Hartman v. State

358 Ga.App. 663

856 S.E.2d 39

HARTMAN

v.The STATE.

A20A1911

Court of Appeals of Georgia.

March 3, 2021

Lauren Beth Shubow, for Appellant.

Fani T. Willis, Atlanta, Teri Brown Walker, Claude B. Rudder Rudder, Richard Benjamin Caplan, for Appellee.

Mercier, Judge.

Following a jury trial, Devin Hartman was convicted of rape and aggravated sodomy. Hartman appeals the denial of his motion for new trial, arguing that the evidence was insufficient to support his aggravated sodomy conviction. He also claims that the trial court improperly admitted extrinsic act evidence, that he received ineffective assistance of counsel at trial, and that the trial court erred in failing to turn the victim's psychiatric records over to the defense. Finding no error, we affirm.

1. On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. See Robinson v. State , 342 Ga. App. 624, 625, 805 S.E.2d 103 (2017). So viewed, the evidence shows that Hartman created an online profile on the OKCupid.com dating website with an email address registered under the name "Zach Anderson." The victim, J. L., also had a profile on the OKCupid site, where she hoped to meet people and find a relationship. Using the Zach Anderson name, Hartman contacted J. L. through the site. They sent messages back and forth, talked by telephone, and eventually decided to go out on a date.

Hartman and J. L. met at a restaurant in midtown Atlanta on the afternoon of June 20, 2014. Over the course of approximately five hours, the two talked and drank beers on the restaurant's outdoor patio. J. L. recalled that she had no more than six beers, which was not an "abnormally large number" given the length of time they were there. The conversation was good, and J. L. thought the date was going well.

At one point, J. L. went to the restroom, leaving her drink on the table with Hartman. She returned to the table, and they continued to socialize, but she remembered little about the end of the date. According to J. L, her memory was perfectly clear up to the point she saw the bill on the table, then it faded. She vaguely recalled seeing her car later that evening and feeling strange in a way similar to vertigo. She did not, however, feel drunk.

J. L.’s next memory was waking up suddenly and scared on the doorstep of her condominium in the middle of the night. She could not remember how she had gotten home, and her underwear was missing. She also could not find her phone or keys. Thinking that "something bad had happened," she ran first to a nearby restaurant, then to a motel, where she stayed until approximately 8:00 a.m. the next morning. During the night, she began to feel vaginal and rectal pain, noting that her "whole bottom just hurt" and her vaginal region was "burning." She also realized that she was bleeding heavily from her vagina, even though she was not menstruating at the time, and she had blood on her rectum.

Not knowing what had happened, but believing that she had been assaulted, J. L. called a friend from the hotel and asked her to email Hartman to find out whether he had J. L.’s keys and cell phone. Hartman replied that he did not. J. L. called her father, who met her at her condominium with a spare set of keys. Inside her condominium, she searched the internet for "what do you do when you've been raped" and followed the instructions she found, including placing her clothing in a paper bag. She also discovered a charge on her credit card from the previous night that she assumed to be for a cab ride. She emailed Hartman, explained that she did not have her keys or phone, and asked whether he could help her find her car. Hartman responded that he was leaving town for the day and could not help, but that she had taken her keys and phone as she "got out of the car." When J. L. remarked that she was having trouble remembering the previous night, Hartman replied: "You went to your car. I did not drive you home. And other than kiss, no." They continued to email throughout the morning. J. L. stated that she feared she had been raped and asked whether she had appeared drunk. Hartman replied that she had not seemed "drunk or out of it."

Later that day, J. L. told her family that she thought she had been raped, and she went to the hospital for a sexual assault examination. The doctor who performed the exam found tenderness in the vaginal area, but no bruising or lacerations. He also saw no rectal tears or bleeding. A gynecological exam conducted a few days later revealed bruising on J. L.’s right buttock and external vaginal trauma that likely would not have been visible immediately after the assault.

