SULLINS v. the STATE. , 347 Ga. App. 628 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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
October 17, 2018
In the Court of Appeals of Georgia
A18A1146. SULLINS v. THE STATE.
MCMILLIAN, Judge.
After a bench trial, Richard Lee Sullins, Jr. was convicted of child molestation,
two counts of sexual battery against a child under the age of 16, and cruelty to
children in the second degree.1 In this appeal, Sullins asserts that (1) the evidence was
insufficient on Count 4 of the indictment alleging sexual battery against a child under
the age of 16 because the undisputed evidence showed that the victim was over the
age of 16 during the dates alleged in that count; (2) the trial court committed plain
error by allowing and considering inadmissible hearsay evidence concerning the
1
Following his conviction, Sullins filed a motion for new trial, which the trial
court denied, and then a motion for out-of-time appeal based on his counsel’s
ineffectiveness for failing to pursue a timely appeal from the order denying his
motion for new trial. The trial court granted his motion for out-of-time appeal, and
Sullins filed the present appeal.
victim’s prior consistent statements; and (3) the trial court wrongly convicted Sullins
of cruelty to children based on an invalid legal theory, thus violating his right to due
process. As more fully set forth below, we now affirm in part, reverse in part, and
remand for a new trial.
The evidence, construed to support the jury’s verdict,2 shows that in January
2016, D. K. made a disclosure to a friend, and the possible sexual abuse was reported
to D. K.’s teacher. The teacher reported the conversation to the school guidance
counselor, and the guidance counselor spoke with D. K. The guidance counselor
testified that D. K. told her that something “bad” had happened to her with Sullins,
who D. K. identified as her “mom’s brother,”3 and that Sullins had touched her in her
“private zones,” which she identified as between her legs, on multiple occasions and
that he had touched her underneath her clothes.
2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
The record shows that D. K.’s mother was killed in a car accident when D. K.
was one month old and she was raised by her grandparents whom she referred to as
her parents, and we will also throughout this opinion. The transcript also shows that
D. K. suffered a head injury in the accident that killed her mother, which resulted in
certain cognitive difficulties. D. K. testified at trial that she has memory issues and
that she was in a special education class.
2
The guidance counselor reported the conversation to the school resource office,
who contacted the Floyd County Police Department. A police investigator went to D.
K.’s house to speak to D. K.’s parents and a day or so later, the investigator took D.
K. to Harbor House, a child advocacy center, where a forensic interview was
conducted. Following that interview, Sullins was arrested and ultimately charged with
the crimes at issue in this appeal.
D. K. testified about the sexual abuse at trial. She said that Sullins had done
things to her that made her feel “uncomfortable” and that “felt different.” D. K.
recounted a specific instance when she was sitting in the dining room watching
television and Sullins sat down with her and proceeded to slowly put his hands on her
“private area”4 and then slowly went up and touched her breast, and she recalled other
instances where Sullins had touched her private areas with his hands. She described
a separate event where Sullins sat on top of her one morning while she was watching
television and “humped” her. D. K. also described another time when Sullins was
sitting next to her in the kitchen and he began touching her in her private area.
4
At trial, D. K. circled the breasts and front vaginal area on a stick figure
drawing to show what she considered her private areas.
3
D. K.’s recorded interview at Harbor House was also played for the jury at trial.
In addition to telling the interviewer about the abuse that occurred when she was
drawing a picture of a flower in the kitchen and the time when Sullins got on top of
her and went back and forth while she was watching television, D. K. also recounted
additional instances and details concerning the abuse, including that during some of
the inappropriate touchings, Sullins rubbed up and down and around on her private
area. She also repeatedly and emphatically said that she does not like to be touched
on her private area, butt, or breasts, and that she did not want Sullins to come to her
house anymore because of the abuse. She told the interviewer that the most recent
incident was when she was drawing the flower in the kitchen when she was 16 years
old and that she remembered another incident when she was 15 years old and an
incident in the living room when she was 13 years old.
