Ponders v. State

896 S.E.2d 899

PONDERS

v.The STATE.

A23A1780

Court of Appeals of Georgia.

January 5, 2024

Micah Jay Gates, for Appellant.

Benjamin Bruce Kenemer, John Scott Helton, Dalton, Megan Deitz Parker, for Appellee.

Hodges, Judge.

A jury found Anthony Ponders ("Ponders"), guilty of child molestation. Ponders appeals from the denial of his motion for new trial, asserting that he received ineffective assistance of trial counsel in several respects. For the reasons that follow, we affirm.

The evidence shows that A. M. lived with her grandparents, Rhonda and Anthony Ponders, and a number of other relatives. On February 12, 2021, Ponders woke Up A. M. to clean up her dog’s feces and urine. A. M., who was 14 years old at the time of the second trial,¹ testified that Ponders "expos[ed] his self" while he was in her room. According to A. M., Ponders spent five to ten minutes in her room with his "penis … out" of his shorts about six feet away from her, and she believed Ponders wanted her to see his penis. He walked from one side of the bed to the other in a way that made her look at it, even though she did not want to see it. He also left three dollars on her table, but did not say why. Earlier in the day, Ponders had taken A. M. to a store and bought her ice cream and a vape.

Haley Ponders, Ponders’ daughter and A. M.’s -aunt, walked by A. M.’s room and saw Ponders inside with A. M. Haley testified that Ponders’ pants were down and she saw his buttocks exposed. She was concerned about what was happening in the room because Ponders was panicky when he saw her. In fact, A. M. testified that Ponders "ran out [of] the room" when Haley walked by. Haley entered A. M.’s room and talked to her about what she had witnessed. Haley also testified that she saw money thrown on A. M.’s night stand. After Haley spoke with A. M., she told A. M.’s grandmother to call the police, which she did after hearing what happened from both A. M. and Haley. A. M. testified that she would not have said anything because she was seared. The three women stayed locked in A. M.’s grandmother’s room until the police came. When the police arrived, A. M. told them what had happened. She was embarrassed and did not want to talk to them.

On cross-examination, A. M. testified that she told her grandmother shortly after the incident that what happened could have been an accident On redirect, however, A. M. testified that she told the officer that she wanted the incident to be an accident because it would be. easier for her and her family, but it was not an accident. A. M. testified unequivocally at trial that the incident was not an accident.

A. M.’s grandmother also testified at trial. According to her, Haley woke her up, frantic, and told her what had happened. Haley said "that she [saw] her daddy coming out of [A. M.’s] bedroom with his pants pulled down" and told her to call the police. Haley then brought A. M. to the grandmother’s bedroom. A. M. was scared and told her that Ponders came into her room and "showed himself to her[,] … going from one side of her bed to the other to make sure that she [saw] it." A. M. said she tried to look away and not see it. The grandmother told police that Ponders had exposed himself to A. M. and was possibly on drugs. She later saw three dollars in A. M.’s room. The grandmother also testified about a phone conversation between Ponders and his brother where, according to her, Ponders admitted he exposed himself to A. M. but claimed he should have been charged simply with indecent exposure. The recording was admitted into evidence and played for the jury.

An officer who responded to the scene wore a bodycam while he spoke with individuals at the scene, and the bodycam footage was played during the grandmother’s testimony at trial. The officer also testified that Ponders exhibited manifestations of drug use, but noted that Ponders did not have any drugs on his person and was not tested for drugs on the night of the incident.

A similar transaction witness also testified at trial regarding Ponders’ sexual abuse of her as a child.

Ponders testified that his shorts accidentally "slid down" and he covered himself up and started walking out of the door. According to Ponders, he gave A. M. three dollars to buy Takis snack chips the next day because she had brought in some kindling for the fireplace.

A jury found Ponders guilty of child molestation, and the trial court sentenced him to 20 years, with the first 19 years to be served in prison and the remainder on probation. Ponders filed a motion for new trial on the general grounds. Subsequently, his new appellate counsel filed both a motion for new trial on the general grounds and an amended motion for new trial claiming ineffective assistance of trial counsel. The trial court denied Ponders’ motion as amended, and this appeal followed.

