Sanchious v. State

359 Ga.App. 649

859 S.E.2d 814

SANCHIOUS

v.The STATE.

A19A1499

Court of Appeals of Georgia.

June 4, 2021

Certiorari Denied October 19, 2021

Veronica Margaret O'Grady, for Appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for Appellee.

Brown, Judge.

In Sanchious v. State , 351 Ga. App. 611, 831 S.E.2d 843 (2019) (" Sanchious I "), we affirmed the conviction of Christopher Sanchious for three counts of aggravated child molestation, two counts of child molestation, and one count each of aggravated sodomy and sexual battery involving his girlfriend's 12-year-old daughter.¹ On appeal, Sanchious challenged the trial court's admission of a DNA report and expert testimony regarding the analysis of that report, arguing that they constituted inadmissible hearsay. Sanchious also argued that counsel was constitutionally ineffective for, among other reasons, failing to object to the report and testimony on Confrontation Clause grounds. We rejected Sanchious’ challenges. In Division 1 (a) of that opinion, we concluded that the trial court did not abuse its discretion in admitting the expert testimony under Bullcoming v. New Mexico , 564 U. S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Sanchious I , 351 Ga. App. at 615-616 (1) (a), 831 S.E.2d 843. Finding that we analyzed the merits of a Confrontation Clause objection rather than the preserved hearsay objection, the Supreme Court of Georgia granted Sanchious’ petition for certiorari, vacated our opinion, and remanded to this Court "to examine the hearsay claims Sanchious presented on appeal and then to reconsider any other claims preserved for appeal to the extent necessary." Sanchious v. State , 309 Ga. 580, 582, 847 S.E.2d 166 (2020) (" Sanchious II "). Accordingly, for purposes of clarity, we vacate the entirety of Sanchious I , and will provide an analysis of all of Sanchious’ claims in one cohesive opinion. On remand, we again affirm Sanchious’ convictions for the reasons set forth below.

"Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." (Citation and punctuation omitted.) Robinson v. State , 342 Ga. App. 624, 625, 805 S.E.2d 103 (2017). So viewed, the evidence showed that Sanchious lived with the victim, the victim's mother, and the victim's brother and sister. On October 14, 2014, the victim was asleep in a bedroom of her home on top of a red comforter, when Sanchious came in, pulled down the victim's "night pants," and "put his penis in [her] butt." She felt something "going in and out of her butthole" and said her pants smelled like "sour milk" when Sanchious was done. The victim went to the bathroom afterward and noticed that her pants were wet and that "the wet look[ed] [w]hite." The victim was afraid to tell her mother in person, so she wrote a note and left it on the ironing board telling her mother that she "can't take it anymore" and that Sanchious "need[s] to leave" because "he is put[t]ing his hand[s] on [her] the wrong way ... [and she] think[s] that is called rape." At the end of the note, the victim wrote "help me" because she was scared it might happen again. The mother did not see the note until later that evening when the victim handed it to her. The mother confronted Sanchious, and he denied touching the victim. The mother took the victim to the hospital and then to police. The mother reported to police that Sanchious "anal[ly] penetrat[ed]" the victim, after which the victim underwent a forensic medical exam. In addition to anal penetration, the victim testified at trial that in the summer of that same year, Sanchious licked her vagina. During the forensic medical exam, the victim reported the anal penetration and also advised medical personnel that Sanchious placed his penis in her vagina and her mouth and put his finger in her vagina. During the forensic interview, the victim reported all of the above and also stated that Sanchious put his finger down her pants and touched her vagina outside of her underwear. She also reported that in September of the same year, he put his penis in her vagina.

The victim's younger sister testified at trial that sometime in October 2014, the victim told her that Sanchious was doing "stuff to [the victim] while she was asleep" on the floor of the sister's room. The sister stated that the victim was sleeping on top of a purple cover and under a red cover that had been given to the sister by her godmother. The sister never saw anything because she was asleep and told the victim to tell their mother immediately and "she will handle it."

