Hutcheson v. State

361 Ga.App. 890

864 S.E.2d 106

HUTCHESON

v.The STATE.

A21A1015

Court of Appeals of Georgia.

July 28, 2021

Reconsideration Denied November 16, 2021

Hogue Hogue Fitzgerald & Griffin, Susan Dalton Raymond, Laura D. Hogue, Macon, for Appellant.

Anita R. Howard, District Attorney, Shelley Temeekah Milton, Assistant District Attorney, for Appellee.

Miller, Presiding Judge.

In the second appearance of this case before this Court, Jack Lance Hutcheson seeks review after a jury found him guilty of various sexual offenses. On appeal, he argues that (1) the trial court erred in admitting images found on his computer under OCGA § 24-4-414 because the images were too dissimilar to the charged conduct; (2) the search warrant for his computer was defective because the magistrate judge did not have a substantial basis to conclude that probable cause existed; and (3) his trial counsel was ineffective for failing to object to various hearsay statements and for withdrawing a motion to suppress statements Hutcheson made to his pastor. Upon a close review of the record, we reject all of Hutcheson's enumerations of error and affirm his convictions and sentence.

The relevant facts are set out in our prior opinion in this case:

Viewed in the light most favorable to the jury's verdict, the evidence shows that C. R. first met Hutcheson when he was 12 years old at Russellville Baptist Church, where Hutcheson was the bass player at the time. C. R. described Hutcheson as a friend and a father figure; and at some point, C. R. and Hutcheson began spending time together outside of church-sponsored activities, primarily playing video games. Eventually, C. R. began attending Sanctuary Church, where Hutcheson had been hired as the youth pastor. By this time, Hutcheson had moved into his own home, and C. R. would often "hang out" there. C. R. — who had a "rough" home life — would also regularly stay the night with Hutcheson, who occasionally provided him with alcohol.

Around the time C. R. turned 14 years old, Hutcheson and C. R. began engaging in certain sexual activities. On one occasion, they got drunk and watched each other masturbate, and other times, Hutcheson attempted to "jerk [C. R.] off" with his hands. Hutcheson also put C. R.’s hands on his genitalia and then ejaculated. At times, C. R. and Hutcheson showered together, and Hutcheson touched C. R. once or twice when they did so. Eventually, Hutcheson mentioned the possibility of engaging in oral sex, but C. R. refused. These sexual interactions happened "at least every other time" C. R. went to Hutcheson's house. C. R. did not tell anyone about it at the time because he had "no justification" for saying it was wrong, and "[t]he only person [he] really saw as a [parental] figure was the person doing it so why question it."

Throughout high school, C. R. did not tell anyone about the sexual abuse because he was embarrassed, but he continued going to Hutcheson's house just to get away from home. When C. R. was 17 years old, he went to live with his father in Pennsylvania, where he graduated from high school. C. R. had a fight with his father though, and he returned to Georgia. But C. R.’s mother would not allow him to live with her, and he had nowhere else to go except for Hutcheson's house. After C. R. moved in with Hutcheson, Hutcheson again mentioned engaging in sexual acts, but when C. R. continued to refuse, he eventually stopped asking.

During this time, C. B., a middle school student, began spending time with Hutcheson and was at his house "a lot" playing video games and hanging out. Sometimes, C. B. spent the night at Hutcheson's house like C. R. did when he was a teenager; and on those occasions, C. B. usually slept in Hutcheson's room. After observing this behavior, C. R. told his pastor and other church members about the sexual abuse he suffered years earlier when staying at Hutcheson's house. Then, sometime around August or September 2015, C. R. repeated his allegations to law enforcement. C. R. also told an investigator that he had seen a picture on Hutcheson's computer that appeared to be of a naked underage boy.

