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Pinkston v. State

Court of Appeals of Georgia, Fifth Division

September 20, 2019

PINKSTON
v.
THE STATE

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCFADDEN, CHIEF JUDGE.

         John Aubrey Pinkston appeals from his convictions on two counts of child molestation. He challenges the admission of his statements to law enforcement officers, in which he admitted to touching the vaginal area of one of the two victims, but we find no merit in his assertion that the statements were involuntary. He argues that the trial court should have charged the jury on his defense of accident even though he did not request that charge or object to its absense, but we find no plain error. And he argues that his trial counsel was ineffective for withdrawing a requested jury charge on good character, but he has not shown that he was prejudiced by this claimed deficiency. So we affirm.

         1. Facts.

         Viewed in the light most favorable to the verdict, the trial evidence showed that Pinkston, a minister, repeatedly molested two young girls whose families attended his church. On several occasions at the church, Pinkston touched the vaginal area of E. M. while she was sitting on his lap. In those instances, he touched and sometimes rubbed E. M. beneath her clothing. E. M. was between four and six years old at the time. Pinkston also touched the vaginal area of S. C. on several occasions while she was sitting on his lap. In those instances, Pinkston touched S. C. above her clothing. S. C. was between four years old and elementary-school age at the time.

         Both E. M. and S. C. made outcries about the touching. E. M.'s parents contacted law enforcement, which ultimately led to Pinkston's arrest. S. C.'s mother misunderstood the nature of the outcry and did not contact law enforcement at that time. But years later S. C. made a second outcry after learning of Pinkston's arrest in connection with his acts against E. M., and at that point law enforcement was notified. Both girls gave forensic interviews to law enforcement that were played for the jury, and both girls testified at trial about Pinkston's acts.

         2. Pinkston's statements to law enforcement officers.

         Before his arrest, Pinkston made statements to law enforcement officers in which he admitted touching E. M.'s vaginal area beneath her clothing for approximately 15 seconds on a single occasion. In one of those statements, Pinkston described the incident as a stupid mistake and stated that he was surprised E. M. remembered it. Pinkston sought to exclude evidence of the statements, but the trial court ruled that they were admissible and at trial the state introduced both recordings of the statements and testimony about them. Pinkston argues that this ruling was error because his admissions in the statements that he touched E. M. were not voluntary. We review the ruling de novo, because the facts pertaining to Pinkston's admissions are depicted on a video recording and are not in dispute. See Dozier v. State, 306 Ga. 29, 33 (4) (829 S.E.2d 131) (2019); Stallings v. State, 343 Ga.App. 135, 141-142 (2) (806 S.E.2d 613) (2017). Applying that standard of review, we find no error.

         "To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." OCGA § 24-8-824.[1] The "'slightest hope of benefit' refers to promises related to reduced criminal punishment - a shorter sentence, lesser charges, or no charges at all." Budhani v. State, ____ Ga. ___, ___ (2) (b) (830 S.E.2d 195) (2019) (citations and punctuation omitted; emphasis supplied). Pinkston argues that he received the slightest hope of benefit because the law enforcement officers who interviewed him introduced the idea of counseling as an alternative to incarceration. But the recordings of those interviews show that the officers made Pinkston no promises regarding counseling or any other aspect of his potential prosecution or punishment. To the contrary, immediately before Pinkston admitted to touching E. M., one of the officers explicitly stated that he could not make Pinkston any promises about counseling. In a follow-up interview, after being told by an officer that he could go to jail, Pinkston again admitted that he touched E. M.

         Pinkston points us to a decision, Starr v. State, 269 Ga.App. 466 (604 S.E.2d 297) (2004), overruled in part on other grounds by Hatley v. State, 290 Ga. 480, 483 (I) (722 S.E.2d 67) (2012), in which a confession of child molestation was improperly induced by hope of benefit in the form of counseling. But the facts in that case are plainly distinguishable; in their discussion of counseling, the officer in Starr told the defendant: "We're concerned about if this happened making sure it doesn't happen[ ] anymore. And that's not by locking you up for the rest of your life because it isn't going to happen, I guarantee you that." Starr, 269 Ga.App. at 469 (2) (b). Here, the recordings of Pinkston's interviews make clear that he was offered no promise that his punishment would be reduced. "[H]e was, therefore, not offered an improper benefit under OCGA § 24-8-824." Huff v. State, 299 Ga. 801, 804 (2) (792 S.E.2d 368) (2016).

         3. Jury charge on accident.

         Pinkston argues that the trial court erred in failing to charge the jury on accident, which he argues was his sole defense against the charge that he molested E. M. "A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." OCGA § 16-2-2. Pinkston asserts that he was entitled to a charge on this principle because he lacked the necessary criminal intent to commit child molestation, arguing that he reflexively touched E. M.'s vaginal area while pushing the girl away as she tried to climb on him and painfully aggravated the site of a recent hip surgery.

         Because Pinkston did not request a charge on accident or object to the trial court's failure to give such a charge, we review his claim under the plain error doctrine. See OCGA § 17-8-58 (b); State v. Alvarez, 299 Ga. 213, 214 (1) (790 S.E.2d 66) (2016). Under that doctrine,

the proper inquiry is whether the failure to give the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously ...

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