Powell v. the State

THIRD DIVISION
ELLINGTON, P. J.
MCFADDEN and PETERSON, 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 3, 2016
In the Court of Appeals of Georgia
A15A1914. POWELL v. THE STATE. PE-035C
PETERSON, Judge.
David Powell, convicted of two counts of child molestation, appeals from the
denial of his motion for a new trial. He argues that (1) the evidence was insufficient
to convict him and (2) the trial court erred by allowing the State to introduce
irrelevant testimony that improperly bolstered the victim’s testimony. Because there
was sufficient evidence to authorize the guilty verdict on all counts, and because
Powell failed to preserve his bolstering objection for appeal, and, in any event, the
challenged testimony did not constitute an opinion on the victim’s veracity, we
affirm.
Following a criminal conviction, we view the evidence in the light most
favorable to the jury’s verdict, and no longer presume the defendant is innocent.
Wallace v. State, 294 Ga. App. 159, 159 (1) (669 SE2d 400) (2008). So viewed, the
evidence shows that Powell was a family friend, affectionately dubbed “Uncle Dave,”
who regularly visited the victim’s home and assisted her mother with various
household repairs. In December 2010, when the victim was twelve years old, Powell
assisted her mother with installing window fixtures. According to the victim’s
forensic interview, when her mother left for an errand, Powell came into the victim’s
room, removed her pants and underwear, and rubbed his penis against her genitals.
Powell stopped when the victim’s mother returned home. On another occasion in
April 2011, when the victim was thirteen years old, Powell forced her to touch his
penis and masturbate him during a drive to school, and also masturbated in her
presence and ejaculated into a towel in his vehicle. Some time afterwards, the
victim’s mother became concerned about her child’s behavior, and asked the victim
if anything was bothering her. The victim recounted the details of the molestation by
Powell to her mother, who then called police. A forensic investigator interviewed the
victim, and a video recording of the interview was played for the jury. Both the
victim’s mother and the forensic investigator confirmed that the victim related these
same facts to them.
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1. Powell contends that the evidence established at the trial court was
conflicting, and that there is insufficient evidence to sustain the conviction. We
disagree.
“When a criminal defendant challenges the sufficiency of the evidence
supporting his or her conviction, ‘the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Strong
v. State, 265 Ga. App. 257, 258 (593 SE2d 719) (2004) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). “The jury, not this Court, resolves conflicts in the
testimony, weighs the evidence, and draws reasonable inferences from the evidence.”
Id. “‘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.’” Id. (citation and punctuation omitted); see also Anderson v. State, 253 Ga.
App. 129, 130 (558 SE2d 459) (2001).
OCGA § 16-6-4 provides that a person commits the offense of child
molestation when that person “does 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[.]”
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Powell alleges the victim’s testimony was contradicted by his own statements
to law enforcement and other unspecified evidence, and that law enforcement never
searched Powell’s vehicle for the towel into which the victim claimed Powell
ejaculated. Here, the jury heard the victim’s statements describing Powell’s acts.
While Powell argues that the victim’s statements were not corroborated, Georgia law
does not require corroboration of a child molestation victim’s testimony. See Scales
v. State, 171 Ga. App. 924, 924-925 (2) (321 SE2d 764) (1984) (“No corroboration
has been required for a conviction of child molestation”). The victim’s testimony
alone is sufficient to sustain a conviction. See Chamblee v. State, 319 Ga. App. 484,
485 (735 SE2d 810) (2012) (finding that testimony about the child’s description of
the offender’s acts, “standing alone, was sufficient to support the verdict”); see also
former OCGA 24-4-8; Newton v. State, 296 Ga. App. 332, 336 (1) (674 SE2d 379)
(2009). Nevertheless, the jury also heard the recorded police interviews of Powell in
which he admitted to driving the victim to school, admitted that the victim touched
his penis on one occasion, and admitted to laying down with the victim in her
bedroom. The jury also heard the testimony of the victim’s mother and the forensic
investigator confirming that the victim relayed similar accounts to them.
