Croft v. State

348 Ga.App. 21

819 S.E.2d 550

CROFT

v.The STATE.

A18A1198

Court of Appeals of Georgia.

October 23, 2018

Reconsideration Denied November 2, 2018

Petition for Certiorari Denied August 05, 2019

Certiorari Granted March 13, 2020

The Steel Law Firm, Brian Steel, for appellant.

Shannon G. Wallace, District Attorney, Holly L. Varner, Cliff Head, Assistant District Attorneys, for appellee.

Goss, Judge.

On appeal from his conviction for child molestation, aggravated sexual battery and other crimes, Marty Croft argues that his right to be present during a critical stage of the proceedings was violated and that the trial court erred when it charged the jury on a child’s incapacity to consent to aggravated sexual battery. Croft also argues that trial counsel was ineffective. Because the trial court erred in its jury instruction on aggravated sexual battery, we reverse Croft’s conviction on that single count, upon which he may be retried, but we affirm the remainder of the trial court’s judgment.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Thus viewed in favor of the jury’s verdict, the record shows that in 2011, when the victim was 15 years old, she was visiting her uncle Croft, who lived near her and her parents, when Croft removed her shirt and pants and touched her private area. After the victim slapped him, Croft urged her not to tell anyone about the incident. On the victim’s subsequent visits to his house, Croft continued to molest her, kissing her neck, breasts, stomach, and back even though she told him to stop, and threatened to have her father sent to prison if she told anyone about the contact. On other occasions, Croft forced the victim to touch his penis; penetrated her vagina with his fingers; and dragged her by the wrists into a bedroom, where he touched her vaginal and rectal area with his hands and penis. On another occasion in May 2013, after the victim had turned age 17, Croft touched her private area through her clothes and tried to remove her pants, after which the victim went into the bathroom and locked the door.

In January 2014, after watching a television program on child molestation, the victim made an outcry to her mother. The victim’s father then called police, who arranged for a forensic interview. Croft was arrested on January 24, 2014. In March 2014, Croft was indicted on three counts of child molestation and one count each of aggravated sexual battery, enticing a child for indecent purposes, aggravated assault (with intent to rape), false imprisonment, and sexual battery. At trial, Croft denied having any sexual contact with the victim. After a jury found Croft guilty on all counts, he was convicted and sentenced to life plus 40 years with the first 35 years to serve in prison.¹ Croft’s motion for new trial was denied, and this appeal followed.

1. Although Croft has not asserted that the evidence against him was insufficient, we have reviewed the record, and conclude that the evidence was indeed sufficient to sustain his conviction on all counts. See OCGA §§ 16-6-4 (a) (defining child molestation), 16-6-22.2 (b) (defining aggravated sexual battery), 16-6-5 (a) (defining enticing a child for indecent purposes), 16-5-21 (a) (1) (defining aggravated assault as assault with intent to rape), 16-5-41 (a) (defining false imprisonment), 16-6-22.1 (b) (defining sexual battery); McGhee v. State , 263 Ga. App. 762, 763 (1), 589 S.E.2d 333 (2003) (victim’s testimony was sufficient, standing alone, to sustain conviction for crimes including child molestation and aggravated sexual battery); Jackson , supra.

2. Croft first asserts that his constitutional right to be present during all critical stages of the proceedings against him was violated when the trial court conducted a conversation with a juror off the record. We disagree.

Embodied within the constitutional right to the courts[ ] is a criminal defendant’s right to be present and see and hear, all the proceedings which are had against him on the trial before the Court. ... [P]roceedings at which the jury composition is selected or changed are critical stages at which the defendant is entitled to be present. ... Notwithstanding, the right to be present belongs to the defendant and the defendant is free to relinquish that right if he or she so chooses.

