Neale v. State

344 Ga.App. 448

810 S.E.2d 621

NEALE

v.The STATE.

A17A1531

Court of Appeals of Georgia.

February 5, 2018

The Steel Law Firm, Brian Steel, Atlanta; Jeffrey S. Purvis, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

McFadden, Presiding Judge.

After a jury trial, John C. Neale III was convicted of three counts of child molestation. On appeal, he argues that the three counts merge, but the counts were based on separate conduct so they do not merge. Neale argues that the trial court erred by admitting other acts evidence, but he has not shown that the trial court abused his discretion in determining that the admittedly prejudicial nature of the evidence was outweighed by its probative value. Neale argues that he was denied the right to be present at critical stages of his trial, but Neale did not have a right under the Georgia Constitution to be present when the trial court addressed summoned prospective jurors before his trial started and he has not shown that he raised with the trial court the issue of his inability to hear pretrial proceedings. So we affirm.

1. Evidence .

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the

standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Morris v. State , 322 Ga. App. 682 (1), 746 S.E.2d 162 (2013) (citation and punctuation omitted). So viewed, the evidence showed that Neale, a retired child and adolescent psychiatrist who lived in Tennessee, was visiting family in Georgia. He was staying with his daughter, L.N.H., her husband, P.H., and their four daughters, E.H., M.H., J.H., and the victim, K.H. K.H. was six years old at the time. Neale visited L. N.H.’s family often. L.N.H. testified that at first Neale slept in an extra bed in J.H.’s room, but then he slept in the same bed as K.H. in K.H.’s room.

One night, L.N.H. entered her daughter K.H’s bedroom without knocking. She did not usually enter without knocking, but she had been feeling uncomfortable based on things her daughters had described to her. For example, they told her that K.H., J.H., and Neale would play a game where they tried to pull down each other’s pants and that Neale warned the girls not to tell their parents.

When L.N.H. entered the bedroom, Neale was in bed with K.H. L.N.H. saw Neale’s hand moving under the covers in the region of K.H’s vagina. When L.N.H. asked Neale what he was doing, K.H. hopped out of the bed and she was naked. L.N.H. told K.H. to put on her pajamas and then L.N.H. left the room. Ten days later, K.H. told her mother that Neale used a back massager on her vagina.

E.H., M.H., J.H., and K.H. testified about interactions with Neale. E.H. and M.H. testified that when the girls stayed at his house in Tennessee, K.H. slept with Neale in his room with the door locked, which E.H. found to be weird. The sisters would bathe in Neale’s large, jetted bathtub. Although E.H. wore her bathing suit, the other girls were naked. Neale would remain in the room, claiming he needed to stay in case their hair got caught in the jets. J.H. testified that he touched her and K.H. on the chest, buttocks, and vagina. K.H. testified that Neale would massage her vagina with a massager. E.H. and M.H. testified that Neale showed them a YouTube video of a horse’s penis, which made M.H. feel uncomfortable, and that he demonstrated sexual intercourse to them using wooden models of female and male sexual organs.

The state presented other acts evidence from four witnesses. A witness who was L.N.H.’s best friend in elementary school testified that she was at the Neales’ house every weekend. She testified that Neale would watch her and L.N.H. dance naked on a platform in Neale’s bedroom. When the witness spent the night, sometimes Neale would sleep in his bed with the two girls while they were naked. He once gave the witness a piggyback ride while she was naked and he touched the witness’s vagina. Neale showed the witness medical books with pictures of naked women and explained that she would look like the women in the pictures when she was older.

L.N.H. and another witness, a friend of L.N.H.’s sister, testified that when they were children, they would play strip dodge ball and Neale would watch. The witness testified that Neale would be giddy as he watched. That witness also testified that when she was a teenager, Neale told her that two of his children were close in age because immediately after one of them was born, Neale and his wife had intercourse in the hospital room since his wife could not get enough of him.

L.N.H. testified that when she was in elementary school, Neale instructed her that if she touched her clitoris it felt good. He gave her Penthouse, Playgirl, and Playboy magazines. L.N.H. testified that her older sister slept with Neale until she married at age 19. The bedroom door was locked. Neale paid L.N.H. and her sister to remove their clothing and to allow Neale to photograph them naked. Like her childhood friend, L.N.H. testified that Neale watched her and her friend dance naked.

J.M., Neale’s former wife, the mother of L.N.H. and the grandmother of K.H., testified that she and her brothers were living in a children’s home when Neale, who was in college, began working there as a volunteer. When she was six years old and Neale was nineteen, Neale would give J.M. piggyback rides and touch her genitals.

When J.M. was seven or eight, Neale would bring her to his parents’ house to spend the night. One night he brought J.M. into his bedroom, removed her underwear, and moved her hand onto his penis. When J.M. was 11, Neale, who was completing his medical internship, became the guardian of J.M. and her brothers and they lived with him. J.M. slept with Neale in his bedroom; she did not have a bedroom of her own. Neale would perform oral sex on J.M., use a vibrator on her, and masturbate her. Eventually they began having intercourse. Neale and J.M. married when she was 15. While J.M. and Neale were married, Neale brought two girls home from an orphanage and J.M. caught him sitting in the dark next to one of the girls with her panties pulled down. J.M. and Neale divorced when J.M. was 23. Neale received custody of their four children. J.M. only saw her children a few times after the divorce.

2. Merger .

Neale argues that his three convictions merge because all three acts occurred on the same date and at the same time with no interval in between. We disagree.

The state charged Neale with committing three acts of child molestation on October 8, 2012, one "by placing his hand on and about the genital area of [K.H.]," another "by placing an [unknown] object ... on and about the genital area of said child," and the third "by laying in the bed, under the covers with said child while she was naked." Each count was based on different conduct so "each of [the] counts was a separate and distinct crime." Young v. State , 327 Ga. App. 852, 861 (6) (a), 761 S.E.2d 801 (2014) (citation and punctuation omitted). See also Eggleston v. State , 247 Ga. App. 540, 543-544 (3), 544 S.E.2d 722 (2001) (five separate convictions of child molestation based upon distinct unlawful acts committed against the victim during a single incident).

3. Other acts evidence .

Neale argues that the trial court abused his discretion in his application of the OCGA § 24-4-403 balancing test when deciding whether to allow the admission of other acts evidence because any probative value of the evidence was substantially outweighed by its prejudice. "We review this contention of error for abuse of discretion." Blevins v. State , 343 Ga. App. 539, 541 (1), 808 S.E.2d 740 (2017).

In child molestation prosecutions, "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). Pretermitting whether the OCGA § 24-4-403 balancing test applies to the admission of other acts evidence under OCGA § 24-4-414, see Blevins , 343 Ga. App. at 542 (1), 808 S.E.2d 740, Neale has not shown that the trial court abused his discretion in this case. The court conducted a thorough hearing on the issue and issued a 17-page order in which he compared the evidence of other acts with the crimes charged in the instant case. The court addressed the age of the other acts evidence and acknowledged its substantial prejudice, but concluded that its probative value outweighed that prejudice. The court preliminarily ruled that the other acts evidence was admissible, and then revisited his ruling before the other acts witnesses testified, again ruling that the evidence was admissible.

On appeal, Neale simply argues that the other acts evidence was so prejudicial that the trial court should have excluded it. He has not shown that the trial court abused his discretion.

4. Right to be present at critical stages .

Neale argues that his right under the Georgia Constitution to be present at critical stages of his trial was...