Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duncan v. State

Court of Appeals of Georgia, Third Division

August 9, 2017

DUNCAN
v.
THE STATE.

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

          Rickman, Judge.

         Frank Lee Duncan was tried by a jury and convicted of two counts of aggravated sexual battery, [1] aggravated child molestation, [2] nine counts of child molestation, [3] and two counts of cruelty to children in the first degree.[4] On appeal, Duncan contends that his convictions must be reversed because his right to be present at his trial was violated by his absence from a hearing, there is a reasonable belief that the jurors convicted him of incest for conduct that was not a crime, the State failed to prove venue beyond a reasonable doubt for one of the child molestation counts, the trial court erroneously permitted extrinsic act evidence, and that his trial counsel was ineffective for failing to object when the State asked his character witnesses guilt-assuming hypotheticals. Duncan also contends that the trial court gave an improper jury instruction and the sentences on his child molestation convictions are illegal. For the following reasons, we affirm in part, reverse in part, and remand this case for proceedings consistent with this opinion.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga.App. 895 (783 S.E.2d 400) (2016).

         So viewed, the evidence showed that in 2010, Duncan was the father of four daughters[5], 13-year-old triplets, V . D., F. D., and E. D., and 6-year-old L. D.[6] On the evening of September 11, 2010, V. D. sent a text message to her grandmother that read, "[o]kay I don't have much time, but [Duncan] sucked on [E. D.'s] nipple last night and kissed her [vagina], and [E. D.] just told her and Mom believes her and they are fighting and he said we're liars, don't say anything." After receiving the text message, the grandparents went to Duncan's residence to retrieve the triplets, took them back to their house, and called the police.

         The text message was not the first time the triplets' grandfather had heard about the sexual abuse. Prior to the September 2010 incident, the triplets' grandfather was fishing with E. D. when she told him that Duncan was touching her inappropriately. At some point after the triplets' grandfather spoke with E. D., V. D. told him that Duncan had also fondled her, touched her inappropriately, and rubbed up against her.

         An investigator with the Walton County Sheriff's Office responded to the grandparents' residence. The investigator spoke with each of the triplets. E. D. told the investigator that Duncan had been going in and out of her bedroom throughout the day of the September 2010 incident to perform sexual acts on her. E. D. disclosed that Duncan kissed her, rubbed his penis on her, and touched her vagina. After dinner that evening, Duncan came into E. D.'s room and sucked her breast. V. D. told the investigator that Duncan had previously touched her inappropriately and that she had told her mother what had happened.

         After speaking with the triplets, the investigator went to Duncan's residence, which was located in Walton County. The investigator spoke with Duncan and his wife, mother of the triplets and L. D. The triplets' mother initially told the investigator that she was not aware of the allegations, but then told the investigator that she had previously heard the triplets talking about Duncan molesting them, but that they ultimately recanted those allegations.

         The investigator also spoke with Duncan, who denied the allegations. However, Duncan told the investigator that his wife confronted him in the past about allegations that he had touched and kissed V. D.'s stomach and touched the triplets between their legs in the pool while they were on vacation.

         The triplets went to a child advocacy center for recorded forensic interviews during which they detailed allegations of sexual and physical abuse. Each of the triplets' forensic interviews were played for the jury.

         At trial, E. D. testified that on the date of the September 2010 incident, Duncan put his lips on her breast and then kissed her vagina. E. D. heard her mom coming upstairs and Duncan "darted" out of her bedroom. E. D. told her mom what happened and her mom dismissed her concerns and told her to go to bed. After speaking with her mom, E. D. told V. D. what happened and V. D. sent the text message to their grandparents.

         E. D. also testified regarding other incidents involving Duncan that made her feel uncomfortable. E. D. testified that one time Duncan came in her bedroom and touched her pubic hair. Duncan would also kiss her on the mouth and rub against her body so that she could feel his penis. E. D. told her mom about these incidents and her mom replied that they would resolve it within the family. In addition to disclosing to her mother, E. D. also told a friend and her grandfather about the sexual abuse. Regarding physical abuse, E. D. testified that she witnessed Duncan choking V. D. at some point prior to the September 2010 incident.

         F. D. testified that on the night of the September 2010 incident, she heard Duncan and her mother arguing because her mother had seen Duncan on top of E. D. E. D. told F. D. that Duncan had put his mouth on her breasts and touched her "privates." F. D. heard Duncan come in her room earlier in the evening but pretended that she was asleep because she was afraid he would touch her inappropriately. Later in the evening, both E. D. and V. D. revealed to F. D. that on other occasions Duncan had come in their rooms and touched them inappropriately.

         One time after F. D. was cutting the grass, Duncan approached her, lifted her shirt, and commented that she had "a flat sexy stomach" which would be attractive to boys. On vacation in Florida, Duncan touched her "private" with his finger on top of her bathing suit. On two separate occasions in the car, Duncan rubbed her legs in a manner that made her feel uncomfortable. Additionally, Duncan would hit her and was physically violent with E. D.

         V. D. testified that on the night of the September 2010 incident she was in the kitchen doing homework when Duncan inquired as to where E. D. was and stated that he was going upstairs to fix E. D.'s computer. At some point after that, V. D.'s mother asked where Duncan was and after V. D. told her that he was upstairs, her mother went upstairs. After her mother went upstairs, V. D. heard people screaming and decided to go see what was going on. Once upstairs, V. D. saw Duncan on his knees kneeling in front of E. D., who was laying flat on her back. Duncan went downstairs with her mother and, at that point, V. D. sent a text message to her grandmother asking her to come pick the triplets up because E. D. had been molested by Duncan and was scared. While Duncan and her mother were fighting, V. D. heard her mother ask Duncan "[w]hy were you on your knees in E. D.'s bedroom?" E. D. told V. D. that Duncan put his mouth on her breast and "mess[ed] with" her vagina."

