ROWLAND v. the STATE. , 825 S.E.2d 231 ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and MARKLE, 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
February 12, 2019
In the Court of Appeals of Georgia
A18A1562. ROWLAND v. THE STATE.
MCFADDEN, Presiding Judge.
Kenneth Rowland was tried before a jury and convicted of aggravated sexual
battery, cruelty to children in the first degree, and three counts of incest. He appeals,
challenging the sufficiency of the evidence, the denial of a motion for continuance,
the denial of a special demurrer, and a jury instruction on cruelty to children. But we
find sufficient evidence to support the jury’s verdict, no abuse of discretion in
denying a continuance, no error in denying the special demurrer, and no reversible
error in the jury instructions as a whole. Rowland further asks for the case to be
remanded to the trial court for a hearing on his claim of ineffective assistance of
counsel; however, he has failed to identify any specific deficiencies by counsel, so
no hearing on remand is needed. Accordingly, we affirm.
1. Sufficiency of the evidence.
Rowland claims that there was insufficient evidence to support his convictions.
The claim is without merit.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to support the jury’s verdict, and the defendant no
longer enjoys a presumption of innocence. We do not weigh the
evidence or judge the credibility of the witnesses, but determine only
whether the evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the standard
set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979).
Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016) (citation and punctuation
omitted).
So viewed, the evidence shows that K. R. is the adopted daughter of Rowland.
When K. R. was five years old, Rowland started touching her on the buttocks. On one
occasion in a car, Rowland had K. R. pull down her pants and he then rubbed her
vagina with his fingers. On another occasion, Rowland got into bed with K. R.,
touched her breasts and buttocks, and tried to force her to rub his penis. Rowland first
made K. R. perform oral sex when she was approximately 11 years old, pushing her
to the floor of their kitchen and putting his penis in her mouth. After that, whenever
Rowland molested K. R., he would try to force her to perform oral sex on him.
Rowland also made K. R. watch pornographic movies on his computer.
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When K. R. was about 16 years old, Rowland attempted to have sexual
intercourse with her, but stopped when K. R. said that it hurt. Approximately a year
later, in January 2014, when K. R. was seventeen years old, Rowland had sexual
intercourse with her. During the incident, he pushed her on to a bed; pulled down her
panties; touched her genital area with his fingers and mouth, inserting a finger into
her vagina and licking her vagina; tried to put his penis in her mouth; pulled her on
top of him and attempted unsuccessfully to insert his penis into her vagina. Rowland
then made K. R. get on her hands and knees on the bed and penetrated her vagina
with his penis. Several days later, K. R. told two friends about the sexual abuse by her
father, and the mother of one of the friends subsequently reported the alleged abuse
to the sheriff’s department.
In challenging the sufficiency of the evidence, Rowland points to purported
inconsistencies and conflicts in the evidence. However, any such conflicts or
inconsistencies were matters for the jury to resolve. Williams v. State, 347 Ga. App.
171, 173 (818 SE2d 88) (2018). As our Supreme Court has explained, “resolving
evidentiary conflicts and inconsistencies and assessing witness credibility are the
province of the fact finder, not the appellate court.” Pittman v. State, 300 Ga. 894,
897 (1) (799 SE2d 215) (2017) (citation and punctuation omitted). Accord Jackson
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v. State, 347 Ga. App. 199, 201 (1) (a) (818 SE2d 268) (2018) (“It is the function of
the jury, not the [c]ourt, to determine the credibility of witnesses and to weigh and
resolve any conflicts in the testimony.”) (citation and punctuation omitted). So “[a]s
long as there is some competent evidence, even though contradicted, to support each
fact necessary to make out the [s]tate’s case, the appellate court must uphold the
jury’s verdict.” Williams, supra (citation and punctuation omitted). In this case, there
was sufficient competent evidence to authorize the jury to find Rowland guilty of the
crimes beyond a reasonable doubt, and therefore we must uphold the convictions.
2. Continuance.
Rowland contends that pursuant to OCGA § 17-16-6, the trial court erred in
failing to grant a continuance based on an alleged discovery violation by the state.
But under that statute, the trial court has broad discretion to fashion an appropriate
remedy and we find no abuse of that discretion in this case.
The day before trial, counsel for Rowland objected to the trial going forward
based on the state’s alleged failure to give him a copy of the recorded forensic
interview of K. R. The state’s attorneys responded that they believed they had given
defense counsel a copy of the approximate hour-and-a-half recording during
discovery. The trial judge, noting that the state believed it had in fact provided the
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recording and that it had an open-file discovery policy, nevertheless ordered the state
to give defense counsel a copy of the recording that day so he could review it before
the start of trial the next day. The state subsequently did not introduce the recorded
interview into evidence at trial.
