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Love v. State

Court of Appeals of Georgia, Second Division

March 7, 2019


          MILLER, P. J., BROWN and GOSS, JJ.


         A White County jury convicted Allen Jerry Love of one count of rape (OCGA § 16-6-1), two counts of incest (OCGA § 16-6-22), one count of aggravated child molestation (OCGA § 16-6-4 (c)), two counts of child molestation (OCGA § 16-6-4 (a)), one count of statutory rape (OCGA § 16-6-3), three counts of sodomy (OCGA § 16-6-2 (a) (1)), and one count of sexual battery against a child under 16 (OCGA § 16-6-22.1 (d)).[1] The Superior Court of White County denied Love's motion for new trial as amended, and he appeals. Love raises a host of arguments, including sufficiency of the evidence as to Counts 10 and 11 of the indictment, ineffective assistance of trial counsel, the denial of his motion to sever, and the failure to strike certain testimony by an expert witness. We find no error and affirm.

         1. Love argues that the State failed to prove him guilty of Counts 10 (child molestation) and 11 (sexual battery against a child under 16) against victim M. M. beyond a reasonable doubt.[2]

         (a) First, Love summarily contends that the evidence was insufficient to convict him of Count 10 (child molestation). The gravamen of Love's argument is that "M. M. refused to accuse Mr. Love at trial" and that it was therefore unclear "as to what exactly Mr. Love was alleged to have done to her . . . ." We are not persuaded.

         Under Georgia law,

[o]n appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979)]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

         (Citation omitted.) Watkins v. State, 336 Ga.App. 145, 146 (1) (784 S.E.2d 11) (2016). Relevant to this case, child molestation occurs when a person "[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4 (a) (1).

         So viewed, evidence adduced at trial revealed that M. M. formerly lived with Love, her mother, and her sister (B. W.). Although M. M. testified that she did not remember telling her mother that Love "used to squish [her] like a bug and shake [her] like a milk shake," she admitted that Love touched her in a way that she did not like and that she and Love had "a secret." She declined to elaborate or testify further, saying that she "just [did not] feel comfortable talking to other people about it."

         M. M.'s mother testified that M. M. told her she had a secret with Love and that they played a "game." The game involved Love removing his clothing, getting behind M. M., and "squash[ing] her like a bug and sh[aking] her like a milkshake." M. M. said that, on these occasions, she would be on her hands and knees. M. M.'s mother then got on her hands and knees and asked M. M. to demonstrate what Love did; M. M. "got behind [her] as in like the doggie style position and started to dry hump [her]. . . ." M. M. also said that Love did not wear clothes during these episodes and "describe[d] in detail what [Love] looked like naked," stating where he had hair and that "sometimes his thing sticks up and sometimes it don't."

         An investigator with the White County Sheriff's Office videotaped a forensic interview of M. M. in 2010, [3] and the State introduced a copy of the interview into evidence and played the videotape for the jury. During the interview, M. M. described getting touches she did not like, including getting touched on her "private" and when someone laid on top of her, although she did not elaborate. Later in the interview, M. M. described Love "squishing [her] like a bug" and "shaking [her] like a milk shake." She further described the activity as Love lying on her and bouncing up and down. Using dolls, M. M. demonstrated herself lying face down with Love lying on top of her and bouncing up and down.

         The investigator also interviewed M. M.'s sister, B. W. During the interview, B. W. stated that one evening, when M. M. complained to B. W. about a rash she had, M. M. told B. W. that she and "Allen have a secret" and that he "smushes her like a bug and shakes her like a milk shake."[4] B. W. told her mother about M. M.'s statement, [5] and when B. W. and her mother asked M. M. what she meant, M. M. replied that "Allen gets on top of me and just shakes me." The State also introduced other acts evidence against Love involving an act of child molestation against a seven-year-old victim in 2006 or 2007.

         Taken together, we conclude that this evidence was sufficient to convict Love of child molestation against M. M. beyond a reasonable doubt. See Kirkland v. State, 334 Ga.App. 26, 33 (3) (778 S.E.2d 42) (2015) (sufficient evidence to convict defendant of aggravated child molestation where victim was non-responsive at trial, but jury could consider victim's prior statements to mother, great-grandmother, and forensic interviewer, as well as similar transaction evidence); Maurer v. State, 320 Ga.App. 585, 588 (1) (740 S.E.2d 318) (2013) (sufficient evidence to convict defendant of child molestation where victim refused to testify and relatives, to whom victim reported the molestation, were reluctant, but forensic interview that included victim's outcry admitted into evidence); Westbrooks v. State, 309 Ga.App. 398, 400- 401 (1) (710 S.E.2d 594) (2011) (sufficient evidence to convict defendant of child molestation where victim did not provide details of molestation, but uncle and forensic interviewer testified to victim's outcry).

         (b) Second, Love asserts that there was insufficient evidence to convict him of Count 11 (sexual battery against a child under 16). However, the trial court merged Count 11 with Count 10 for sentencing purposes.[6] Accordingly, "[w]e need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment." (Citation omitted.) Kollie v. State, 301 Ga.App. 534, 540 (3) (687 S.E.2d 869) (2009).

         2. Love next argues that the trial court erred in denying his motion to sever his trial by individual victim. According to Love, "nothing unified the allegations against the three . . . victims other than they involved similar conduct." Love contends that he therefore had an absolute right to have the offenses severed. We disagree.

         Prior to trial, Love moved to sever the charges based upon the three individual victims, arguing that the victims were unrelated save for the nature of the allegations against Love and because of the "great time differential" between the victims. Of note, the State responded that it had filed notice of its intent to introduce evidence of other acts; as a result, even if Love's trial was severed based upon the separate victims, the State would still be permitted to introduce evidence of alleged conduct against the remaining victims. The trial court agreed, noting that the allegations against Love reveal "kind of a common course of conduct" or "a common plan."[7] As a result, the trial court denied Love's motion to sever.

Under Georgia law,
[i]f [multiple] offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever. In making this decision, the court must consider the number of offenses charged, the complexity of the charges, and the complexity of the evidence and determine whether the jury will be able to fairly and intelligently parse the evidence and apply the law with regard to each charge.

         (Citations and punctuation omitted.) Machiavello v. State, 308 Ga.App. 772, 773 (2) (709 S.E.2d 28) (2011). "Where in the sound discretion of the trial court, the number of offenses charged and the complexity of the evidence do not reasonably impinge upon a fair determination of the defendant's guilt or innocence as to each offense charged, a severance need not be granted." Id. at 774 (2) (citing Chaparro v. State, 279 Ga.App. 145, 147 (3) (630 S.E.2d 645) (2006)). "We review a trial court's denial of a motion to sever the trial of separate charges for an abuse of discretion." (Citation omitted.) Smith v. State, 249 Ga.App. 39, 40 (1) (547 S.E.2d 598) (2001). Of particular relevance, "the trial court does not abuse its ...

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