LOVE v. the STATE. , 824 S.E.2d 745 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 7, 2019
In the Court of Appeals of Georgia
A18A1818. LOVE v. THE STATE.
MILLER, Presiding Judge.
A White County jury convicted Allen Jerry Love of one count of rape (OCGA
§ 16-6-1), two counts of incest (OCGA § 16-6-22), one count of aggravated child
molestation (OCGA § 16-6-4 (c)), two counts of child molestation (OCGA § 16-6-4
(a)), one count of statutory rape (OCGA § 16-6-3), three counts of sodomy (OCGA
§ 16-6-2 (a) (1)), and one count of sexual battery against a child under 16 (OCGA §
16-6-22.1 (d)).1 The Superior Court of White County denied Love’s motion for new
trial as amended, and he appeals. Love raises a host of arguments, including
1
The charges against Love were based upon allegations involving three
separate victims, each of whom was a stepdaughter of Love’s at some point: Counts
1 and 2 related to B. W., Counts 3 through 9 involved K. B., and Counts 10 and 11
concerned M. M. (B. W.’s sister).
sufficiency of the evidence as to Counts 10 and 11 of the indictment, ineffective
assistance of trial counsel, the denial of his motion to sever, and the failure to strike
certain testimony by an expert witness. We find no error and affirm.
1. Love argues that the State failed to prove him guilty of Counts 10 (child
molestation) and 11 (sexual battery against a child under 16) against victim M. M.
beyond a reasonable doubt.2
(a) First, Love summarily contends that the evidence was insufficient to convict
him of Count 10 (child molestation). The gravamen of Love’s argument is that “M.
M. refused to accuse Mr. Love at trial” and that it was therefore unclear “as to what
exactly Mr. Love was alleged to have done to her . . . .” We are not persuaded.
Under Georgia law,
[o]n appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to the verdict, and the appellant no longer
enjoys the presumption of innocence; moreover, an appellate court does
not weigh the evidence or determine witness credibility but only
determines whether the evidence is sufficient under the standard of
Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979)]. As long as there is some competent evidence, even though
2
Love has not enumerated as error the sufficiency of the evidence for his
remaining convictions.
2
contradicted, to support each fact necessary to make out the State’s case,
the jury’s verdict will be upheld.
(Citation omitted.) Watkins v. State, 336 Ga. App. 145, 146 (1) (784 SE2d 11) (2016).
Relevant to this case, child molestation occurs when a person “[d]oes any immoral
or indecent act to or in the presence of or with any child under the age of 16 years
with the intent to arouse or satisfy the sexual desires of either the child or the person.”
OCGA § 16-6-4 (a) (1).
So viewed, evidence adduced at trial revealed that M. M. formerly lived with
Love, her mother, and her sister (B. W.). Although M. M. testified that she did not
remember telling her mother that Love “used to squish [her] like a bug and shake
[her] like a milk shake,” she admitted that Love touched her in a way that she did not
like and that she and Love had “a secret.” She declined to elaborate or testify further,
saying that she “just [did not] feel comfortable talking to other people about it.”
M. M.’s mother testified that M. M. told her she had a secret with Love and that
they played a “game.” The game involved Love removing his clothing, getting behind
M. M., and “squash[ing] her like a bug and sh[aking] her like a milkshake.” M. M.
said that, on these occasions, she would be on her hands and knees. M. M.’s mother
then got on her hands and knees and asked M. M. to demonstrate what Love did; M.
3
M. “got behind [her] as in like the doggie style position and started to dry hump [her].
. . .” M. M. also said that Love did not wear clothes during these episodes and
“describe[d] in detail what [Love] looked like naked,” stating where he had hair and
that “sometimes his thing sticks up and sometimes it don’t.”
An investigator with the White County Sheriff’s Office videotaped a forensic
interview of M. M. in 2010,3 and the State introduced a copy of the interview into
evidence and played the videotape for the jury. During the interview, M. M. described
getting touches she did not like, including getting touched on her “private” and when
someone laid on top of her, although she did not elaborate. Later in the interview, M.
M. described Love “squishing [her] like a bug” and “shaking [her] like a milk shake.”
She further described the activity as Love lying on her and bouncing up and down.
Using dolls, M. M. demonstrated herself lying face down with Love lying on top of
her and bouncing up and down.
The investigator also interviewed M. M.’s sister, B. W. During the interview,
B. W. stated that one evening, when M. M. complained to B. W. about a rash she had,
M. M. told B. W. that she and “Allen have a secret” and that he “smushes her like a
3
At the time of the interview, M. M. was six years old. At the time of trial, M.
