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Leekomon v. State

Court of Appeals of Georgia, First Division

July 16, 2019

LEEKOMON
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          MERCIER, JUDGE.

         Following a jury trial, Mongkhon Leekomon was convicted of aggravated child molestation and child molestation.[1] The trial court denied Leekomon's motion for new trial, and he appeals, alleging that he received ineffective assistance of counsel at trial. He also claims that the trial court erred in charging the jury and improperly admitted evidence regarding his jailhouse telephone conversations. Finding no reversible error, we affirm.

         Viewed favorably to the jury's verdict, the evidence shows that Leekomon is the uncle of T. N., who was born on January 24, 1995. On numerous occasions beginning when T. N. was four years old, Leekomon touched her breasts, vagina, and buttocks with his hand. The conduct escalated as T. N. grew older, with Leekomon placing his mouth on her vagina during the incidents. The acts continued until T. N. was approximately 15 years old.

         T. N. did not disclose the abuse to anyone until 2013, when she confided in her college boyfriend. The following year, she informed her therapist about the molestation, and she told her mother in November 2014. On January 5, 2015, T. N.'s mother took her to the police station, where T. N. reported Leekomon's conduct to the authorities.

         1. Leekomon argues that he received ineffective assistance of counsel at trial. To prevail on this claim, Leekomon "must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance." Lupoe v. State, 300 Ga. 233, 239 (2) (794 S.E.2d 67) (2016) (citations omitted). A defendant establishes deficient performance by demonstrating that counsel "performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms." Id. at 240 (2) (citations omitted). Prejudice is show when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citation and punctuation omitted). In examining Leekomon's claim, we need not "address both components of the inquiry if [Leekomon] makes an insufficient showing on one." Id. (citation omitted).

         (a) Leekomon first claims that trial counsel should have moved to dismiss the indictment filed against him on statute of limitation grounds. We disagree.

         On January 6, 2016, the State charged Leekomon via indictment with aggravated child molestation and child molestation. As to both offenses, the indictment alleged that he committed the criminal acts against T. N., "a child under the age of sixteen (16) years," between August 1, 1998, and December 31, 2007. The indictment further alleged that these offenses were not "known to law enforcement until January 05, 2015."

         Generally, "prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime." OCGA § 17-3-1 (c). A statutory tolling provision, however, extends the limitation period for certain offenses, including aggravated child molestation and child molestation, committed between July 1, 1992, and June 30, 2012. See OCGA § 17-3-2.1 (a). Pursuant to this statute:

if the victim . . . is under 16 years of age on the date of the violation, the applicable period within which a prosecution shall be commenced . . . shall not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier.

Id.

         At the hearing on Leekomon's motion for new trial, trial counsel testified that he reviewed the relevant law regarding the statute of limitation and determined that, given the statutory tolling provision, he had no "valid basis to file a plea in bar or a motion to dismiss the indictment" on that ground. This determination was correct. Although the indictment was filed more than seven years after the crimes were committed, T. N. turned 16 years of age on January 24, 2011, and she first reported the crimes to police on January 5, 2015. Trial counsel properly concluded that the January 6, 2016 indictment, filed within seven years of both T. N.'s sixteenth birthday and the date she reported the crimes to police, was timely. See OCGA § 17-3-2.1 (a).

         Leekomon also argues that the indictment did not sufficiently inform him that the State intended use OCGA § 17-3-2.1 (a) to bring the offenses within the statute of limitation. It is true that when an indictment relies upon an exception to the statute of limitation, the State must allege and prove that the exception applies. See State v. Godfrey, 309 Ga.App. 234, 238 (2) (709 S.E.2d 572) (2011). As we have explained, however, "an indictment alleging the molestation of a child 'under the age of 16' sufficiently invoke[s] the statute of limitation tolling provision set forth in OCGA § 17-3-2.1." Lyde v. State, 311 Ga.App. 512, 517 (2) (716 S.E.2d 572) (2011) (citations omitted). See also Godfrey, supra ("[A]n allegation that the victim was under the age of 16 is sufficient to satisfy [the] requirement" that the State allege and prove that OCGA § 17-3-2.1 (a) applies) (citation omitted).

         Because the aggravated child molestation and child molestation counts asserted that T. N. was under the age of 16 at the time the crimes were committed, the indictment sufficiently placed Leekomon on notice that the State was relying on OCGA § 17-3-2.1 (a). See Lyde, supra; Godfrey, supra at 238-239 (2). Trial counsel's failure to file a motion to dismiss or plea in bar on this ground, therefore, was not a deficiency. See Hantz v. State, 337 Ga.App. 675, 678 (788 S.E.2d 567) (2016) ("Trial ...


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