Wofford v. State

329 Ga.App. 195

764 S.E.2d 437

WOFFORD

v.The STATE.

No. A14A0868.

Court of Appeals of Georgia.

Oct. 3, 2014.

Kenneth Lamar Gordon, for Appellant.

Robby Alexander King, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., for Appellee.

Opinion

MILLER, Judge.

Following a jury trial, Chad Randall Wofford was convicted of three counts of aggravated child molestation (OCGA § 16–6–4(c) ) and one count of child molestation (OCGA § 16–6–4(a)(1) ) against his girlfriend's two daughters, V.H. and O.H.¹ Wofford, in an out-of-time appeal, contends that (1) the evidence was insufficient to support his convictions; (2) the State failed to prove venue; (3) the trial court erred in refusing to strike a juror; (4) the trial court's instruction to the jury on witness credibility was erroneous; and (5) trial counsel rendered ineffective assistance.² For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the record in the light most favorable to the conviction.³ The relevant facts are set forth in State v. Wofford, 321 Ga.App. 249, 739 S.E.2d 110 (2013), which provides as follows:

During the time period alleged in the indictment, between January 1, 2004 and September 19, 2005, Wofford lived with his girlfriend, V.H. and O.H.'s mother. The girls lived out of state with their father during the 2004–2005 school year and thus attended school there during that school year. There were ongoing child custody issues, and at some point, the girls returned to live with their mother (and Wofford) in Georgia, where they began the 2005–2006 school year.

On August 29, 2005, then nine-year-old V.H. was sent from her classroom to the school counselor's office. V.H. had gotten into trouble in her fourth grade class, and she was angry. During her session with the counselor, V.H. said that Wofford had touched her private parts. The counselor asked her where Wofford had touched her, and V.H. pointed from her neck to her knees and indicated that the touching had been underneath her clothing. V.H.'s mother was summoned to the school, and V.H. repeated her claim to her mother. The counselor called the police and spoke to a police officer. No police officer came to the school; instead, the mother took both V.H. and her younger daughter, then seven-year-old O.H. who was in the second grade, from the school so that they could go to the police station.

At about 6:00 p.m., the three of them arrived at the police station. A police officer interviewed each girl separately. When the officer was distinguishing between the truth and imagination, V.H. told him that people had not believed her when she told them that she had once gotten a portal to open into a magical realm, but that when she tried to jump through it, she got her shoes wet because the portal had closed.

Regarding her allegation made earlier that day, V.H. told the officer that she had reported to the school counselor that Wofford had given her a “bad touch.” Specifically, V.H. said, Wofford had given her a backrub, which she considered a “bad touch” because her father had never given her a backrub. The officer asked V.H. whether she wanted to tell him anything else, and she said no.

Similarly, when the officer interviewed O.H., she said that Wofford had given her a backrub. O.H. volunteered that, earlier that day, she had reported such to the school counselor, adding that her father had never given her a backrub. Having already been apprised that O.H. was perhaps a witness, but not an alleged victim, the officer ended the interview with O.H. The officer closed the investigation as to both girls, concluding that there was insufficient cause to proceed. Both interviews had been recorded onto a DVD, which was played at trial for the jury.

About two weeks later, on the afternoon of Friday, September 16, the school psychologist met with V.H. to evaluate whether the child, who had received special educational services during a prior school year, remained eligible for services that school year. During that evaluation, V.H. told the psychologist that she had lied to police concerning Wofford and that Wofford had done bad things to her. Then V.H. refused to talk further about it. The psychologist testified that, at school, V.H. was “oppositional to teachers, to staff. She would do things to get out of trouble, so in that regard she was manipulative. Whenever she was in trouble, she would try to manipulate the situation to get out of trouble.” Further, the psychologist described that when she met with V.H., the child sometimes “made fantastical types of statements. She had a very active fantasy world.... She would tell stories that involved witches, warlocks, having a friend who could read other people's minds, those types of things.” Nevertheless, the psychologist relayed to the school's assistant principal V.H.'s claim that she had lied to police.