M. was 11.
4
bug and shakes her like a milk shake.”4 B. W. told her mother about M. M.’s
statement,5 and when B. W. and her mother asked M. M. what she meant, M. M.
replied that “Allen gets on top of me and just shakes me.” The State also introduced
other acts evidence against Love involving an act of child molestation against a
seven-year-old victim in 2006 or 2007.
Taken together, we conclude that this evidence was sufficient to convict Love
of child molestation against M. M. beyond a reasonable doubt. See Kirkland v. State,
334 Ga. App. 26, 33 (3) (778 SE2d 42) (2015) (sufficient evidence to convict
defendant of aggravated child molestation where victim was non-responsive at trial,
but jury could consider victim’s prior statements to mother, great-grandmother, and
forensic interviewer, as well as similar transaction evidence); Maurer v. State, 320
Ga. App. 585, 588 (1) (740 SE2d 318) (2013) (sufficient evidence to convict
defendant of child molestation where victim refused to testify and relatives, to whom
victim reported the molestation, were reluctant, but forensic interview that included
victim’s outcry admitted into evidence); Westbrooks v. State, 309 Ga. App. 398, 400-
4
B. W. offered similar testimony at trial.
5
The record also includes a recording of the interview of B. W. and M. M.’s
mother. However, it does not appear that the mother’s interview was introduced into
evidence. As a result, we have not considered it in deciding this appeal.
5
401 (1) (710 SE2d 594) (2011) (sufficient evidence to convict defendant of child
molestation where victim did not provide details of molestation, but uncle and
forensic interviewer testified to victim’s outcry).
(b) Second, Love asserts that there was insufficient evidence to convict him of
Count 11 (sexual battery against a child under 16). However, the trial court merged
Count 11 with Count 10 for sentencing purposes.6 Accordingly, “[w]e need not
consider an enumeration of error which addresses the sufficiency of the evidence to
convict on a count on which the trial court failed to enter judgment.” (Citation
omitted.) Kollie v. State, 301 Ga. App. 534, 540 (3) (687 SE2d 869) (2009).
2. Love next argues that the trial court erred in denying his motion to sever his
trial by individual victim. According to Love, “nothing unified the allegations against
the three . . . victims other than they involved similar conduct.” Love contends that
he therefore had an absolute right to have the offenses severed. We disagree.
Prior to trial, Love moved to sever the charges based upon the three individual
victims, arguing that the victims were unrelated save for the nature of the allegations
against Love and because of the “great time differential” between the victims. Of
note, the State responded that it had filed notice of its intent to introduce evidence of
6
Love’s counsel agreed that Count 11 merged into Count 10.
6
other acts; as a result, even if Love’s trial was severed based upon the separate
victims, the State would still be permitted to introduce evidence of alleged conduct
against the remaining victims. The trial court agreed, noting that the allegations
against Love reveal “kind of a common course of conduct” or “a common plan.”7 As
a result, the trial court denied Love’s motion to sever.
Under Georgia law,
[i]f [multiple] offenses are not joined solely because they are of the same
or similar character, and evidence of one charged offense would be
admissible as a similar transaction during trial on another charged
offense, the trial court is vested with discretion in deciding whether to
grant a motion to sever. In making this decision, the court must consider
the number of offenses charged, the complexity of the charges, and the
complexity of the evidence and determine whether the jury will be able
to fairly and intelligently parse the evidence and apply the law with
regard to each charge.
7
See OCGA § 24-4-414 (a) (“In a criminal proceeding in which the accused
is accused of an offense of child molestation, evidence of the accused’s commission
of another offense of child molestation shall be admissible and may be considered for
its bearing on any matter to which it is relevant.”); State v. McPherson, 341 Ga. App.
871, 873 (800 SE2d 389) (2017) (language of OCGA § 24-4-414 (a) intended to
create “a ‘rule of inclusion,’ with a strong presumption in favor of admissibility”)
(citation omitted).
