Brandon James Allison v. State ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
June 29, 2020
In the Court of Appeals of Georgia
A20A0552. ALLISON v. THE STATE.
HODGES, Judge.
Following a jury trial, the Superior Court of Madison County entered a
judgment of conviction against Brandon James Allison for one count each of child
molestation (OCGA § 16-6-4), enticing a child for indecent purposes (OCGA § 16-6-
5), and false imprisonment (OCGA § 16-5-41). Allison appeals from the denial of his
motion for new trial, arguing that the evidence was insufficient to support his
convictions and that the trial court erred in allowing into evidence a video recording
of the child victim’s interview and in its jury instructions. We find no error and
affirm.
On appeal from a criminal conviction, we view the evidence in the light most
favorable to the jury’s verdict, with the defendant no longer enjoying a presumption
of innocence. See Carolina v. State, 276 Ga. App. 298, 300 (1) (623 SE2d 151)
(2005). We neither weigh the evidence nor determine witness credibility, which are
tasks that fall within the exclusive province of the jury, but only determine if the
evidence was sufficient for a rational trier of fact to find the defendant guilty of the
charged offense beyond a reasonable doubt. Id.; see also Whorton v. State, 318 Ga.
App. 885 (735 SE2d 7) (2012).
So viewed, the evidence shows that, in November 2016, the victim’s mother
lived in Danielsville with her four-year-old daughter, who was the victim; her
younger son; and her boyfriend, who worked out of town. Allison, the mother’s
cousin, also lived with them, and he regularly watched the victim and her younger
brother while the victim’s mother worked from 4:00 p.m. until midnight or later. On
the way home from pre-K one day, the victim asked her mother whether boys and
girls were supposed to show each other their “no-no;” according to the mother, “no-
no” is a term used by her family to refer to a person’s private areas. When the mother
confirmed that such action would be inappropriate, the victim told her mother that
when she and Allison were in the mother’s room, Allison “had his fat belly out[,] . .
. showed her his ‘no-no’[,] and placed her hand on it.” The victim also told her
mother that she started to cry and asked Allison to let go, but Allison would not let
2
go until the victim promised that she would not tell her mother. After the victim
promised him that she would not tell, Allison let go of her hand.
The mother confronted Allison that same day while they were at a local church.
Allison threw up his hands, walked away, drove to the mother’s house, packed up his
belongings, and left before the mother returned home.1 Later that day, the mother
contacted law enforcement, and the victim was scheduled for an interview with a
child forensic interviewer at Harmony House Child Advocacy Center. The mother
brought to the meeting a number of pictures the victim had drawn representing “no-
nos.”
On December 1, 2016, the victim met with Adrienne Strickland, the chief
forensic interviewer at Harmony House. According to Strickland, the victim’s
demeanor changed when Strickland began questioning her about Allison; the victim
began looking down, shrugging, and saying she didn’t want to talk about it.
Ultimately, the victim became comfortable with Strickland and used language
consistent with younger children, such as “no-no,” to describe that Allison made her
slowly rub his penis. In fact, the victim provided specific details and corrected
Strickland at times when Strickland repeated her details. The victim also
1
The mother did not see Allison again until the trial.
3
demonstrated what was meant by “no-nos” on drawings that were admitted into
evidence. Strickland opined that the victim’s disclosure was consistent with a child
who had suffered sexual abuse. In addition, a video of the victim’s interview with
Strickland was admitted into evidence. In the video, the victim told Strickland she
was on the couch and Allison told her to go into her mother’s room. When she went
into the room, Allison took her hand, put it on his “no-no,” which she indicated on
an anatomical drawing meant his penis, and rubbed it with her hand. He rubbed it
slowly and it took a long time.
A Madison County grand jury indicted Allison for one count each of child
molestation, enticing a child for indecent purposes, and false imprisonment. At the
conclusion of the trial, the jury found Allison guilty beyond a reasonable doubt of
each count. Thereafter, the trial court entered a judgment of conviction and denied
Allison’s motion for a new trial. This appeal followed.
1. Addressing Allison’s second enumeration first,2 Allison contends that the
trial court erred in allowing into evidence the video of the victim’s interview at
Harmony House. According to Allison, the video should have been excluded as child
2
See Pugh v. State, 347 Ga. App. 710, 711 (1), n. 5 (820 SE2d 766) (2018)
(“For convenience of discussion, we have taken the enumerated errors out of the
order in which [Allison] has listed them. . . .”) (citation omitted).
