Whitelock v. State

• Decision Date: 01 March 2019
• Docket Number: A18A1872
• Parties: WHITELOCK v. The STATE.
• Court: Georgia Court of Appeals

349 Ga.App. 28

825 S.E.2d 426

WHITELOCK

v.The STATE.

A18A1872

Court of Appeals of Georgia.

March 1, 2019

Veronica Margaret O'Grady, for Appellant.

Paul L. Howard Jr., Dist. Atty., Atlanta, Marc A. Mallon, Lyndsey H. Rudder, Asst. Dist. Attys., for Appellee.

Reese, Judge.

A jury found Gebre Whitelock guilty of aggravated child molestation, child molestation, and cruelty to children in the first degree¹ based on acts committed against his stepdaughter (hereinafter, "the victim"). The Appellant appeals from the trial court’s denial of his motion for new trial, arguing that he received ineffective assistance of counsel, that the trial court erred in excluding evidence, and that his sentence is void. For the reasons set forth infra, we affirm the Appellant’s convictions and the sentences on his aggravated child molestation and cruelty to children convictions, but we vacate his sentence on his child molestation conviction and remand this case for resentencing.

Viewed in the light most favorable to the jury’s verdict,² the evidence showed the following facts. In October 2009, the Appellant lived with his wife (hereinafter, "mother"), his wife’s eight-year-old daughter ("victim"), the couple’s two young children, and his wife’s mother ("grandmother"). According to the victim, after her mother had fallen asleep one night, the Appellant went into the victim’s bedroom, made her get out of bed, and told her to put her mouth on his penis. The Appellant told her that, if she did not do it or if she told anyone, "something bad [would] happen[,]" and he threatened to kill her mother. The victim believed the Appellant and was scared, so she complied with his demand. The victim testified that, in the months that followed this incident, the Appellant repeatedly made her perform oral sex on him, performed oral sex on her, and touched her genitals with his hand. Because the victim continued to believe that the Appellant would kill her mother, she did not tell anyone about the molestation.

The victim also testified that the Appellant frequently "punish[ed]" her "for no reason" by making her stay alone in her bedroom. In addition, the Appellant sometimes showed the victim "nasty videos" on the computer in his and his wife’s bedroom ("parents’ bedroom"); in the videos, "[g]irls were putting their mouth on boys’ private area[s]." According to the victim, the Appellant told her to watch the videos because "he wanted [her] to be a professional[,]" but she did not understand what he meant. The victim testified that, whenever he molested her, the Appellant had been drinking.

During this same time period, the victim’s grandmother started noticing that the Appellant was picking up the victim and hugging her more than the grandmother thought was normal or acceptable. The grandmother also observed, however, that the Appellant was "always punish[ing]" the victim by locking her in her bedroom or the parents’ bedroom for the entire day, and the Appellant was often alone with the victim in the bedroom with the door locked. According to the grandmother, one time when she went into the bedroom to check on the victim, the victim looked "scared." The grandmother did not understand why the Appellant punished the victim so much because she was a "pretty good little girl" and a "straight A student" who was in the gifted and talented program at school. The grandmother became more confused and concerned when she noticed that the Appellant was taking the victim into the parents’ bedroom at night, while the mother was sleeping, because the grandmother knew of no reason for him to do so. Finally, the grandmother’s concern was heightened when the victim started walking around the house in the morning with only her underpants on while the Appellant was home.

Based on these observations, the grandmother repeatedly told the mother that she suspected the Appellant was "messing" with the victim, and she urged the mother to "check it out" because "something’s going on." The mother admitted at trial that she was in "denial" when the grandmother first talked to her about it. On the morning of August 30, 2010, however, while the family was in the car on the way to the victim’s school, the mother whispered to the victim and asked if "anybody [had] been bothering her." According to the mother, the victim became "fearful" and began "shaking and ... trembling." The victim then nodded and pointed at the Appellant. The mother and the victim got out of the car, and the mother confronted the Appellant, asking if he had been "messing" with the victim. The Appellant started to cry and denied doing anything to the victim, but then got out of the car and "started ranting around." He told the victim that he was "so sorry that I did this to you[,]" and asked his wife for help because he had a "problem." The Appellant told the victim that he "wasn’t going to do it anymore[,]" and asked her, "why are you doing this to me?" The mother threw the Appellant’s belongings out of the car, drove off without him, and went to the victim’s school, where she spoke to the school’s social worker.

