Hammond v. State

1

HAMMOND v. STATE.

STATE v. HAMMOND.

Nos. A23A0035, A23A0036

Court of Appeals of Georgia, Second Division

June 21, 2023

MILLER, P. J., MERCIER and HODGES, JJ.

HODGES, JUDGE.

A jury convicted Andrew Hammond of four counts of child molestation against S. H. Three of those counts related to touching S.H.'s vagina on three different occasions, and the fourth count related to touching S.H's breasts on one of the same occasions. Hammond was initially sentenced as a recidivist, but when a correction was made to his sentence the box for recidivist sentencing was not checked. The trial court eventually merged all of Hammond's convictions related to touching S. H.'s vagina into one conviction and resentenced him as a recidivist. Hammond appeals the trial court's sentence on the ground that it violates double jeopardy by sentencing him to a longer sentence than the prior sentence imposed due to his renewed treatment as a recidivist. He also contends that he received ineffective assistance of trial counsel. The State cross-appeals contending that the trial court erred in merging Hammond's convictions. We have consolidated the cases for purposes of issuing an opinion, and for the reasons that follow, we affirm the judgment in both appeals.

"On appeal, a criminal defendant is no longer presumed innocent, and we review whether the evidence presented at trial, when viewed in the light most favorable to the jury's verdicts, enabled the jury to find the defendant guilty beyond a reasonable doubt of the crimes of which [he] was convicted." Fitts v. State, 312 Ga. 134, 141 (3) (859 S.E.2d 79) (2021).

So viewed, the evidence demonstrates that Hammond was married to S. H.'s grandmother and that S. H. viewed him as a grandfather. When S. H. was twelve years old, she, her father, and her sister moved in with her grandmother and Hammond. Hammond would babysit S. H. and her sister, M. H., nearly every Friday while her father and grandmother were away. Hammond, S. H., and M. H. would often watch movies in the living room. In the fall of 2013, S. H. fell asleep in her pajamas on a couch in the living room while watching a movie. She woke up to Hammond touching her vagina and breast underneath her clothes and this lasted for about three to four minutes. Hammond promised it would never happen again and told her not to tell anyone or he would hurt her father.

In November 2014, Hammond was again babysitting S. H. and her sister. She fell asleep while watching a movie and wearing the same pajamas. S. H. again woke up to Hammond touching the skin of her vagina and breasts. That night, she awakened M. H. to tell her what happened, but M. H. was not fully awake and did not believe S. H. was serious. The next day, S. H. repeated the allegation to M. H., who told her that she should tell their father. S. H. did not tell her father because she was scared Hammond would hurt him.

In December 2014, Hammond again babysat S. H. and her sister. S. H. was wearing the same pajamas and again fell asleep on the couch. Again, she woke up to Hammond touching her vagina and breasts underneath her pajamas. In early 2015, S. H. was talking to a male friend on the phone after she was supposed to be in bed, and she was going to disclose Hammond's conduct to him. Her father caught her on the phone and was about to punish her for disobeying the rules, and she then disclosed Hammond's abuse. S. H. did not feel comfortable disclosing the details to her father, so she spoke to her godmother about them.

S. H.'s father contacted the police and a forensic interview was performed on S. H. Hammond was indicted for committing:

Count 1: [T]he offense of CHILD MOLESTATION . . . between the 1st day of August, 2013, and the 31st day of December, 2013, the exact date of the offense being unknown to the Grand Jury, did commit an immoral indecent act to [S. H.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself, or said child, by touching her on or about the vagina with his hand[.]

Count 2: [T]he offense of CHILD MOLESTATION . . . between the 28th day of November, 2014, and the 29th day of November, 2014, the exact date of the offense being unknown to the Grand Jury, did commit an immoral indecent act to [S. H.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself, or said child, by touching her on or about the vagina with his hand[.]

Count 3: [T]he offense of CHILD MOLESTATION . . . between the 4th day of December, 2014, and the 6th day of December, 2014, the exact date of the offense being unknown to the Grand Jury, did commit an immoral indecent act to [S. H.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself, or said child, by touching her on or about the vagina with his hand[.]