4
hearsay evidence because (1) the victim did not testify as required by OCGA § 24-8-
820 (a) in that she merely acknowledged general identity information and then
answered that she did not remember anything else, and (2) the victim should have
been deemed “unavailable” under OCGA § 24-8-804, even though she took the
witness stand at trial, due to her inability or unwillingness to recall the events at issue.
We are not persuaded.
OCGA § 24-8-820 (a), which went into effect in 2013,3 provides that
[a] statement made by a child younger than 16 years of age describing
any act of sexual contact or physical abuse performed with or on such
child by another or with or on another in the presence of such child shall
be admissible in evidence by the testimony of the person to whom made
if the proponent of such statement provides notice to the adverse party
3
This statute is substantially similar to former OCGA § 24-3-16:
[A] statement made by a child under the age of 14 years describing any
act of sexual contact or physical abuse performed with or on the child
by another or performed with or on another in the presence of the child
is admissible in evidence by the testimony of the person or persons to
whom made if the child is available to testify in the proceedings and the
court finds that the circumstances of the statement provide sufficient
indicia of reliability.
Hilliard v. State, 298 Ga. App. 473, 477 (4) (a) (680 SE2d 541) (2009); see also
OCGA § 24-3-16 (2012).
5
prior to trial of the intention to use such out-of-court statement and such
child testifies at the trial, unless the adverse party forfeits or waives such
child’s testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the person to whom the
child made such statement is subject to cross-examination regarding the
out-of-court statements.
Although OCGA § 24-8-804 (a) (3) defines an “unavailable” witness for purposes of
hearsay as one who “[t]estifies to a lack of memory of the subject matter of the
declarant’s statement[,]” the Code section clearly limits that definition of
unavailability to the exceptions included in the Code section. See OCGA § 24-8-804
(a) (3) (“As used in this Code section, the term ‘unavailable as a witness’
includes . . .”).
In this case, Allison’s argument conflates constitutional unavailability for
confrontation clause purposes with the statutory definition of unavailability for
purposes of the admissibility of hearsay. Here, the victim, who was six-years-old at
the time of the trial, took the stand and answered a number of questions posed by the
trial judge, indicating that she knew why she was in the courtroom and that she
understood she needed to tell the truth. In addition, she answered questions posed by
defense counsel, demonstrating she knew the difference between the truth and a lie.
The victim answered some general questions, but did not offer any testimony about
6
the incident. During her testimony, she stated that she did not remember going to
Harmony House or speaking with Strickland two years before the trial. At this point,
the prosecutor stated that he did not have any further questions. Defense counsel was
invited to cross-examine the victim, but indicated she did not have any questions, and
the victim was excused.
While there is a dearth of case law regarding what constitutes availability to
testify under OCGA § 24-8-820, there are a number of cases decided under the former
Code section that are instructive. Furthermore, we note that the Federal Rules of
Evidence do not contain a specific equivalent to OCGA 24-8-820, so “Georgia
precedent should be principally referenced to interpret this code section.” Ronald L.
Carlson & Michael Scott Carlson, Carlson on Evidence, p. 615 (6th Ed. 2018). In that
vein, we have held on a number of occasions that “to comport with the Confrontation
Clause, the child whose statements are at issue must actually testify at trial[,] . . . [b]ut
former OCGA § 24-3-16 does not require the child to corroborate the hearsay
testimony.” (Citation and punctuation omitted.) Maurer v. State, 320 Ga. App. 585,
589 (2) (740 SE2d 318) (2013). Indeed, contrary to Allison’s argument, “[t]he fact
that a child witness is unresponsive or evasive in response to certain questions on the
witness stand does not render the child’s out-of-court statements inadmissible under
7
[the former Child Hearsay Statute] or violate the Sixth Amendment confrontation
rights of the defendant.” Kirkland v. State, 334 Ga. App. 26, 32 (2) (778 SE2d 42)
(2015); see also Stegall v. State, 297 Ga. App. 425, 426 (677 SE2d 441) (2009) (“the
availability requirement of [the former Child Hearsay statute] is met whenever the
victim takes the stand, even if the victim is uncommunicative or unresponsive”)
(citation and punctuation omitted); Bell v. State, 263 Ga. App. 894, 896 (1) (589
SE2d 653) (2003) (holding that child victim’s refusal to respond to questions did not
make her an unavailable witness; rather, it merely affected her credibility); Bright v.