After getting some basic information from the mother about the allegations, the social worker called the Department of Family and Children’s Services ("DFCS") and reported the sexual abuse.³ The mother then took the victim to the hospital, where a certified pediatric nurse practitioner performed a sexual assault examination on the victim. A forensic interview was subsequently conducted,⁴ and, based on what the victim reported during the interview, a police detective obtained an arrest warrant for the Appellant.

Law enforcement officers were initially unable to locate the Appellant, though, because the Appellant took a bus to North Carolina on August 30, 2010, a few hours after the mother confronted him about the victim’s allegations. Officers eventually located the Appellant in North Carolina, placed him under arrest, and brought him back to Georgia to face the instant charges.

At trial, the mother testified that the Appellant had started "drinking a lot" in the six months that preceded the victim’s disclosure. She testified that, when the Appellant was drinking, he was "a little more apt to want to have sex[,]" and "would become kind of uncontrollable. He would basically change character. ... He [would become] very wild, mean, argumentative, very verbally abusive." According to the mother, the Appellant threatened to kill her if she ever called the police on him, warning her that he knew her whole family and where they lived. The grandmother also testified that the Appellant had started becoming intoxicated "more and more every day" and became "real angry" when he did so. She testified that the Appellant was abusive to the mother and the children, and that the mother was afraid of him.

In addition, the mother testified that, in 2009, she discovered a child sex video on the Appellant’s computer in their bedroom. She asked the Appellant about it, and he said it was the result of a computer virus. The mother later noticed that the computer’s memory had been deleted. After the victim disclosed her sexual abuse, the mother took the computer to the Appellant’s sister’s house to be stored, but, when a detective went to the house to retrieve it, the detective was told that the computer was not there, and it was never recovered. At trial, the Appellant admitted that there was a computer in the bedroom he shared with his wife and that he had majored in computer technology in college.⁵

Finally, according to the mother, from October 2009 to August 2010, the victim became "very distant and depressed[,]" which was different from her normal demeanor, and she started "wetting the bed" almost every night. The victim admitted that she "peed" in her bed every night while she was being molested, but she testified that she no longer did so at the time of the trial "[b]ecause nobody is bothering me." The grandmother testified that, once the Appellant was no longer around the victim, the victim was "not afraid anymore. [She does not] have to be punished.

[S]he’s free now. It’s like ... she was a slave, enslaved. [S]he wasn’t herself. [S]he wet on herself. She just wasn’t herself."

In addition to these witnesses, the State presented the testimony of the school social worker, the nurse who performed the sexual assault examination, the police detective who initiated the investigation, the counselor who conducted the forensic interview, and Anique Whitmore, the Fulton County District Attorney’s Director of Forensic Services.⁶ Whitmore testified that, as part of her work in the "crimes against women and children" unit, she worked with a team to evaluate cases when the victim of an alleged crime was a child. In doing so, she worked with alleged victims

to assess their recall, their memory, their ability to testify. ... [W]e assess [the case] as a team and look at a case and look at the details and the investigation to see the details of what is in front of us to make the best decision [about] going forward. ... I am part of the unindicted team as well, I work with cases that have not been indicted. And so[,] in review of those cases, looking at the forensic interview, meeting with the victim, speaking with perhaps investigators on the case, and if there are reasons using my expertise in forensic and child development, if there’s holes in it ...

Trial counsel interrupted and objected "to this line of questioning and answers[,]" the court sustained the objection, and the prosecutor moved on, asking Whitmore about her other education and experience. The prosecutor then proffered Whitmore as an expert in forensic interviewing and child sexual abuse evaluation and treatment.⁷ During her testimony, Whitmore discussed "child sexual abuse accommodation syndrome" and described the different stages a child victim might go through following molestation, including "secrecy, ... helplessness, entrapment, delayed disclosure, and recantation." Whitmore...