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Ward v. State

Court of Appeals of Georgia, Third Division

October 31, 2019

WARD
v.
THE STATE.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         Following a jury trial, Kristin Matthew Ward was convicted of child molestation and enticing a child for indecent purposes ("child enticement").[1] The trial court denied Ward's motion for new trial, as twice amended, for the conviction of these offenses. On appeal, Ward contends that (1) the trial evidence failed to prove venue for the child enticement offense; (2) his trial counsel rendered ineffective assistance by failing to object to testimony that impermissibly bolstered the victim's credibility and invaded the province of the jury; and (3) his trial counsel rendered ineffective assistance by failing to object to the State's possession and use of his compelled statements pursuant to Garrity v. New Jersey, 385 U.S. 493, 500 (87 S.Ct. 616, 17 L.Ed.2d 562) (1967). For the reasons set forth below, we discern no merit in Ward's contention that the State failed to prove venue and his claims of improper bolstering. But we must remand this case to the trial court for an evidentiary hearing and the entry of an order with factual findings and conclusions to address Ward's alleged Garrity violation.

         Viewed in the light most favorable to the verdict, [2] the trial evidence shows that in 2010, the male victim, G. W., and his twin brother joined the Civil Air Patrol ("CAP") when they were 12 or 13 years old and in middle school. They attended weekly meetings in CAP, where they learned about airplanes, drills, physical training, and proper dress. While at CAP, G. W. and his brother met Ward, who held a supervisory position in the program. Ward also was a law enforcement officer with the Athens-Clarke County Police Department.

         Ward became close friends with G. W. and his family, and Ward began to spend time with G. W. and his brother outside of CAP activities. G. W. described that he and Ward had a mentor-mentee relationship in the beginning, and later, their relationship developed into "an older brother-younger brother kind of a dynamic." Sometimes, G. W. and his brother spent time with Ward at Ward's apartment two or three times per week. Ward would take the boys to lunch or dinner, take them on hikes at a park near his apartment, and take them to his apartment, where they would watch movies and play video games. Ward also bought the boys gifts. In addition, Ward accompanied the boys on two vacations to Savannah, Georgia and San Francisco, California.

         Ward would drive G. W. and his brother from their outings to Ward's apartment. On several occasions, G. W. and his brother would spend the night with Ward at Ward's apartment. While watching television in Ward's living room, G. W.'s brother typically would sit on the floor in front of the television, while Ward and G. W. would sit together on the sofa approximately six feet behind G. W.'s brother. Most of the time, it was dark in the living room and the lights were off.

         G. W. testified that Ward molested him almost every time that he went to Ward's apartment. Specifically, G. W. stated that during several incidents while he was sitting on Ward's living room sofa, Ward rubbed G. W.'s penis both on top of and underneath G. W.'s clothes. Ward described that during each incident, Ward pulled G. W.'s clothes down to his knees and rubbed G. W.'s penis until G. W. ejaculated. G. W.'s brother testified that although he was unable to see exactly what Ward and G. W. were doing, he would see Ward and G. W. "fidget[ing] around" on the sofa on a couple of occasions. Ward placed a blanket or pillow over himself and G. W. to shield the molestation activities from G. W.'s brother's view.

         G. W. stated that he felt terrible about the molestation. At some point, G. W. decided that he no longer wanted to be around Ward. G. W. stopped attending CAP events and stopped communicating with Ward. G. W.'s brother noticed tension between G. W. and Ward. When Ward was present, G. W. did not talk as much and stayed away from Ward. G. W. became depressed and isolated himself.

         When G. W. was 15 or 16 years old and in the tenth grade, G. W. first told his best friend about the molestation incidents. Thereafter, G. W.'s brother invited Ward to attend their 18th birthday party, which made G. W. feel uncomfortable. Shortly before the birthday party, G. W. disclosed the molestation incidents to his parents, and Ward's invitation to the party was rescinded.

         After G. W.'s disclosure to his parents, G. W. underwent psychological counseling and the molestation incidents were reported to police. A GBI agent was assigned to investigate the allegations. An Internal Affairs investigation of the molestation allegations simultaneously was being conducted by the Athens-Clarke County Police Department.

         G. W. participated in a recorded forensic interview, during which he described the molestation incidents. Following the GBI investigation, Ward was charged with the child molestation and child enticement sexual offenses.[3] And after a trial, an Athens-Clarke County jury found Ward guilty of those offenses.

         1. In his first enumeration of error, Ward contends that the trial evidence failed to prove venue for the offense of enticing a child for indecent purposes.

