Green v. State

358 Ga.App. 843

856 S.E.2d 427

GREEN

v.The STATE.

A20A1675

Court of Appeals of Georgia.

March 11, 2021

Carolyn Laureen Moses, for Appellant.

Daniel Patrick Bibler, George Herbert Hartwig III, Alicia Deck Gassett, for Appellee.

Markle, Judge.

Following a jury trial, Adrian Bassill Green, Sr. was convicted of rape ( OCGA § 16-6-1 (a) (1) ), incest ( OCGA § 16-6-22 (a) (1) ), and aggravated child molestation ( OCGA § 16-6-4 (c) ). He appeals from the trial court's denial of his motion for new trial, challenging the sufficiency of the evidence and contending (1) the trial court erred by (a) disallowing his proposed voir dire questions; (b) finding that he had waived his right to be present at bench conferences; (c) disallowing crime lab reports to go back with the jury during deliberations; (d) commenting on the victim's sexual history prior to sentencing; and (e) informing the jury of his prior statutory rape charge and failing to issue a timely limiting instruction; and (2) trial counsel rendered ineffective assistance by failing to (a) hire experts to assist in the investigation of the case; (b) preserve his right to be present at bench conferences; and (c) object to testimony regarding the victim's sexual history. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that Green's then-fifteen-year-old biological daughter was sleeping at his house when he got into bed with her. Green forced her to kiss him, proceeded to remove both of their clothes, and then put his mouth on her vagina, put his penis in her mouth, and forced his penis inside her vagina although she resisted and told him it hurt. Afterward, Green told the victim to take a shower, which she did, and told her not to tell anyone because he would go to prison.

The victim texted her mother to pick her up. Once inside her mother's car, the victim disclosed that Green had raped her, and the mother called the police and took the victim to the hospital. The victim spoke to the police at the hospital, and her statement was consistent with the events recounted above. A nurse conducted a sexual assault examination, and collected swabs for DNA testing. A forensic interview was also conducted on the victim.¹

Thereafter, Green was arrested and charged with rape, incest, and aggravated child molestation. The police obtained buccal swabs from Green for DNA testing. And the State filed its notice of intent to present evidence of Green's prior statutory rape conviction under OCGA § 24-4-414.

At trial, the victim's testimony was consistent with her police statement. The nurse who conducted the sexual assault examination testified that the victim complained of vaginal pain on arrival, and the examination revealed that she had suffered a vaginal tear, which the nurse referred to as a "mounting injury" caused by the entry of a penis into the vagina. The nurse further testified that the victim disclosed that her boyfriend had digitally penetrated her a couple of days prior to the incident at issue here. And the therapist who conducted the forensic interview testified that the victim's responses were consistent with those of a child who had been sexually abused.

The forensic biologist who tested the swabs testified that the DNA obtained from the victim's vaginal cervical swab contained an allele that did not match the victim and had male DNA. Based on these results, the biologist recommended further testing. Additional testing showed that the DNA obtained from the victim's vaginal cervical swabs matched the haplotype of Green or any of his paternal male relatives, and that this haplotype is not expected to occur more frequently than 1 out of every 2,083 in the African American male population or 1 out of every 2,488 male Caucasians.

Green testified and generally denied the accusations against him, claiming that the victim had fabricated them. Green admitted that he had previously pled guilty to the statutory rape of a fifteen-year-old.

The jury returned a guilty verdict on all counts. Green filed a motion for new trial, raising all the issues now raised on appeal. Following a hearing, the trial court denied the motion, and this appeal followed.

1. Green first argues that the evidence was insufficient to support his convictions because the DNA evidence was inconclusive.² We are not persuaded.

On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.

(Citation omitted.) Davis v. State , 357 Ga.App. 720, 720 (1), 848 S.E.2d 173, 176 (1) (2020).

