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Whitelock v. State

Court of Appeals of Georgia, First Division

March 1, 2019


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

          REESE, JUDGE.

         A jury found Gebre Whitelock guilty of aggravated child molestation, child molestation, and cruelty to children in the first degree[1] based on acts committed against his step-daughter (hereinafter, "the victim"). The Appellant appeals from the trial court's denial of his motion for new trial, arguing that he received ineffective assistance of counsel, that the trial court erred in excluding evidence, and that his sentence is void. For the reasons set forth, infra, we affirm the Appellant's convictions and the sentences on his aggravated child molestation and cruelty to children convictions, but we vacate his sentence on his child molestation conviction and remand this case for resentencing.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence showed the following facts. In October 2009, the Appellant lived with his wife (hereinafter, "mother"), his wife's eight-year-old daughter ("victim"), the couple's two young children, and his wife's mother ("grandmother"). According to the victim, after her mother had fallen asleep one night, the Appellant went into the victim's bedroom, made her get out of bed, and told her to put her mouth on his penis. The Appellant told her that, if she did not do it or if she told anyone, "something bad [would] happen[, ]" and he threatened to kill her mother. The victim believed the Appellant and was scared, so she complied with his demand. The victim testified that, in the months that followed this incident, the Appellant repeatedly made her perform oral sex on him, performed oral sex on her, and touched her genitals with his hand. Because the victim continued to believe that the Appellant would kill her mother, she did not tell anyone about the molestation.

         The victim also testified that the Appellant frequently "punish[ed]" her "for no reason" by making her stay alone in her bedroom. In addition, the Appellant sometimes showed the victim "nasty videos" on the computer in his and his wife's bedroom ("parents' bedroom"); in the videos, "[g]irls were putting their mouth on boys' private area[s]." According to the victim, the Appellant told her to watch the videos because "he wanted [her] to be a professional[, ]" but she did not understand what he meant. The victim testified that, whenever he molested her, the Appellant had been drinking.

         During this same time period, the victim's grandmother started noticing that the Appellant was picking up the victim and hugging her more than the grandmother thought was normal or acceptable. The grandmother also observed, however, that the Appellant was "always punish[ing]" the victim by locking her in her bedroom or the parents' bedroom for the entire day, and the Appellant was often alone with the victim in the bedroom with the door locked. According to the grandmother, one time when she went into the bedroom to check on the victim, the victim looked "scared." The grandmother did not understand why the Appellant punished the victim so much because she was a "pretty good little girl" and a "straight A student" who was in the gifted and talented program at school. The grandmother became more confused and concerned when she noticed that the Appellant was taking the victim into the parents' bedroom at night, while the mother was sleeping, because the grandmother knew of no reason for him to do so. Finally, the grandmother's concern was heightened when the victim started walking around the house in the morning with only her underpants on while the Appellant was home.

         Based on these observations, the grandmother repeatedly told the mother that she suspected the Appellant was "messing" with the victim, and she urged the mother to "check it out" because "something's going on." The mother admitted at trial that she was in "denial" when the grandmother first talked to her about it. On the morning of August 30, 2010, however, while the family was in the car on the way to the victim's school, the mother whispered to the victim and asked if "anybody [had] been bothering her." According to the mother, the victim became "fearful" and began "shaking and . . . trembling." The victim then nodded and pointed at the Appellant. The mother and the victim got out of the car, and the mother confronted the Appellant, asking if he had been "messing" with the victim. The Appellant started to cry and denied doing anything to the victim, but then got out of the car and "started ranting around." He told the victim that he was "so sorry that I did this to you[, ]" and asked his wife for help because he had a "problem." The Appellant told the victim that he "wasn't going to do it anymore[, ]" and asked her, "why are you doing this to me?" The mother threw the Appellant's belongings out of the car, drove off without him, and went to the victim's school, where she spoke to the school's social worker.

         After getting some basic information from the mother about the allegations, the social worker called the Department of Family and Children's Services ("DFCS") and reported the sexual abuse.[3] The mother then took the victim to the hospital, where a certified pediatric nurse practitioner performed a sexual assault examination on the victim. A forensic interview was subsequently conducted, [4] and, based on what the victim reported during the interview, a police detective obtained an arrest warrant for the Appellant.

         Law enforcement officers were initially unable to locate the Appellant, though, because the Appellant took a bus to North Carolina on August 30, 2010, a few hours after the mother confronted him about the victim's allegations. Officers eventually located the Appellant in North Carolina, placed him under arrest, and brought him back to Georgia to face the instant charges.

         At trial, the mother testified that the Appellant had started "drinking a lot" in the six months that preceded the victim's disclosure. She testified that, when the Appellant was drinking, he was "a little more apt to want to have sex[, ]" and "would become kind of uncontrollable. He would basically change character. . . . He [would become] very wild, mean, argumentative, very verbally abusive." According to the mother, the Appellant threatened to kill her if she ever called the police on him, warning her that he knew her whole family and where they lived. The grandmother also testified that the Appellant had started becoming intoxicated "more and more every day" and became "real angry" when he did so. She testified that the Appellant was abusive to the mother and the children, and that the mother was afraid of him.

