Hardin v. State

344 Ga.App. 378

810 S.E.2d 602

HARDIN

v.The STATE.

Meintz

v.The State.

A17A1558

A17A1668

Court of Appeals of Georgia.

January 30, 2018

Margaret E. Heinen, for appellant (case no. A17A1558).

Hildebrand Law Office, Jennifer E. Hildebrand, for appellant (case no. A17A1668).

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

McMillian, Judge.

In 2009, David Hardin was indicted on three counts of rape, one count of statutory rape, one count of incest, one count of aggravated sexual battery, seventeen counts of child molestation, and one count of attempt to commit a felony arising from alleged sexual acts committed against his stepdaughter, S. H., from the time she was six years old. Following a jury trial, Hardin was convicted of all three counts of rape, statutory rape, aggravated sexual battery, and thirteen counts of child molestation.¹ In Case No. A17A1558, Hardin appeals the denial of his motion for new trial, asserting that (1) his sentences for the statutory rape and child molestation convictions are void and (2) he received ineffective assistance of counsel.

Hardin was tried along with two co-defendants, Shawn Meintz and Kevin Hicks.² In Case No. A17A1668, Meintz was indicted on one count of rape, one count of aggravated child molestation, one count of statutory rape, and four counts of child molestation for his alleged role in the sexual crimes committed against S. H. The jury convicted him of statutory rape and three counts of child molestation.³ In his sole enumeration of error, Meintz asserts that he received ineffective assistance of counsel. Hardin and Meintz were tried jointly, and we have consolidated their appeals for review. For the reasons that follow, we affirm the convictions in both cases, but vacate the sentences and remand the cases for resentencing.

Viewed in the light most favorable to the jury’s verdict,⁴ the evidence shows that, at the time of his arrest, Hardin lived in a mobile home park in Chickamauga, Georgia with his wife, S. H., and two other children. An investigator with the Chickamauga Police Department was conducting a routine patrol in the mobile home park in October 2008 when he was approached by residents complaining about improper sexual conduct occurring in Hardin’s home. Through the subsequent investigation, law enforcement officials discovered allegations that Hardin had repeatedly molested his stepdaughter over the past eight years, beginning when she was six years old. There was also evidence that Hardin allegedly recruited dozens of men to have sex with S. H. while he watched and masturbated. Hardin and these other men also provided S. H. with drugs and alcohol beginning at a young age and viewed pornography with her.

S. H., who was 14 years old at the time the crimes were reported to police and 15 years old at the time of trial, testified that, from the time she was approximately six years old, Hardin began touching her breasts, buttocks, and vagina with his hands and his penis and that this conduct occurred when they lived in Tennessee and continued the entire time they lived in their mobile home in Walker County, Georgia. Hardin also used various sex toys to assault her. S. H. also testified that Hardin would bring other men to their home and force her to have both vaginal and oral sex with them while he watched. These other men included co-defendants Meintz and Hicks. S. H. explained that she initially resisted having sex with Meintz, but Hardin held her down and duct taped her mouth to prevent her from biting until she eventually got tired of fighting. S. H. also testified about a friend of hers, B. P., who lived in the same mobile home park. S. H. witnessed one man, Zach Medlin, rape B. P. before Hardin then forced S. H. to have sex with Medlin. B. P., who also testified at trial, said that after Medlin raped her, she saw him having sex with S. H. while Hardin watched.

In executing a search warrant at the Hardin home, officers discovered a variety of pornographic movies and magazines, and an ultraviolet light revealed numerous semen stains on the walls, ceiling, and floor of the master bedroom.⁵ The initial investigator later interviewed Meintz in Chattanooga after he voluntarily agreed to meet, and Meintz told him that he had helped the Hardins move from Tennessee into their mobile home in Chickamauga. He admitted that he had sex with S. H. but claimed it only happened when the Hardins were still living in Tennessee. However, he also admitted that S. H. rubbed his penis while he was in Georgia and that he became aroused. Meintz was later arrested and interviewed again, and after waiving his Miranda rights, he reiterated these claims. Although he was 30 years old at the time, Meintz claimed that he thought of himself as 14 years old and S. H.’s fiancé.