D. K.’s mother also testified at trial. She said that Sullins, who lived in a
mobile home several doors down from her house, was a frequent visitor, particularly
in the past year after his water had been disconnected and he would come to their
house to eat and shower. D. K.’s mother testified that D. K. had not mentioned the
assaults prior to the disclosure at school, but after the police visit, D. K. told her that
the first improper touching occurred when she was around 14 years old. D. K.’s
4
mother also testified that she talked to Sullins on the telephone while he was in jail,
and he asked her to talk to D. K. and tell her to say that nothing happened so that he
could be released from jail and get some help. Multiple telephone conversations
between Sullins and D. K.’s mother were then played for the jury, during which
Sullins was clearly attempting to persuade his sister to get D. K. to recant her
testimony.
Sullins also testified at trial. He denied the inappropriate touchings and tried
to shift the blame to D. K. by saying that she had touched and hugged him
inappropriately in the past. He also testified that on one occasion D. K. got on top of
him while he was sleeping but then she ran away. He also tried to paint D. K. as a liar
because of an incident when she lied about who made the coffee and because she had
been caught taking money from her mother. He also testified that he had helped D.
K. draw a flower a few weeks before he was arrested, which was consistent with D.
K.’s testimony concerning when the most recent sexual battery occurred.
At the end of the testimony, the trial judge stated on the record that she found
D. K. “to be very credible and believable.” She further noted that Sullins’ own
testimony established that the sexual battery as alleged in Count 4 happened between
the dates alleged in the indictment, and found him guilty on all counts, ultimately
5
imposing a sentence of a total of 35 years, to serve 20, with the remaining 15 on
probation.
1. We first address Sullins’ argument that the trial court committed plain error
by admitting D. K.’s videotaped forensic interview, the testimony of the forensic
interviewer about the interview, and the testimony of various witnesses who testified
about D. K.’s out-of-court statements concerning the sexual abuse. Sullins argues this
evidence was inadmissible under the Child Hearsay Statute, OCGA § 24-8-820,
because the undisputed evidence shows that D. K. was 16 years old at the time she
made the outcry statements and that the hearsay evidence was not admissible under
any other exception.5 The State concedes that D. K. was 16 years old at the time of
the outcry, but argues that Sullins’ remedy, if any, was to assert an ineffective
assistance of counsel claim due to trial counsel’s failure to object at trial, and that by
failing to raise an ineffectiveness claim he has waived his right to raise any error
related to the improper admission of the evidence on appeal. The State is incorrect.
5
OCGA § 24-8-820 applies to offenses occurring on or after July 1, 2013. Ga.
L. 2013, p. 222, § 21/HB 349. Although the date ranges included in several of the
charges include dates before July 1, 2013, neither party asserts that the prior versions
apply. In any event, under the prior statute, the child had to be under the age of 14,
not 16, and the victim’s statements here would not qualify under either version.
6
Where an accused fails to object to the introduction of hearsay evidence at trial
and does not assert that counsel was ineffective in failing to do so, we may still
review for plain error under OCGA § 24-1-103 (d), which provides that “[n]othing
in this Code section shall preclude a court from taking notice of plain errors affecting
substantial rights although such errors were not brought to the attention of the court.”
Mosley v. State, 298 Ga. 849, 851 (2) (a) & (b) (785 SE2d 297) (2016) (unobjected
to hearsay reviewed for plain error); In the Interest of E. B., 343 Ga. App. 823, 829
(3) (a) (806 SE2d 272) (2017) (“Because [juvenile defendant] did not object to the
hearsay testimony, we review the admission of this evidence for plain error.”). In
reviewing for plain error, we must consider four factors.
First, there must be an error or defect – sort of deviation from a legal
rule – that has not been intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
– discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
7
(Citation and punctuation omitted.) Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d
772) (2016). See also State v. Kelly, 290 Ga. 29, 32-33 (2) (a) (718 SE2d 232) (2011).
Thus, to establish plain error, Sullins must not only show that the admission of the
outcry testimony, forensic interview recording and related testimony were improper,
but he also “has the burden to make an affirmative showing that the error probably
did affect the outcome below.” (Citation and punctuation omitted.) Hampton v. State,
302 Ga. 166, 168 (2) (805 SE2d 902) (2017). “Moreover, as our Supreme Court has
emphasized, satisfying the plain-error standard ‘is difficult, as it should be[,]’” with
the “burden of establishing plain error fall[ing] squarely on the defendant.” (Citations
omitted.) State v. Crist, 341 Ga. App. 411, 415 (801 SE2d 545) (2017).