State, 197 Ga. App. 784, 785 (4) (400 SE2d 18) (1990) (“So long as the witness is
made available for confrontation and cross-examination, the defendant’s rights are
protected, even if the witness is uncommunicative or unresponsive.”).
Instead, “[a] witness’ responsiveness or unresponsiveness, evasiveness or
directness, verbal skills, intelligence, memory, perception, and apparent
understanding are all factors which can be assessed by the jury and may raise a
reasonable doubt.” (Citation and punctuation omitted.) Jones, 200 Ga. App. at 103;
see also Bell, 263 Ga. App. at 896 (1).
The thrust of the child witness statute is to allow the jury,
which must be convinced of guilt beyond a reasonable
8
doubt, to judge the credibility of a child’s accusations. If a
child, who has reported abuse to an adult permitted to
testify to the out-of-court statement at trial, is incapable of
reiterating the accusation at trial or is unresponsive or
evasive during cross-examination, the jury must decide the
child’s credibility, taking into consideration the child’s
maturity and ability to withstand the pressure and
intimidation of the courtroom environment. The manner in
which the witness responds to cross-examination is, itself,
evidence as to credibility.
(Citation and punctuation omitted.) Stegall, 297 Ga. App. at 426-427.
Here, it is undisputed that the victim appeared at trial, took the witness stand,
and was available for cross-examination regarding any lack of memory.4 Contrary to
Allison’s assertion, there is no requirement that the child victim testify as to Allison’s
specific actions or the specific contents of her interview video, let alone that the State
successfully elicit such testimony on direct examination. The victim’s “prior
statements and her unresponsive testimony at trial simply presented a question of
credibility to the jury; it did not render the prior statements inadmissible under either
the Child Hearsay Statute or the Sixth Amendment’s Confrontation Clause.”
4
Once again, we note that Allison did not even attempt to question the victim
on cross-examination.
9
Kirkland, 334 Ga. App. at 32-33 (2) (analyzing the prior Child Hearsay Statute).
Consequently, the video of the victim’s out-of-court statement given to the forensic
psychologist at Harmony House comported with the Confrontation Clause and was
admissible, and the trial court did not abuse its discretion in admitting the video. See
Morris v. State, 341 Ga. App. 568, 573 (2) (802 SE2d 13) (2017) (“the trial court has
broad discretion in determining the admissibility of child hearsay evidence, and we
will reverse a trial court’s ruling on the admissibility of statements . . . only if the trial
court abused its discretion”) (citation and punctuation omitted).5
2. Allison also asserts that the evidence adduced at trial was insufficient to
support his convictions. We disagree.
(a) Child molestation. Child molestation is committed 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). A child “victim’s testimony alone is generally
sufficient to establish the elements of child molestation.” (Citation and punctuation
omitted.) Whorton, 318 Ga. App. at 889 (1) (b).
5
Cornell v. State, upon which Allison relies, applies generally these same
principles and, accordingly, does not compel a different result. 349 Ga. App. 883,
884-885 (2) (827 SE2d 63) (2019).
10
Here, Allison was charged with child molestation for exposing his genitals to
the victim and causing her to touch his penis and genital area. At trial, the victim’s
mother testified that the victim told her that when she and Allison were in the
mother’s room, Allison showed her his “no-no,” placed her hand on it, and wouldn’t
let her hand go until she promised not to tell her mother. The forensic psychologist
who interviewed the victim at Harmony House testified that the victim told her that
Allison made her slowly rub his penis. In addition, the jury observed a video of the
victim’s interview with Strickland, during which the victim told Strickland that
Allison called her from the couch into her mother’s room and, when she got to the
room, he took her hand, put it on his “no no,” which she indicated on an anatomical
drawing meant his penis, and rubbed it slowly with her hand. This evidence was
sufficient to convict Allison of child molestation beyond a reasonable doubt. See
Kirkland, 334 Ga. App. at 33 (3) (finding that although victim was unresponsive to
questions posed at trial about sexual abuse, “the jury could consider her prior
out-of-court statements about the abuse she made to her mother, great-grandmother,
and forensic interviewer as substantive evidence of [the defendant’s] guilt”); Maurer,
320 Ga. App. at 586, 588 (1) (finding evidence sufficient to sustain child molestation
11
conviction even though victim did not provide details of molestation at trial because
forensic interviewer and mother testified to victim’s disclosure).6
Nevertheless, Allison maintains there were several reasons to doubt the
mother’s statement about the child’s outcry, including a discrepancy regarding when
the victim made the outcry, inconsistencies with the victim’s interview video, and the
mother’s addiction at the time of the incident. However,
[i]t is well settled that it is the function of the jury, not this Court, to
judge the credibility of witnesses, resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences from the evidence.