According to C. B., he met Hutcheson — who was the youth leader at his church — when he was in middle school, and they developed a close, father-son like relationship. C. B. began spending a lot of time alone with Hutcheson, playing video games and watching movies. Then, when C. B. was around 11 or 12 years old, while they were watching a movie, Hutcheson pulled down both of their pants and made C. B. "jerk him off." Hutcheson also made C. B. sleep in his room and take showers with him. And during their showers, Hutcheson would touch C. B. on his "privates," and make C. B. touch his "privates." These sexual interactions between Hutcheson and C. B. happened "[m]ore times than [C. B.] could count," and C. B. believed that if he stopped going to Hutcheson's house, people would find out about what was happening. Hutcheson told C. B. not to tell anyone about their sexual interactions, and C. B. initially complied. But eventually, C. B. told his pastor about the sexual abuse because he felt like someone needed to know, and after that, he was subjected to a forensic interview. Eventually, in August 2015, Hutcheson met with his pastor and others from his church, admitted that C. R.’s allegations were true, said he had a "problem with boys," and apologized for his conduct.

(Citation omitted.) Hutcheson v. State , 357 Ga. App. XXIV, Case No. A20A1740 (Dec. 08, 2020) (unpublished).

A grand jury indicted Hutcheson on four counts of child molestation ( OCGA § 16-6-4 ) and two counts of enticing a child for indecent purposes ( OCGA § 16-6-5 ). At trial, the jury found him guilty on all counts. The trial court sentenced Hutcheson to a total of 60 years, consisting of 25 years of imprisonment and the remainder on probation. Hutcheson filed a motion for new trial, which the trial court denied after a hearing. In the initial appeal, we vacated the denial of Hutcheson's motion for new trial because the trial court failed to conduct the requisite "thirteenth juror" analysis and remanded for further proceedings. Hutcheson v. State , supra, slip op. at 8-9 (1). On remand, the trial court entered another order denying Hutcheson's motion for new trial. This appeal followed.

1. Hutcheson first argues that the trial court erred in allowing into evidence 13 images of child pornography that were recovered from his computer pursuant to OCGA § 24-4-414. He specifically contends that the images were too dissimilar to the charged offenses to be relevant and that the unfair prejudicial effect of the images substantially outweighed any probative value. We discern no abuse of discretion.

"Ultimately, a trial court's decision on whether to admit evidence under [ OCGA § 24-4-414 ] will be overturned only where there is a clear abuse of discretion." (Citation and punctuation omitted.) State v. McPherson , 341 Ga. App. 871, 874-875, 800 S.E.2d 389 (2017).

"In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant." OCGA § 24-4-414 (a).

Given the express direction that evidence of prior sexual offenses committed by the defendant "shall be admissible," OCGA § 24-4-414 (a) and two related statutes, OCGA §§ 24-4-413 (a) and 24-4-415 (a), have been construed as creating a rule of inclusion, with a strong presumption in favor of admissibility. Further, evidence admitted under these statutes is not subject to the limitations of OCGA § 24-4-404 (b), but, instead, may be considered for its bearing on any matter to which it is relevant, including whether the evidence demonstrates that the defendant had a propensity to commit certain sexual offenses. As this Court has held, under OCGA § 24-4-414 (a), showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct. Thus, evidence that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.

Even so, evidence that is admissible under these statutes may be excluded if the trial court concludes that its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The determination as to whether to exclude evidence for any of these reasons calls for a common sense assessment of all the circumstances surrounding the previous offense, including prosecutorial need, overall similarity between the previous act and the charged offense, as well as temporal remoteness. Indeed, exclusion of otherwise probative and relevant evidence under OCGA § 24-4-403 is an extraordinary remedy which should be used only sparingly.

(Citations and punctuation omitted.) McPherson , supra, 341 Ga. App. at 873-874, 800 S.E.2d 389.

Here, the 13 images at issue were of prepubescent or early pubescent boys, and each image depicted a boy as either completely naked or partially naked with his genitalia showing. These images demonstrate that Hutcheson had a sexual interest in boys around the age of the victims in this case, and they were therefore relevant to establish that Hutcheson had a prurient interest in children of that age. See Holzheuser v. State , 351 Ga. App. 286, 290 (1) (a) (ii), 828 S.E.2d 664 (2019) (images of child pornography were relevant and admissible to establish that the defendant had "a prurient interest" in underage girls, which would support a finding that the defendant intended to expose himself to children for the purpose of sexual gratification, an element of child molestation); Eubanks v. State , 332 Ga. App. 568, 571 (2), 774 S.E.2d 146 (2015) (evidence that a defendant engaged in...