Tripp v. State

349 Ga.App. 164

825 S.E.2d 560

TRIPP

v.The STATE.

A18A1782

Court of Appeals of Georgia.

March 6, 2019

Calcutt & Calcutt, Patrick B. Calcutt, for appellant.

Gregory W. Edwards, District Attorney, Jeremy R. Hager, Assistant District Attorney, for appellee.

Reese, Judge.

A jury found Otis Tripp, Jr., ("the Appellant") guilty of aggravated child molestation, sexual battery, aggravated sexual battery, and two counts of child molestation. In the third appearance of this case before this Court, the Appellant appeals the denial of his motion for new trial. Previously, the State appealed the trial court's grant of the Appellant's motion for new trial, which this Court vacated."¹ We remanded for the trial court to address a threshold admissibility issue and then re-evaluate the Appellant's sole remaining ineffective assistance of counsel argument.²

Upon remand, the trial court denied the Appellant's motion for a new trial. The Appellant then filed a new appeal, and this Court remanded for a second time for the trial court to complete the record to include the transcript of the April 26, 2016 motion for new trial hearing. Upon receipt of the transcript, we re-docketed the instant appeal. For the reasons set forth infra, we affirm.

A detailed factual history of this case is found in the opinion in the first appeal, and the doctrine of the law of the case applies.³ Thus, a brief summary and subsequent pertinent procedural history follow.

In July 2008, B. T.'s stepmother questioned B. T., the 12-year-old daughter of the Appellant, about the stepmother's suspicions concerning the Appellant's interactions with B. T.⁴ When B. T.'s stepmother "asked B. T. if [the Appellant] had been touching her, ... B. T. said yes."⁵

That same night, B. T. underwent both a forensic interview and a physical exam by a Sexual Assault Nurse Examiner ("S.A.N.E."), during which B. T. disclosed that the Appellant "would ‘F’ [her]."⁶ The Appellant "essentially confessed[ ]" during his subsequent interview with law enforcement.⁷ "At trial, B. T.'s outcry and [the Appellant's] confession were corroborated by testimony and photographic evidence from the medical examination by the S.A.N.E. nurse, which found significant injuries consistent with penetration, to B. T.'s genitalia."⁸ During trial, however, B. T. testified for the defense and "recanted her earlier statements[.]"⁹ B. T. testified that she had lied "because she was mad at her father for not letting her see her real mother."¹⁰

After his conviction, the Appellant filed a motion for new trial, and the trial court granted it based primarily on a finding that he had received ineffective assistance of counsel.¹¹ The State filed an appeal to this Court.¹² This Court reversed the trial court's ruling on two of the three ineffective assistance of counsel claims, vacated the trial court's order, and remanded the case for a determination as to whether certain evidence was admissible and, if so, whether defense counsel was ineffective based on his failure to present such evidence, and to reconsider its ruling on the general grounds.¹³ On remand, the trial court conducted another hearing to address these issues. On August 1, 2016, the trial court entered an order denying the Appellant's motion, and this appeal followed.

It is well settled that, to prevail on a claim of ineffective assistance of counsel,

a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.¹⁴ The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.¹⁵

Both prongs of the Strickland test need not be proven if the defendant fails to prove either one.¹⁶ To meet the burden of proving trial counsel's deficient performance and resulting prejudice, "the defendant must present competent evidence, which usually means that the attorney at issue must be called to testify and defend against an assertion that his performance had been deficient."¹⁷ "The likelihood of a different result must be substantial, not just conceivable."¹⁸

With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

1. The Appellant argues that he received ineffective assistance of counsel when trial counsel "fumbled" his attempt to present third-party perpetrator evidence and failed to object to the use of leg shackles at trial. We disagree.

(a) Failure to present evidence of an alleged third-party perpetrator.

In our previous opinion, we instructed the trial court to "determine whether defense counsel was ineffective based only on the failure to present evidence of B. T. in bed with the stepmother's brother," an adult male.¹⁹ At the time of trial, defense counsel notified the trial court that he could present two or three witnesses to testify that, within the last year, "B. T. was seen in bed with her stepmother's brother, who had entered a first-offender guilty plea to statutory rape of someone other than B. T."²⁰ Upon the State's motion to exclude this evidence, the trial court heard argument from both parties and granted the State's motion, stating that it may revisit the issue if a testifying witness "opened the door to the admission of such evidence."²¹ The trial court did not alter its ruling because there was no direct evidence presented that linked the actions of the stepmother's brother to B. T.'s injuries.²²

At the motion for new trial hearing, the Appellant's mother testified that she witnessed the stepmother's brother in bed with B. T. in the weeks prior to the Appellant's arrest.²³ Although defense counsel could not remember why he did not call the Appellant's mother to testify at trial, "[h]e thought she might have been nervous, did not want to testify, or that her testimony may not have been helpful."²⁴

On remand, the trial court held that although it was "unusual" that the Appellant's mother had seen B. T. and the stepmother's brother in bed "twice in the weeks prior to the arrest of [the Appellant], [she] offered no testimony that there was any inappropriate physical contact of a sexual nature between [the stepmother's brother] and [B. T.]." Further, the trial court noted that, although the Appellant's mother informed defense counsel that she saw the two in bed together, she was not called to testify, "[defense counsel] testified some of the family members were worried about testifying at trial and that [the Appellant's mother] had been nervous about testifying."

Also, the trial court stated that "it ha[d] never been presented with any evidence (either before trial, during trial[,] or during any of the post-trial hearings) that [B. T.] ha[d] ever named [the stepmother's brother] or any one other than [the Appellant] as touching her inappropriately or having any physical contact with her of a sexual nature." The trial court ultimately ruled that the Appellant's mother's testimony was inadmissible, finding that evidence that she merely observed the stepmother's brother and B. T. "under the covers of a bed two times, without more, would be legally insufficient [because it] was too speculative and conjectural[.]"²⁵ The trial court cited to Kidd v. State²⁶ and Dodd v. State²⁷ as authority.

The Appellant argues that the Appellant's mother's testimony was admissible under the "source of the injury" analysis, as set forth in Tidwell v. State .²⁸ This argument is unavailing.

Former OCGA § 24-2-3 (a), the Rape Shield Statute applicable at the time of trial,²⁹ stated in part:

In any prosecution for a violation of ... Code Section 16-6-4, relating to aggravated child molestation; or Code Section 16-6-22.2, relating to aggravated sexual battery, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness's marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.³⁰

In Tidwell , following a jury trial, the defendant was convicted of child molestation.³¹ He appealed his convictions, arguing, inter alia, that the trial court erred in excluding evidence that the 15-year-old victim had been having sex with her boyfriend, thereby explaining the State's evidence that "the victim's hymen had been penetrated."³² This Court ruled that the evidence of the changes in the victim's hymen were admissible, under an exception to the former Rape Shield Statute,³³ because the evidence was relevant to an issue other than consent.³⁴ However, the Supreme Court of Georgia recently held that "cases purporting to allow a relevance exception to the Rape Shield Statute for the admission into evidence of a complaining witness's past sexual behavior beyond that contained in [the Statute] are hereby overruled to the extent that they do so."³⁵

It is well settled that, for a criminal defendant to introduce evidence to implicate a third party for a crime for which the defendant is being tried,

the proffered evidence must raise a reasonable inference of the defendant's innocence and it must directly connect the other person with the corpus delicti or show that the other person has recently committed a crime of the same or similar nature. ... Evidence that merely casts a bare suspicion on another or raises a conjectural inference as to the commission of the crime by another is not admissible.³⁶

However, in this case,...