The medical exam of the victim conducted in the early morning hours of October 16, 2014, along with the administration of a sexual assault kit, revealed a "healed tear" to her hymen, swelling in her vagina, and a recent abrasion, or bruising on the cervix, all consistent with "insertion of a penis." The exam also revealed a recent injury to the victim's anus, one tear at the top and another toward the bottom, consistent with insertion of a penis. The nurse who conducted the exam testified that the victim had what appeared to be seminal fluid in her anus. The nurse handed over to police both the sexual assault kit and the victim's underwear.

Sometime after 1:00 a.m. on October 16, 2014, and following the medical exam, officers accompanied the victim and her mother back to their home where they discovered Sanchious asleep in the mother's bed. Officers recovered two comforters from the victim's sister's room, one red and one purple, as well as the victim's night pants, which were warm from having just been "run through" the dryer because Sanchious had been doing laundry. Police collected a saliva sample from Sanchious, and sent the following items to the GBI for testing: the purple comforter, cuttings from the red comforter, the victim's underwear, and the sexual assault kit.

A GBI serologist testified that the victim's underwear tested positive for seminal fluid, and that a cutting from the red comforter tested positive for sperm and seminal fluid. Both items were sent for DNA testing. The serologist testified that it was unlikely for fluid to be detected on something that had been washed.

GBI forensic biologist, Karen Turpin, testified at trial about the DNA testing performed on the victim's sexual assault kit, her underwear, and the cuttings from the red comforter. She explained that as part of her duties at the GBI, she conducts DNA testing, but also performs peer reviews of DNA typing analysis reports, meaning that she "examine[s] all the notes and results in the report of an analyst, and [that she has] to come to the same conclusions." The purpose of peer review is "[t]o ensure that the analyst has followed policies and procedures, and that the results are correct and reliable" with the peer reviewer "actually evaluat[ing] the [analyst's] conclusion, or the steps taken to reach that conclusion." Turpin testified that she personally tested the sexual assault kit in this case, but that forensic biologist Dr. Tesheka Wortham, who did not testify at trial, tested the underwear and red comforter subject to Turpin's peer review. The sexual assault kit tested negative for the presence of male DNA, while the cuttings from the red comforter contained the DNA profiles matching the profiles of the victim and Sanchious.

The victim's underwear also tested positive for the presence of DNA, and contained the DNA profiles of three individuals, including the victim, Sanchious, and an unknown person. One fraction of the DNA extracted from the underwear came from sperm cells and a second came from non-sperm cells. The DNA of the unknown person and the victim were both located in the non-sperm cells, while Sanchious’ DNA was found in the "sperm fraction." Turpin testified that "[t]he frequency, or the statistic, of the DNA markers shared between ... Sanchious and the DNA obtained ... from the panties and the cutting recovered from the comforter is approximately one in one hundred quadrillion in the African American population, and one in five hundred quadrillion in the Caucasian population." Turpin concluded with "reasonable scientific certainty" that the DNA obtained from the underwear and the comforter matched Sanchious or his identical twin, and testified that Dr. Wortham's "testing was done and followed according to policy and procedure." Turpin explained that she had peer reviewed Dr. Wortham's report "[t]o ensure that the analyst ha[d] followed policies and procedures, and that the results [were] correct and reliable."

When the State sought to introduce Dr. Wortham's DNA report and began to elicit the above testimony from Turpin about the report, Sanchious objected on hearsay grounds. The trial court overruled the hearsay objection to the report and admitted Dr. Wortham's DNA report on the underwear and the comforter (State's Exhibit 24) as well as Turpin's DNA report on the sexual assault kit (State's Exhibit 22). On cross-examination, defense counsel asked Turpin about the possibility of secondary transfer, and she confirmed that she reviews that possibility. Defense counsel also questioned Turpin about the notes and data compiled by Dr. Wortham during her testing and submitted those materials into evidence.

Sanchious testified at trial, denying that he ever touched the victim inappropriately. Sanchious could not explain why his semen was on the victim's underwear, and claimed that the red comforter on which his semen was found was the comforter under which he and the victim's mother slept and had sex. The victim's mother testified that the red comforter was never on her bed or in her bedroom, and that she never had sex on or under the red comforter; it was in the victim's sister's room and was a gift from a friend. On cross-examination, the mother clarified that her children would sometimes bring the red comforter into her room, place it on her...