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Vickers v. State

Court of Appeals of Georgia, Fifth Division

October 28, 2019

VICKERS
v.
THE STATE.

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

          McFadden, Chief Judge.

         After a jury trial, Jamario Vickers was convicted of aggravated child molestation. He appeals the denial of his motion for new trial, arguing that his trial counsel was ineffective. Because Vickers has not shown both deficient performance and prejudice, he has not demonstrated ineffective assistance of trial counsel. So we affirm.

         1. Sufficiency of the evidence.

         Viewed in the light most favorable to the verdict, see Virger v. State, 305 Ga. 281, 286 (2) (824 S.E.2d 3346) (2019), the evidence shows that in November 2014, the six-year-old victim and her seven-year-old and nine-year-old cousins[1] were playing in the outside stairwell of an apartment complex when sixteen-year-old Vickers joined them. Vickers told the victim to walk upstairs with him and gave the cousins a cell phone to use to play games. He told the cousins not to go upstairs.

         Vickers walked upstairs with the victim to the landing at the top of the stairs. He pulled down the victim's pants and put his penis in her buttocks. The seven-year-old cousin went upstairs and saw Vickers moving on top of the victim with his penis "in her butt." Vickers pulled up his pants and told the cousin to go back downstairs. That cousin told the nine-year-old cousin, who then went upstairs and saw Vickers laying on top of the victim.

         When the victim came down the stairs, she whispered to her seven-year-old cousin that Vickers "had put his private part in [her] booty."

         A few days later, the victim disclosed what happened to two adults who were close family friends. A couple of weeks later, the victim, the cousins, the victim's mother, and the two adult family friends happened to see Vickers while they all were waiting at a bus stop. The victim appeared to be terrified; the cousins explained to the adults that Vickers was standing nearby.

         The victim and her cousins were interviewed by forensic interviewers who were qualified at trial as experts in the field of forensic interviewing. Recordings of those interviews were played for the jury and were consistent with the victim's and her cousins' trial testimony. In her interview, the victim described the abuse, telling the interviewer that Vickers took her upstairs, laid her on the ground, pulled her pants down, pulled his private part out, and put it in her "butt." She said it felt nasty and it hurt.

         The state presented the testimony of an expert in forensic psychotherapy and the psychology of child sexual abuse who viewed the videotaped interviews. She testified that the victim's and her cousins' statements in the interviews were consistent with the cognitive ability and development of children their ages; the language they used was appropriate to their developmental levels; they provided contextual details; and there were no signs that the children had been influenced by suggestion.

         "Although [Vickers] does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crime for which he was convicted." Jones v. State, 305 Ga. 653, 654 (1) (827 S.E.2d 254) (2019). See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Ineffective assistance of counsel.

         Vickers claims that his trial counsel was ineffective in opening the door to the admission of evidence of his bad character. To prevail on this claim, Vickers "must show both that his counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome of his trial would have been more favorable. . . . If [Vickers] fails to satisfy either the deficient performance or the prejudice prong of [this] test, [we are] not required to examine the other." Slaton v. State, 303 Ga. 651, 652-653 (2) (814 S.E.2d 344) (2018) (citations and punctuation omitted). "While we have often held that a defendant fails to satisfy the [prejudice prong] where the evidence is overwhelming, strong evidence of guilt can also support the conclusion that no reasonable probability of a different outcome exists."Parker v. State, 339 Ga.App. 285, 294 (3) (793 S.E.2d 173) (2016) .

         Trial counsel called three defense witnesses: Vickers, his brother, and his sister. Trial counsel asked the brother whether Vickers has a good or bad reputation in their community, and he answered good. When trial counsel asked the sister about her understanding of Vickers' reputation in the community, the sister answered that he looks like a "tough guy" on the outside but "he's really soft on the inside." Trial counsel ...


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