel bad and I need to tell you.” When asked what he was referring to, Towry responded, “I touched [J.L.].”

Distraught, Jennifer inquired from J.L. whether Towry had touched her, and J.L. confirmed that he had done so. Jennifer then asked J.L. where Towry had touched her, and she responded, “Everywhere.” Jennifer inquired further about what had happened, and J.L. stated that Towry “started rubbing me and then just started touching me everywhere.”

After leaving with her children, Jennifer contacted the police, and a police investigator conducted separate interviews of Jennifer and J.L. later that same day. During her videotaped interview, J.L disclosed to the investigator that Towry had rubbed her private parts the previous night, that she had told Towry to stop but he would not, and that she had tried to leave the tent but Towry would not let her. The investigator also showed J.L. a drawing depicting a female, and J.L. circled the genital area and buttocks to reflect where Towry had rubbed her. J.L. subsequently met with a child therapist on several occasions and repeatedly made disclosures consistent with what she had told her mother and the investigator.

Following J.L.'s disclosures, and after learning from Jennifer and Sonja that they also had been molested by Towry, the investigator sought and obtained a warrant for Towry's arrest. Once taken into custody, Towry agreed to speak with the investigator after being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In a videotaped interview, Towry maintained that he had awoken in the middle of the night to find his hands upon J.L., but immediately had gotten up and left the tent once he realized that the person he was touching was not his wife. At some point during the interview, Towry denied fondling J.L., accused Jennifer and J.L. of lying about the incident, and claimed that he had only rubbed J.L.'s back. At other points, however, Towry stated that he had been shocked when he woke up and was ashamed about what had occurred. Towry also claimed that if he had done more than touch J.L.'s back, it was because he had been asleep and confused.

The detective also asked Towry about the allegations of molestation made by his two daughters. Towry first claimed that both of his daughters were lying. Towry contended that Jennifer had fabricated the allegations because she was still angry over the fact that once, when she was a teenager, they had gotten into a fight when he caught her home alone with an older boy. When asked about the allegations made by Sonja, Towry responded that everyone knew she was “weird” and “different.” At other times during the interview, however, Towry stated that he did not remember molesting his daughters, but that if he had done so, it was because he had a severe drug abuse problem at that point in his life.

Towry was indicted and tried for child molestation in that he “did fondle [J.L.] ... with the intent to arouse his sexual desires.” ¹ At trial, Jennifer and the child therapist testified regarding what J.L. had disclosed to them.² The interviewing investigator also testified, and his videotaped interviews of J.L. and Towry were admitted into evidence and played for the jury. Additionally, M.L. took the stand and testified that on the night in question, he was awakened by the sound of J.L. crying out, “Stop.” M.L. further testified that J.L. later told him that Towry had touched her. The state also presented evidence of similar transactions, namely, testimony from Jennifer and Sonja that Towry had fondled them during their pre-teen and early teenage years. In contrast, Towry called several defense witnesses, including his wife and his son, who testified that they had separately questioned J.L. about the incident, and that J.L. had indicated to them that Jennifer had encouraged or told her to lie about what had occurred.

After hearing the conflicting testimony, the jury convicted Towry of child molestation for fondling J.L. Towry filed a motion for new trial, after which he was appointed new counsel, who filed an amended motion asserting that Towry's trial counsel had provided ineffective assistance. Following an evidentiary hearing, the trial court denied the amended motion for new trial, resulting in this appeal.

1. The evidence set forth above was sufficient to entitle any rational trier of fact to find Towry guilty beyond a reasonable doubt of child molestation as charged in the indictment. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-6-4(a)(1). The jury was authorized to consider the videotaped police interview of J.L., and the testimony of Jennifer, the child therapist, and M.L. concerning what the victim told them, as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16.³ See Vaughn v. State, 301 Ga.App. 391, 393, 687 S.E.2d 651 (2009). The jury likewise could consider Towry's admissions to his daughter Jennifer and to the investigator who interviewed him. Furthermore, consistent with the trial court's instructions, the jury was entitled to take into account the similar transaction evidence for the purpose of showing Towry's knowledge, intent, bent of mind, and course of conduct. See Lamb v. State, 293 Ga.App. 65, 66-67, 666 S.E.2d 462 (2008). Conversely, because it is the exclusive role of the jury to assess witness credibility and resolve conflicts in the testimony, the jury was not required to believe any of the defense witnesses' testimony. See id. There was ample evidence therefore, to sustain Towry's child molestation conviction. Jackson, 443 U.S. 307, 99 S.Ct. 2781.

2. Towry alleges that his trial counsel provided ineffective assistance. “To prevail on a claim of ineffective assistance, appellant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the...