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Bell v. State

Court of Appeals of Georgia, Fifth Division

October 30, 2019

BELL
v.
THE STATE

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

          MCMILLIAN, PRESIDING JUDGE

         Following a jury trial in October 2015, David R. Bell was convicted of one count of aggravated sodomy, one count of aggravated sexual battery, four counts of sexual assault against a person in custody, and two counts of violation of oath by a public officer arising from his conduct while employed as a detention officer with the Newton County Sheriff's Office.[1] The trial court sentenced Bell to a total of life, with 25 years to be served in confinement. Bell now appeals the denial of his motion for new trial, challenging the sufficiency of the evidence on his aggravated sodomy conviction and asserting that he received ineffective assistance of counsel when his trial counsel failed to object to the trial court's jury instructions; failed to object to testimony that improperly bolstered the credibility of one of the victims; and failed to object to the admission of his statement made to his employer. For the reasons that follow, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence at trial showed that A. D. was arrested on May 10, 2013, and brought to the Newton County jail where Bell worked as a detention officer. A. D., who had a broken arm at the time, was moved to the jail's medical unit on May 12. The medical unit is in an area separate from the rest of the inmate housing, and A. D. was placed in a cell at the end of a long hall with one other cell mate, S. H. That day, Bell, who was dressed in uniform, walked by their cell before returning to ask if they needed anything. Bell said he had just finished taking the inmate workers out and offered to take A. D. and S. H. to the showers in the medical hallway.

         While her cell mate was still in the shower, A. D. asked for a blanket to prop up her arm, and Bell asked what she could do for him. A. D. told him that she had just gotten there and had not been to the commissary store. Bell then walked in and lifted up her shirt. Bell told her that he was the officer and that whatever was about to happen, no one would believe her over him and that if she did say anything, she would get more time and would not see daylight for a while. He then groped her breasts and put his hands down her pants.[3] A. D. was crying and told him "no," but Bell kept repeating that it did not matter what she said, he was an officer and was going to have his way with her, and there was nothing she could do about it.[4]

         At trial, A. D. testified that Bell "just kept on forcing himself on [her]" until S. H. came out of the shower and asked to use the phone.[5] While S. H. was away making a phone call, Bell returned to the cell and pulled A. D.'s pants down to her ankles. He then pulled his penis out, rubbed it on her mouth, and tried to make her perform oral sex on him while he rubbed her breasts. When she refused, he inserted his fingers inside of her vagina and tried to get her to bend over. A. D. "tried to push him off [her] a couple times," but he kept saying that he was an officer and if she did not do what he told her, she would end up in trouble. He also told her that he was going to try to come back to work the third shift and finish what he started. Eventually, she was able to stand up and run to the corner where she screamed at him that this could not happen. At that point, Bell pulled his pants back up and left. A. D. reported the incident the following day when she heard a female officer in the hall.

         Investigator Robert Gaddy, who was assigned to investigate A. D.'s complaint, interviewed A. D. on May 13, 2013. Gaddy described A. D. as "very upset" and said that she was shaking and crying during the interview. At the time that he was interviewing A. D. and S. H., Gaddy noticed Bell upstairs in the criminal investigations division, which he found unusual because he rarely saw any detention officers upstairs in that part of the building unless they were there to see someone, and he had never seen Bell there. He later tried to check the camera footage for the relevant time period, but found that there were no cameras recording in that area of the medical ward. As part of his investigation, Gaddy also located the duty assignments for detention officers on May 12 and determined that Bell was the only officer assigned to the medical unit at that time. At trial, Gaddy explained that detention officers in Newton County take an oath of office upon hire, and a copy of that oath was admitted into evidence.

         Before Gaddy began his interview of Bell, he informed Bell that there were no charges against him and that he was free to leave at any time. Bell then agreed to give a voluntary statement. After Bell made an incriminating statement - in which he admitted to having seen A. D.'s breasts - Gaddy stopped the interview to read Bell his Miranda rights and to provide him with a form outlining those rights. After reviewing his rights and initialing and signing the Miranda form, Bell agreed to continue his statement.