At trial, the State also presented the testimony of Preston Dennel, one of the men Hardin recruited to have sex with S. H. while he watched. Dennel, who had previously entered a guilty plea, testified that he had sex with S. H. because he felt Hardin would hit S. H. if he refused to have sex with her. Following the jury’s verdicts, the trial court sentenced Hardin to serve consecutive life sentences on each of the three counts of rape convictions; twenty years on the statutory rape count; a consecutive life sentence on the count of aggravated sexual battery; twenty years to serve on eleven counts of child molestation, with six of the sentences to be served concurrently and five to be served consecutively; and twenty years of probation each on two counts of child molestation, consecutive to all previous counts. The trial court sentenced Meintz to serve twenty years on the statutory rape conviction and a total of sixty years on the counts of child molestation, with twenty years to be served concurrently to the count of statutory rape, and the remaining time to be probated concurrently.

Case No. A17A1558

1. We turn first to Hardin’s assertion that he received ineffective assistance of trial counsel. To prevail on this claim, Hardin "must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance." (Citation and punctuation omitted.) Brewer v. State , 301 Ga. 819, 821 (3), 804 S.E.2d 410 (2017). To prove deficient performance, an appellant "must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." (Citation and punctuation omitted.) Keener v. State , 301 Ga. 848, 850 (2), 804 S.E.2d 383 (2017). In reviewing counsel’s performance on appeal, "we must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance." (Citation and punctuation omitted.) Id. If an appellant fails to satisfy either prong of this test, we need not examine the other prong. Wright v. State , 291 Ga. 869, 870 (2), 734 S.E.2d 876 (2012). "In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Id.

(a) Hardin first asserts that his counsel was ineffective for failing to object to testimony that he claims illegally bolstered S. H.’s credibility. Hardin points to the following testimony, in which the State questioned a detective⁶ regarding "grooming behavior":

Q: Now, during your training and your personal experience in investigating at least five to 700 ... child sexual abuse cases, have you ever encountered what is known as grooming behavior, what is that?

A: Grooming behavior is something that I have seen in children, where they may be exposed to pornography, they may be exposed to maybe comments coming from the perpetrator or perpetrators making them feel more comfortable, you know, over a time span of anywhere from days to weeks, to make them feel more like the behavior is not abnormal. It could also be in making the child feel like, especially if it starts at an earlier age, I have actually worked cases where this is what the child believes to be normal behavior, or the way it’s normal for them to receive affection from their guardian or parent.

It is true "that in no circumstance may a witness’ credibility be bolstered by the opinion of another as to whether the witness is telling the truth." (Citation and punctuation omitted.) Leggett v. State , 331 Ga. App. 343, 347 (4), 771 S.E.2d 50 (2015). However, nowhere in the exchange relied upon by Hardin does the detective testify as to whether he believed S. H. to be credible or otherwise opine on her veracity. Rather, the detective explained the process of grooming behavior based on his general experience. And when a witness’s statement does not directly address the credibility of another witness, there is no improper bolstering. See Jones v. State , 299 Ga. 40, 44 (3), 785 S.E.2d 886 (2016). "Thus, a bolstering objection would have been without merit, and failure to make a meritless objection cannot be evidence of ineffective assistance." (Citation and punctuation omitted.) Leggett , 331 Ga. App. at 348 (5) (a), 771 S.E.2d 50.

(b) Hardin also asserts that trial counsel was ineffective for failing to object to irrelevant and prejudicial testimony. Hardin again points to the State’s direct examination of the detective:

Q: Okay. And now [the responding investigator] brought you in for a couple of reasons, and he asked you to get involved in the investigation of this case for a couple of reasons; is that right?

A: Yes.

Q: And first that there was concern that maybe this would be a Federal case?

A: Possibly because there was a possible incidence [sic] in Tennessee.

Hardin argues that this testimony was irrelevant because it does not tend to prove or disprove whether Hardin committed the...