The first step requires us to consider whether it was obvious error to admit the
evidence. Hearsay is defined in OCGA § 24-8-801 (c) as a “statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” “Generally speaking, ‘[u]nless a witness’s
veracity has affirmatively been placed in issue, the witness’s prior consistent
statement is pure hearsay evidence, which cannot be admitted merely to corroborate
the witness, or to bolster the witness’s credibility in the eyes of the jury.’” (Citation
omitted.) Laster v. State, 340 Ga. App. 96, 98 (1) (796 SE2d 484) (2017). Although
8
“[t]he Child Hearsay Statute . . . is a legislatively-created exception to the general rule
prohibiting such hearsay evidence[,]” the current version of the statute requires,
among other things, that the child be under the age of 16 at the time the statements
were made. Id. at 98-99; OCGA § 24-8-820. Here, it is undisputed that D. K. was
over the age of 16 when she made the outcry statements and the forensic interview
was conducted, and thus Sullins is correct that this evidence should not have been
admitted under the Child Hearsay Statute. See Darden v. Sate, 206 Ga. App. 400, 401
(1) (425 SE2d 409) (1992) (physical precedent only) (“The clear wording of the
statute indicates that the age of the child at the time the statements were made is
determinative of their admissibility under the statute.”) (citation omitted).
We also note that it does not appear that the evidence was subject to any other
hearsay exception. For example, Sullins made only a general attack on the victim’s
veracity and did not raise any issue concerning recent fabrication, improper influence,
or improper motive. Under these circumstances, our law is clear that the evidence was
not admissible as a prior consistent statement of the victim. See OCGA § 24-6-613
(c); Silvey v. State, 335 Ga. App. 383, 389 (2) (780 SE2d 708) (2015).6 Because we
6
[A] prior consistent statement shall be admissible to
rehabilitate a witness if the prior consistent statement
9
discern no basis for the admission of this hearsay evidence, we must conclude that it
was clear and obvious error to admit the forensic interview and witnesses’ testimony
about the victim’s out-of-court statements. See Blackmon v. State, 336 Ga. App. 387,
392-93 (785 SE2d 59) (2016) (testimony about outcry statements inadmissible where
victim over the age specified in the Child Hearsay Statute at the time of the outcry
and prior consistent witness statement exception did not apply); Forde v. State, 289
Ga. App. 805, 807-08 (658 SE2d 410) (2008) (in the context of ineffective assistance
of counsel, counsel performed deficiently by failing to raise a hearsay objection to the
logically rebuts an attack made on the witness’s credibility.
A general attack on a witness’s credibility with evidence
offered under OCGA § 24-6-608 [evidence of character
and conduct of a witness] or 24-6-609 [impeachment by
evidence of conviction of a crime] shall not permit
rehabilitation under this subsection. If a prior consistent
statement is offered to rebut an expressed or implied
charge against the witness of recent fabrication or improper
influence or motive, the prior consistent statement shall
have been made before the alleged recent fabrication or
improper influence or motive arose.
(Punctuation omitted.) Silvey, 335 Ga. App. at 389 (2), quoting OCGA § 24-6-613
(c).
10
admission of victim’s statement in a videotaped interview where victim was over 16
years of age at the time the statement was made and content of recording was not
admissible as a prior consistent statement).
Further, there is nothing to suggest that Sullins affirmatively waived this error.
Rather, it appears that the prosecuting attorney, defense counsel, and the trial court
may have tried this case under the mistaken belief that the victim was under 16 years
of age when the outcry was made. Not only did no one object or point out the victim’s
age when the forensic interview and other hearsay statements were admitted but also
in Count 4 of the indictment, Sullins was charged with sexual battery against a child
under the age of 16 based on conduct alleged to have occurred between certain dates
even though the victim was older during that time frame, and no one raised this issue
before or during trial.7 Accordingly, it does not appear there was an affirmative
waiver in this case.
The next prong of the plain error test requires us to consider whether the error
affected the appellant’s substantial rights, which generally means the appellant must
demonstrate that it affected the outcome of the trial court proceedings. As an initial
7
We note that in Count 2 of the indictment, Sullins was charged with sexual
battery against a child under the age of 16 but that count alleged that the contact was
made during a time period when the victim was under the age of 16.