Venue is a jurisdictional fact that the State must prove beyond a reasonable doubt and can do so by direct or circumstantial evidence. Determining whether venue has been established is an issue soundly within the province of the jury. When examining whether the State has carried its burden, we view the evidence in the light most favorable to the verdict and must sustain the verdict if the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

Hernandez v. State, 304 Ga. 895, 898 (2) (823 S.E.2d 272) (2019) (citations and punctuation omitted).

         The child enticement offense occurs when a person "solicits, entices or takes"a child under 16 years of age to any place for the purpose of child molestation or indecent acts. OCGA § 16-6-5 (a) (emphasis supplied). Where "there is ample evidence of defendant's taking the victim in his motor vehicle to a place for the purpose of indecent acts[, ] it is immaterial whether there is also evidence of defendant's enticing, inviting, or persuading the victim to go with him."Dennis v. State, 158 Ga.App. 142, 142 (2) (279 S.E.2d 275) (1981) (emphasis in original). The offense also requires asportation, which is established when the evidence shows only slight or minimal movement of the child. Tudor v. State, 320 Ga.App. 487, 491 (2) (740 S.E.2d 231) (2013).

         In this case, the indictment alleged that Ward committed the offense by taking G. W., who was under 16 years of age at the time, to Ward's apartment for the purpose of molesting and performing indecent acts upon G. W. The GBI agent testified that the offenses occurred in Athens-Clarke County. The trial evidence further showed that during the commission of the child enticement offense, Ward drove G. W. to Ward's apartment located in Athens-Clarke County. This evidence was sufficient to establish venue as alleged in the indictment. See Harris v. State, 333 Ga.App. 118, 120-121 (1) (b) (775 S.E.2d 602) (2015) (evidence showing that defendant moved the victim to defendant's house in Clayton County was sufficient to establish venue for the enticement offense under OCGA § 16-6-5 (a), as alleged in the indictment).

         Ward nevertheless relies upon Cornelius v. State, 213 Ga.App. 766, 768 (1) (445 S.E.2d 800) (1994), for the proposition that "venue for the prosecution of enticing a child for immoral purposes lies in the county where the child was first enticed." Although Ward contends that G. W. was first enticed or taken from G. W.'s residence in Oconee County, the evidence does not demand such a conclusion.[4] Rather, the evidence shows that Ward took G. W. to Ward's apartment where the molestation acts occurred on many occasions. The trial evidence showed that G. W. went to Ward's apartment two or three times each month, and sometimes two or three times per week. The evidence also indicated that Ward drove G. W. to Ward's apartment from locations other than G. W.'s home.[5] The child enticement crime is complete when the child is taken with the requisite intent. Adams v. State, 312 Ga.App. 570, 578 (3) (b) (718 S.E.2d 899) (2011). Based on the trial evidence, the jury was authorized to find that the requisite asportation with intent occurred when Ward took G. W. from a park that they visited in Athens-Clarke County to Ward's apartment. Alternatively, the jury was authorized to find that the requisite asportation with intent occurred in Ward's vehicle while in transit to Ward's apartment. When a crime occurs in transit, the crime shall be considered as having been committed in any county through which the vehicle has traveled. See OCGA § 17-2-2 (e); Aldridge v. State, 310 Ga.App. 502, 504 (1) (a) (713 S.E.2d 682) (2011) (applying OCGA § 17-2-2 (e) to establish venue when defendant transported the victim in a vehicle during the commission of the crime). Similarly, if a crime occurs in more than one county and it cannot be determined in what county a crime was committed, "it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed." OCGA § 17-2-2 (h). Cf. Epps v. State, 297 Ga.App. 66, 69-70 (1) (676 S.E.2d 791) (2009) (applying OCGA § 17-2-2 (e) and (h) to establish venue when the precise moment when the victim was transported by vehicle and the exact moment when the victim's abduction satisfied the asportation requirement could not be determined with certainty). Contrary to Ward's arguments, the trial evidence sufficiently established venue in Athens-Clarke County. See OCGA § 17-2-2 (e); Harris, 333 Ga.App. at 120-121 (1) (b).

         2. Ward also contends that trial counsel rendered ineffective assistance by failing to object to testimony that improperly bolstered the victim's credibility and improperly invaded the province of the jury.

To prevail on his claim of ineffective assistance of trial counsel, [Ward] must show both that his counsel's performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. In reviewing a claim of ineffective assistance, we give deference to the trial court's factual findings and credibility determinations unless clearly erroneous, but we review a trial court's legal conclusions de novo.
It is well established that a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.

Gilmer v. State, 339 Ga.App. 593, 594-595 (2) (a) (794 S.E.2d 653) (2016) (citations and punctuation omitted). Applying these standards, we ...


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