At the hospital, a detective with the Atlanta Police Department spoke with J. L., who indicated that she had been on a date the night before and provided the detective with Hartman's cell phone number. She also stated that her cell phone was missing. The detective obtained video footage from security cameras in the area around the restaurant, which showed that J. L. left the restaurant just before 8:30 p.m. and, approximately one hour later, got out of a Ford Explorer. Around that time, a security guard found her sitting outside of a nearby office building, appearing sluggish and "a little out of it." She did not, however, smell like alcohol. The security guard helped her into a cab, and she was able to provide her address to the driver, who took her home.

On the same day that J. L. reported the assault, a passer-by found her cell phone on the ground near the Moores Mill exit off of Interstate 75. Using cell phone mapping technology, police determined that Hartman's cell phone was near the Moores Mill exit at 9:40 pm on June 20, 2014, and another woman he was dating testified that he came to her home located off of the exit that night. Vehicle records also showed that Hartman owned a Ford Explorer.

Vaginal and rectal swabs taken during J. L.’s sexual assault examination contained Hartman's DNA. Suspecting that J. L. had been given a "date rape drug," authorities tested blood drawn from her during the exam for GHB (Gamma-Hydroxybutyrate). Although the GHB test was negative, the State offered expert testimony that GHB can only be detected in a person's blood for a few hours after ingestion. The expert further testified, based on his review of the security camera footage and witness statements, that in his opinion J. L. was under the influence of GHB on June 20, 2014.

The State also offered extrinsic act testimony from six women who met Hartman (posing as "Zach Anderson") through internet dating websites. Two of the women (A. H. and K. C.) asserted that Hartman had expressed a desire to have sexual intercourse with a sleeping, immobile woman, and he asked each to help him fulfill that fantasy. Hartman also asked A. H. and K. C. to engage in anal sex with him. In addition, four other women (S. F., E. P., A. B., and K. N.) alleged that Hartman had drugged and/or sexually assaulted them.

Based on the evidence presented, the jury found Hartman guilty of aggravated sodomy and rape. He now challenges the sufficiency of the evidence supporting his aggravated sodomy conviction, arguing that the State failed to prove the elements of sodomy and force. In reviewing this challenge, we do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient for the jury to find Hartman guilty beyond a reasonable doubt. See Robinson , supra at 628 (1), 805 S.E.2d 103.

The crime of aggravated sodomy occurs when "[a] person ... commits sodomy with force and against the will of the other person[.]" OCGA § 16-6-2 (a) (2). Sodomy constitutes "any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2 (a) (1). The evidence shows that J. L. could not remember what happened as her date with Hartman ended. After the date, however, her rectum was painful and bleeding. Rectal swabs, which J. L. testified had been placed inside her rectum, were positive for Hartman's DNA, and her buttock was bruised. Moreover, the evidence — including the expert testimony presented by the State — supports the conclusion that Hartman drugged J. L. on June 20, 2014.

Given these circumstances, the jury was authorized to find that Hartman sodomized J. L. forcibly and against her will. Although he argues on appeal that the record contains no proof of force, evidence regarding the pain and bleeding J. L. suffered was relevant to force. See Robinson , supra at 631 (2), 805 S.E.2d 103 ; see also Handley v. State , 352 Ga. App. 106, 108, 834 S.E.2d 114 (2019) (The term "force" in the sexual assault context means "acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation such as would be sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to (oneself) or others." (citation and punctuation omitted)). The jury also could have concluded that Hartman surreptitiously gave J. L. a drug "with the intent of rendering [her] incapable of resisting his sexual advances," a finding that sufficiently establishes the force required for aggravated sodomy. Id. at 109, 834 S.E.2d 114. Compare Thurmond v. State , 353 Ga. App. 506, 510, 838 S.E.2d 592 (2020) (insufficient evidence to demonstrate force needed for aggravated sodomy where victim was asleep during assault after voluntarily consuming excessive amounts of alcohol). The evidence, therefore, was sufficient.

2. Hartman claims that the trial court erred in admitting extrinsic act evidence from the six women at trial. The record shows that the evidence involving A. H. and K. C. was admitted under OCGA § 24-4-404 (b), while testimony relating to S. F., E. P., A. B., and K. N. was admitted under OCGA § 24-4-413. We find no error in the admission of this evidence.

(a) Evidence admitted pursuant...