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Garner v. State

Court of Appeals of Georgia, Fourth Division

June 19, 2018

GARNER
v.
THE STATE.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Dillard, Chief Judge.

         Joseph Garner appeals his convictions for first-degree cruelty to children, rape, statutory rape, aggravated sodomy, and several other sex offenses. Specifically, Garner argues that (1) the evidence was insufficient to support his convictions for rape and statutory rape, (2) his trial counsel was ineffective for failing to ensure that a video played for the jury was redacted such that his character would not be an issue at trial, and (3) the trial court abused its discretion by denying his motion for a mistrial after a law-enforcement officer testified that another officer "believed" one of the victim's allegations. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that Garner and Crystal Wilson, the mother of the two minor victims (A. A. and T. A.), met sometime in late March or early April 2011. The couple began dating, and in June of that year, they moved in together, along with Wilson's children.[2]Approximately two years later, on May 3, 2013, Garner and Wilson were married. But less than two months after the wedding, on June 28, 2013, Wilson was arrested for perjury and taken into custody. Ultimately, Wilson was convicted of the charged offense, served a two-year prison term, and was released in February 2015.

         During Wilson's incarceration, A. A. and T. A. lived alone with Garner, and at some point, he began sexually abusing A. A. The first time it happened, Garner and the children were at his mother's home. T. A. left to take out the trash, and Garner told A. A. to come into a room with him. Garner then ordered A. A. to "pull down [her] clothes[, ]" and he put his finger inside her vagina. Garner told A. A. that her mother had given him permission to do it. A few months later, Garner sexually assaulted A. A. a second time, and despite A. A. pleading with him to stop, he penetrated her vagina with his penis.[3] Thereafter, sexual "stuff like that" happened with Garner and A. A. "most every day." Specifically, Garner would place his penis in A. A.'s mouth and vagina, and put his finger in her vagina as well. Garner did these things to her "all the time[, ]" and when she told him that she did not want him to do it anymore, she and T. A. would both "get in trouble for it."[4] On some occasions, Garner also used sex toys with A. A., including a "long blue thing" and a "vibrating thing."

         If A. A. refused to perform the sexual acts demanded by Garner, he "would get mad and . . . want to hurt [A. A. and T. A.] for it." On one occasion, Garner choked A. A., pushed her up against a wall, and crammed a shirt in her mouth so she could not breath. Garner would also tie up T. A. with three belts and then beat him with another one. As a result of Garner's continuous physical abuse, A. A. and T. A. had bruises all over their arms and their bodies were red and swollen. Garner also inflicted emotional abuse on A. A. even when he was not sexually abusing her. For example, after A. A. told Garner that she wanted to kill herself because of the sexual abuse, Garner handed A. A. a kitchen knife and encouraged her to do it. On a separate occasion, Garner made A. A. "put on tights like a stripper[, ]" go outside to the road, and ordered her to wait there to see if someone would pick her up. A. A. was left there, dressed like a stripper, for almost an hour. And while A. A. desperately wanted to report this sexual and emotional abuse to her mother, Garner read all of the letters that she and T. A. wrote to their mother in prison before sending them.

         In June 2014, A. A. and T. A. went to visit their aunt and cousins for two weeks, as they did every summer. During the visit, A. A. disclosed the ongoing sexual and emotional abuse to her aunt. Specifically, A. A. reported that Garner had been "messing with [her] . . . in a sexual way[, ]" and she reported some of the abuse detailed supra. And after A. A. confirmed that she would be willing to repeat her allegations to law enforcement, her aunt took her to the Newton County's Sheriff's Office to do so. Then, on June 26, 2014, A. A.'s aunt took her to a child-advocacy center for a forensic interview, during which A. A. essentially repeated her outcry.

         Thereafter, Garner was charged, via indictment, with rape, statutory rape, aggravated sexual battery (3 counts), aggravated sodomy, aggravated child molestation (2 counts), incest (2 counts), child molestation (2 counts), family-violence aggravated assault, and first-degree cruelty to children (4 counts). And following a jury trial, Garner was convicted of all charged offenses, except for one of the four first-degree cruelty-to-children counts. Garner then filed a motion for a new trial, which was denied following a hearing. This appeal follows.

         1. Garner first argues that the evidence was insufficient to support his convictions for rape and statutory rape. We disagree.

         When a criminal conviction is appealed, the evidence must be viewed "in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."[5] And, of course, in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[6] We will, then, uphold a jury's verdict so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[7] Bearing these guiding principles in mind, we turn now to Garner's specific challenge to the sufficiency of the evidence to support his convictions for rape and statutory rape.