         In addition, the mother testified that, in 2009, she discovered a child sex video on the Appellant's computer in their bedroom. She asked the Appellant about it, and he said it was the result of a computer virus. The mother later noticed that the computer's memory had been deleted. After the victim disclosed her sexual abuse, the mother took the computer to the Appellant's sister's house to be stored, but, when a detective went to the house to retrieve it, the detective was told that the computer was not there, and it was never recovered. At trial, the Appellant admitted that there was a computer in the bedroom he shared with his wife and that he had majored in computer technology in college.[5]

         Finally, according to the mother, from October 2009 to August 2010, the victim became "very distant and depressed[, ]" which was different from her normal demeanor, and she started "wetting the bed" almost every night. The victim admitted that she "peed" in her bed every night while she was being molested, but she testified that she no longer did so at the time of the trial "[b]ecause nobody is bothering me." The grandmother testified that, once the Appellant was no longer around the victim, the victim was "not afraid anymore. [She does not] have to be punished. [S]he's free now. It's like . . . she was a slave, enslaved. [S]he wasn't herself. [S]he wet on herself. She just wasn't herself."

         In addition to these witnesses, the State presented the testimony of the school social worker, the nurse who performed the sexual assault examination, the police detective who initiated the investigation, the counselor who conducted the forensic interview, and Anique Whitmore, the Fulton County District Attorney's Director of Forensic Services.[6] Whitmore testified that, as part of her work in the "crimes against women and children" unit, she worked with a team to evaluate cases when the victim of an alleged crime was a child. In doing so, she worked with alleged victims

to assess their recall, their memory, their ability to testify. . . . [W]e assess [the case] as a team and look at a case and look at the details and the investigation to see the details of what is in front of us to make the best decision [about] going forward. . . . I am part of the unindicted team as well, I work with cases that have not been indicted. And so[, ] in review of those cases, looking at the forensic interview, meeting with the victim, speaking with perhaps investigators on the case, and if there are reasons using my expertise in forensic and child development, if there's holes in it . . .

         Trial counsel interrupted and objected "to this line of questioning and answers[, ]" the court sustained the objection, and the prosecutor moved on, asking Whitmore about her other education and experience. The prosecutor then proffered Whitmore as an expert in forensic interviewing and child sexual abuse evaluation and treatment.[7]During her testimony, Whitmore discussed "child sexual abuse accommodation syndrome" and described the different stages a child victim might go through following molestation, including "secrecy, . . . helplessness, entrapment, delayed disclosure, and recantation." Whitmore emphasized that, while these stages were consistent with sexual abuse, the fact that a child was acting in a manner consistent with one or more of the stages did not prove that the child had, in fact, been sexually abused. Whitmore also described other symptoms or behaviors that a child might experience as part of the syndrome, such as declining grades, "twitch[ing]" or scratching, exhibiting outbursts or discipline issues, and/or developing eating or sleeping disorders, including urinating in bed. In addition, Whitmore testified about "coaching," when someone tells a child what to say to a forensic interviewer or other investigator. According to Whitmore, when evaluating forensic interviews, she looks

for the lack of contextual detail. Contextual details are who, what, where, why, when, what things smelled like, tasted like, looked like, what was said, what happened before, what happened after. If the victim is unable to give me most of these details, a red flag goes up in my mind as to [whether] this child really experience[d] it or did somebody tell them what to say."

         Although Whitmore testified that she had watched the recording of the forensic interview of the victim in this case, she did not testify as to whether, in her opinion, the behaviors exhibited by the victim were consistent with child sexual abuse accommodation syndrome. More importantly, Whitmore did not offer any opinion about the credibility of the victim in this case or otherwise suggest that the victim had, in fact, been molested by the Appellant.[8]

         After the State rested its case, the Appellant testified in his defense, and he presented the testimony of his former girlfriend, who had been a good friend of the mother, in an attempt to attack the credibility of the mother and grandmother. The defense theory was that the victim's allegations were not based on any actual molestation by the Appellant, but, instead, were fabricated by the victim and her mother or were based on the frequent inappropriate, sexually-graphic conversations between the mother and the grandmother that the victim had overheard.[9] In addition, the defense contended that the grandmother was mentally ill and that her alleged observations of the interactions between the Appellant and the victim were, instead, illusions that resulted from her mental illness.[10] According to the defense theory, as a result of the mental illness, the grandmother repeatedly accused the Appellant of molesting the victim and, because the victim was present when the accusations were made, the victim began to believe that she had, in fact, been molested. To support this defense, the Appellant testified that the grandmother sometimes walked outside and screamed while drunk and naked, "always flip[ped] out," and/or reported events to the apartment's rental office that had not happened, and he characterized the grandmother as "psychotic." And, during closing arguments, trial counsel told the jurors that the grandmother had "some mental health issues[, ]" might be "crazy," and had a lot of "baggage"; characterized her testimony as "not reasonable"; and argued that the grandmother "was an 'are you kidding me[?]' witness" on whom the State had wasted the jurors' "precious time."