7
(Citations and punctuation omitted.) Machiavello v. State, 308 Ga. App. 772, 773 (2)
(709 SE2d 28) (2011). “Where in the sound discretion of the trial court, the number
of offenses charged and the complexity of the evidence do not reasonably impinge
upon a fair determination of the defendant’s guilt or innocence as to each offense
charged, a severance need not be granted.” Id. at 774 (2) (citing Chaparro v. State,
279 Ga. App. 145, 147 (3) (630 SE2d 645) (2006)). “We review a trial court’s denial
of a motion to sever the trial of separate charges for an abuse of discretion.” (Citation
omitted.) Smith v. State, 249 Ga. App. 39, 40 (1) (547 SE2d 598) (2001). Of
particular relevance, “the trial court does not abuse its discretion by denying a motion
to sever if the evidence of one offense would be admissible as a similar act in the trial
of the other offense.” (Citation omitted.) Id.In this case, the trial court noted that the allegations against Love revealed a
“common course of conduct” or a “common plan,” that “the law that I apply would
apply to each offense so there is no confusion there,” and that each element of each
offense charged would have to be satisfied. In addition, the trial court’s jury charge
instructed the jury to consider each count of the indictment separately, and the jury
delivered a verdict as to each charge separately. Finally, the trial court observed that
8
even if it granted Love’s motion, the remaining allegations would be admissible as
other acts evidence.8 As a result,
the crimes were simple, involved only one defendant and one victim
each time, the court clearly charged the jury to consider each charge
separately and the jury announced its verdict on each count separately.
There was nothing complex about these [three] offenses such as could
make it difficult for the trier of fact to distinguish the evidence and
apply the law intelligently as to each offense. Lastly, the risk of
prejudice (“smear effect”) from this joint disposition was minimal. The
evidence of either act could have been introduced at the trial of the
other, which negates any claim that [Love] was impermissibly
prejudiced by the trial of the charges together.
(Citations and punctuation omitted.) Sanders v. State, 236 Ga. App. 578, 580-581 (1)
(b) (512 SE2d 678) (1999). In short,
the facts in the [three] cases . . . are so similar that even if the [three]
cases had been severed, each would have been admissible in the other
case as evidence of a similar transaction. Accordingly, where the
evidence of one crime would be admissible in the trial of the other
crime, it cannot be said that the trial court abused its discretion in
denying the motion for severance.
8
See fn. 7, supra.
9
(Citation and punctuation omitted.) Rocha v. State, 234 Ga. App. 48, 53 (5) (506
SE2d 192) (1998), superseded by statute on other grounds, In the Interest of J. H.,
340 Ga. App. 733, 736 (797 SE2d 185) (2017). Compare Smith, supra, 249 Ga. App.
at 41 (1) (trial court erred in denying severance of defendant’s counts of rape of an
adult woman and child molestation of his four-year-old grandson). Under the
circumstances of this case, we conclude that the trial court did not abuse its discretion
in denying Love’s motion to sever.
3. Love also contends that the trial court erred by denying his motion for new
trial based upon the State’s alleged threat to a victim, K. B., that she would be
prosecuted for perjury if she testified that Love did not abuse her. See Giglio v.
United States, 405 U. S. 150, 153-154 (92 SCt 763, 31 LE2d 104) (1972). There is
no merit to this argument.
In general,
[a] Giglio claim alleges that a prosecutor knowingly presented false
testimony against the defendant. To establish a Giglio violation, it must
be shown that: (1) the testimony given was false; (2) the prosecutor
knew the testimony was false; and (3) the statement was material. Under
Giglio, where the prosecutor knowingly uses perjured testimony, or fails
to correct what the prosecutor later learns is false testimony, the false
10
evidence is material if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.
(Citations omitted.) Hunter v. State, 29 So3d 256, 270 (Fla. 2008). See also Perkins
v. State, 144 So3d 457, 469 (II) (Ala. Crim. App. 2012) (citing Williams v. Griswald,
743 F2d 1533 (11th Cir. 1984)). See also Washington v. Hopson, 299 Ga. 358, 363
(2) (a) (788 SE2d 362) (2016). To that end, “the defendant must show that the
statement in question was indisputably false, rather than merely misleading[,]” and
“[t]he burden is on the defendant[] to show that the testimony was actually perjured,
and mere inconsistencies in testimony by government witnesses do not establish
knowing use of false testimony.” (Citations omitted.) Perkins, supra, 144 So3d at
469-470 (II). Moreover, “the fact that a witness contradicts himself or herself or
changes his or her story does not establish perjury.” (Citations omitted.) Id. at 470
(II). In this regard, “[t]he trial court’s findings of fact on motion for new trial are
upheld unless clearly erroneous.” (Citations omitted.) Peralta v. State, 276 Ga. 218,
219 (2) (576 SE2d 853) (2003).