When[, as in the instant case,] a criminal defendant elects to
engage in reciprocal discovery under Georgia’s Criminal Procedure
Discovery Act, the [s]tate and the defendant are required to produce
certain types of evidence and information. See OCGA § 17-16-1 et seq.
If it comes to the attention of the trial court that either the [s]tate or the
defendant has failed to comply with the requirements of the Act, the
court has wide latitude in fashioning a remedy for such violation. OCGA
§ 17-6-6 [providing in pertinent part that if the state fails to comply, the
court may order the state to permit the discovery, interview the witness,
grant a continuance, or prohibit introduction of the evidence upon a
showing of prejudice and bad faith]. As we have noted, this broad
discretion allows such remedy as is warranted to ensure a fair trial. . . .
The remedy a trial court fashions to cure a discovery violation is
reviewed on appeal only for abuse of discretion.
State v. Brown, 333 Ga. App. 643, 647-648 (2) (777 SE2d 27) (2015) (citations and
punctuation omitted). See also Higuera-Hernandez v. State, 289 Ga. 553, 557-558
(714 SE2d 236) (2011) (“In enacting [OCGA § 17-16-6], the legislature did not
impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal
consequence to the [s]tate for failure to comply with the discovery mandates. Instead,
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it cloaked the trial court with the discretion to use its own judgment to ensure a fair
trial.”) (citations and punctuation omitted).
Here, assuming for the sake of argument that there was a discovery violation,
the trial court’s remedy gave Rowland the opportunity to receive and review the
recording before trial, Rowland has made no showing that such remedy was
inadequate or that he was harmed by it, and the recording in question was not even
introduced into evidence at trial. See Bertholf v. State, 224 Ga. App. 831, 832 (1)
(482 SE2d 469) (1997) (defendant not harmed by state’s failure to provide defense
with copy of audiotape of defendant’s confession because audiotape was not
introduced into evidence). Under these circumstances, Rowland has failed to show
that the trial court abused its broad discretion in denying a continuance. See Phoenix
v. State, ___ Ga. ___ (2) (Case No. S18A1439, decided December 10, 2018)
(“Without a clear showing of abuse of this broad discretion, this [c]ourt will not
disturb a trial court’s decision to deny a motion for continuance. And to be entitled
to a new trial based upon the denial of a motion for a continuance, a defendant has the
burden to show that he was harmed by that denial.”) (citations and punctuation
omitted).
3. Special demurrer.
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Rowland argues that the trial court erred in denying his special demurrer
seeking more specific date ranges for the crimes charged in counts one, two, four, five
and twelve of the indictment. Counts one (incest based on sexual intercourse), two
(incest based on oral sodomy), four (aggravated sexual battery for digital penetration
of K. R.’s vagina), and five (cruelty to children for touching K. R.’s vagina) all
alleged that the respective offenses occurred between January 1, 2014 and January
11, 2014. Count twelve (cruelty to children for making K. R. watch pornographic
movies) alleged that the offense occurred between January 1, 2012 and January 14,
2014. Because the state showed that it could not allege more specific dates, we find
no error.
Generally, an indictment which fails to allege a specific date on
which the crime was committed is not perfect in form and is subject to
a timely special demurrer. However, where the [s]tate can show that the
evidence does not permit it to allege a specific date on which the offense
occurred, the [s]tate is permitted to allege that the crime occurred
between two particular dates. To that end, in meeting its burden of
showing that it is unable either to identify a specific date on which an
offense occurred or to narrow the range of possible dates, the [s]tate is
required to present some evidence and may not rely solely upon
argument by counsel or mere speculation.
Watkins v. State, 336 Ga. App. 145, 147-148 (2) (784 SE2d 11) (2016) (citations and
punctuation omitted).
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Here, the state met its burden at the special demurrer hearing by presenting
testimony from an investigating officer explaining that the victim and other witnesses
could not specify exact dates for the offenses and that they could not narrow down
the range of dates any further than as alleged in the indictment. As the officer
testified, based on the witnesses’ statements, he narrowed down the range of dates as
best he could. In denying the special demurrer seeking a more specific date range, the
trial court found that “the [s]tate is doing the best they can with the type of crime[s]
we’re talking about.”
“We conduct a de novo review of a trial court’s ruling on a special demurrer
in order to determine whether the allegations in the indictment are legally sufficient.”
Herring v. State, 334 Ga. App. 50, 52 (778 SE2d 57) (2015) (citation and punctuation
omitted). Based on such review, we find that the evidence produced during the
hearing “confirmed that the [s]tate was unable either to identify a specific date on
which the offense[s] occurred or to [further] narrow the range of possible dates.”
