Tyler v. State

• Decision Date: 15 June 2006
• Docket Number: No. A06A0423.,A06A0423.
• Citation: 279 Ga. App. 809,632 S.E.2d 716
• Parties: TYLER v. The STATE.
• Court: Georgia Court of Appeals

279 Ga. App. 809

Page 716

632 S.E.2d 716

TYLER v. The STATE.

No. A06A0423.

Court of Appeals of Georgia.

June 15, 2006.

John D. Thalhimer, Marietta, for Appellant.

Patrick H. Head, District Attorney, Charles P. Boring, Amelia G. Pray, Assistant District Attorneys, for Appellee.

BERNES, Judge.

A Cobb County jury found Christopher M. Tyler guilty of committing two counts of aggravated child molestation against his five-year-old stepson W.C. On appeal from the denial of his amended motion for new trial, Tyler contends that the trial court erred by not charging the jury on three alleged lesser-included offenses and by imposing probation conditions that he claims are vague and overly broad. Tyler also contends that he was denied effective assistance of counsel. We conclude that one of the probation conditions imposed upon Tyler is vague and overly broad, and, therefore, must be vacated. We affirm in all other respects.

Viewed in the light most favorable to the verdict, the evidence reflects that the parents of W.C. divorced in 1998. Both subsequently remarried. The father had been awarded custody of W.C. and his siblings, but W.C. and his older sister would visit their mother and stepfather, defendant Tyler, on the weekends and for an extended period during the summer. W.C.'s mother, his stepfather Tyler, his aunt, and his older cousin lived together in an apartment in Cobb County.

On July 25, 2001, five-year-old W.C. was suspended from summer camp for crawling on the bathroom floor and attempting to bite other boys' penises. After picking up W.C. from the summer camp, his father and stepmother asked him about the incident in the bathroom. W.C. stated, "Well, that's what [Tyler] made me do." W.C. explained that Tyler "put his peter in [W.C.'s] mouth," "peed," and made him swallow it. W.C. also told his father and stepmother that Tyler had forced his older cousin who lived in the same apartment to participate. Finally, W.C. said that Tyler warned him that if he told anyone about what had occurred, W.C. would go to jail.

W.C.'s father contacted the Department of Family and Children Services, which put him into contact with Detective Jorge Mestre of the Cobb County Crimes Against Children Unit. Detective Mestre subsequently conducted a videotaped interview with W.C. During the interview, W.C. told the detective that Tyler had put his mouth on W.C.'s penis and "was trying to bite it off." W.C. further stated that Tyler had placed his penis into W.C.'s mouth and "peed." In addition, W.C. divulged to the detective that his older cousin was a participant in what had occurred.

Tyler was indicted, tried, and convicted on two counts of aggravated child molestation. On appeal, this Court reversed Tyler's convictions and remanded for a new trial based upon the introduction of improper testimony that Tyler had been sexually molested as a child. See Tyler v. State, 266 Ga.App. 221, 223-224(2), 596 S.E.2d 651 (2004). During the trial on remand, W.C. testified that when he was five years old, Tyler "put his private in my mouth and peed in it, and made me swallow it." Among other witnesses, Tyler's father and stepmother testified about what W.C. told them following the incident in the summer camp bathroom, and Detective Mestre testified about his interview with W.C. The state introduced the videotape of the interview into evidence and played it to the jury. Tyler took the stand in his own defense and claimed that he had never been alone with W.C. and had not molested him. The jury convicted Tyler on both counts of aggravated child molestation.

1. Although Tyler does not raise the sufficiency of the evidence as a ground for appeal, we conclude, after reviewing the evidence in the light most favorable to the jury's verdict, that any rational factfinder could have found Tyler guilty on the two counts of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Indeed, W.C.'s testimony, standing alone, would have been sufficient to authorize a guilty verdict. McKinney v. State, 269 Ga.App. 12, 16(2), 602 S.E.2d 904 (2004).