Prior to trial, K. B. denied that any abuse occurred and initially told a forensic
interviewer that “nothing was going on” between her and Love; however, she later
admitted to the interviewer that Love had abused her. Subsequently, K. B. met with
11
Love’s counsel, stating that she had “lied and that [Love] didn’t do anything.”
Similarly, she spoke with a therapist about the abuse, telling the therapist on separate
occasions that Love had abused her, had not abused her, and again that he had abused
her. Thereafter, approximately one week before trial, K. B. again met with
representatives of the State and told them that Love “never did anything.”9
At trial, K. B. offered unequivocal and detailed testimony regarding Love’s
abuse, including accounts of anal, oral, and vaginal sex acts. She revealed that she did
not initially disclose Love’s actions because her mother loved him and she “just
wanted her [mother] to be happy . . . .” She also testified that no one had threatened
her or suggested that she change her account of what occurred and that she was
telling the jury the truth to spare her sister from abuse. At sentencing, however, K. B.
provided a brief, unsworn victim impact statement in which she simply stated Love
“didn’t do anything” and that she “lied on the stand.” She claimed that she lied
“because the D.A. said that if I don’t tell the truth, that I would get arrested and he
wouldn’t believe me that [Love] did not do anything to me.”
9
As a result of his cross-examination of K. B., Love’s counsel was aware of
this second interview of K. B. by the State.
12
During a hearing on Love’s motion for new trial, Love’s trial counsel testified
that he had a post-trial conversation with the prosecuting attorney and that the
prosecuting attorney apparently told him he had “threatened K. B. with prosecution
for perjury . . . .” A State’s investigator testified that in a meeting between K. B. and
the prosecuting attorney, the prosecuting attorney never threatened K. B. with
prosecution and did not recall the word “perjury” ever being used. Neither K. B. nor
the prosecuting attorney testified during the hearing.
Faced with K. B.’s varying accounts of Love’s abuse, coupled with the lack of
testimony by K. B. and the prosecuting attorney and the conflicting testimony by
Love’s trial counsel and the State’s investigator as to an alleged threat of prosecution
against K. B., the trial court found that “the contention that K. B. had been threatened
with criminal prosecution is not supported by the credible evidence.” Indeed,
“[i]nconsistent statements by a witness do not, by themselves, establish that one
statement is false and the other is true.” Perkins, supra, 144 So3d at 470 (II).
Accordingly, we conclude that the trial court’s factual finding is not clearly
erroneous. See Peralta, supra, 276 Ga. at 219 (2). As a result, we find no error. Cf.
Glover v. State, 296 Ga. 13, 15 (2) (764 SE2d 826) (2014) (recantations relate only
to the witness’ credibility and are merely impeaching; defendant “offered no new
13
evidence beyond that, such as evidence that the witnesses had been ‘convicted of
perjury’ or that their ‘previous testimony was the purest fabrication’”) (citation
omitted); Chauncey v. State, 283 Ga. App. 217, 222-223 (6) (641 SE2d 229) (2007)
(“a new trial will not be granted if the only effect of the evidence will be to impeach
the credit of a witness”) (citation and punctuation omitted).
4. Love argues that the trial court erred in not excluding the testimony of
Bridgett Barker, the director of a non-profit child abuse prevention organization in
Lumpkin County. Specifically, Love contends that the trial court should have struck
Barker’s testimony concerning her qualifications as an expert witness when it
determined that the State violated OCGA § 17-16-4 by failing to provide a summary
of Barker’s opinion to Love’s counsel. This enumeration of error is without merit.
During trial, the State called Barker as an expert witness. After Barker testified
concerning her background and qualifications, the trial court admitted her as an
expert witness. Immediately thereafter, Barker testified that she reviewed the State’s
case file in preparation for her testimony, at which time Love’s counsel objected.
Love’s counsel argued that Love had not been provided any discovery relating to
Barker’s proposed testimony, and the trial court noted that the State failed to submit
a summary of Barker’s testimony as required by OCGA § 17-16-4. The State offered
14
to make a proffer of Barker’s testimony, which the trial court allowed without
objection by Love.
After additional discussion between the trial court and the parties, Love’s
counsel asked that Barker’s testimony be “eliminated,” that she not be permitted to
testify, and that the trial court instruct the jury “to disregard all the testimony of this
witness.” The trial court indicated it was “not inclined to do that” because Barker’s
general testimony concerning child abuse and child abuse accommodation syndrome
had been admitted without objection. Further discussion ensued, during which the
trial court offered Love’s counsel the opportunity to cross-examine Barker on the
limited testimony she had already given. Love’s counsel wavered, so the trial court
allowed Love’s counsel an extended recess to consider how to proceed, after which
Love’s counsel stated that “[w]e are ready to go forward in whatever direction the
Court wants us to go forward on.”
