Wheeler v. State

327 Ga.App. 313

758 S.E.2d 840

WHEELER

v.The STATE.

No. A14A0125.

Court of Appeals of Georgia.

May 16, 2014.

Billy L. Spruell, Marietta, Melinda Davis Taylor, for Appellant.

Juliet Aldridge, Lee Darragh, for Appellee.

DILLARD, Judge.

Following trial, a jury convicted Weyman E. Wheeler on one count of enticing a child for indecent purposes. Wheeler appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in denying his motion to strike a prospective juror for cause, excluding evidence that would have impeached the victim's credibility, charging the jury on the full statutory definition of enticing a child for indecent purposes rather than narrowing the definition to match the allegations in the indictment, failing to adequately respond to the jury's question regarding the definition of child molestation, and failing to charge the jury regarding the definition of indecent acts or purposes. For the reasons set forth infra, we affirm Wheeler's conviction.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that in late February or early March 2011, Weyman met 15–year–old M.N. through his son, who attended the same school as the young girl. Over the course of the next several weeks, M.N. increasingly spent more time with Weyman. Specifically, she frequently went with Weyman and his son to the gym, joined them for boating excursions on the lake, and spent time at their home watching movies. According to M.N., some time in late March 2011, she and Weyman began a sexual relationship, with M.N. sneaking out of her house late at night and going over to Weyman's home a few blocks away.

According to M.N., her sexual relationship with Weyman continued over the course of the next few months. But in May 2011, one of M.N.'s friends, who knew about the alleged relationship, decided that M.N.'s mother should know what was happening. Consequently, M.N.'s friend told another friend to inform his mother, who was a friend of M.N.'s mother, about the alleged relationship. And shortly thereafter, the friend's mother informed M.N.'s mother of same. M.N.'s mother and father then confronted M.N., at which point she admitted that she and Weyman were involved in a sexual relationship.

Weyman was thereafter charged, via indictment, with one count of aggravated child molestation, one count of child molestation, one count of statutory rape, and one count of enticing a child for indecent purposes. At the conclusion of his trial, the jury acquitted Weyman on the aggravated-child-molestation charge, failed to reach a verdict on the child-molestation and statutory-rape charges, but convicted him on the enticing-a-child-for-indecent-purposes charge. Subsequently, Weyman filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Weyman first contends that the trial court erred in denying his motion to strike a prospective juror for cause. We disagree.

Under Georgia law, there is a presumption that potential jurors are impartial, and the burden of proving partiality “lies with the party seeking to have the juror disqualified.” ² Furthermore, whether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court “is not obligated to strike a juror for cause in every instance [in which] the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences.” ³ Indeed, the trial judge is uniquely positioned to “observe a potential juror's demeanor and thereby to evaluate his or her capacity to render an impartial verdict.” ⁴ But the trial court must excuse a potential juror for cause based on the juror's partiality, if an opinion held by the potential juror is “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence.” ⁵

Here, during voir dire, the prospective juror in question responded affirmatively when Wheeler's trial counsel posed a general query to the pool regarding whether the nature of the allegations in this matter would make it impossible for the jurors to be fair. Later, the State's prosecutor questioned the prospective juror about her earlier response, asking why the allegations in the case would make it hard for her to be fair. The juror responded as follows: “I guess I'm just prejudiced to children. And to hear they've been abused—I don't know. My heart just goes out to them.” The State's prosecutor then asked whether she could put this bias aside, and the prospective juror responded “I would like to think I could, but I'm still—seem to always be on the child's side when I hear these things on TV or wherever.” And when pressed further, the juror stated, “I mean, I hope I could be fair, but I'm just prejudiced, I guess toward children.”

Thereafter, Wheeler's trial counsel and the prospective juror engaged in the following colloquy:

Q: Would it be safe to say that you would like to be fair, you would hope to be fair, but at the end of the day, because of your strong feelings, you just really can't be fair?

