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Blackwell v. State

Court of Appeals of Georgia, First Division

June 19, 2018


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

          REESE, JUDGE.

         A jury found Kenneth Blackwell guilty of aggravated child molestation, aggravated sexual battery, and statutory rape.[1] The trial court sentenced Blackwell to life plus 20 years' imprisonment. Blackwell appeals from the denial of his amended motion for new trial, arguing, inter alia, that his trial counsel was ineffective in failing to object to the improper admission of child hearsay evidence. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence presented at trial showed the following facts. In 2006, when the victim, K. S. was about seven years old, Blackwell began dating K. S.'s mother. At the time, K. S. and her family lived in Ohio. According to K. S., Blackwell "started to touch" her around that time, using his fingers to touch her breasts and her vagina. Two or three years later, when K. S. was nine or ten years old, Blackwell began having sexual intercourse with her.

         In 2010, when K. S. was ten or eleven years old, her family and Blackwell moved to Gwinnett County, where the sexual intercourse and fondling continued. In addition, Blackwell began to force her to perform oral sex on him. According to K. S., the sexual abuse happened "[a] lot, " but she did not tell her mother because she thought her mother would not believe her.

         Then, in July 2012, when K. S. was 13 years old, Blackwell impregnated her, and she had to undergo a second-trimester abortion. According to K. S., she did not tell her mother that Blackwell was the man who had impregnated her, and her mother did not ask her who it had been. Blackwell, however, told K. S.'s mother that she had been raped by someone in the neighborhood. It is undisputed that neither K. S.'s mother nor Blackwell called the police to report the alleged rape.

         Following the abortion, Blackwell continued to have sexual intercourse and oral sex with K. S. repeatedly until early May 2014, when she was 15 years old. About two weeks after the last time Blackwell sexually assaulted her, K. S. ran away from home and went to a friend's house seeking a place to spend the night. According to K. S., she ran away because she was afraid for her own safety and that of her little sister, who was five or six years old at the time.

         The friend's mother testified that K. S. told her "about the things [Blackwell was] doing to her" and that she had told her mother about the abuse several times, but her mother did not believe her. The friend's mother testified that K. S. had "told [her that] ever since she was [nine years old, Blackwell] had been touching her and he ha[d] sex with her and . . . made her perform oral sex on him and that she [had become] pregnant by him . . . when she was . . . 13 or 14 - and that the child . . . was . . . aborted[.]" The friend's mother, who was a police officer, called K. S.'s mother, who arrived shortly thereafter, and the police.

         The Gwinnett County police officer who responded to the call, Angelica Grissom, testified at trial that she spoke briefly with K. S. at the friend's home. K. S. told Grissom that Blackwell

started touching her when she was about [seven] years old and that he actually started inserting his penis or penetrating her when she was about [ten]. [K. S.] initially told [Grissom] that in the summer of 2013 she had an abortion. [H]er mom [told Grissom, however, ] that she paid for an abortion in the summer of 2012. [K. S.] stated [that Blackwell] would normally come into her bedroom late at night when her mom was asleep. She stated that many times she was actually asleep herself and [Blackwell would] wake her up. [K. S. stated that the sexual abuse] happened for several years. [T]heir last encounter was about two weeks prior to th[e] report being filed with the police [in May 2014].

         Grissom also testified that she asked K. S.'s mother if she believed K. S.'s claims about Blackwell, and the mother responded that she did.[3]

         Detective Kim Riddle with the Gwinnett County Police Department's Special Victims Unit conducted a forensic interview of K. S. in June 2014. According to Riddle, K. S. said that the sexual abuse in Gwinnett County started in 2010 when she was in 6th grade and about eleven years old and that it continued "until two or three weeks prior to the report, " i.e., early May 2014. In fact, K. S. specifically told Riddle that she had performed oral sex on Blackwell about two weeks before she reported the abuse. The State played a redacted video recording of the nearly two-hour forensic interview for the jury. During the interview, K. S. detailed the years of sexual abuse by Blackwell, telling Riddle that it happened "whenever [Blackwell] wanted it."

         In addition to this evidence, K. S.'s younger brother, D. S., testified that he learned about his sister's assault after she reported it. According to D. S., she told him "that the small period of time when [Blackwell] was living with [them] in [Ohio, ] . . . [Blackwell] would start feeling her and . . . she couldn't tell anybody because he threatened to kill all of [them.] [After they moved to Georgia, ] it started picking up more and more[, ] and eventually she had an abortion."

         The State indicted Blackwell, charging him with committing the acts of aggravated child molestation, aggravated sexual battery, and statutory rape against the victim. According to each count, Blackwell committed these acts sometime between October 1, 2010, and May 1, 2014.

         After Blackwell was convicted on all three of the charged crimes, he filed a motion for new trial. Blackwell's trial counsel testified at the motion hearing that he did not file a motion in limine or object to the admission of K. S.'s out-of-court statements because he did not believe he had a legal basis to object, given K. S.'s age when she made the statements and the fact that she was available to testify at trial.

         The trial court denied the motion for new trial, ruling that K. S.'s out-of-court statements to her friend's mother, her brother, Grissom, and Riddle (hereinafter, "the hearsay witnesses") were admissible under the child hearsay statute because she was under 16 years old at the time she made the statements. The court also ruled that the statements were admissible as prior consistent statements. Thus, the court concluded that counsel's failure to raise a meritless objection did not constitute deficient performance. Blackwell appeals.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [4] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[5]

         "The standard of Jackson v. Virginia, [6] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[7]

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.[8] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.[9]

         "Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong."[10] With these guiding ...

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