In so doing, a jury is authorized to believe or disbelieve all or any part
of the testimony of the witnesses. Ultimately, as long as there is some
competent evidence, even though contradicted, to support each fact
necessary to make out the State’s case, the jury’s verdict will be upheld.
(Citation omitted.) Whorton, 318 Ga. App. at 888 (1) (b); see also Clark v. State, 282
Ga. App. 248, 250 (1) (b) (638 SE2d 397) (2006) (“We defer to the jury’s decision
on the proper weight and credibility to be given the evidence, because it is the jury’s
role to choose what evidence to believe and what to reject.”) (citation omitted).
As for Allison’s assertions that the victim did not testify as to the molestation
acts at trial and that, on more than one occasion during her Harmony House interview,
6
Contrary to Allison’s assertion, the law does not require the child victim to
corroborate hearsay testimony provided by her mother and the forensic psychologist.
Bell, 263 Ga. App. at 896 (2).
12
she denied anything happened, it is well settled that, as we stated above, “[i]f a child,
who has reported child molestation to an adult permitted to testify to the out-of-court
statement at trial, is incapable of reiterating the accusation at trial or is unresponsive
or evasive during cross-examination, the jury must decide the child’s credibility.”
(Citation omitted.) Jones, 200 Ga. App. at 103; see also Westbrooks v. State, 309 Ga.
App. 398, 401 (1) (710 SE2d 594) (2011) (same). Moreover, any conflicts between
the videotaped statement and the testimony of those whom the victim told about the
abuse present a question of credibility to be resolved by the trier of fact. See Kapua
v. State, 228 Ga. App. 193, 194-195 (1) (491 SE2d 387) (1997); see also Harvey v.
State, 295 Ga. App. 458, 460 (671 SE2d 924) (2009) (“That some evidence offered
by a witness seems contradictory to his own or to some other’s, or incomplete or
uncertain, does not automatically discredit the evidence given by that witness for it
is the function of the trier[] of fact to determine to what evidence it gives credence.”)
(citation and punctuation omitted). In this case, the jury obviously resolved any
credibility or inconsistency issues against Allison and chose to believe, as they were
authorized to do, the statement given by the victim in her video interview, as well as
the testimony of the victim’s mother and the forensic psychologist to whom the victim
13
made an outcry. Accordingly, Allison’s challenge to the sufficiency of the evidence
supporting his conviction for child molestation lacks merit.
(b) Enticing a child for indecent purposes. Under OCGA § 16-6-5 (a), “[a]
person commits the offense of enticing a child for indecent purposes when he or she
solicits, entices, or takes any child under the age of 16 years to any place whatsoever
for the purpose of child molestation or indecent acts.” To establish a violation of this
statute, the State must prove “a joint operation of the act of enticing a child and the
intention to commit acts of indecency or child molestation.” Lasseter v. State, 197 Ga.
App. 498 (1) (399 SE2d 85) (1990).
The statute has been held to include the element of “asportation,” and
our Supreme Court has held that this element is satisfied whether the
taking involves physical force, enticement, or persuasion. Further, any
asportation, however slight, is sufficient to show the element of enticing
a child for indecent purposes.
(Citations and punctuation omitted.) Whorton , 318 Ga. App. at 887 (1) (a).
Here, the evidence authorized the jury to find that Allison enticed the four-
year-old victim to her mother’s bedroom with the intention to engage in child
molestation as established by his subsequent act of placing the victim’s hand on his
penis. Calling the victim from the couch into the mother’s bedroom was sufficient
14
evidence of asportation. See Whorton, 318 Ga. App. at 887 (1) (a). And Allison’s
actions were sufficient to establish that he acted with the requisite intent at the time
he enticed the victim to the bedroom. See Carolina, 276 Ga. App. at 301 (1) (a).
Accordingly, the evidence was sufficient for a rational trier of fact to find Allison
guilty beyond a reasonable doubt of enticing a child for indecent purposes.
(c) False imprisonment. “A person commits the offense of false imprisonment
when, in violation of the personal liberty of another, he arrests, confines, or detains
such person without legal authority.” OCGA § 16-5-41 (a). Allison claims that the
State offered no evidence that he unlawfully detained or confined the child victim.