Ponders argues on appeal that he received ineffective assistance of counsel because his trial counsel: (1) failed to object to alleged hearsay on numerous occasions; (2) failed to properly utilize Department of Family and Children Services ("DFCS") records; and (3) failed to assist Ponders at the sentencing hearing. The trial court concluded that Ponders’ trial counsel did not render ineffective assistance. We find no reversible error.

[1–6] To establish ineffective assistance of counsel, one must prove both deficient performance by counsel and resulting prejudice. Strickland v. Washington, 466 U. S. 668 (III), 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 302 Ga. 454, 457 (2), 807 S.E.2d 369 (2017). "To show that his lawyer’s performance was deficient, [a defendant] must demonstrate that the lawyer performed his duties in an objectively unreasonable, way, considering all the circumstances and in the, light of prevailing professional norms." (Citation omitted.) Brown, 302 Ga. at 457 (2), 807 S.E.2d 369. Counsel’s performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Strickland, 466 U. S. at 687-689 (III) (A), 104 S.Ct. 2052. "This burden, although not impossible to carry, is a heavy one, because when reviewing ineffective assistance of counsel claims, this Court applies a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance." (Citations and punctuation omitted.) Prescott v. State, 357 Ga. App. 375, 385 (3), 850 S.E.2d 812 (2020); see also Jones v. State, 318 Ga. App. 342, 346 (3), 733 S.E.2d 400 (2012) (concluding that a defendant must show by clear and convincing evidence that the performance of his lawyer was not within the range of reasonable professional lawyering). A defendant

bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would havedone what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

(Citation and punctuation omitted.) Brown, 302 Ga. at 457 (2), 807 S.E.2d 369. A finding of deficient performance requires a showing of errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U. S. at 687 (III), 104 S.Ct. 2052; accord State v. Worsley, 293 Ga. 315, 323 (3), 745 S.E.2d 617 (2013).

Prejudice is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U. S. at 694 (III) (B), 104 S.Ct. 2052; Seabolt v. Norris, 298 Ga. 583, 584-585, 783 S.E.2d 913 (2016).

Even when a defendant has proved that his counsel’s performance was deficient in this constitutional sense, he also must prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, [a defendant] must demonstrate a ‘reasonable probability’ of a different result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome.

(Citations and punctuation omitted.) Brown, 302 Ga. at 457 (2), 807 S.E.2d 369.

[7–10] An ineffective-assistance claim is a mixed question of law and fact, and we accept the trial court’s factual findings unless clearly erroneous but independently apply the law to those facts. Hulett v. State, 296 Ga. 49, 60 (5), 766 S.E.2d 1 (2014); see also Strickland, 466 U. S. at 698 (IV), 104 S.Ct. 2052. Importantly, "[t]he standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance." (Citation omitted.) Davis v. State, 290 Ga. 584, 587 (2) (b), 723 S.E.2d 431 (2012). The defendant bears the burden of proof on both prongs of an ineffective-assistance claim — if he fails to establish either prong, a reviewing court need not examine the other. See Robinson v. State, 298 Ga. 455, 462-463 (6), 782 S.E.2d 657 (2016). In short, the burden of proving a denial of effective assistance of counsel is a heavy one, and after reviewing Ponders’ claims in accordance with these standards, we conclude that Ponders has not met his burden of demonstrating that his trial counsel was ineffective.

[11–13] 1. Ponders first claims that trial counsel was ineffective by failing to object to alleged hearsay on numerous occasions. He acknowledges, however, that the failure to object to hearsay is not reversible if it stemmed from a strategic decision. See Martin v. State, 360 Ga. App. 1, 7 (1) (b), 860 S.E.2d 582 (2021).

Generally, counsel’s decision to forgo objecting to hearsay testimony can be reasonable trial strategy. We evaluate the reasonableness of counsel’s strategic decision

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