The following Monday morning, September 19, the school's assistant principal met with V.H., who told her that she had lied to police. V.H. was ushered back to the counselor's office. The child was again very upset. After the assistant principal left, V.H. told the counselor that she had lied to the police. The counselor asked V.H. to write down what had happened. V.H. wrote that Wofford had licked her breast and vagina, rubbed his penis on her vagina, that white liquid had come out of his penis, and that he had made her watch videos of individuals having sex; V.H. also wrote that Wofford had done these acts at night, when her mother was at work. The counselor called the police again. This time, the counselor did not call the child's mother.

A police detective with specialized training in investigating child physical and sexual abuse went to the school and talked with the counselor, was given V.H.'s handwritten note, and separately interviewed V.H. and O.H. V.H. affirmed that she had written the note he had received from the counselor. When O.H. was interviewed, she said that she had something to report, but did not feel comfortable speaking it. So she wrote that Wofford had licked her breasts and private part and that Wofford had done something to her sister V.H., but she did not know what. The detective took both girls to a sexual assault center to proceed with extensive interviews and physical examinations. (The detective also contacted the children's mother, as well as the Department of Family and Children Services (DFCS).) Meanwhile, V.H. wrote a second note: “Dear mommy, I'm sorry that I lied. Love, [V.H.].” V.H. never gave the note to her mother; instead, the note was soon passed to the detective.

At the sexual assault center, the police detective interviewed each girl separately. V.H. said that, on numerous occasions, Wofford had touched her vagina, put his mouth on her vagina and breasts, and forced her to put her mouth on his penis. She said that she had touched Wofford's penis and described it with words such as “hard,” “rubbery,” and “squishy.” Five or six times, V.H. recounted, Wofford's penis had “squirted” what she described as “white liquid” that was “warm” and also “sticky.” V.H. claimed that, about a month before, Wofford had tried to put his penis in her vagina. The sexual encounters with Wofford, V.H. estimated, had been going on for about a year, typically occurring when her mother was at work. She said that Wofford had threatened to harm her if she ever told anyone about what he was doing. During the interview, V.H. was asked about the note she had written to her mother; the child said that, when she previously told the (first investigating) officer that Wofford had only given her a backrub, she was lying for her mother; the child expressed concern that DFCS and the “court” would get involved with their family and that her mother would lose custody of her. In addition, V.H. said, her mother had “bribed” her with candy and “McDonald's.” The interview was recorded onto a DVD, which was played at trial for the jury.

When the police detective interviewed O.H., she said that Wofford had massaged her buttocks inside her panties and had touched and licked her vagina. She stated that this had occurred about three months before, when she was on a school break. She also claimed that, in her presence, Wofford had watched movies that depicted adults having sex, that he had “tickled” his private part, and that white liquid had come out of his private part. O.H. told the detective that, two or three times, Wofford had squeezed her hand around his private part, which she described as “squishy,” with “bones” in it, and soft on the top. The child described that Wofford had used a sexual device on her, at one point inserting it into her vagina. O.H. said that she had not told the truth when she previously talked to a police officer because talking to people she did not know made her nervous and because she was afraid that Wofford would go to jail. This interview was recorded onto a DVD, which was played at trial for the jury.

That same day, September 19, 2005, each girl was examined by a nurse who was qualified at trial as an expert in sexual assault medical examinations. The nurse testified that V.H. had told her that Wofford had touched her inappropriately, that his private part had touched her private part, that Wofford had placed her mouth on his penis, that she had seen sticky, white liquid come out of his penis, and that he had threatened her not to tell anyone. O.H. told the nurse that Wofford had licked her private part and had made her touch and rub his penis. The nurse found no sign on either girl of vaginal penetration or residual injury. But according to the nurse, in cases of delayed reporting, which the nurse defined as reporting more than 72 hours after an alleged sexual incident, “only in [five] percent of the time do we find injury.”

The next week, the police detective interviewed V.H. again. During that interview, V.H. said that Wofford had touched her private part with a vibrating machine.

V.H. and O.H. testified at trial. V.H.

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