Count 4: [T]he offense of CHILD MOLESTATION . . . between the 28th day of November, 2014, and the 29th day of November, 2014, the exact date of the offense being unknown to the Grand Jury, did commit an immoral indecent act to [S. H.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself, or said child, by touching her on or about her chest area with his hand[.]

(Emphasis in original and supplied.)

Hammond was tried before a jury and convicted of all four charges. Due to three prior felony convictions, Hammond was sentenced as a recidivist pursuant to OCGA § 17-10-7 (a) and (c). The final disposition form for his sentence was entered on March 1, 2018 and provided that he was being sentenced as follows:

Count 1 - 20 years to serve 15;

Count 2 - 20 years to serve 15, consecutive to Count 1;

Count 3 - 20 years to serve 15, consecutive to Count 1; and

Count 4 - 20 years to serve 15, concurrent to Count 1.

The final disposition form provided that Hammond would be sentenced to a total of 60 years to serve 40. It also erroneously provided that the sentence was the result of both a negotiated guilty plea and a jury trial.

The Department of Corrections sent correspondence to the trial court informing the court that the aggregate sentence identified did not match the time sentenced.

Specifically, the Department notified the trial court that because both Counts 2 and 3 ran consecutive to Count 1, the aggregate time was 40 years to serve 30 instead of 60 years to serve 40. The trial court resentenced Hammond, entering the new sentence nunc pro tunc "to correct consecutive sentencing for Count 3," as follows:

Count 1 - 20 years to serve 15;

Count 2 - 20 years to serve 15, consecutive to Count 1;

Count 3 - 20 years to serve 15, consecutive to Count 2; and

Count 4 - 20 years to serve 15, concurrent to Count 1.

The aggregate sentence was correctly identified as 60 years to serve 40, but the form again incorrectly identified the sentence as the result of both a negotiated plea and a jury trial. This time, the box for recidivist sentencing was not checked.

Hammond timely moved for a new trial and ultimately included a claim that his convictions on Counts 1-3 should merge. The trial court agreed, merged those counts, and resentenced Hammond. Hammond's second amended final disposition form indicated a sentence as follows:

Count 1 - 20 years to serve 19;

Count 2 - merged with Count 1;

Count 3 - merged with Count 1; and

Count 4 - 20 years to serve 15, consecutive to Count 1.

The aggregate sentence was correctly identified as 40 years to serve 34 and it correctly identified the convictions as solely the result of a jury trial. This time, the boxes for recidivist sentencing pursuant to OCGA § 17-10-7 (a) and (c) were again checked. The trial court rejected Hammond's other grounds for a new trial.

In Case No. A23A0035, Hammond appeals his sentence, claiming the trial court was unable to amend his sentence to treat him as a recidivist and that he received ineffective assistance of trial counsel. In Case No. A23A0036, the State appeals the trial court's merger of Hammond's convictions. For the reasons that follow, we affirm in both appeals. We address the claims in the State's cross-appeal first.

Case No. A23A0036

1. In a single enumeration of error, the State contends that the trial court erred in merging Counts 2 and 3 into Count 1 because Hammond's double jeopardy rights were not violated. We disagree.

Hammond was convicted of three counts of child molestation for touching S. H.'s vagina with his hand. The indictment identified three different respective periods of time for when these acts occurred, all within the statute of limitations. The indictment specifically stated that the exact dates of the offenses were unknown to the grand jury and did not state that the dates alleged were material averments of the indictment.

As our Supreme Court recently stated, "merger questions may . arise when a defendant is charged with multiple counts of the same crime." (Citation and emphasis omitted.) Dukes v. State, 311 Ga. 561, 571 (4) (858 S.E.2d 510) (2021).

Generally speaking, when proving the time an offense was committed, the State is not restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. Where, however, the indictment specifically alleges the date of the offense is material, the accused may be convicted only if the State's proof corresponds to the date alleged. Indeed, the [S]tate must prove all material allegations in an indictment which describe the offense or the particular manner in which the offense was committed.

(Citations and punctuation omitted.) Id. at 571-572 (4). "[S]uch an averment of materiality is necessary to overcome a plea of double jeopardy to a subsequent charge of committing the...