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Tezeno v. State

Court of Appeals of Georgia, Fifth Division

October 31, 2017


          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         Dianell Michael Tezeno appeals[1] from the trial court's denial of his motion for a new trial after a jury convicted him on two counts of aggravated child molestation, two counts of sodomy, one count of enticing a child for indecent purposes, and one count of solicitation of sodomy. On appeal, Tezeno enumerates three errors. First, Tezeno argues that there was insufficient evidence to support his convictions for enticing a child for indecent purposes and solicitation of sodomy. Second, he argues that his trial counsel was ineffective in several regards, namely in failing to obtain records relating to a State witness's prior felony conviction that could have been used for impeachment, failing to challenge testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) offered by a State expert, and failing to obtain evidence that could have been used to impeach State witnesses who offered similar-transaction evidence against Tezeno. Finally, he argues that the trial court erred by allowing the State to introduce certain similar-transactions evidence at trial. We hold that the evidence presented by the State was sufficient to support Tezeno's convictions for enticement of a child for indecent purposes and for solicitation of sodomy. However, we find that Tezeno received ineffective assistance of counsel at trial. We therefore vacate his convictions on all counts of the indictment and remand this matter to the trial court for further proceedings consistent with this opinion. We do not reach his final enumeration of error.

         On appeal, the defendant "is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict." Batten v. State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014) (citation omitted). So viewed, the evidence shows that the victim in this case met and became friends with Tezeno, who was his neighbor. The victim visited Tezeno's house weekly, often with his siblings and other children in the neighborhood, and performed paid yard work for Tezeno.

         At trial, the victim testified that, on one occasion, he approached Tezeno and told him that he needed money. The victim offered to allow Tezeno to perform oral sex on him in exchange for money. Tezeno accepted this offer. Several days later, the victim came to Tezeno's house and allowed Tezeno to perform oral sex on him in the bedroom. Tezeno gave the victim money the following day. The victim testified that a similar incident occurred about a week later when the victim again needed money. The victim was 14 years old at the time of the incidents, and he testified that Tezeno was aware of the victim's birthday and that he knew how old the victim was and what grade he was in at school.

         Several days later, on January 12, 2010, the victim complained of a stomach ache, and his mother took him to the emergency room. While there, the victim also complained of painful urination. While he was awaiting treatment, the victim sent a text message to his mother that said "Mike did something to me." The mother had previously asked the victim if Tezeno had "done something to him, " but the victim denied that anything had happened. After further questioning by his mother, the victim indicated that Tezeno "gave him oral sex" on one occasion at Tezeno's home. While still at the hospital, the victim also told a police officer that an adult had performed oral sex on him. The victim also told his treating physician that "Michael" was the person who had performed oral sex on him.

         A police investigator with the special victims unit testified regarding a follow-up interview she conducted with the victim after he reported the incidents with Tezeno. The investigator indicated that the victim told her that

[O]riginally the suspect offered him or solicited to him if he ever needed money he could perform oral sex on him for money. I believe he said several days later he was willing to participate with that, and he said-he told the suspect he wanted to do a run, the "run, " which means he wanted to do the oral sex for money. He said it happened twice. The first time he got $15. The second time I just remember him saying he didn't get the money. I'm not sure if the suspect promised him money or not, I just remember him saying he didn't get the money. He said the two incidents happened within a few days apart, and it happened while he was on break from Christmas, at school. He was on Christmas break.

         The investigator also indicated that, in his interview with her, the victim identified Tezeno as the person who had performed oral sex on him.

