Bryan Fossier v. State ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
December 29, 2021
In the Court of Appeals of Georgia
A21A1735. FOSSIER v. THE STATE.
MCFADDEN, Presiding Judge.
Bryan Fossier was charged by indictment with four counts of aggravated child
molestation for acts of oral sodomy with a minor victim and one count of child
molestation for touching the victim’s penis. Fossier pled not guilty to the charges and
was tried before a jury, which found him guilty on all counts. The trial court
sentenced Fossier as a recidivist, imposing concurrent life sentences for each count
of aggravated child molestation, with 35 years to be served in confinement and the
remainder on probation. s The court also imposed a concurrent 20-year sentence for
the count of child molestation. After Fossier’s motion for new trial was denied, he
filed this appeal.
Fossier challenges the sufficiency of the evidence supporting his convictions;
but the record shows that there was enough evidence to authorize a rational trier of
fact to find him guilty beyond a reasonable doubt of the charged offenses. Fossier
also challenges the trial court’s admission of evidence of his prior sexual assault
conviction; but such evidence was admissible under OCGA § 24-4-413, which
addresses the admissibility of evidence of prior offenses in criminal sexual assault
proceedings . Fossier further contends that the court erred in allowing evidence of his
other criminal convictions; but during his trial testimony, Fossier opened the door to
such evidence. Fossier next claims ineffective assistance of trial counsel; but he has
failed to show that counsel’s performance was both deficient and prejudicial.
Fossier’s final claim of error is that the trial court should have merged the four
aggravated child molestation offenses for purposes of sentencing; but those offenses
did not merge because they were based on separate acts of oral sodomy. So we affirm
the judgments of conviction.
1. Sufficiency of the evidence.
“On appeal from [a] criminal conviction, [the defendant] is no longer presumed
innocent and all of the evidence is viewed in the light most favorable to the jury’s
verdict.” Alvarado v. State, 360 Ga. App. 113 (860 SE2d 886) (2021) (citation and
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punctuation omitted). “[I]n evaluating the sufficiency of the evidence, we do not
weigh the evidence or determine witness credibility, but only determine whether a
rational trier of fact could have found the defendant guilty of the charged offenses
beyond a reasonable doubt.” Miranda v. State, 354 Ga. App. 777, 778 (841 SE2d
440) (2020) (citation and punctuation omitted).
So viewed, the evidence presented at trial showed that the 12-year-old1 victim
was watching a movie in the living room of his cousin’s home when Fossier, who
lived with the cousin, entered the living room and began looking for something in a
closet. Fossier told the child that he was looking for a pornographic video involving
gay sex and asked the boy if he was gay. After talking to the boy about his sexuality,
Fossier led the child into the home’s bedroom and removed the boy’s pants. Fossier
touched the victim’s penis with his hand, kneeled on the floor, and put his mouth on
the boy’s penis. Fossier stood up, had the victim kneel in front of him, and put his
penis in the child’s mouth. The victim eventually ran from the bedroom, put his pants
back on, and resumed watching a movie in the living room. About an hour later,
Fossier came into the living room and directed the victim to lie on a couch, where
1
The parties have referred to the victim as being 13 years old. But the evidence,
viewed in favor of the verdict, shows that he was born in August 2005 and that the
incidents occurred in the spring of 2018, when he would have still been 12 years old.
3
Fossier placed his mouth on the child’s penis and also inserted his penis into the
victim’s mouth.
In challenging the sufficiency of the evidence, Fossier argues that he was not
identified by the victim in court. While the victim testified that he had not
encountered Fossier prior to being molested by him and that he could not remember
his face, he also testified that the assailant told him that his name was “Bryan” and
that he was the boyfriend of the victim’s cousin. Other evidence showed without
dispute that Fossier was the boyfriend living with the victim’s cousin at the time the
child was molested, including testimony from both the cousin and Fossier himself
confirming their relationship. See Roebuck v. State, 277 Ga. 200, 201 (1) (586 SE2d
651) (2003) (“[C]oncordance of name alone is some evidence of identity. Identity of
name presumptively imports identity of person, in the absence of any evidence to the
contrary.”) (citations and punctuation omitted). Fossier also admitted that while living
with the victim’s cousin he had seen the victim in the cousin’s home. And multiple
outcry witnesses, including a forensic interviewer, testified that the victim had
identified Fossier as his assailant. See Hall v. State, 282 Ga. 294, 296 (2) (653 SE2d
481) (2007) (out-of-court identification admissible as evidence of identity of
perpetrator).
