Chamberlain v. State

347 Ga.App. 775

819 S.E.2d 303

CHAMBERLAIN

v.The STATE.

A18A1256

Court of Appeals of Georgia.

October 3, 2018

Reconsideration Denied October 25, 2018

Petition for Certiorari Denied August 05, 2019

Pate & Johnson, Page A. Pate, Jess B. Johnson, for appellant.

Penny A. Penn, District Attorney, Michael S. Mahoney, Assistant District Attorney, for appellee.

Rickman, Judge.

John Chamberlain was tried by a jury and convicted on two counts of child molestation. On appeal, Chamberlain contends that the evidence was insufficient to support his convictions, the trial court violated his right to a public trial, his counsel rendered ineffective assistance in several respects, and the trial court erred by allowing improper testimony. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Hall v. State , 335 Ga. App. 895, 783 S.E.2d 400 (2016).

So viewed, the evidence showed that Chamberlain was the paternal uncle of the victim and her brother. Chamberlain and his brother, the victim's father, lived together, and the children stayed with them a few weekends a month. In October 2012, the then ten-year-old victim revealed to her cheerleading coach that she did not want to go to her father's house for the upcoming weekend. While upset and crying, the victim told her coach that she was not allowed to lock any doors at her father's house and that she disliked the lack of privacy while bathing. The coach told the victim's mother about the conversation.

The following morning, the victim's mother emailed the victim's school counselor expressing concerns about some unusual behaviors the victim exhibited at home, and asking her to speak with the victim. The victim told the school counselor that she was afraid to go to her father's house over the upcoming weekend. The school counselor testified that the victim tearfully informed her that Chamberlain hit her, locked her in her bedroom, looked at her in a "creepy" manner, "peek[ed]" at her while she was in the shower, and grabbed her breast and vaginal areas.

A corporal with the Forsyth County Sheriff's Office arranged for the victim to go to a child advocacy center for a recorded forensic interview. The forensic interviewer testified that the victim disclosed that Chamberlain touched her on her vagina, bottom, and breasts. The victim also described Chamberlain placing his penis on her neck area and "down her front part." Chamberlain called her names and said many demeaning things to her, including calling her "fatty" when he touched her. The recording of the forensic interview was published to the jury.

The corporal testified that he executed a search warrant at the home of the victim's uncle and father, and found a bag packed in the uncle's room that contained his passport and clothing. Interestingly, the corporal explained that approximately a year prior to executing this search warrant, he had executed another search warrant at the same residence during a child pornography investigation. The child pornography investigation involved the victim's father. Graphic videos were recovered from the victim's father's computer depicting female teenagers and very young children engaged in sexual acts.

Another corporal with the Forsyth County Sheriff's Office who had investigated the child pornography case against the victim's father testified that the victim's father admitted that he had viewed and downloaded child pornography depicting pre-teens approximately the same age as the victim. The victim's father used a variety of search terms to locate pornographic images, including "teenagers," "young teens," "underage," "incest," "pre-teen," and "bestiality," he entered chat rooms pertaining to dad and daughter sex, and he communicated with people who identified themselves as minors. Additionally, the victim's father engaged in a sexual online relationship with a minor child in which he presented himself as an 18-year-old.

He described his process for viewing videos after entering his desired search terms into a file sharing program: "I would just highlight everything that came up and I would hit enter and it would download it. And after it was done downloading I could look at the file and then if I liked it, I would rename it and save it. If I didn't like it, I would just delete it." The victim's father was never arrested or charged with any crimes related to the child pornography investigation. The corporal testified that the reason that the victim's father was not charged with possessing the child pornography was because the images were recovered from the unallocated space of the computer, meaning they had been deleted.¹

The victim's mother testified that in the months prior to the revelation of the sexual abuse, she noticed changes in the victim's behavior including the victim acting withdrawn, losing friendships, lacking care as to her appearance, suffering academic problems, and noticeably gaining weight. The victim testified that Chamberlain "did bad things to [her]" by touching her "on [her] bottom and in [her] bathing suit zones." The victim testified that she woke up to Chamberlain lying on top of her in her bed and she could "sometimes" feel his penis. The victim answered affirmatively when asked if Chamberlain would "peek" at her while she was in the shower.

The grand jury indicted Chamberlain on two counts of child molestation² and invasion of privacy.³ Following a jury trial, Chamberlain was convicted on the child molestation counts; he was acquitted of invasion of privacy. Chamberlain timely filed motions for new trial, which were denied. Chamberlain appeals from both his convictions and the denial of his motions for new trial.

1. Chamberlain contends that the evidence was insufficient to support his conviction on Count 1 of the indictment.

"A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]" OCGA § 16-6-4 (a) (1). Count 1 of the indictment charged Chamberlain with "comit[ting] an immoral and indecent act to [the victim], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself by rubbing [his] penis on [the victim's] body[.]"

"The testimony of a victim of child molestation ... need not be corroborated." (Citation and punctuation omitted.) Smith v. State , 320 Ga. App. 408, 410 (1) (a), 740 S.E.2d 174 (2013). In this case, the victim testified that Chamberlain lay on top of her and "sometimes" she could feel his penis, the forensic interviewer testified that the victim disclosed to her that Chamberlain would place his penis on her neck area and "down her front part," and the victim's recorded forensic interview was played for the jury. This testimony was sufficient to sustain Chamberlain's conviction on Count 1 of the indictment. See id. at 411 (1) (a), 740 S.E.2d 174 ; see also Malone v. State , 277 Ga. App. 694, 696 (1), 627 S.E.2d 378 (2006).

2. Chamberlain contends that the trial court violated his right to a public trial when it closed the courtroom prior to the victim's and her brother's testimony.

In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sexual offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, victim assistance coordinators, victims' advocates, and such other victim assistance personnel ..., jurors, newspaper reporters or broadcasters, and court reporters.

OCGA § 17-8-54. "This Code section is based upon a legislative determination that there is a compelling state interest in protecting children while they are testifying concerning a sex offense." (Citation and punctuation omitted). Tolbert v. State , 321 Ga. App. 637 (1), 742 S.E.2d 152 (2013). "The partial closure of the courtroom permitted under this Code section does not violate a defendant's constitutional right to a public trial." Id.

Prior to the victim's and her brother's testimony, the State asked the trial court to clear the courtroom of all non-essential personnel. The defense objected⁴ and the trial court referenced an exception for victims of child molestation and said that he would "follow the statute." The State responded:

The statute says ... when any person under the age of 16 is testifying of any sexual offense, the [c]ourt shall clear the courtroom of all persons except parties to the cause, their immediate family members or guardians, attorney[s], their secretaries, officers of the court, victim assistant coordinator[s], advocates and other such victim assistant personnel.

An exchange took place between the trial court and counsel regarding the victim's mother remaining in the courtroom. The trial court then stated, "I don't [know] who else is present, but if the individual[s] do not fall under any of those categories, they need to stand outside until the child concludes testimony."

Chamberlain argues that the courtroom was completely closed because the victim's aunt, his sister-in-law, was excluded from the courtroom and that, in its recitation of the statute, the State failed to mention that the press was excepted from the statute. The trial court held that the victim's aunt did not fall under the category of "immediate family" and did not err in so...