         The State also presented testimony at trial from an expert in forensic interviewing who had interviewed the victim after his encounters with Tezeno. In addition to describing the setting and procedure generally for conducting a forensic interview with a child who reports some type of sexual crime, the expert testified regarding her interview of the victim. She noted that the victim seemed nervous, embarrassed, and ashamed during the interview. A video recording of the interview was then played for the jury, in which the victim recalled his encounters with Tezeno. In that interview, the victim indicated to the interviewer that he had told Tezeno that he needed money and that he "would do that for him." The interviewer asked, "You said that he asked you to do something, and then one day you needed some money, and you told him you would do it for the money? What did he ask you to do?" The victim replied, "He told me 'let me give you some oral sex.'" The victim indicated that Tezeno had previously told him that "that was available if you needed some money." The victim then told the interviewer that he later "came up to [Tezeno] and said I needed some money" and that he "wanted to do the run for some money." The victim stated that after he let Tezeno perform oral sex on him he later received $ 15 from Tezeno. He indicated in the interview that he later let Tezeno perform oral sex on him for a second time but that Tezeno did not pay him on that occasion. Regarding the second act, the victim did not make a specific request for money, but he indicated in his interview that he expected to receive money from Tezeno because "that's what he said before. That's what I was told before. I wasn't doing it just to be doing it."

         The victim's mother testified that, in the weeks after the victim reported his encounters with Tezeno at the hospital, the victim's behavior changed "drastically." She stated that he had been suspended from school several times for disobedience and fighting, that he withdrew from his friends, and that he became resentful and rebellious. She testified that before these incidents the victim had been outgoing, that he regularly participated in activities and sports with friends, and that he had not been prone to fighting or been suspended from school, although he did regularly skip school.

         Following a hearing, the trial court permitted the State to present similar-transactions testimony from three witnesses regarding prior incidents in which Tezeno had been accused of molesting a minor child. The first witness testified regarding a complaint she filed with police after an incident in September 2004 at Tezeno's house where he allegedly "touched" her son "on his private part." The alleged victim was eight years old at the time the incident was reported.

         In his testimony before the jury, the alleged victim of this incident stated that Tezeno had touched his penis in the bathroom after Tezeno had been in the shower with him while unclothed. He also testified that, on another occasion, while he was traveling to New Orleans with Tezeno, Tezeno unzipped his pants and began masturbating while he was driving a vehicle. The alleged victim was eight years old when this incident occurred and was seated in the passenger seat of the vehicle while Tezeno masturbated. He also recalled a third incident in which he observed Tezeno masturbating and eventually ejaculating in Tezeno's home. He said that Tezeno knew he could see him masturbating because "we both looked at each other."

         The State also called the police detective who had interviewed the mother and the alleged victim to discuss his investigation of the incidents offered as similar transaction evidence. He said that Tezeno denied the allegations made against him but told the detective that he may have "bumped" the alleged victim's penis while helping him dry off after a shower and while applying mineral oil to his body.

         The State called, as its final witness, the district attorney's director of forensic services. She was tendered as an expert in forensic interviewing of children and child sexual abuse evaluation and treatment. Tezeno made no objection to her designation as an expert. Her testimony focused on CSAAS, which she stated was based on the theory that a child victim of sexual abuse may display certain characteristics such as secrecy, helplessness, withdrawal, or entrapment that may indicate that the child has been the victim of abuse. She stated that these feelings may lead a child victim to not disclose incidents of abuse, at least in part, because of a fear that he or she may get into trouble. She also stated that children in this situation will "oftentimes . . . begin to act out because in the act of a sexual abuse case, children oftentimes are helpless and do not have that sense of control." She stated that children in these circumstances will often have "issues in school with grades, or teachers, acting out... because that is what they can control." She went on to discuss what she described as common child reactions to incidents of sexual abuse, speaking particularly as to how adolescent boys react to such incidents. She also described factors that may lead a child to delay disclosure of incidents of abuse or to forget or omit details about such incidents when reporting them. She also discussed the process of "grooming" whereby a perpetrator of sexual abuse may "get their victim to a place to be okay with the abuse" by slowly building trust.

         Tezeno offered only minimal cross-examination of this witness, asking the witness only two substantive questions: "What you have done today is just tell us about child abuse in various types and ways that happen[s] and the ways it gets reported?" and "You have not told us anything else, have you? You have not told us about [the victim]?"

         At the conclusion of the expert's testimony, the State rested. After being advised of his rights by the trial court, Tezeno ...

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