Mike v. State

358 Ga.App. 113

853 S.E.2d 887

MIKE

v.The STATE.

A20A1600

Court of Appeals of Georgia.

January 15, 2021

Amanda Jones Walker, for Appellant.

Margaret Heap, Greg M. McConnell, Savannah, Shalena Cook Jones, for Appellee.

Brown, Judge.

Following a jury trial, David Mike was convicted of child molestation, cruelty to children in the first degree, obstruction of a police officer, and possession of less than one ounce of marijuana in connection with an incident in which Mike exposed himself to a 15-year-old girl. He appeals his convictions and the denial of his amended motion for new trial, contending that the trial court gave an improper jury charge and that trial counsel was ineffective in failing to object to the improper charge. Mike also contends that the trial court abused its discretion in admitting under OCGA § 24-4-404 (b) evidence of six prior occasions Mike exposed himself to adult females. For the reasons that follow, we affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation and punctuation omitted.) Smith v. State , 348 Ga. App. 643, 643-644, 824 S.E.2d 382 (2019). So viewed, the evidence presented at trial shows that the 15-year-old-victim was with her aunt in the check-out line at a Food Lion. The victim left the line to get chips when she encountered Mike. Mike had his penis out, "moving his hand back and forth" on his penis while looking at the victim. The victim immediately told her aunt what had happened, and the aunt told the cashier. The cashier told Mike "keep it in your pants," and Mike responded "okay" as he exited the store.

The aunt called the police, who arrived shortly thereafter and began looking for a man matching the description given by the aunt. After a chase on foot, Mike was apprehended. Both the victim and her aunt testified that the man they saw police chase and apprehend was the same man who exposed himself to the victim. Police searched Mike upon arrest and discovered a rolled marijuana cigarette. After his arrest, Mike told officers that his "fly" was open because he was coming out of the bathroom.

The jury found Mike guilty on all counts in the indictment, and Mike filed a motion for new trial. The trial court denied the motion, as amended, and this appeal followed.

1. Mike contends that the trial court erred by commingling the offenses of child molestation and public indecency in its charges to the jury.

Count 1 of the indictment charged Mike with committing child molestation by "exposing his penis to [the victim] and moving it in a back and forth manner while so exposed." During the charge conference, the State submitted that if the court was going to charge the jury on public indecency as a lesser included offense of child molestation, it needed to charge that the jury "would be authorized to consider the lesser included offense of public indecency if and only if you found that the victim was 16 years of age or older, or that the act alleged in the indictment was not an immoral or indecent act." The defense initially disagreed, but then seemed to accept that the trial court was going to include the language in its charge. After defining the offense of child molestation, the trial court charged the jury as follows:

After consideration of all of the evidence, before you would be authorized to return a guilty verdict of child molestation, you must first determine whether mitigating circumstances, if any, would cause the offense to be reduced to public indecency. You are authorized to consider a lesser included offense of public indecency if and only if you determine that the age of the victim was 16 years of age or older or that the alleged offense did not constitute an immoral or indecent act.

I further charge you, ladies and gentlemen, a person commits public indecency when that person performs any act of the following acts in a public place: a lewd exposure of the sexual organs.

See OCGA § 16-6-8 (a) (2). Following the trial court's instructions to the jury, defense counsel stated she had no objections to the charge.

"Where, as here, a party fails to object to a jury charge, we review the issue for plain error pursuant to OCGA § 17-8-58 (b)." Booth v. State , 301 Ga. 678, 680 (2), 804 S.E.2d 104 (2017). "Under the plain error standard of review, appellate courts assess whether the trial court's instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." (Citation and punctuation omitted.) State v. Thomas , 350 Ga. App. 763, 765 (1), 830 S.E.2d 296 (2019).

