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Davis v. State

Court of Appeals of Georgia, Fifth Division

May 3, 2019

DAVIS
v.
THE STATE.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Larry Michael Davis was convicted of two counts of child molestation. The trial court denied Davis's motion for new trial, and he filed this appeal. Davis argues that when denying the motion for new trial, the trial court failed to exercise his discretion and weigh the evidence in his consideration of the general grounds as required by OCGA § 5-5-21. But nothing in the trial court's order denying the motion for new trial shows that he failed to exercise this discretion. Davis argues that trial counsel was ineffective. But he has failed to show that counsel's performance was both deficient and prejudicial. So we affirm.

         1. Evidence.

         Viewed in the light most favorable to the jury's verdict, see Bryant v. State, 296 Ga. 456, 457 (1) (769 S.E.2d 57) (2015), the evidence at trial showed that the victim, who was six years old at the time, spent the night at Davis's house. In the middle of the night, the victim entered Davis's bedroom, saying that she was scared. She climbed into bed with Davis. Davis touched her between her legs with his erect penis.

         Davis gave a statement to police that was introduced at trial. In his statement, Davis said that once the victim was in his bed, he fell asleep, and that when he woke up, his erect penis was out of his pants, pressing against the victim between her legs.

         2. Denial of motion for new trial.

         Davis argues that the trial court failed to exercise his discretion under OCGA § 5-5-21 when he denied the motion for new trial. Nothing in the trial court's order, however, indicates that he did not exercise his discretion or applied the incorrect standard of review.

         Under OCGA § 5-5-21, "[t]he presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding." When a motion for new trial challenges the weight of the evidence under OCGA § 5-5-21, the trial court "sits as a thirteenth juror. The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." King v. State, 344 Ga.App. 244, 246 (2) (809 S.E.2d 824) (2018) (citation and punctuation omitted).

         Davis argues that the language of the trial court's order shows that the court failed to exercise this discretion. We disagree. The trial court expressly addressed Davis's argument that the verdict was contrary to the evidence and strongly against the weight of the evidence. After concluding that the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the trial court wrote that it found "that the verdict is not contrary to the law and principles of justice."

[N]othing in the trial court's order indicates that it did not exercise its discretion or that it in any way applied the incorrect standard to its review. And as we have previously explained, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the trial judge agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact. There being no such indication here, this enumeration of error is without merit.

Jones v. State, 339 Ga.App. 95, 105 (4) (791 S.E.2d 625) (2016) (citations and punctuation omitted).

         3. Assistance of counsel.

         Davis argues that trial counsel was ineffective in three ways: he failed to investigate two possible motives of the mother of the victim to fabricate the charges against him; he failed to subpoena Davis's telephone records; and he failed to call Davis ...


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