Reconsideration denied December 15, 2014 -- Cert. applied for.
[Copyrighted Material Omitted]
Child molestation. Richmond Superior Court. Before Judge Padgett.
Hull Barrett, Neal W. Dickert, Brooks K. Hudson, for appellant.
Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.
RAY, Judge. Andrews, P. J., concurs. McFadden, J., concurs specially in Division 1 (a) and concurs fully otherwise.
Following a jury trial, Jesse Jerome Goggins was convicted of child molestation (OCGA § 16-6-4 (a) (1)). He appeals from his conviction and the denial of his motion for new trial, contending that the trial court erred (1) in sending certain evidence out with the jury, (2) by denying his motion for mistrial, and (3) by limiting the scope of evidence regarding his good character and reputation for trustworthiness with children. Goggins also contends that he had ineffective assistance of counsel. Finding no reversible error, we affirm.
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the jury's verdict. Weeks v. State, 316 Ga.App. 448, 449 (729 S.E.2d 570) (2012). The evidence
at trial showed that the victim's mother was reading her daughter's diary when she came upon an entry in which the 13-year-old victim, L. G., had written " I love my dad but only the way you should [love] a dad ... he kissed me!!! and then pulled out his d*** ... ." Goggins is L. G.'s father. [330 Ga.App. 351] When the mother confronted her daughter about what she had written in her diary, L. G. confirmed that Goggins had used his tongue to kiss her and had exposed his erect penis to her. The mother then reported the sexual abuse to the Richmond County Sheriff's Department, and an investigation ensued, culminating in the arrest and indictment of Goggins on two counts of child molestation.
At trial, L. G. testified in detail concerning the sexual acts that formed the basis of the indictment. In addition to her initial outcry to her mother, L. G. also disclosed the sexual abuse to a forensic interviewer and to an investigator with the sheriff's department, all of whom corroborated L. G.'s testimony. Goggins testified in his own defense, and five character witnesses testified on Goggins' behalf. The jury ultimately convicted Goggins on Count 1 of the indictment, which charged him with the offense of child molestation for " exposing his erect penis to [L. G.], with the intent to arouse [his] sexual desires[.]" Goggins was acquitted on the remaining count of child molestation.
1. Goggins contends that the trial court erred by allowing a portion of L. G.'s diary to go out with the jury in violation of the continuing witness rule and by failing to allow the jury to see other portions of the diary. We find no basis for reversal.
At trial, L. G.'s diary was tendered into evidence without objection. Many of L. G.'s diary entries described her sexual attraction to and encounters with various boys her own age. When it appeared during cross-examination of L. G. that defense counsel might delve into portions of the diary concerning L. G.'s sexual attraction and interest in boys, the trial court cautioned counsel that it was not going to allow any evidence that would violate the rape shield statute under OCGA § 24-4-412. Accordingly, when the jury retired for deliberations, the parties agreed that the diary should not go out with the jury. During its deliberations, however, the jury requested to see the entry from L. G.'s diary concerning Goggins' sexual misconduct. When the trial court asked if there was any opposition to sending the jury a photocopy of the specific page of the diary which contained the entry at issue, Goggins' trial counsel stated that the defense had no objection. Later, the jury asked to see the entire diary. After the trial court discussed the issue with both parties, Goggins' counsel agreed with the trial court that the entire diary should not go out with the jury.
[330 Ga.App. 352] (a) Goggins first contends that the trial court committed plain legal error by allowing the single page containing the entry referencing Goggins' sexual misconduct to go out with the jury in violation of the continuing witness rule. For the reasons that follow, we find no reversible error.
In Georgia the " continuing witness" objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.
Citation and punctuation omitted.) Hinton v. State, 233 Ga.App. 213, 213 (1) (504 S.E.2d 49) (1998).
At trial, L. G. acknowledged that she wrote the entry in her diary regarding Goggins' sexual acts and, when prompted by the State, she read the entry aloud for the jury. Pretermitting the issue of whether the trial court violated the continuing witness rule when it allowed this page of the diary to go out with the jury, we find that Goggins has failed to demonstrate that the alleged error likely affected the outcome of the trial.
As noted above, Goggins did not object to the single page containing the diary entry at
issue being sent out to the jury during deliberations. Nevertheless, because the trial in this case occurred after January 1, 2013, we may conduct a plain error analysis to determine if a reversal is warranted. See Rembert v. State, 324 Ga.App. 146, 152 (2), n. 8 (749 S.E.2d 744) (2013) (" Georgia's new Evidence Code, which applies to cases tried after January 1, 2013, allows a court to consider 'plain errors affecting substantial rights although such errors were not brought to the attention of the court.' OCGA § 24-1-103 (d)." ). Accord Durham v. State, 292 Ga. 239, 240 (2) (734 S.E.2d 377) (2012).
Our Supreme Court has adopted the following standard regarding a plain error analysis:
First, there must be an error or defect -- some sort of deviation from a legal rule -- that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it [330 Ga.App. 353] affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error -- discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Citation and punctuation omitted; emphasis in original.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011).
Prior to the effective date of OCGA § 24-1-103 (d), which allows appellate courts to conduct a " plain error" analysis to evidentiary matters, we had consistently held that a judgment need not be reversed due to a violation of the continuing witness rule unless the error is harmful. See Kent v. State, 245 Ga.App. 531, 533 (3) (538 S.E.2d 185) (2000) (allowing victim's written statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming); Hinton, supra at 214 (1) (allowing portion of the trial transcript reflecting a particular statement made by the defendant to go out with the jury violated the continuing witness rule, but the error was harmless since the defendant's statement had been repeated several times throughout the trial). Accord Roberts v. State, 282 Ga. 548, 552-553 (10) (651 S.E.2d 689) (2007) (allowing portion of a document examiner's ...