Pretermitting whether the charge here was erroneous, there was no evidence to support the instruction for public indecency based on OCGA § 16-6-8 (a) (2). "[I]n order to authorize a jury instruction on a lesser-included offense, there must be some evidence in the record that the defendant committed that offense." Daniel v. State , 301 Ga. 783, 785 (II), 804 S.E.2d 61 (2017). "Where, as here, the evidence establishes either the commission of the completed offense as charged, or the commission of no offense, the trial court is not authorized to charge the jury on a lesser included offense." (Citation and punctuation omitted.) Seay v. State , 276 Ga. 139, 140 (2), 576 S.E.2d 839 (2003) (where the evidence at trial showed that defendant either committed the offense of malice murder or that the pistol discharged accidentally and no crime occurred, no error in trial court's failure to charge on lesser included offense of involuntary manslaughter). See Rainey v. State , 261 Ga. App. 888, 890 (2), 584 S.E.2d 13 (2003) ("But where the defendant has been charged with child molestation and he has denied the charges, claiming alibi, it is not error to refuse to charge the elements of the alleged lesser included offense of public indecency."). Here, the record reveals that Mike either intentionally exposed his penis to the 15-year-old victim, or, as the defense theorized at trial, that Mike accidentally left his pants unzipped after exiting the bathroom.¹ Because the evidence did not authorize a charge on public indecency as a lesser included offense of child molestation, Mike cannot show that the charge affected the outcome of his trial, and we thus find no plain error. Cf. Seals v. State , 350 Ga. App. 787, 794 (2) (b), 830 S.E.2d 315 (2019) (because "a sequential jury charge is only improper if ... there is sufficient evidence to authorize a guilty verdict on the lesser offense," defendant could not show that trial court's charge on sexual battery as a lesser included offense of rape amounted to plain error where "the evidence ... did not support a sexual-battery conviction").

2. Mike also contends that trial counsel's failure to object to the charge discussed in Division 1 amounted to ineffective assistance. "To prevail on this claim, [Mike] has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one." (Citation and punctuation omitted.) Jackson v. State , 305 Ga. 614, 622 (3), 825 S.E.2d 188 (2019). Given our conclusion in Division 1 that the evidence did not authorize a charge on the lesser included offense of public indecency, Mike cannot show ineffective assistance on this basis. See Dority v. State , 335 Ga. App. 83, 104 (4) (g), 780 S.E.2d 129 (2015) ("There being no plain error in the ... charge as given by the court, [the defendant] can show no ineffective assistance of counsel for failure to object to the charge as given.").

3. Mike lastly contends that the trial court erred in allowing the State to present evidence of six prior incidents where he displayed his penis to adult women. He argues that the evidence was not admitted for a proper purpose and that the prejudicial nature of the evidence outweighed any probative value.

When assessing the admissibility of other acts evidence, the trial court must apply a three-part test to examine whether:

(1) the other acts evidence is relevant to an issue other than the defendant's character, (2) the probative value is not substantially outweighed by undue prejudice under OCGA § 24-4-403 ("Rule 403"), and (3) there is sufficient proof that a jury could find by a preponderance of the evidence that the defendant committed the acts.

(Citation and punctuation omitted.) Lofland v. State , 357 Ga. App. 92, 93–95 (1), 850 S.E.2d 175 (2020). "A trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." (Citation and punctuation omitted.) Flowers v. State , 307 Ga. 618, 621 (2), 837 S.E.2d 824 (2020).

The State filed a pretrial notice of its intent to introduce under OCGA § 24-4-404 (b) evidence of prior incidents where Mike exposed himself to women. In its order admitting the evidence, the trial court found that evidence of the prior incidents was relevant and admissible to show intent and absence of mistake or accident. The court then found that although the evidence would be prejudicial, the undue prejudice did not substantially outweigh the probative value of the other acts evidence because "the other acts committed by [Mike] are almost identical factually in that [he] exposed his penis and stroked it back and forth or masturbated while looking at the various female victims." Lastly, the trial court found that the State had sufficient proof to show that Mike did in fact commit the other acts.

During the trial, six women testified about prior incidents in which Mike had exposed himself to them while masturbating. Five of the incidents occurred while Mike was incarcerated. Before this testimony and following the close of the...