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State v. Byrd

Court of Appeals of Georgia, Third Division

May 18, 2017

THE STATE
v.
BYRD.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Rickman, Judge.

         Aquino Rashaad Byrd was tried by a jury and convicted of aggravated child molestation, [1] child molestation, [2] and statutory rape.[3] More than five years after the trial court entered judgment on the verdict, it granted Byrd's motion for new trial on the general grounds.[4] The State appeals from that decision. For the following reasons, we affirm.

         The evidence presented at trial showed the following. In August 2008, the 12 year old victim went with her cousin[5] to Byrd's residence. At the time, Byrd was 21 years old. The victim's cousin asked Byrd if he wanted to have sex with the victim and after he responded affirmatively, she asked the victim if she wanted to have sex with Byrd. After indicating that she did want to have sex with Byrd, the victim went with Byrd into his bedroom. The victim testified that, while in his bedroom, Byrd performed oral sex on her and they engaged in sexual intercourse.

         The victim's cousin observed that the victim and Byrd were in his bedroom for approximately 10 to 15 minutes. Later in the day, the victim told her cousin that she and Byrd had "messed around, " which the cousin understood to mean that the two had sex.

         A couple of months later, the victim's mother feared that the victim might be pregnant. After asking the victim if she had sex with anyone, the victim admitted that she had had sex with Byrd. The victim's mother called the police. The victim was taken to a child advocacy center, where a forensic interviewer conducted a recorded interview of her. During the interview, the victim admitted that she had sex with Byrd. A copy of this recorded interview was published to the jury.

         An investigator with the Asburn Police Department conducted a recorded interview of Byrd. Byrd confessed to performing oral sex on the victim and engaging in sexual intercourse with her. Additionally, Byrd wrote a statement detailing his interaction with the victim. Both the recorded interview and the written statement were published to the jury. However, at trial, Byrd denied having any sexual relations with the victim. Byrd testified that he confessed out of "fear" of going to prison and that he felt "pressured" to write the statement.

         Following his convictions, [6] Byrd filed a timely motion for new trial asserting the general grounds. Later, Byrd filed an amended motion for new trial seeking additional grounds for relief. Following a hearing, the trial court granted Byrd's motion for new trial on the general grounds.

         1. The State contends that Byrd waived his right to a new trial based on the general grounds. Specifically, the State argues that because Byrd failed to address the general grounds during the hearing on his motion for new trial or in his brief to the trial court following the hearing, he waived them. We disagree.

         In the context of a motion for new trial, grounds for relief must be raised "in either [the] motion for new trial or at the hearing on the motion for new trial." Jones v. State, 272 Ga.App. 563 (2) (a) (612 S.E.2d 852) (2005) (emphasis supplied). Byrd expressly raised the general grounds in his first motion for new trial. Additionally, in his amended motion for new trial Byrd asked that "[the] amended motion and the original motion which it amends be inquired into." The State argues that Byrd affirmatively abandoned this argument because at the hearing on the motion for new trial, his counsel indicated that he would brief "a couple of issues, "and yet the brief did not mention the general grounds. However, these actions do not amount to an express waiver.

         "[Byrd] did not waive or abandon his claims under OCGA §§ 5-5-20 and 5-5-21, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon his ineffective assistance claim." (Citations omitted.) Hartley v. State, 299 Ga.App. 534, 541 (3) (683 S.E.2d 109) (2009). Nor did he waive or abandon his claims by failing to raise them in his brief following the evidentiary hearing. Accordingly, we find that Byrd did not waive his right to have a new trial granted on the general grounds. See id.

         2. The State contends that the trial court erred by granting Byrd's motion for new trial. Specifically, the State argues that the trial court abused its discretion because the evidence of Byrd's guilt was overwhelming and demanded the jury's verdict.

         "As a matter of constitutional due process, the evidence presented at trial and summarized above was, when viewed in the light most favorable to the verdicts, legally sufficient to authorize a rational jury to . . . find [Byrd] guilty beyond a reasonable doubt of the crimes for which [he] was convicted." (Citations omitted.) State v. Hamilton, 299 Ga. 667, 670 (2) (791 S.E.2d 51) (2016). See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see also Sanders v. State, 308 Ga.App. 303, 304 (1) (a) (707 S.E.2d 538) (2011), overruled in part on unrelated grounds by Washington v. State, 310 Ga.App. 775, 781-782 (7) (714 S.E.2d 364) (2011) (affirming appellant's aggravated child molestation conviction where victim testified that appellant performed oral sodomy on her); Collins v. State, 269 Ga.App. 381, 382 (1) (b) (604 S.E.2d 240) (2004) (where this Court found the evidence sufficient to convict appellant of child molestation when appellant gave a statement to police that he "put his penis" inside the victim); Trejo v. State, 245 Ga.App. 316, 317 (2) (537 S.E.2d 755) (2000) (evidence sufficient to sustain statutory rape conviction where victim testified about the incident and the defendant admitted to police that he had sexual intercourse with the victim).

         However, the fact that the evidence is legally sufficient to sustain Byrd's convictions does not prohibit the trial court from exercising its discretion to grant a new trial under ...


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