A: I hate to admit that but ... I mean, I would want to be fair. Like you say, I want people to be fair with me.... But I've just got a weak spot for children that are taken advantage of.

Q: I hear you. Don't let me put words in your mouth, but I think what I hear you saying is you want to be, you would like to be, you would hope to be, but in the end, you just can't be?

A: No, I didn't say “can't be.”

Q: Okay. It would be difficult for you to be fair.

A: It would be maybe difficult, yeah.

...

Q: And you're clearly struggling with that issue, and so let me ask you this way: In your heart of hearts, do you think you can be fair?

A: I would like to think I could be fair.

...

Q: You think because of your feelings for children you would be biased in favor of the children?

A: Yes.

Q: And prejudiced in their favor?

A: Yes.

Q: Which means you would be prejudiced against Mr. Wheeler by inference, correct?

A: I guess. Maybe.

...

Q: Do you think that would color your deliberations, would color the way you listen to the evidence? ... Influence you. You would have this nagging feeling that no matter what, you would be inclined to believe what these children said?

A: Well, I would hate to think when I heard all the evidence that I would, no matter what, just take one side or the other. I would like to think I am the kind of person that would listen to all of it....

Based on this exchange, Wheeler's trial counsel moved for the prospective juror to be struck for cause. But the State objected, and the trial court denied the motion. Ultimately, Wheeler used one of his peremptory strikes to exclude this prospective juror.⁶ Nevertheless, given the foregoing, we find that the trial court did not err in concluding that the prospective juror had not formed a fixed or definite opinion regarding Wheeler's guilt or innocence.⁷ Indeed, we have previously explained that it is “not an abuse of discretion to seat a juror who questions her ability to set aside biases so long as the juror indicates she has no unalterable fixed prejudices.” ⁸ Accordingly, the trial court did not abuse its discretion in denying Wheeler's challenge for cause as to this prospective juror.

2. Wheeler also contends that the trial court erred in excluding a hard copy of the victim's post on the social-media website

Twitter, which would have impeached the victim's credibility. We disagree.

At the outset, we note that, as a general rule, “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” ⁹ And printouts from electronic-computer sources are subject to the same rules of evidence as other documents.¹⁰

Here, while cross-examining M.N., Wheeler's trial counsel asked whether she had ever posted ( i.e., “tweeted”) anything about Wheeler on her Twitter ¹¹ profile page and home timeline.¹² In response, M.N. admitted to having a Twitter account, but denied ever tweeting about Wheeler. At that point, the jury was excused, and Wheeler's counsel moved to introduce a printout of a screenshot ¹³ of M.N.'s Twitter profile page, in which M.N. posted “my heart cries out for you. no matter how much i want you, ill [sic] never have.” Specifically, counsel argued that this tweet supported the defense theory that M.N. was obsessed with Wheeler and that this obsession had no basis in reality. However, after noting that M.N.'s tweet did not mention Wheeler by name, the trial court ruled that Wheeler had failed to establish the relevance of this tweet and denied his request.

Nevertheless, later during the trial, M.N.'s friend, who knew about M.N.'s alleged relationship with Wheeler, testified on cross-examination that M.N. had in fact tweeted about Wheeler. And based on this testimony, Wheeler's trial counsel asked the trial court to reconsider its earlier ruling excluding the screenshot of the tweet. The court refused to do so. But immediately thereafter, and in the presence of the jury, Wheeler's counsel read the entire tweet to M.N.'s friend, who confirmed that M.N. had tweeted it and that it was about Wheeler—even though he was not mentioned by name in the tweet.

Given the foregoing, even assuming the trial court erred in excluding the actual screenshot of the tweet in question, we conclude that reversal is not required because the tweet was essentially admitted into evidence by being read to the jury and used to impeach M.N.'s credibility through the testimony of M.N.'s friend. Accordingly, we find it highly probable that exclusion of the screenshot did not affect the outcome of the proceedings.¹⁴

3. Wheeler also contends that the trial court erred in charging the jury on the full statutory definition of enticing a child for indecent...