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“Contrary to [Fossier’s] argument, even though [the victim did not] directly
identif[y] him in the courtroom as the person who committed the crimes, there was
sufficient evidence to authorize the jury to find that he was the perpetrator.” Durden
v. State, 293 Ga. 89, 91 (1) (b) (744 SE2d 9) (2013), overruled in part on other
grounds by Jeffrey v. State, 296 Ga. 713, 718 (3) (770 SE2d 585) (2015). See also
Junior v. State, 282 Ga. 689, 690 (1) (even though the victim who testified at trial did
not identify the defendant in court, there was sufficient other evidence from which the
jury could find the defendant guilty). Having viewed the evidence in the light most
favorable to the verdict, we conclude that “the evidence was sufficient to enable any
rational trier of fact to find [Fossier] guilty beyond a reasonable doubt of the crimes
for which he was convicted.” Ward v. State, 279 Ga. 581, 583 (1) (619 SE2d 638)
(2005) (sufficient evidence to support guilty verdict even though victims could not
identify defendant as their assailant). See also OCGA §§ 16-6-4 (a) & (c) (defining
child molestation and aggravated child molestation).
2. Prior sexual assault conviction.
Fossier contends that the trial court erred in admitting evidence of his 2003
sexual assault conviction. The contention is without merit because the evidence was
admissible under OCGA § 24-4-413.
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OCGA § 24-4-413 (a) provides that “[i]n a criminal proceeding in which the
accused is accused of an offense of sexual assault, evidence of the accused’s
commission of another offense of sexual assault shall be admissible and may be
considered for its bearing on any matter to which it is relevant.” Moreover, “OCGA
§ 24-4-413 creates a rule of inclusion, with a strong presumption in favor of
admissibility, and the [s]tate can seek to admit evidence under [its] provisions for any
relevant purpose, including propensity.” Wilkerson v. State, 356 Ga. App. 831, 834
(1) (849 SE2d 677) (2020) (citation and punctuation omitted).
In this case, Fossier was accused of multiple offenses of sexual assault. “For
purposes of OCGA § 24-4-413, the term ‘offense of sexual assault’ includes any
crime that involves contact, without consent, between any part of the accused’s body
and the genitals of another person. OCGA § 24-4-413 (d) (2). [So Fossier’s] act of
touching [the minor victim’s penis] falls within this definition.” Latta v. State, 341
Ga. App. 696, 700 (2) (802 SE2d 264) (2017) (punctuation omitted). Furthermore, an
offense of sexual assault under this code section also includes conduct that would
constitute oral sodomy in violation of OCGA § 16-6-2. See OCGA § 24-413 (d) (1).
Therefore, Fossier’s various acts of oral sodomy with the victim were additional
offenses of sexual assault as that term is defined in OCGA § 24-4-413.
6
As for his 2003 conviction, the evidence showed that in that case Fossier had
penetrated the victim’s vagina with his fingers. As explained above, such unwanted
contact with the genitals of another person constitutes an offense of sexual assault for
purposes of OCGA § 24-4-413. See OCGA § 24-4-413 (d) (2); Latta, supra
(defendant’s “act of touching [victim’s] vagina” constituted an offense of sexual
assault). So in the instant case, in which Fossier was accused of multiple offenses of
sexual assault, evidence of his prior offense of sexual assault was admissible under
OCGA § 24-4-413 (a).
But that is not the end of our analysis. We must also address OCGA § 24-4-
403, which provides for exclusion of relevant evidence due to prejudice, confusion,
or waste of time.
[E]vidence that is admissible under [OCGA § 24-4-413 (a)] may still be
excluded under OCGA § 24-4-403 . . . if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
Wilkerson, supra at 833 (1) (punctuation omitted). Fossier contends that the probative
value of the prior sexual assault evidence was substantially outweighed by the danger
of unfair prejudice because there was a lapse of 15 years between the prior and
current offenses and there were factual differences between the cases, including the
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age and sex of the victims. But “temporal remoteness and a difference in the victims’
sex do not demand exclusion.” Id. at 834 (1). Indeed, “[t]he lapse of time between the
prior occurrences and the offenses charged goes to the weight and credibility of such
testimony, not its admissibility.” Maner v. State, 358 Ga. App. 21, 24 (1) (852 SE2d
867) (2020) (citation and punctuation omitted). See also Kirkland v. State, 334 Ga.