2. Tyler claims that the trial court erred by failing to charge the jury on the offenses of child molestation, sexual battery, and cruelty to children in the first degree, which he argues were lesser included offenses as a matter of fact. We disagree. "Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense." (Citations and punctuation omitted.) Jackson v. State, 213 Ga.App. 170, 171-172(2)(b), 444 S.E.2d 126 (1994) See also Wright v. State, 259 Ga.App. 74, 77(2), 576 S.E.2d 64 (2003) ("[W]hen the evidence shows completion only of the greater offense, it is unnecessary for the trial court to charge on the lesser offense.") (footnote omitted); Oliver v. State, 232 Ga.App. 816, 819(2), 503 S.E.2d 28 (1998) (defendant convicted of armed robbery not entitled to charge on alleged lesser included offense of theft by taking when there was "no evidentiary alternative" to the charged offense; "either he did [it] or he did not").

"A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a). "Child molestation advances to aggravated child molestation with the addition of either physical injury to the child or sodomy. Sodomy, in turn, is defined as `any sexual act involving the sex organs of one person and the mouth or anus of another.' [OCGA § 16-6-2(a).]" (Footnotes omitted.) Wright, 259 Ga.App. at 77(2), 576 S.E.2d 64.

Tyler was indicted on two counts of aggravated child molestation, the first count for "performing an act of sodomy ... involving the penis of the accused and the mouth of the child," and the second count for "performing an act of sodomy ... involving the mouth of the accused and the penis of the child." Through the testimony of W.C., his father, his stepmother, and Detective Mestre, combined with the videotaped interview played to the jury, the state presented evidence of the completed offense of aggravated child molestation on two counts. In contrast, Tyler testified that he had never been alone with W.C. and did not commit the charged offenses. "Therefore, the evidence presented to the jury offered the choice between the completed crime or no crime. Accordingly, the trial court was not required to charge on the lesser offense[s]." (Footnote omitted.) Howell v. State, 278 Ga.App. 634, 641(4), 629 S.E.2d 398 (2006) (physical precedent only). See Wright, 259 Ga.App. at 76-77(2), 576 S.E.2d 64; Ney v. State, 227 Ga.App. 496, 502-503(4)(g), 489 S.E.2d 509 (1997); Landrum v. State, 210 Ga.App. 275, 277-278(6), 436 S.E.2d 40 (1993).

Tyler argues that the trial court should have charged the jury on child molestation because prior to trial, the state offered Tyler a deal to plead guilty to that lesser charge (which he rejected). Tyler further argues that the trial court should have charged the jury on cruelty to children in the first degree because W.C.'s older cousin also had been indicted on two counts of aggravated child molestation for the same incidents but was allowed to plead guilty to the lesser charge. But, the fact that the defendant was made a plea offer or a co-defendant pled guilty to a lesser offense "can very well be the result of negotiation" and does not on its face constitute "`evidence' as to the underlying facts so as to support a jury charge on the lesser offense." Harrison v. State, 252 Ga.App. 833, 557 S.E.2d 447 (2001). Rather, a trial court's decision to charge the jury on an alleged lesser included offense turns on what the underlying factual evidence establishes at trial. Id. As such, Tyler's argument is misplaced.

3. Tyler maintains that his trial counsel provided ineffective assistance at trial. Specifically, Tyler asserts that his trial counsel was ineffective because he did not (a) request that the trial court charge the jury on child molestation, sexual battery, and cruelty to children in the first degree; (b) file an ex-parte request for funds for an expert to review and testify about the videotaped interview; or (c) subpoena W.C.'s mother and older cousin to testify at trial.

"A defendant claiming ineffective assistance of counsel must show ... that his attorney's representation in specified instances fell below an objective standard of reasonableness and ... there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." (Citation omitted.) Parrish v. State, 237 Ga.App. 274, 283(10), 514 S.E.2d 458 (1999). See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. The trial court's determination that [Tyler] was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous." (Citations omitted.) Porter v. State, 243 Ga.App. 498, 502(4), 532 S.E.2d 407 (2000). Georgia does not recognize the cumulative error doctrine, and so we will analyze each of Tyler's ineffective assistance claims separately. Fitz v. State, 275 Ga.App. 817, 824-825(4), 622 S.E.2d 46 (2005).

(a) Tyler argues that his trial counsel was ineffective because he did not request that the trial court charge the jury on the alleged lesser included offenses of child molestation, sexual battery, and cruelty to children in the first degree. Having concluded in Division 2 that charges on these offenses were not warranted under the evidence presented at trial, we likewise conclude that Tyler cannot establish...