Watkins, supra at 148 (2) (citations and punctuation omitted). As the range of dates
alleged in the challenged counts of the indictment were legally sufficient, we affirm
the trial court’s denial of the special demurrer.
4. Jury charge.
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Rowland complains that the trial court erred in charging the jury on the entire
statutory definition of cruelty to children in the first degree, rather than charging only
the portion of the statute dealing with maliciously causing cruel or excessive pain to
a child as alleged in the indictment. See OCGA § 16-5-70 (a) & (b). Rowland
maintains that the trial court’s charge improperly allowed the jury to find him guilty
of the crime based on a manner not set forth in the indictment. Considering the jury
charge as a whole, we find no reversible error.
Jury instructions must be read and considered as a whole in
determining whether a charge contained error. Absent a remedial
instruction, reversible error can occur if a jury charge recites the entire
statutory definition of a crime, thereby informing the jury that a crime
may be committed in more than one manner, when the indictment avers
that the crime was committed only in one specific way. [But i]n this
instance, the trial court did not err in charging the entire language of [the
statute] pertaining to the offense of cruelty to children, as the jury was
also given an instruction which confined the elements of the crimes
charged to those material allegations in the indictment.
Hendrix v. State, 230 Ga. App. 604, 606 (2) (497 SE2d 236) (1997) (citations and
punctuation omitted), overruled in part on other grounds by Watson v. State, 297 Ga.
718, 721 (2) (777 SE2d 677) (2015). “When an entire statutory definition is given,
we will not find error if the instructions sufficiently limit the jury’s consideration to
the elements of the offense as charged in the indictment. [Cit.]” Wiggins v. State, 272
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Ga. App. 414, 421 (5) (612 SE2d 598) (2005), reversed in part on other grounds, 280
Ga. 268 (626 SE2d 118) (2006).
Here, the indictment was sent out with the jury and the judge instructed the jury
that the state had the burden to prove every material allegation of the indictment and
every essential element of the crimes charged beyond a reasonable doubt. Under these
circumstances, “[w]e discern no reasonable possibility that the jury was misled and
[found Rowland guilty] of cruelty to children in a manner not alleged in the
indictment.” Gore v. State, 277 Ga. App. 635, 642 (5) (627 SE2d 198) (2006),
disapproved in part on other grounds, Johnson v. State, 328 Ga. App. 702, 705 (1) n.
9 (760 SE2d 682) (2014). See also Short v. State, 276 Ga. App. 340, 349 (9) (623
SE2d 195) (2005) (any defect in charging entire statutory definition of crime was
cured where the trial court provided the indictment to the jury and instructed that the
state must prove all material allegations in the indictment and all essential elements
of the crimes charged beyond a reasonable doubt).
5. Ineffective assistance of counsel.
In his final enumeration of error, Rowland claims that this appeal presents the
first opportunity for him to raise an ineffectiveness of counsel claim, and he thus asks
us to remand the case to the trial court for an evidentiary hearing on that claim.
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However, Rowland has made no specific claims as to how his counsel was
ineffective. Instead, he claims generally that there were failures to object to
prejudicial evidence, to object to actions taken by the trial court, and to file motions
before and during trial. But he has
give[n] this [c]ourt no indication of what might have been raised in [the
objections or] motion[s]. In essence, he leaves this [c]ourt to engage in
a guessing game as to how [trial] counsel’s representation, or rather lack
thereof, might have amounted to ineffective assistance. Under these
circumstances, [Rowland] has failed to show even a possibility of
ineffective assistance, and there is no need for a hearing on remand.
Tepanca v. State, 297 Ga. 47, 51 (6) (771 SE2d 879) (2015). Accord Serdula v. State,
344 Ga. App. 587, 594 (3) (812 SE2d 6) (2018) (where appellant identifies no
specific errors by counsel, we need not remand for an ineffectiveness hearing).
Rowland has cited Mallon v. State, 253 Ga. App. 51, 54 (5) (557 SE2d 409)
(2001), for the proposition that we should remand the case for an evidentiary hearing
even though he has failed to identify any specific errors by counsel. Indeed, in
Mallon, before remanding the case for an evidentiary hearing, this court noted that
the appellant’s brief “fails to specify counsel’s alleged deficiencies.” Id. We hereby
disapprove the language in Mallon to the extent it conflicts with our Supreme Court’s
holding in Tepanca, supra, by suggesting that an appellate brief which fails to specify
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any deficiencies by counsel is sufficient to authorize remand for an evidentiary
hearing on an ineffectiveness claim raised for the first time on appeal.
Judgment affirmed. Rickman and Markle, JJ., concur.
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