The State indicated that it would not further question Barker on characteristics
of the individual victims in the case; rather, she would be questioned only on the
generic topics of grooming and self-mutilation. The trial court suggested that it was
“fairly comfortable” with the proposed approach and again offered Love’s counsel
the opportunity to cross-examine Barker. Love’s counsel continued to waver,
15
expressing concern that cross-examination might open the door to additional
testimony by Barker. When the State again indicated it would not question Barker on
whether she applied her general observations to the three individual victims in the
case, the trial court recalled the jury, the State continued with its examination of
Barker without objection, and Love’s counsel cross-examined Barker.
(a) Love argues that the trial court should have struck Barker’s initial testimony
concerning her qualifications as an expert and instructed the jury to disregard
Barker’s testimony as a remedy for the State’s violation of OCGA § 17-16-4. After
Love’s initial request to strike Barker’s testimony, the trial court allowed Love’s
counsel a recess to consider whether to cross-examine Barker. After the recess,
Love’s counsel offered no further remedy and instead stated that Love would proceed
“in whatever direction the Court wants us to go forward on.” Thereafter, the trial
court decided to limit Barker’s testimony to general principles and not permit
testimony from Barker specific to the three individual victims.
Love did not object to the trial court’s ruling or offer any other remedy, much
less renew his request to strike Barker’s testimony.10 “Because [Love] did not renew
10
In a similar situation, our Supreme Court affirmed a trial court’s decision to
postpone an expert witness’ testimony until a later point in the trial. See OCGA § 17-
16-6; Valentine v. State, 293 Ga. 533, 535-536 (2) (748 SE2d 437) (2013). In the
16
the request after the trial court announced its remedy, we must assume that he was
satisfied with that remedy.” (Citation omitted.) Vega v. State, 285 Ga. 32, 34 (2) (673
SE2d 223) (2009). See also Valentine v. State, 293 Ga. 533, 535-536 (2) (748 SE2d
437) (2013); Gorman v. State, 318 Ga. App. 535, 540 (4) 734 SE2d 263) (2012). As
a result, Love’s argument has not been preserved for review. See Washington v. State,
310 Ga. App. 775, 779 (2) (714 SE2d 364) (2011) (“A defendant cannot submit to a
ruling or acquiesce in the holding, and then complain of the same on appeal. The
defendant must stand his or her ground. Acquiescence deprives the defendant of the
right to complain further.”) (Citation, footnote, and punctuation omitted).
(b) On appeal, however, Love has also raised trial counsel’s failure to preserve
the trial court’s decision against excluding Barker’s introductory testimony, as a
sanction for the State’s violation of OCGA § 17-16-4, as a claim of ineffective
assistance of counsel. As a result,
[w]e thus consider the alleged [error] asserted by [Love] within the
analytical framework of an ineffectiveness claim, under which, in order
to prevail, [Love] must show both that his trial counsel’s performance
was deficient and that, but for the deficient performance, there is a
present case, the trial court initially appeared to consider such a remedy before
deciding to limit Barker’s testimony to “information . . . as to what behaviors may be
present without any sort of analysis with respect to any of these victims.”
17
reasonable probability the outcome of the trial would have been
different.
(Citations omitted.) Hargett, 285 Ga. at 84 (3). We conclude that, even if Love’s trial
counsel had continued to object to Barker’s testimony and moved to exclude it in
view of the State’s violation of OCGA § 17-6-4, rather than acquiescing to the trial
court’s remedy, he has not demonstrated that he suffered harm resulting from his trial
counsel’s failure to object.
OCGA § 17-16-4 (a) (4) provides, in relevant part, that if an expert report “is
oral or partially oral, the prosecuting attorney shall reduce all relevant and material
oral portions of such report to writing and shall serve opposing counsel with such
portions no later than ten days prior to trial.” See also Heywood v. State, 292 Ga. 771,
776-777 (4) (b) (743 SE2d 12) (2013).