(Citations and punctuation omitted.) Ward v. State , 288 Ga. 641, 645–646 (4), 706 S.E.2d 430 (2011). The right to be present at a particular critical stage is waived "if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver." Hampton v. State , 282 Ga. 490, 492 (2) (a), 651 S.E.2d 698 (2007).

The record shows that voir dire was conducted "off the record by direction of the Court." When counsel for both sides were asked whether they had any objection to this procedure, both responded that they did not. Later in the trial, after the evidence had been closed, juror 18 indicated to the bailiff that he was "uncomfortable about going forward." After the jury was excused, the trial court brought the juror into the courtroom in the presence of both counsel and discussed how to address the problem, including making the juror an alternate. The juror then returned to the jury room, where deliberations continued until the jury was excused for the evening. On the following morning, after bringing the jury in and reading the charge, the trial court suggested that the juror be questioned, to which both sides agreed, with no contradiction from Croft himself. After a brief discussion on the record, the juror agreed to continue, and the trial court asked him to "resume [his] position in the jury room[,]" to which both sides again agreed, without contradiction from Croft himself.

At the second hearing on Croft’s motion for new trial, Croft introduced a letter from juror 18 to the effect that as a result of the death of a family friend, the juror was in deliberations when he realized that he was "not comfortable with being a juror that week." According to the letter, the juror notified the bailiff, who escorted the juror into the courtroom, where counsel for both sides were present and the trial court, after questioning him, "politely told [him] that ... [he] needed to stay on this jury." The juror was then escorted back into the jury room until deliberations ended for the day. On the following morning, again with counsel present, the juror agreed to serve. The letter also stated that the juror had "no other one[-]on[-]one contact or conversations with the [j]udge about any part of this case or [his] ability to perform [his] duties as a juror[.]" Croft’s counsel also testified at the hearing that Croft never indicated a desire to be absent from any part of the proceedings. In the order denying the motion for new trial, the court held that the record showed that Croft was present at the time in dispute, that any suggestion to the contrary was not credible, and that counsel "clearly agreed to let[ ] the juror sit ... in the presence of the defendant."

Citing Gillespie v. State , 333 Ga. App. 565, 774 S.E.2d 255 (2015), Croft argues that in the absence of any evidence that he was present at an "off-the-record communication" between the trial court and the juror, the State has not carried its burden of showing that he was indeed present. See id. at 572 (2) (a), 774 S.E.2d 255 (vacating conviction and remanding for further findings as to whether the State had carried its burden of showing that a defendant waived his right to be present). The record does not support this contention. Rather, the juror’s own account shows that after he expressed discomfort to the bailiff, the juror was brought into the courtroom to discuss the matter in the presence of the trial court and counsel. See Jackson v. State , 282 Ga. App. 612, 614-615, 639 S.E.2d 403 (2006) (affirming denial of motion for new trial when defendant had not shown that communications between bailiff and jury foreman were improper). There is no evidence that Croft was absent during any of the courtroom exchanges that followed, and the trial court explicitly disbelieved any suggestion that Croft was not present² and concluded that counsel had agreed, in Croft’s presence, to let the juror sit. This record thus authorizes the conclusion that counsel for Croft was present at all stages of the discussion with the juror, that his counsel explicitly approved of the trial court’s procedures, and that Croft acquiesced in counsel’s actions such that any objection to the trial court’s handling of the matter was waived. See Hampton , 282 Ga. at 492 (2) (a), 651 S.E.2d 698 (a defendant waived his right to be present at a juror interview by means including "the representations of his trial counsel made in open court while he was present"). Compare Ward , 288 Ga. at 645-646 (4), 706 S.E.2d 430 (trial court’s ex parte removal of juror following closing arguments and outside the presence of defendants was reversible error warranting a new trial).

3. Croft also argues that the trial court erred in its charge to the jury on a child’s incapacity to consent to aggravated sexual battery. We agree and reverse Croft’s conviction on this count, on which he may be retried.

The indictment charged Croft with penetrating the victim’s vagina with...