         OCGA § 16-6-1 (a) (1) provides, in relevant part, that "[a] person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will." The statute further defines "carnal knowledge" in rape as "when there is any penetration of the female sex organ by the male sex organ."[8] And Count 1 of the indictment charged Garner with rape in that, between June 1, 2013, and May 29, 2014, he "did have carnal knowledge of [A. A.], a female, forcibly and against her will . . . ." Additionally, under OCGA § 16-6-3 (a), "[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years . . ., provided that no conviction shall be had for this offense on the unsupported testimony of the victim." In this regard, Count 2 of the indictment charged Garner with statutory rape in that, between June 1, 2013, and May 29, 2014, Garner "did engage in sexual intercourse with [A. A.], a person under 16 years of age . . . ."

         As to both his rape and statutory-rape convictions, Garner does not contend A. A.'s testimony that he repeatedly forced her to engage in sexual acts with him was insufficient to establish all of the essential elements of those offenses. Instead, with sparse citations to the record and without citing any legal authority other than the general standard applicable to a review of the sufficiency of the evidence, [9] he appears to challenge only A. A.'s credibility as a witness and the lack of evidence to corroborate her testimony. Specifically, he summarily contends that it is "more than highly probable that [A. A.] fabricated the story against [him], simply inserting some of the acts and details" that she had seen in pornographic videos. Garner also maintains that there was no physical or forensic evidence to corroborate A. A.'s story. These arguments are unavailing.

         It is well established that "[r]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court."[10]Garner's contention, then, that it is "highly probable" A. A. fabricated her testimony is of no consequence. The jury evidently disagreed, which it was entitled to do.[11]Furthermore, as to Garner's rape conviction, corroborating evidence is not required, and A. A.'s testimony alone is sufficient to support his conviction.[12] And while a victim's testimony must be corroborated to support a conviction for statutory rape, [13]Garner is wrong to claim that A. A.'s testimony was insufficiently corroborated. Significantly, the quantum of corroboration needed in a statutory-rape case is "not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged."[14]Indeed, slight circumstances "may be sufficient corroboration, and ultimately the question of corroboration is one for the jury."[15] Lastly, physical findings corroborating the victim's testimony are "not necessary to sustain a conviction of statutory rape."[16]

         Here, T. A.'s testimony corroborated A. A.'s allegations of sexual abuse. Specifically, T. A. testified that Garner periodically locked him in a different room while Garner and A. A. were alone with the music turned up, and on one occasion, he heard A. A. ask Garner for her bra, suggesting that she had been undressed. Perhaps most significantly, forensic testing revealed both A. A. and Garner's DNA on one of the sex toys that A. A. alleged Garner used while abusing her. And while most of the DNA on the toy matched A. A. with a reasonable degree of scientific certainty, a partial profile of DNA taken from the toy also matched Garner.[17]Furthermore, a victim's prior consistent statements, in the form of her outcry to others as testified to by them, "may constitute sufficient corroboration in a case of statutory rape[.]"[18] And at trial, A. A.'s aunt testified as to A. A.'s initial disclosure of the ongoing sexual abuse, including her allegation that Garner had "put[ ] his penis in [her]." Additionally, the jury viewed a videotaped forensic interview of A. A., in which she reiterated her allegations of sexual abuse. Given the foregoing, A. A.'s testimony alone was sufficient to support Garner's rape conviction, [19] and there was sufficient evidence to corroborate her testimony as to his statutory-rape conviction.[20]

         2. Garner next argues his trial counsel was ineffective for failing to ensure that a portion of A. A.'s videotaped forensic interview, which made his character an issue at trial, was redacted. Again, we disagree.

         In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, [21] "which requires [a defendant] to show that his trial counsel's performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."[22] Additionally, there is a strong presumption that trial counsel's conduct "falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption."[23] Lastly, unless clearly erroneous, this Court will "uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo."[24]

         Here, prior to trial, the State informed the court that it intended to play A. A.'s videotaped forensic interview for the jury, but there were two segments the State and Garner agreed should be redacted. But because the State did not have software capable of redacting the video, the parties agreed that one of the attorneys would manually mute the video during those segments. The State explained to the court that the two muted segments included brief references to Garner's criminal history. Then, just prior to playing the interview at trial, the court instructed the jury that there were some portions of the interview they would not be allowed to hear and that, if the attorneys for either side muted the video for a brief period of time, they should not "pay any attention to it." Garner concedes, however, that the record is silent as to whether the video was ever actually muted by the attorneys. And, of course, the burden is "upon the party asserting error to show it affirmatively in the record."[25]

         Nevertheless, assuming the video was not muted, the trial court found that there was no error in not redacting the complained-of portion of the forensic interview, and alternatively, any such error was harmless. Garner disagrees, contending that his counsel was ineffective for failing to ensure that the jury did not hear an exchange between the forensic interviewer and A. A. in which she stated that her family did not trust him. Garner quotes the exchange as follows:

Q. How come [your family] would ask you stuff like that?
A. Cause they don't really trust [Garner].
Q. Okay[, ] so they would ask you if he ...

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