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Lewis v. State

Court of Appeals of Georgia, First Division

August 5, 2019

LEWIS
v.
THE STATE.

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

          BROWN, JUDGE.

         Following a jury trial, Kenneth Charles Lewis was convicted of child molestation, rape, and two counts of aggravated sodomy in connection with the repeated sexual abuse of his then fourteen-year-old step-daughter. On appeal, Lewis argues that the trial court erred in denying his amended motion for new trial because (1) the verdict was contrary to law, justice, equity, and the evidence and without evidence to support it and (2) trial counsel provided ineffective assistance for a number of reasons. Lewis also appeals the denial of his motion for testing of evidence. For the reasons that follow, we find no error and affirm.

         1. "On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation and punctuation omitted.) Anderson v. State, 348 Ga.App. 322 (822 S.E.2d 684) (2018). So viewed, the evidence adduced at trial shows that Lewis served 25 years in prison after being sentenced to two life sentences for murder and armed robbery. After being paroled and released, Lewis met the victim's mother online, and he moved into the home where the victim lived with her mother. Lewis and the victim's mother married in 2010. Sometime during the summer of 2011, Lewis exposed himself to the victim, then began touching her over her clothing, and eventually, under her clothing. The touching escalated to vaginal, anal, and oral penetration. The victim testified that she was frightened of Lewis because he told her he had decapitated a man. In addition, if the victim refused Lewis' advances, he would slam doors and "kick the animals."

         The victim first disclosed the abuse to a friend. Subsequently, the victim and the friend were alone at Lewis' workplace when Lewis inappropriately touched the friend in front of the victim. Lewis stopped when the friend began to cry and the victim yelled at him. Lewis' abuse continued regularly until 2014, when Lewis started drinking himself to sleep every night and the victim's mother divorced him.

         After Lewis and the victim's mother divorced in 2014, the victim revealed to her mother that Lewis had sexually abused her. The mother contacted police, and an investigator spoke with the victim at her home with her mother present. During two forensic interviews, the victim disclosed and described Lewis' regular and repeated sexual abuse. The victim also underwent a physical examination, which did not yield any injuries or unusual findings. However, the examining physician testified that it was not surprising for the victim to have a normal exam six months after any trauma occurred. Lewis testified at trial and denied all of the allegations. Although Lewis does not dispute the sufficiency of the evidence, we conclude that it was sufficient to authorize a rational jury to find beyond a reasonable doubt that Lewis was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. In several enumerations of error, Lewis argues that the trial court erred in denying his amended motion for new trial because the verdict was "contrary to law, justice, and equity," and "contrary to the evidence and without evidence to support it." See OCGA § 5-5-20. However, the power to grant a new trial on the general grounds lies with the trial court alone. See Celestin v. State, 296 Ga.App. 727 (1) (675 S.E.2d 480) (2009).

Trial courts have discretion to grant a new trial on these grounds - commonly known as the "general grounds"- but appellate courts do not. Our review is limited to the legal sufficiency of the evidence. Indeed, even when asked to review a trial court's refusal to grant a new trial on the general grounds, this Court must review the case under the standard set forth in Jackson v. Virginia. . . .

(Citations and punctuation omitted.) Plez v. State, 300 Ga. 505, 507 (1), n.2 (796 S.E.2d 704) (2017). As we explained in Division 1, supra, the evidence in this case meets the standard for legal sufficiency.[1]

         3. Lewis next argues that his trial counsel provided ineffective assistance for a number of reasons.

To prevail on a claim of ineffective assistance of counsel, [Lewis] must show that trial counsel's performance was so deficient that it fell below an objective standard of reasonableness, and that counsel's deficient performance prejudiced the defense such that a reasonable probability exists that the trial results would have been different but for counsel's performance. Strickland v. Washington, 466 U.S. 668 (II) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).

Bragg v. State, 295 Ga. 676, 678 (4) (763 S.E.2d 476) (2014). "Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) Brown v. State, 321 Ga.App. 765, 767 (1) (743 S.E.2d 452) (2013).

         (a) Lewis argues trial counsel was ineffective by not pursuing avenues of potentially exculpatory evidence. Shortly before trial began, a defense investigator gave trial counsel a report noting that Lewis claimed he had scarring on his testicles from surgery and that his ejaculate contained blood. Neither the State nor the defense brought up this information at trial. According to Lewis, trial counsel should have "explored whether [these] claims were true, and if so, whether any of the State's witnesses[, including the victim, ] were capable of verifying [this]." We first note that the investigator's report to which Lewis refers is not included in the record before this Court. Nevertheless, assuming the report states what Lewis claims, we find no merit in his argument.

         When questioned about the report during the motion for new trial hearing, trial counsel testified that even if Lewis' claims could have been verified and he had questioned the victim about the scarring and bloody ...


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