App. 26, 29-30 (1) (778 SE2d 42) (2015) (we have held that differences in the
victims’ ages, sex, and specifics of molestation do not render another act
inadmissible). Given the “strong presumption in favor of admissibility [of such
evidence], we cannot say that the trial court abused its discretion in allowing the other
acts evidence to be admitted.” Green v. State, 359 Ga. App. 845, 852 (3) (860 SE2d
140) (2021) (citation and punctuation omitted).
3. Other prior convictions.
Fossier enumerates that the trial court erred in allowing the state to introduce
evidence of his other prior convictions while cross-examining him.2 But Fossier
2
Fossier makes an additional argument regarding evidence of his divorce. “But
[he] did not list [any ruling on the admissibility of that evidence] as an enumeration
of error, and he may not make arguments to expand his sole enumeration of error
related to the [prior convictions] evidence.” Mims v. State, 310 Ga. 853, 854 n. 2 (854
SE2d 742) (2021). Accord Taylor v. State, 303 Ga. 624, 628 (1) n. 2 (814 SE2d 353)
(2018).
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introduced the topic of his extensive criminal history in his opening statement to the
jury and during his own direct testimony. So the state was authorized to explore the
topic on cross-examination.
In his opening statement, Fossier’s attorney told the jury that Fossier had a
pattern of crime and drug use, that he had pled guilty to multiple crimes, that he had
been to prison, that he stabbed a cell mate. Fossier subsequently testified on direct
examination that he had been in trouble with the police before the 2003 sexual assault
conviction discussed above in Division 2; that while in prison he stabbed a cell mate
who had threatened to sexually assault him; that he has a lengthy and continuing
history of drug abuse; that he has probation violations related to his drug use; and that
he has prior convictions for possession of methamphetamine, aggravated assault,
family violence battery, cruelty to children, and failing to register as a sex offender.
He explained the circumstances surrounding those prior convictions and testified that
the victim’s cousin knew about his criminal history, including his prior sexual assault
conviction, before they began living together. He also testified that he was
incarcerated when he learned of the charges in the instant case.
Fossier opened the door to the issue of his criminal record, so the state was
authorized to explore that issue on cross-examination.
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The [s]tate, like any other party, has the right to conduct a thorough and
sifting cross-examination and to pursue the specifics of a topic the
defendant introduced. Thus, when a defendant testifies and admits prior
criminal conduct, the [s]tate is authorized to fully explore the issue on
cross-examination. Given [Fossier’s] admission of [his] extensive
[criminal history], the prosecutor was entitled to cross-examine him
regarding the extent of [that history].
Richardson v. State, 305 Ga. App. 363, 366 (3) (699 SE2d 595) (2010) (citations and
punctuation omitted). “Since [Fossier] introduced the topic [of his prior convictions
in his opening statement and] on direct examination, he cannot now complain that the
prosecutor followed up on cross-examination.” Morgan v. State, 275 Ga. 222, 223 (3)
(564 SE2d 192) (2002) (citation and punctuation omitted). Under these
circumstances, “[t]he trial court did not abuse its discretion in allowing this evidence
to come in.” Parks v. State, 300 Ga. 303, 309 (3) (794 SE2d 623) (2016) (where
defendant testified that he had become more responsible since a prior conviction and
admitted that he had been in other trouble throughout his life, his other convictions
became relevant evidence which the state was entitled to explore on cross-
examination).
4. Ineffective assistance of counsel.
Fossier claims that his trial counsel was ineffective in failing to object to
testimony by the victim about an act of anal sex with the defendant and in introducing
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his criminal record as discussed above in Division 3. To prevail on these
ineffectiveness claims, Fossier “must show that counsel’s performance was deficient
and that the deficient performance so prejudiced [him] that there is a reasonable
likelihood that, but for counsel’s errors, the outcome of the trial would have been
different.” Puckett v. State, 342 Ga. App. 518, 525 (2) (804 SE2d 648) (2017)
(citation omitted). Fossier has failed to show that his trial counsel’s performance was
deficient.
(a) Victim’s testimony.
