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Bagwell v. State

Court of Appeals of Georgia

September 24, 2014

BAGWELL
v.
THE STATE

Page 150

Aggravated child molestation, etc. Oconee Superior Court. Before Judge Stephens.

Katherine M. Mason, H. Lee Prescott, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Kristopher M. Bolden, Assistant District Attorneys, for appellee.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Page 151

Phipps, Chief Judge.

Howard Bagwell was charged with committing 22 sexual offenses against his minor granddaughter, K. B., during the several years she lived in his home. Convicted on all counts, Bagwell filed a motion for new trial. He argued, inter alia, that his right to be present at critical stages of the prosecution was violated when certain bench conferences were held and that his trial counsel rendered ineffective assistance. After a hearing, the trial court denied Bagwell's motion. In this direct appeal, Bagwell maintains that his constitutional rights were violated. We affirm.

At the jury trial, the state showed the following. In June 2003, eight-year-old K. B. began living with her paternal grandparents, Bagwell and his wife. Soon thereafter, K. B. testified, Bagwell began a course of sexual abuse, which included oral sodomy of her vagina more often than once a month, digital penetration of her vagina more often than once a week, and sexual intercourse more often than once a week.

Within a year of K. B.'s moving into her grandparents' residence, in February 2004, the Division of Family and Children Services (DFCS) opened an investigation based on reports from K. B.'s school that K. B. was being sexually abused. K. B. had made such a disclosure to her playmate, who told her own mother; the mother then relayed K. B.'s allegations to personnel at the girls' school. DFCS conducted a forensic evaluation of K. B. on February 11. But during an interview, which was recorded and later played for the jury, K. B. made no disclosure of abuse. DFCS closed its investigation in March 2004.

At trial, K. B. explained that she had made no disclosure to DFCS (or to her grandmother) at that time because she loved her grandmother and did not want to be separated from her. But as K. B. continued living with her grandparents, Bagwell continued sexually abusing her.

One such episode occurred in February 2007. Bagwell came into K. B.'s bedroom, put his hand inside her pants and underwear, and digitally penetrated her. After Bagwell left the residence, because she wanted the abuse to end, K. B. told her grandmother that Bagwell had hurt her. When her grandmother confronted Bagwell by asking what he had done to K. B., he responded, " [S]omething I shouldn't have." K. B.'s grandmother immediately sent K. B. to live with her (K. B.'s) father.

About a week later, on February 20, 2007, K. B. told her school counselor that " something very bad" had happened between her and [329 Ga.App. 123] her grandfather and that her grandmother had sent her to live with her father. K. B. explained at trial that she had confided in the counselor because she had determined that her family did not believe her, as they had done nothing but send her to live with her father. The counselor notified DFCS.

That same day, DFCS placed K. B. in protective custody and contacted an investigator with the sheriff's office. The next day, K. B. disclosed in a forensic interview that Bagwell had sexually abused her about a week before.

Bagwell was arrested. During a police interview on February 22, 2007, Bagwell insisted, " I don't care what anybody says. I didn't have sex with that girl." Bagwell admitted, however, going into K. B.'s bedroom on February 14 and 15, 2007 and rubbing K. B.'s breasts and vagina, both on top of and underneath her clothes. When asked why he had done that to K. B., Bagwell answered that K. B. had always been flirting with him and " coming on" to him, so he had discerned that that was what she wanted. Bagwell expressed, however, that what he had done was wrong.

On February 12, 2009, K. B. submitted to another forensic interview, because she had begun disclosing additional instances of Bagwell's abuse. During that interview, K. B. told of incidents of sexual ...


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