If at any time during the course of the proceedings it is brought to the
attention of the court that the state has failed to comply with the
requirements of [OCGA § 17-16-4], the court may order the state to
permit the discovery or inspection, interview of the witness, grant a
continuance, or, upon a showing of prejudice and bad faith, prohibit the
state from introducing the evidence not disclosed or presenting the
witness not disclosed, or may enter such other order as it deems just
under the circumstances.
18
(Emphasis supplied.) OCGA § 17-16-6. As a result, the trial court has broad
discretion to remedy violations of OCGA § 17-16-4, Gomez v. State, 305 Ga. App.
204, 208 (5) (699 SE2d 395) (2010), and we review such rulings only for an abuse
of discretion. See Adams v. State, 340 Ga. App. 1, 7 (2) (795 SE2d 330) (2016).
In this case, the trial court’s remedy of disallowing Barker’s testimony
concerning specific observations of the three victims went further than simply
requiring additional discovery or granting a continuance. See OCGA § 17-16-6.
Under the circumstances, the remedy balanced Love’s failure to object to Barker’s
background testimony with his desire to exclude that testimony, bearing in mind the
State failed to provide Love with a summary of Barker’s opinions, which resulted in
no specific testimony by an expert witness concerning observations of the three
victims. Furthermore, to obtain the “harsh sanction” of excluding a witness’
testimony, the defendant must demonstrate that he was prejudiced by the testimony
and that the State acted in bad faith. See OCGA § 17-16-6; Adams, supra, 340 Ga.
App. at 7 (2). In this case, Love has made no such showing. As a result, we cannot
say that the trial court’s remedy was unjust.
In sum, Love cannot show that he was prejudiced by Barker’s background
testimony. Even had trial counsel continued to object to the trial court’s proposed
19
remedy, rather than acquiescing to the remedy, there is no indication that the
testimony would have been struck. Indeed, in view of the trial court’s remedy to
prevent any specific testimony concerning the three victims, we cannot say that the
trial court abused its broad discretion. Finally, Love “has [again] failed to
demonstrate that he was prejudiced . . . [g]iven the overwhelming evidence of his
guilt . . . .” Reid v. State, 341 Ga. App. 604, 618 (7) (d) (i) (802 SE2d 42) (2017). As
a result, Love has not satisfied the prejudice element of his claim of ineffective
assistance of trial counsel based upon counsel’s failure to preserve this issue for
appeal. See Gomez v. State, 301 Ga. 445, 458-459 (6) (a) (801 SE2d 847) (2017);
Vega, supra, 285 Ga. at 34 (2). See generally Hargett, supra, 285 Ga. at 83-84 (3)
(multiple grounds of ineffective assistance of trial counsel based upon failure to
preserve substantive arguments for appeal).
5. Love asserts that he received ineffective assistance of trial counsel “to the
extent, if any, that trial counsel failed to preserve the other enumerations of error. .
. .” Aside from the failure to preserve arguments discussed in Division 4 (b), supra,
we have not found that trial counsel failed to preserve any arguments for appeal.
Accordingly, this enumeration of error presents nothing for our review.
20
6. In two related enumerations of error, Love contends that Georgia’s sodomy
(OCGA § 16-6-2 (a) (1)) and statutory rape (OCGA § 16-6-3) statutes are
unconstitutional. As a result, Love initially filed this appeal in the
Supreme Court of Georgia. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).
However, our Supreme Court transferred Love’s appeal to this Court, finding that its
jurisdiction had not been invoked because Love “failed to raise any challenge to § 16-
6-3 below, and he did not raise his challenge to § 16-6-2 until his second amended
motion for new trial.” As a result, these enumerations are without merit because “[t]he
Supreme Court’s determination in [its] transfer order is final and binding.”
Employees’ Retirement Sys. of Ga. v. Harris, 303 Ga. App. 191, 195 (2) (692 SE2d
798) (2010). See also Amos v. State, 298 Ga. 804, 807-808 (2) (783 SE2d 900) (2016)
(“a constitutional attack on a criminal statute may not be raised for the first time on
motion for new trial. Even where an untimely constitutional challenge is addressed
on its merits by the trial court, [we] will decline to entertain the issue on appeal.”)
(citations omitted); In re D.H., 283 Ga. 556, 557 (3) (663 SE2d 139) (2008)
(Georgia’s appellate courts “will not pass upon the constitutionality of a statute when
the challenge was not directly and properly made in the trial court and distinctly ruled
on by the trial court.”).
21
In light of the foregoing, we conclude that the trial court did not err in denying
Love’s motion for new trial as amended.
Judgment affirmed. Brown and Goss, JJ., concur.
22