With regard to the victim’s testimony about an act of anal sex, counsel testified
at the motion for new trial hearing that he decided not to object to the testimony
because it differed significantly from the victim’s prior statements about the events
and he believed such an inconsistency damaged the victim’s credibility. An attorney’s
“decision of whether to interpose certain objections is a matter of trial strategy and
tactics.” Collier v. State, 303 Ga. App. 31, 34 (3) (692 SE2d 697) (2010) (citation and
punctuation omitted). Accord Robinson v. State, 278 Ga. 31, 36 (3) (c) (597 SE2d
386) (2004) (“The matter of when and how to raise objections is generally a matter
of trial strategy.”) (citation and punctuation omitted). Here, trial “[c]ounsel’s decision
not to object [to the testimony was] strategic in nature, fell within the scope of
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reasonable and professional representation, and [did] not constitute ineffective
assistance.” Kilpatrick v. State, 276 Ga. 151, 153 (2) (575 SE2d 478) (2003)
(citations omitted). See also Alexander v. State, 348 Ga. App. 859, 869 (3) (d) (825
SE2d 405) (2019) (counsel not ineffective in attempting to bring out inconsistencies
in victim’s account of the events).
(b) Criminal record.
As for counsel introducing Fossier’s criminal record during the opening
statement and Fossier’s direct testimony, counsel testified at the motion for new trial
hearing that he did so as a matter of trial strategy. Counsel explained that because
Fossier had decided to testify, counsel “believed us getting out ahead of the [s]tate’s
introduction of all of that in impeachment cross-examination would be helpful in
building up [Fossier’s] credibility in front of the jury.” Counsel testified that he and
Fossier had discussed his decision to testify on multiple occasions, that he had
explained to Fossier the possibility of his testimony opening the door to evidence of
his prior convictions, and that they had decided to introduce his criminal record
before the state had a chance to do so in order “to win some candor points” with the
jury.
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“It is reasonable strategy for defense counsel to place disagreeable information
before the jury in a manner which he can control rather than allow the subject matter
to be presented in a more damaging fashion.” Wallace v. State, 296 Ga. 388, 392 (4)
(c) (768 SE2d 480) (2015) (citation and punctuation omitted). Here, “[c]ounsel, in an
attempt to portray [Fossier] as a truthful man with nothing to hide, pursued the
reasonable strategy of placing [his criminal record] before the jury through [Fossier’s]
direct testimony, rather than risk having the information extracted from him on
cross-examination.” Collins v. State, 276 Ga. 726, 728 (2) (583 SE2d 26) (2003).
“The fact that [Fossier] now disagrees with his lawyer’s tactical choices during
opening statement [and Fossier’s direct examination] does not require a finding of
ineffective assistance of counsel.” Wallace, supra. See also Davis v. State, 326 Ga.
App. 778, 782-783 (2) (c) (757 SE2d 443) (2014) (counsel not ineffective in making
strategic decision to ask defendant about his prior convictions on direct examination).
5. Merger.
Citing Scott v. State, 356 Ga. App. 152 (846 SE2d 241) (2020), Fossier argues
that his four aggravated child molestation convictions should have merged into a
single offense. But the instant case is materially different from Scott, which involved
a single uninterrupted course of conduct constituting one offense of child molestation
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under OCGA § 16-6-4 (a) (1). Id. at 160-163. Here, however, Fossier was charged
with four counts of aggravated child molestation involving acts of oral sodomy under
OCGA § 16-6-4 (c). That code section provides: “A person commits the offense of
aggravated child molestation when such person commits an offense of child
molestation which act physically injures the child or involves an act of sodomy.”
OCGA § 16-6-4 (c) (emphasis supplied). As recounted above, the evidence plainly
showed that Fossier molested the child by committing four distinct acts of oral
sodomy. Compare Scott, supra at 160 (no evidence to establish that the defendant
molested the victim in separate acts). “Thus, under the facts of this case, each act [of
sodomy] form[ed] a [separate offense] under [OCGA § 16-6-4 (c).]” Busby v. State,
332 Ga. App. 646, 651 (2) (b) (774 SE2d 717) (2015) (involving acts of aggravated
battery under OCGA § 16-5-24 (a)). Because the four distinct acts of oral sodomy did
not merge into a single offense, “we affirm the trial court’s ruling.” Ray v. State, 359
Ga. App. 637, 643 (3) (859 SE2d 793) (2021) (rejecting claim that cruelty to children
counts should have merged).
Judgment affirmed. Rickman, C. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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