However, the victim’s mother testified that the victim told her that even though she
was crying and asked him to let go of her hand, Allison would not let go until she
promised not to tell her mother. In addition, the victim stated in her video interview
that Allison put her hand on his “no no,” rubbed it slowly for a long time, and she was
thinking during that time that she was going to tell her mother even though Allison
kept telling her not to. While the victim did not specifically testify that she wanted to
leave her mother’s bedroom, the evidence supports a reasonable inference that she
desired to leave but was detained by Allison. Such testimony was sufficient to sustain
Allison’s conviction for false imprisonment. See Reynolds v. State, 269 Ga. App. 268,
15
270 (1) (c) (603 SE2d 779) (2004) (finding that false imprisonment conviction
supported by rape victim’s testimony that “she tried to leave, but the rapist would not
permit her to do so”).
(d) Concerning his convictions for child molestation and false imprisonment,
Allison invites this Court “to act as a thirteenth juror to overturn the verdict.” This
argument invokes the “general grounds,” see OCGA §§ 5-5-20 and 5-5-21, which,
when read together,
afford the trial court broad discretion to sit as a thirteenth juror and
weigh the evidence on a motion for new trial alleging [the foregoing]
general grounds. Our sovereign, the law, has in effect said to the trial
judge: We charge you to let no verdict stand unless your conscience
approves it, although there may be some slight evidence to support it.
(Citations and punctuation omitted; emphasis supplied.) Walker v. State, 292 Ga. 262,
264 (2) (737 SE2d 311) (2013). As a result,
[t]he decision to grant a new trial on grounds that the verdict is
strongly against the evidence is one that is solely in the discretion of the
trial court. Whether an appellant is asking this court to review a lower
court’s refusal to grant a new trial or its refusal to grant a motion for
directed verdict, this court can only review the case under the standard
espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d
16
560) (1979) to determine if the evidence, when viewed in the light most
favorable to the prosecution, supports the verdict.
(Citations and punctuation omitted; emphasis supplied). Batten v. State, 295 Ga. 442,
444 (1) (761 SE2d 70) (2014) (citing Willis v. State, 263 Ga. 597 (1) (436 SE2d 204)
(1993)). Because OCGA §§ 5-5-20 and 5-5-21 offer remedies reserved to the trial
court, Allison’s argument that this Court should “act as a thirteenth juror to overturn
the verdict” presents nothing for our review.7
3. Finally, Allison contends that the trial court erred in charging the jury that
“[t]he testimony of a single witness, if believed, is sufficient to establish a fact.
Generally, there is no legal requirement of corroboration of a witness, provided that
you find the evidence to be sufficient.” In particular, Allison asserts that the trial
7
In Divisions 1 (a) - (c), we reviewed the denial of Allison’s motion for new
trial under the standard set forth in Jackson v. Virginia. See, e.g., Plez v. State, 300
Ga. 505, 507 (1), n. 2 (796 SE2d 704) (2017); Batten, 295 Ga. at 444 (1). Moreover,
Allison does not contend — much less demonstrate — that the trial court failed to
apply the proper standard of review or abused its discretion in deciding his motion
for new trial on the general grounds. See, e.g., Copeland v. State, 325 Ga. App. 668,
672 (3) (754 SE2d 636) (2014) (“It must be presumed, therefore, that the trial court
properly exercised its discretion[.]”); see also Jimenez v. State, 294 Ga. 474, 475 (754
SE2d 361) (2014). “The trial court having exercised its discretion as the thirteenth
juror, and this Court having found the evidence was sufficient to support the verdict,
we find no abuse of discretion in its denying the motion for new trial.” Smith v. State,
300 Ga. 532, 534 (1) (796 SE2d 671) (2017).
17
court erred in giving this instruction because it undermined the jury’s duty to
determine the credibility of witnesses and undercut the reasonable doubt standard
because the main evidence against him was the child hearsay video and the child had
no recollection of being interviewed or talking to the Harmony House interviewer.
However, Allison failed to include any citations of authority in support of his
argument. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.”); Lindsey v. State, 353 Ga. App. 231, 242 (4), n. 40 (836 SE2d 563)
(2019). Accordingly, the argument is deemed abandoned.8 See Court of Appeals Rule
25 (c) (2).
Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.
8
Nevertheless, we note that the jury instruction was an accurate statement of
Georgia law that tracked the pattern charge for testimony by a single witness. See Ga.
Suggested Pattern Jury Instructions, Vol. II, Criminal Cases (4th ed.) § 1.31.90; see
also OCGA § 24-14-8.
18