         Bell initially stated that A. D. lifted her top and showed her breasts but that he left without touching her. He later admitted returning to A. D.'s cell various times to talk to her and stated that when A. D. lifted her shirt again, he squeezed her breasts and played with her nipples on two separate occasions. He denied performing oral sex on A. D., trying to force her to perform oral sex on him, or putting his hands down her pants. He eventually stated that A. D. had tried to kiss him and had tried to rub her hand on his penis, but that he stepped back because he knew that he had already crossed a line.[6] At the conclusion of the interview, Bell was placed under arrest.

         On May 16, 2013, K. L. came to the Newton County's Sheriff's Office to report that Bell has sexually assaulted her when she had been an inmate there in 2012. At trial, K. L. explained that after she had been arrested in 2012, she could not get in contact with anyone and was distraught and crying. She noticed that Bell kept walking back and forth in front of the holding cell until he eventually opened the door and asked her what was wrong. He then offered to contact her parents on his cell phone. While he was dialing, she was ordered to go across the hall to change into a jail-issued uniform. Bell opened the door to the changing room to tell her that he could not get in touch with her parents either.

         While K. L. was back in the holding cell, Bell returned and asked her how much her bond was and how much money she had on her. K. L. told him that her bond was $200 but that she only had $30 on her. Bell said that he knew A&J Bail Bonding really well and that he would personally put $70 with her $30 and that she could go to A&J Bail Bonding the next day and pay the other $100. She agreed to sign a form permitting Bell to access her belongings to retrieve the $30, and Bell said he would call the bond company. Bell then walked her down to the medical unit and told her that he wanted sexual favors in exchange for helping her out and specifically said that he wanted "head." K. L. told him that she just wanted out. When he put his hands up her shirt and touched her breasts, K. L. flung him off. He then tried to put his hands down her pants, but she was able to stop him.

         K. L. then met with a bondsman, who told her that he was only helping her because he was close friends with Bell and that she had to pay the other $100 the next day or he would revoke her bond. When she was finally released, Bell was waiting for her and asked her for her phone number. He tried to "grab on [her] butt and stuff," but she pushed him away. When she got into the car with her family, she told them what had happened. The next day, her grandfather took her to pay the remaining $100 for the bond, but nobody was in the office, so her grandfather decided to return later to make the payment. However, she later saw her grandfather rip up the check. She was never contacted by anyone at A&J Bail Bonding to make any further payments on the bond.

         K. L. testified at trial that she did not report what happened that day because she was too terrified and upset and just wanted to get home. And although she did tell her family, she had asked them not to report it to anyone. She explained that she was dealing with a lot of issues at the time and just wanted to put it all behind her. However, she later read a newspaper article about Bell that made her think the police should know what Bell had done to her.

         Investigator Jeff Alexander interviewed K. L. following her report that Bell had sexually assaulted her while she was an inmate. He was able to determine that Bell was working as a "float" on the day that K. L. was arrested and that his duties would have included moving inmates from one spot in the jail to the next. Alexander concluded that there were no cameras recording in the specific area of the hallway where K. L. described the sexual assault. Alexander also contacted A&J Bail Bonding and was notified that K. L.'s bond was still over $100 short.

         Richard Johnson, who works at A&J Bail Bonding, testified that Bell called him on May 10, 2012, and told him he had a friend he needed to get out of jail. He met Bell in the jail parking lot, took the money, and left after Bell told him he would pay the rest of it later. The owner of A&J Bail Bonding testified that the following day, K. L.'s grandfather showed up at his office and was upset. Over the course of their discussions, the grandfather decided that he was not going to pay the bond fee. The owner then contacted Bell and told him what had transpired with K. L.'s grandfather and advised Bell not to have any more contact with K. L. At some point, an anonymous $25 payment towards K. L.'s account was dropped into the mail at his office. After Bell was convicted, this appeal followed.