         Following the Appellant's convictions on aggravated child molestation, child molestation, and cruelty to children, the Appellant filed a motion for new trial, which the court denied. This appeal followed.

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, [11] 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, [12] even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[13]

         "The standard of Jackson v. Virginia[14] 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."[15] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the trial court abused its discretion when it excluded evidence that the victim's grandmother had been diagnosed with paranoia, bi-polar disorder, and/or schizophrenia (collectively, "mental illness").[16] In related arguments, the Appellant contends that the victim's mother should have been allowed to offer her lay opinion that, based upon her observations of the grandmother during the time period surrounding the victim's molestation, the mother believed that the grandmother was mentally ill.[17] He also argues that his former girlfriend should have been allowed to testify about specific acts by the grandmother that caused her (the girlfriend) to believe that the grandmother was mentally ill. The Appellant argues that this evidence was wrongly excluded because it was relevant to his defense that the grandmother's belief that he was molesting the victim was the product of her mental illness, not reality.[18]

         Pretermitting whether the trial court improperly excluded the evidence at issue, however, the Appellant's trial counsel did not proffer the evidence during trial.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this [C]ourt.[19]

         Therefore, the Appellant is unable to show on appeal that the excluded evidence would have been admissible and favorable to his defense, so that his defense was prejudiced by the exclusion thereof.[20]

         Moreover, the grandmother was neither an eyewitness to the alleged crimes nor an outcry witness to whom the victim had disclosed the molestation, and she did not testify that the Appellant had actually committed the crimes. Instead, the grandmother testified that she had observed the Appellant interacting with the victim over several months and that, based on such observations, she conveyed to the mother her concerns that the Appellant might be molesting the victim. Because the grandmother testified at trial, the jurors were able to assess her memory of the relevant events and determine whether those memories were consistent with the other evidence presented, or whether her testimony was unreasonable and her memories were the product of her "mental health issues" and emotional "baggage," as trial counsel argued to the jury.[21] Further, given the victim's testimony and statements during the forensic interview, [22]the Appellant's statements to the victim and her mother after they confronted him with the molestation allegations, and his flight to North Carolina immediately thereafter, [23] we find that the Appellant has failed to demonstrate any harm resulting from the exclusion of evidence about the grandmother's alleged mental illness.[24]

         2. The Appellant also contends that his trial counsel provided ineffective assistance when she failed to elicit the mother's testimony about her belief that the grandmother had been diagnosed with a mental illness. He argues that the testimony would not have been inadmissible hearsay, [25] because it would not have been offered for the truth of the matter asserted. Instead, he contends that the testimony would have explained why the mother did not immediately act when the grandmother expressed her concern that he (the Appellant) was molesting the victim.

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.[26] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [The appellate court] accept[s] the trial court's factual findings and credibility determinations unless clearly erroneous, but . . . independently appl[ies] the legal principles to the facts.[27]

         "Absent clear error and harm, we will affirm the trial court's finding that [the appellant] did not receive ineffective assistance of counsel."[28]

         In this case, pretermitting whether the mother's testimony would have been relevant and admissible, [29] as discussed in Division 1, supra, the Appellant's appellate counsel failed to call the mother as a witness and proffer the testimony at issue, or tender a legal substitute for such testimony (such as an affidavit), during the motion for new trial hearing.[30]

In assessing the prejudicial effect of counsel's failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a [defendant] is required to make an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [the Appellant] failed to make any proffer of the . . . testimony [at issue], it is impossible for [the Appellant] to show there is a reasonable probability the results of the proceedings would have been different.[31]

         Consequently, the Appellant has failed to show that the mother would have provided the testimony at issue during trial, that her testimony would have been favorable to his defense, and that, if trial counsel had elicited such testimony, there is a reasonable likelihood that the outcome of the trial would have been different.[32]Under such circumstances, we need not evaluate whether trial counsel's performance was deficient for not presenting this evidence, because the Appellant has failed to establish the second prong of the Strickland test, which is that the alleged error prejudiced his defense.[33]

         3. The Appellant contends that his counsel provided ineffective assistance by failing to object and failing to move for a mistrial when the prosecutor allegedly made an improper statement during closing arguments. Specifically, the Appellant argues that, while addressing the testimony of Anique Whitmore, the State's expert witness, the prosecutor told the jury that the expert witness had already decided that the Appellant was guilty of molesting the victim and that, if the expert had not believed that the Appellant had done so, the State would not have put the Appellant on trial. He contends that the prosecutor's statement was improper and prejudicial because it "intimate[d] that the government [had] already decided [his] guilt" and, thus, had invaded the province of the jury as to the ultimate issue to be decided. We disagree.

         According to the Appellant's brief and the trial transcript, the prosecutor's actual statement at issue is as follows: Whitmore "testified that if [she] didn't find anything in the interview of the child, [she] would suggest that the case not go forward." The Appellant's characterization of this statement, however, constitutes a significant ...

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