Pursuant to OCGA § 16-6-1 (a) (1), "[a] person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will[.]" Carnal knowledge is defined as "any penetration of the female sex organ by the male sex organ." Id.

Incest is committed when a person engages in sexual intercourse with another person whom he knows he is related to by blood or marriage as father and child. OCGA § 16-6-22 (a) (1).

A person commits aggravated child molestation by engaging in an immoral or indecent act involving sodomy with a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either himself or the child. OCGA § 16-6-4 (a) (1), (c). Sodomy includes performing or submitting to any sexual act involving the sex organs of one person and the mouth of another. OCGA § 16-6-2 (a) (1).

Here, the victim is Green's biological daughter and she was 15 years old at the time of the assault. She testified that Green got into her bed, put his mouth on her vagina, put his penis in her mouth, and forcibly penetrated her vagina with his penis after she refused to consent to the act. This evidence is sufficient to satisfy the elements of the above charges. OCGA §§ 16-6-1 (a) (1) ; 16-6-22 (a) (1); 16-6-4 (a) (1), (c); see also Tinson v. State , 337 Ga. App. 83, 85 (1), 785 S.E.2d 914 (2016) ("Georgia law does not require corroboration of a sexual crime victim's testimony."); OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact.").

Nevertheless, Green contends that the evidence was insufficient because the DNA results were too broad to identify him as the assailant beyond a reasonable doubt. However, our review of the record reveals that Green's trial counsel engaged in a thorough and sifting cross-examination of the forensic biologist to explore the limitations of the DNA results. Essentially, Green asks us to reweigh the evidence, which we may not do. Davis , 357 Ga.App. at 720 (1), 848 S.E.2d at 176 (1)). Rather, it was for "the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient." (Citation and punctuation omitted.) Jones v. State , 304 Ga. 320, 323 (2), 818 S.E.2d 499 (2018) ; see also Pruitt v. State , 349 Ga. App. 101, 105, 825 S.E.2d 490 (2019) ("As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.") (citation omitted).

And, although Green testified and denied the victim's accusations, the jury was under no obligation to believe him. See Battle v. State , 305 Ga. 268, 271 (1) (b), 824 S.E.2d 335 (2019) (jury may reject a defendant's self-serving testimony). To the contrary, because there was other evidence of Green's guilt, including the testimony of the nurse and the forensic interviewer, as well as Green's admission that he had previously been convicted of statutory rape, the jury was entitled to reject his testimony as false and treat it as substantive evidence of his own guilt. See Daughtie v. State , 297 Ga. 261, 263-264 (2), 773 S.E.2d 263 (2015). Accordingly, we find that the evidence was sufficient to support Green's convictions.

2. Green next contends that the trial court erred by disallowing two of his proposed voir dire questions because those questions would have exposed the jurors’ bias. We conclude that the trial court did not abuse its discretion in this regard.

"The limits a court may place on voir dire questions lie largely within the sound discretion of the court, and we will not interfere with the exercise of that discretion unless it is manifestly abused." Lester v. State , 343 Ga. App. 618, 620 (1), 807 S.E.2d 922 (2017).

Here, the trial court approved all of Green's proposed voir dire questions, but two:

Does anyone believe that when a child molestation allegation is made by a child or teenager, that it must be true?

Does anyone believe that a child or teenager could never fabricate an allegation of child molestation?

OCGA § 15-12-133 controls the scope of permissible juror voir dire examinations:

In the examination, the counsel for either party shall have the right to inquire of the individual prospective jurors examined touching any matter or thing which would illustrate any interest of the prospective juror in the case, including any opinion as to which party ought to prevail, ... [and] any fact or circumstance indicating any inclination, leaning, or bias which the prospective juror might have respecting the subject matter of the action or the counsel or parties thereto[.]

"Voir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination." (Citation omitted.) Lester , 343 Ga. App. at 620 (1), 807 S.E.2d 922. However, "no question should require a response from a juror that might amount to a...