         1. We begin with Bell's challenge to the sufficiency of the evidence on his conviction for aggravated sodomy.

         Georgia law defines sodomy as "any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2 (a) (1). "A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." OCGA § 16-6-2 (a) (2). Bell was charged in Count 2 with committing aggravated sodomy by performing "a sexual act with the person of [A. D.] involving the sex organs of the accused and the mouth of said person, said act having been performed with force and against the will of said person."

         A. D. testified that as she was sitting on the edge of the bed, Bell "pulled his penis out and he rubbed it across [her] lips trying to get [her] to have oral sex with him." She also stated several times that "he rubbed [his penis] across [her] mouth." Bell maintains, however, that there is no evidence that his penis penetrated A. D.'s mouth past her lips, and therefore, the State could not prove sodomy. We disagree.

         Georgia law does not require penetration in order to prove sodomy. See Adams v. State, 299 Ga.App. 39, 40 (1) (681 S.E.2d 725) (2009) (although evidence showed that the defendant "put his private on her butt," penetration is not an element of sodomy or aggravated sodomy and the state is not required to prove penetration to support an aggravated sodomy charge); Green v. State, 249 Ga. App 546, 549 (1) (b) (547 S.E.2d 569) (2001) ("Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.") (citation omitted). And in multiple cases, we have specifically found that where the defendant made contact with his penis and the victim's lips, the evidence was sufficient to sustain a conviction for sodomy. See Jones v. State, 343 Ga.App. 180, 180-81 (1) (806 S.E.2d 631) (2017) (evidence that defendant placed his penis on the victim's lips sufficient to support his conviction for aggravated child molestation by act of sodomy); Williams v. State, 284 Ga.App. 255, 256-57 (1) (a) (b) (643 S.E.2d 749) (2007) (where victim testified defendant touched her lips with his penis, evidence was sufficient to sustain his conviction for aggravated sodomy); Turner v. State, 231 Ga.App. 747, 747-48 (1) (500 S.E.2d 628) (1998) (where evidence showed that the 14-year-old victim kissed the defendant's penis, evidence was sufficient to sustain his conviction for sodomy). See also Nguyen v. State, 296 Ga.App. 853, 854 (676 S.E.2d 246) (2009) (defendant's conviction for aggravated child molestation by act of sodomy upheld where evidence showed defendant "placed his lips on [the victim's] private part").

         Because A. D. testified that Bell forcibly rubbed his penis on her lips and mouth, we find that the evidence was sufficient to enable a rational trier of fact to find the essential elements of the crime of aggravated sodomy beyond a reasonable doubt.

         2. Bell also asserts that he received ineffective assistance of counsel on three grounds. In order to succeed on his claim of ineffective assistance, Bell must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To prove deficient performance, Bell is required to show that his trial counsel "acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms." Haney v. State, 305 Ga. 785, 790 (2) (827 S.E.2d 843) (2019). To prove prejudice, Bell is required to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 (III) (B). "This burden is a heavy one." (Citation omitted.) Young v. State, 305 Ga. 92, 97 (5) (823 S.E.2d 774) (2019). And if Bell fails to satisfy either part of the Strickland test, we need not examine the other part. Brown v. State, 302 Ga. 454, 457 (2) (807 S.E.2d 369) (2017). In reviewing the trial court's decision, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d 876) (2012).

         (a) Bell first asserts that his trial counsel rendered ineffective assistance by failing to object to the trial court's jury instruction that he alleges discharged the State's burden of proving the lack of consent, an essential element of aggravated sodomy and aggravated sexual battery. "To determine whether a jury charge is likely to have misled or confused the jury, we must consider the charge as a whole, reading all of its parts in conjunction with ...


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