11
matter, it is important to note that this trial was conducted as a bench trial, and absent
strong evidence to the contrary, it must be presumed that a judge in a bench trial
“sifted the wheat from the chaff and selected legal testimony from that which is
illegal and incompetent, unless from the judgment itself it appears that consideration
was given[.]” Jones v. State, 318 Ga. App. 614, 618 (5) (734 SE2d 450) (2012).
Moore v. State, 319 Ga. App. 696, 700 (2) (738 SE2d 140) (2013) (“absent a strong
showing to the contrary, we must presume that in a bench trial, the judge has sifted
the wheat from the chaff and selected the legal testimony from that which is illegal
and incompetent.”) (punctuation and citation omitted). However, as described above,
the circumstances here strongly indicate that this case was tried under a mistaken
belief about the victim’s age, and the trial judge may have believed the hearsay
evidence to be admissible under the Child Hearsay Statute. This is demonstrated by,
among other things, that during the trial the trial court otherwise precluded witnesses
from testifying to hearsay. Thus, we presume that the trial judge considered all
evidence she believed to be both relevant and admissible including the forensic
interview and other hearsay statements. See Wright v. State, 338 Ga. App. 216, 226
(2) (789 SE2d 424) (2016).
12
Accordingly, we cannot say that the trial judge did not consider the victim’s
outcry statements and forensic interview in finding Sullins guilty, and we also cannot
say that the trial court’s consideration of this evidence did not likely affect the
outcome of the proceedings. The State’s case was based for the most part on the
victim’s outcry and subsequent forensic interview and testimony at trial and the
hearsay statements recounted by other witnesses. And the hearsay was not merely
cumulative of the victim’s trial testimony.8 The victim provided much greater detail
about the sexual abuse during the forensic interview than she did in her testimony at
trial,9 and also provided time frames when various specific instances of abuse
occurred, which she did not provide in her testimony. The mother also testified the
victim told her the first molestation occurred when she was around the age of 14,
which was critical to a finding of guilt on the charges that allegedly occurred before
the victim turned 16 as set out in Counts 1 and 2 of the indictment. Thus, even though
8
Cf. Johnson v. State, 294 Ga. 86, 89 (3) (750 SE2d 347) (2013) (hearsay
testimony harmless where merely cumulative of properly admitted testimony); Wise
v. State, 292 Ga. 447, 449 (2) (738 SE2d 580) (2013) (admission of hearsay harmless
where merely cumulative of other properly admitted evidence).
9
A child victim’s somewhat abbreviated direct testimony is not uncommon in
these types of cases where the State would anticipate that the forensic interview
would be admitted under the Child Hearsay Statute.
13
the victim’s testimony standing alone may have been sufficient to convict Sullins, we
cannot say that the victim’s other, out-of-court statements did not likely affect the
verdict. Accordingly, under the circumstances of this case, we conclude that Sullins
has met his burden under that prong of the plain error analysis.10
Under the fourth and final prong, an appellate court “has the discretion to
remedy the error” and this discretion should be exercised “only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
(Punctuation and emphasis omitted.) Kelly, 290 Ga. at 33 (2) (b). Based on our review
of the transcript and circumstances surrounding the case, we find the error here meets
this criteria and conclude that the error must be remedied by affording Sullins the
opportunity for a new trial.
3. Because Sullins must be retried, it is unnecessary for us to consider his
remaining enumerations of error. However, we note that with the exception of failing
to prove that the victim was under 16 years of age so as to authorize a felony sentence
for sexual battery as set out in Count 4 of the indictment, see OCGA § 16-6-22.1 (d),
10
We note that in convicting Sullins, the trial judge found the victim to be
“very credible and very believable.” However, we do not know if the trial judge was
referring only to the victim’s testimony or whether she was also referring to the
victim’s out-of-court statements, including her forensic interview.
14
the evidence presented at trial was otherwise sufficient to authorize Sullins’
convictions and he may be retried for those offenses.
Judgment affirmed in part, reversed in part, and remanded for a new trial.
Barnes, P. J., and Reese, J., concur.
15