Wiggins v. State

• Decision Date: 24 June 2016
• Docket Number: A16A0162
• Citation: 787 S.E.2d 357,338 Ga.App. 273
• Parties: Wiggins v. The State.
• Court: Georgia Court of Appeals

338 Ga.App. 273

787 S.E.2d 357

Wiggins

v.The State.

A16A0162

Court of Appeals of Georgia.

June 24, 2016

Reconsideration Denied July 26, 2016

Gary Wilson Jones, Marietta, for Appellant.

Daniel James Quinn, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Marietta, for Appellee.

McMillian

, Judge.

Rebecca Wiggins appealed the denial of her motion for new trial after a jury convicted her of sexual exploitation of children, aggravated sodomy, child molestation, and cruelty to children in the first degree.¹ In Wiggins v. State , 330 Ga.App. 205, 211, 767 S.E.2d 798 (2014)

( “Wiggins I ”), this Court found that although the evidence at trial was sufficient to support Wiggins' convictions, the record failed to demonstrate that the trial judge applied the proper standard in reviewing her convictions on the general grounds. Accordingly, we vacated the judgment and remanded the case to the trial court to reconsider the issue under the appropriate discretionary standard, and we declined to rule on Wiggins' remaining enumerations of error at that time. Id.

On remand, the trial court held a hearing and issued an order denying Wiggins' motion for new trial on the general grounds. Wiggins now appeals from that order, reasserting the enumerations of error not reached by this Court in Wiggins I

and further asserting that on remand, the trial court failed to give the proper weight to the defense expert's testimony in reviewing the evidence on the general grounds.²

The charges in this case arose out of allegations that sometime between November 17, 2001 and November 16, 2003, Wiggins took sexually explicit pictures of the victim, and sometime between February 25, 2004 and September 30, 2004, she took the victim to David Ray's house and was present when Ray sodomized her. We summarized the evidence from Wiggins' trial in Wiggins I

, and we need not restate the evidence here. However, we note that the victim³ testified that on a number of occasions, Wiggins took her to Ray's house, bathed her in a bathtub, took her to the room where Ray was waiting, stayed in the room while Ray sexually assaulted her, and then accepted payment from Ray afterwards.⁴

1. In her first enumeration, Wiggins asserts that the trial court erred in denying her motion in limine to prevent testimony and evidence showing that she had been a victim of molestation when she was a child.

Wiggins' trial counsel (“Defense Counsel”) made an oral motion in limine at trial to exclude any evidence alleging that Wiggins was the prior victim of sexual assault after the prosecution stated that it wanted to elicit evidence that Wiggins told the victim that she had been molested by her father when she was a child. Defense Counsel argued that such evidence placed her client's character into evidence, was highly prejudicial, and was hearsay. The prosecutor argued, however, that the evidence was not hearsay because it was a statement made by Wiggins as a part of the crime and that the evidence was admissible because it went to the issues of Wiggins' intent, knowledge, and motive.

The trial court denied the motion in limine, and the victim later testified that when Wiggins took her to Ray's house, she would talk to her about “what happened to her when she was little, like what her dad molested her with and things like that.” The victim said that Wiggins told her that she was telling her these things “[t]o make me feel comfortable, to make me feel like it was right to do, right for me to do what he was doing to me.” Melissa Dotterweich, the State's expert witness,⁵ a therapist who worked with the victim, testified that during their sessions, the victim went into detail about what Wiggins had told her, including that her father had molested her when she was young. Defense Counsel renewed her prior objections to this evidence, but the trial court overruled them.

Generally, appellate courts review a trial court's decision on the admission of evidence for an abuse of discretion. See Moore v. State , 295 Ga. 709, 712, 763 S.E.2d 670 (2014) And “[w]here[, as here,] the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court's ruling to ensure that there was a substantial basis for it. The trial court's application of the law to the undisputed facts is subject to de novo review.” (Citation omitted.) State v. Barnard , 321 Ga.App. 20, 20, 740 S.E.2d 837 (2013)

.

