ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Lee Duncan was tried by a jury and convicted of two counts of
aggravated sexual battery,  aggravated child molestation,
nine counts of child molestation,  and two counts of cruelty to
children in the first degree. 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).
viewed, the evidence showed that in 2010, Duncan was the
father of four daughters, 13-year-old triplets, V . D., F. D.,
and E. D., and 6-year-old L. D. 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
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
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.
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.
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
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.
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
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.
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.
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.
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."
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.
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.
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.
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.
triplets' mother testified that Duncan denies all of the
allegations and she believes him. The triplets' mother
now views her daughters as a "liability."
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.
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.
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
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. 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
argues that his absence from this hearing violated his right
to be present under the Georgia Constitution because he
could not assist his counsel "with issues relating to
this [m]otion hearing, including the review of [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).
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.
"[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