         Prior to the September 2010 incident, Duncan had touched V. D. inappropriately. The first time, V. D. was in the bed with Duncan and her mother, watching television. Her mother fell asleep and Duncan started rubbing V. D.'s legs. Duncan then began to suck on her toes, touch her bottom, and rub close to her vaginal area. At some point, he touched her vagina and his finger went inside her vagina. Duncan got up to use to the bathroom and V. D. went to her bedroom. Duncan then came into her bedroom and kissed her neck and licked her stomach. Duncan asked V. D. if the way he touched her was okay, and she responded affirmatively because she was scared. Later, Duncan tried to apologize about the incident and gave V. D. flowers and a card that said he was sorry and asked for her forgiveness. The card was admitted as evidence and published to the jury.

         While on vacation, Duncan would grab the triplets' bottoms and he took V. D. out to the beach and "grind[ed]" on her. One time, after the vacation, V. D. was in the car with Duncan and he told her that it would be okay if she viewed pornography. Duncan was also physically violent "[a]ll the time." Duncan threw V. D. against the wall and on the floor. Duncan would also hit the triplets.

         V. D. told her mother about Duncan's inappropriate touching and her mother responded that V. D. did not know what it was like to have a dad. V. D. also told her grandfather about the sexual abuse while they were fishing.

         E. D.'s friend testified that E. D. told her that Duncan touched her breasts and legs and that she woke up to him licking her vagina. E. D.'s friend also explained that she felt uncomfortable on one occasion when she was at E. D.'s home because Duncan said something inappropriate about her legs. The comment "really upset" her, enough so that she told her parents about it.

         The triplets' mother testified that Duncan denies all of the allegations and she believes him. The triplets' mother now views her daughters as a "liability."

         The grand jury returned an indictment charging Duncan with two counts of aggravated sexual battery, eleven counts of child molestation, aggravated child molestation, incest, and three counts of cruelty to children in the first degree. Duncan was tried by a jury and found guilty of two counts of aggravated sexual battery, aggravated child molestation, incest, nine counts of child molestation, two counts of cruelty to children in the first degree; the trial court merged one of the child molestation counts into one of his two convictions for aggravated sexual battery and the incest count into his conviction for aggravated child molestation. The trial court directed a not guilty verdict as to two of the child molestation counts and the jury acquitted Duncan of one of the cruelty to children counts. Duncan timely filed a motion for new trial, which was denied. Duncan appeals from the denial of his motion for new trial.

         1. Duncan contends that his convictions must be reversed because his right to be present at his trial was violated by his absence from a hearing.

         On the date of jury selection, prior to conducting voir dire, the trial court heard motions to address some evidentiary issues. The proceedings concluded and the trial court directed the parties to return at noon. At some point after that, the trial court indicated that the case was back on the record and inquired as to Duncan's whereabouts. Duncan's trial counsel stated that Duncan was not present but he was aware of what was taking place and his presence was not necessary.[7]

         Thereafter, Duncan's trial counsel explained to the trial court that the guardian ad litem (hereinafter "GAL") from the deprivation case involving the triplets was present with her file. Duncan's trial counsel requested that he have an opportunity to review the file and noted and that he did not believe the State objected to the request. The State confirmed that it did not object to Duncan's trial counsel viewing the file, but was under the impression that the information contained in the file could not be disclosed without the consent of a superior court judge. The trial court ordered that the GAL sit down with counsel for both parties and go over the contents of the file that may be relevant to the case.[8] The trial court clarified that if there was any dispute as to the relevance of anything in the file, the parties could address the issue with the trial court.[9]

         Duncan argues that his absence from this hearing violated his right to be present under the Georgia Constitution[10] because he could not assist his counsel "with issues relating to this [m]otion hearing, including the review of [the GAL's] file."

         The right to be present "exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant's absence." (Citation and punctuation omitted.) Campbell v. State, 292 Ga. 766, 770 (4) (740 S.E.2d 115) (2013). " [T]he constitutional right to be present does not extend to situations where the defendant's presence would be useless, or the benefit but a shadow." (Citation and punctuation omitted). Heywood v. State, 292 Ga. 771, 774 (3) (743 S.E.2d 12) (2013).

         The hearing at issue in this case dealt with a purely legal issue. The State did not object to Duncan's trial counsel having access to the GAL's file, yet counsel for both parties felt that the proper procedural mechanism for release of the file, which may have contained privileged information, was for the trial court to release the file. That was the sole purpose of the hearing. Additionally, at the hearing on Duncan's motion for new trial, Duncan's trial counsel acknowledged that he reviewed the GAL's file and that if it had contained anything exculpatory, he would have done whatever was necessary to admit the exculpatory evidence at trial. At the same hearing, Duncan testified that, at the time of trial, he knew that there was a GAL who may have had evidence but he had "no idea" how to gain access to the file. Moreover, Duncan believed that if his trial counsel had found anything exculpatory in the GAL's file that he would have brought attention to it.

         Accordingly, "[s]ince there was not a reasonably substantial relationship between [Duncan's] presence during the discussion of these legal matters and his opportunity to defend against the charges, we conclude that his right to be present during critical stages of his criminal trial was not violated." Campbell, 292 Ga. at 770 (4). See id. (defendant's right to be present not violated by his absence from motions hearings, including a motion in limine and motion to suppress, discussing legal matters); see also Bethune v. State, 291 Ga.App. 674, 675 (1) (662 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.