The evidence at issue concerned statements made by Wiggins as she took the victim to Ray's house where he performed sexual acts upon the child. Former OCGA § 24–3–3

, which was applicable at the time of Wiggins' trial,⁶ provided that “[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” And “[u]nder longstanding Georgia law, all the acts and circumstances surrounding and constituting the res gestae are admissible, despite the fact that they may reflect poorly on a defendant's character.” Baughns v. State , 335 Ga.App. 600, 602, 782 S.E.2d 494 (2016). Therefore, “evidence of statements made by the defendant during the commission of the offense is admissible as part of the res gestae of the crime even if it puts the defendant's character in evidence.” Ware v. State , 308 Ga.App. 24, 28, 707 S.E.2d 111 (2011). Accordingly, pretermitting whether evidence showing that the defendant was herself previously the victim of a sexual crime may be considered evidence of bad character, we find that Wiggins' statements about her own abuse were admissible as part of the res gestae of the crimes.

Moreover, the evidence was relevant to the issue of Wiggins' knowledge and intent in taking the child to Ray's house.

Evidence which is relevant and responsive but which minimally places the character of the defendant into issue, is nevertheless admissible where the relevance of the testimony outweighs any prejudice it may cause. Relevant evidence is not rendered inadmissible because it incidentally puts the defendant's character into issue.

(Citation omitted.) Moore , 295 Ga. at 714, 763 S.E.2d 670 (2014)

. See also Kendrick v. State , 156 Ga.App. 27, 28, 274 S.E.2d 78 (1980) (“Evidence which incidentally may place a criminal defendant's character in issue is admissible if independently relevant, such as to show knowledge, motive, plans, intent, scheme or identity.”).

Here, Wiggins' statements to the victim showed her intent in bringing the victim to Ray and her knowledge of what was going to happen when they got there. Under the facts of this case, therefore, we find no error in the admission of Wiggins' statements to the victim. See, e.g., Young v. State , 290 Ga. 392, 398–99, 721 S.E.2d 855 (2012)

(evidence that defendant admitted to police that he sold crack cocaine was admissible because it was relevant to motive for crime of murder, even though it incidentally put defendant's character into issue).

2. Wiggins next argues that the trial court erred in overruling Defense Counsel's objections to the prosecutor's leading questions during the direct examination of the victim.

“A question is leading when it is so framed as to suggest to the witness the answer which is desired; on the other hand, a question not suggesting the desired answer is not leading where it inquires only into a single fact.” (Citations and punctuation omitted.) Milner v. State , 258 Ga.App. 425, 429, 574 S.E.2d 457 (2002)

. “Thus, a question is not open to the objection that it is leading when it does not suggest the answer desired.” (Citations and punctuation omitted.) Burden v. State , 332 Ga.App. 811, 812, 775 S.E.2d 183 (2015).

Wiggins identified the following questions as leading:

— Now, would she actually hold your hand during this time?

— Now, did he ever get his private part inside of your vagina?⁷

However, because each of these questions inquired into a single fact and did not suggest the answer desired, the questions were not leading. Thus, the trial court did not abuse its discretion in overruling Defense Counsel's objections. See Burden , 332 Ga.App. at 812 (1), 775 S.E.2d 183

(prosecutor did not lead witness by asking, “Was any money demanded of you?”); Wright v. State , 319 Ga.App. 723, 727 (2) (a), 738 S.E.2d 310 (2013) (trial court did not abuse discretion by allowing prosecutor to ask 14–year–old witness, “Did you see the defendant with a gun?”).

3. Wiggins also asserts that the trial court erred in denying her motion for mistrial based on juror misconduct.

Following a break in Dotterweich's testimony, the prosecutor notified the trial judge that he had received information that one of the jurors had spoken with the witness during the break. Dotterweich was called to testify about the incident outside the jury's presence, and she stated that one of the female jurors told her that she was “doing a great job,” to which she replied, “thank you.” The juror was with two other women jurors when this exchange occurred, and the victim/witness coordinator from the district attorney's office, who was also present, told the juror she could not talk to a witness.

Based on this evidence, Defense Counsel asked to question the juror involved and further requested that the juror be removed or a mistrial be declared for juror misconduct. The trial court denied the request for a mistrial but stated that it would instruct the jury on the issue. After the trial court told the jury that it had received information that a juror had violated the court's repeated instructions not to discuss the case with anyone, the court cautioned the jurors to follow his instructions to the letter, reminded them that the case was not over, and instructed them that they should not consider the case until they returned to the jury room at the close of the evidence.

The next day, Defense Counsel again moved for a mistrial based on this incident and again requested that she be allowed...