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Lanham v. State

Court of Appeals of Georgia, First Division

April 26, 2018

LANHAM
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Barnes, Presiding Judge.

         A jury found Larry Lanham guilty of rape, and the trial court denied his amended motion for new trial. On appeal, Lanham contends that his trial counsel was constitutionally ineffective and that the trial court erred by allowing the State to introduce improper character evidence and by considering statements made by the prosecutor about Lanham's prior convictions during sentencing.[1] Upon our review, we affirm.

         "Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." Anthony v. State, 317 Ga.App. 807, 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that on August 5, 2010, around midnight, the nineteen-year-old victim, who was two months pregnant, was walking down the road after visiting her mother's house in Richmond County, Georgia, when a man whom she did not know approached her, attempted to flirt with her, and followed her down the road after she ignored him. The man caught up with the victim, and after she refused to give him her phone number and asked him to go away, he grabbed the victim by the neck, forced her down on the ground behind a bush, made her remove her pants and underwear, and pulled up her shirt and bra. The man forced the victim down the embankment into a ditch as she struggled with him, where he vaginally penetrated her with his penis and placed his mouth on her breast as she unsuccessfully tried to fight him off of her. At one point during the attack, the man pulled the victim on top of him and tried to force her to have sexual intercourse with him in that position, but he lost his erection. The victim tried to escape several times during the attack when cars passed by the location, but the man dragged her further down into the ditch, telling her that if she tried to get away he would kill her. As the attack continued, the victim pleaded with the man not to hurt her because she was pregnant, but the man continued to rape her and put his hands over her mouth to stop from her screaming. The man told the victim at one point that he would not leave until he ejaculated. He also said that his name was "Lawrence" and told the victim that he was "just tired of being rejected by people."

         The victim ultimately escaped from the attack and flagged down a passing motorist, who called 911 and drove the victim to a nearby police station. A corporal and an investigator with the Richmond County Sheriff's Office were on duty that night when the victim arrived at the police station. They saw that the victim had nothing on but a short shirt and was extremely distraught. According to the corporal, the victim was hyperventilating and vomited as he tried to calm her down. The investigator saw that the victim had debris in her hair, had scratches on her back, side, and arms and cuts on her knee and foot.

         The victim told the sheriff's corporal and investigator about the attack and described where it had occurred. Based on the victim's description, the investigator was able to locate the scene of the crime, where she found the victim's flip-flops, pants, underwear, and cell phone. The investigator also found pieces of the victim's hair and observed that the vegetation in the ditch area was disturbed, consistent with a struggle having occurred there. The investigator took photographs of the crime scene and collected the victim's hair, clothes, and cell phone. The police canvassed the area but were unable to locate a suspect or any witnesses.

         The police had the victim transported to the hospital for performance of a sexual assault kit. The victim described the attack to a hospital nurse, and she also told the nurse that she had engaged in consensual sexual intercourse with her partner using a condom around 11:00 p.m. that night, which the nurse documented in a sexual assault report. During the physical examination, photographs were taken of the victim's injuries, including bruising and scratches on her hands and back and scrapes on her legs. Swabs were taken from the victim's breast, vagina, and cervix for DNA testing.

         A few weeks later, on August 27, 2010, the victim was walking at night with her aunt and her aunt's boyfriend near the location of the attack. A man approached the aunt's boyfriend and began a conversation with him. The man told the aunt's boyfriend that he was not from the area and asked about where he could find some drugs. The victim recognized the man's voice and face as that of her attacker and told her aunt. The victim then walked with her aunt to her mother's house and called 911. Responding to the 911 call and the description provided of the suspect, officers searched the area and the man, identified as defendant Lanham, was located and arrested. The victim was driven in a patrol car by the scene of the arrest, where she saw Lanham and identified him as her attacker. The victim again identified Lanham as her attacker in a photographic lineup later that night.

         After Lanham's arrest, a search warrant was executed for his DNA. The DNA from the victim's breast swab matched Lanham's DNA. Male DNA was found in the victim's vaginal and cervical swabs, but the amount of DNA recovered from those swabs was insufficient to create a specific DNA profile.

         Lanham was indicted for rape and was tried before a jury in March 2011. Before the trial, the prosecutor moved in limine to exclude any evidence of the victim's past sexual behavior under Georgia's Rape Shield Statute, other than the fact that the victim was pregnant at the time of the rape. Defense counsel responded that the prosecutor "generally [had made] the correct statement of law, " with the caveat that if any evidence fitting into an exception to the Rape Shield Statute arose during the trial, the defense would raise the issue and seek a ruling from the trial court. The trial court thereafter granted the State's motion.

         At the ensuing trial, the victim testified to events as set out above and identified Lanham in the courtroom as her attacker, and the State introduced into evidence the victim's hair and personal belongings retrieved from the crime scene and photographs of her injuries and of the scene. The sheriff's corporal, investigator, and hospital nurse testified, as did the forensic biologist and forensic DNA analyst who tested the swabs taken from the victim.

         Lanham elected not to testify and did not present any defense witnesses. The defense introduced into evidence the sexual assault report prepared by the hospital nurse in an effort to show inconsistencies in the victim's description of the attack. Pursuant to the trial court's ruling on the State's motion in limine, the report was introduced in a redacted form that omitted the victim's statement that she had consensual protected sex with her partner earlier that night. During closing argument, Lanham's counsel argued that there was insufficient evidence of penetration to support a rape conviction and that the jury should consider the lesser included offense of sexual battery.

         Following its deliberations, the jury found Lanham guilty of rape. During the sentencing hearing, the prosecutor described Lanham's prior misdemeanor convictions, but did not introduce certified copies of those convictions. The trial court took into account Lanham's prior misdemeanor convictions and sentenced him to life in prison.

         Lanham filed a motion for new trial, as amended, in which he asserted, among other things, that his trial counsel had rendered ineffective assistance. After conducting a hearing in which Lanham's trial counsel testified, the trial ...


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