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The testimony in this case supports the conclusion beyond a reasonable doubt
that Powell’s actions towards the victim, who was under sixteen at the time of each
alleged incident, were “immoral or indecent” within the meaning of OCGA § 16-6-
4(a)(1). Moreover, the jury was authorized to infer intent from the evidence. See
Arnold v. State, 249 Ga. App. 156, 158 (545 SE2d 312) (2001) (“Intent, which is a
mental attitude, is commonly detectable only inferentially, and the law accommodates
this”). The evidence was easily sufficient for a rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt, and therefore the trial
court did not err in denying Powell’s motion for a new trial for lack of sufficient
evidence to support his convictions.
2. Powell next asserts that the court improperly allowed the forensic
investigator to opine on the victim’s developmental level. Powell contends that the
forensic investigator’s opinion on the victim’s developmental level was irrelevant,
and that the State sought this testimony in an attempt to bolster the victim’s
credibility. Again, we disagree, and further conclude that Powell failed to preserve
the relevant issues for appeal.
At trial, the State asked the forensic investigator to describe the victim’s
developmental level compared to her age. Powell objected, arguing that the forensic
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investigator was not qualified as an expert in child development and therefore could
not render an opinion on the victim’s developmental age - an objection Powell does
not renew on appeal. But no objection was made on the grounds that Powell now
asserts as the basis for his appeal. That is, Powell failed to object based upon the
relevance of the forensic investigator’s opinion or that the testimony amounted to an
opinion on the victim’s veracity.
“To preserve a ground for error, the objecting party must state the specific
ground upon which the objection is based[.]” Slade v. State, 287 Ga. App. 34, 35 (1)
(651 SE2d 352) (2007); Maxwell v. State, 267 Ga. App. 227, 229 (1) (599 SE2d 228)
(2004). The trial court must have the opportunity to be fully informed of the error and
to rule on it. Ruffin v. State, 333 Ga. App. 793, 794 (2) (777 SE2d 262) (2015).
“When the specific ground of objection is not made at the time the evidence is
offered, the failure to do so amounts to a waiver of that specific ground.” Id.; see also
Hill v. State, 244 Ga. App. 278, 280 (2) (535 SE2d 302) (2000). Objections made at
trial cannot be modified or expanded for the first time on appeal. See, e.g., Dunagan
v. State, 255 Ga. App. 309, 310 (2) (565 SE2d 526) (2002); Mack v. State, 251 Ga.
App. 407, 409 (2) (554 SE2d 542) (2001).
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Powell’s objection was not sufficient to notify the trial court of the additional
legal grounds he now asserts as his basis for appeal, and Powell sought no ruling
from the court on those objections. See Slade, 287 Ga. App. at 35 (1). Therefore,
Powell has waived his grounds for appeal on this issue.
Even if Powell had preserved his relevance and improper bolstering challenges
to the forensic investigator’s testimony, we find no grounds for reversal. It is error for
a trial court to permit a witness “to bolster the credibility of another witness by
expressing an opinion that the witness is telling the truth.” Noe v. State, 287 Ga. App.
728, 731 (1) (652 SE2d 620) (2007). Credibility of a witness “is a matter solely
within the province of a jury.” Id. (citing Mann v. State, 252 Ga. App. 70, 72 (1) (555
SE2d 527) (2001)). But this does not require a court to exclude testimony simply
because a defendant argues a tangential relation to credibility. In Noe, we observed
that this rule prohibits “directly commenting upon the victim’s credibility, i.e., stating
‘I believe the victim; I think the victim is telling the truth,’ or testimony that
implicitly goes to the ultimate issue for jury determination, i.e., ‘In my opinion, the
victim was sexually abused.’” Noe, 287 Ga. App. at 730 (upholding admission of
nurse’s testimony that the physical exam was consistent with victim’s allegations).
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Nothing Powell complains of here even remotely approaches the kind of testimony
Noe explains is prohibited.
When asked about the victim’s developmental level, the forensic investigator
replied that the she “appeared a little – not developmentally 13 in comparison to the
other 13 year olds that I’ve interviewed; okay?,” and then expanded on the relevance
and meaning of this statement by indicating that there were “some accommodations
made on my part to not assume the normal level of development of a thirteen year-old
while I interviewed her.” This does not constitute impermissible commentary on the
victim’s credibility. Accordingly, we find Powell’s second enumeration of error to be
waived and without merit.
Judgment affirmed. Ellington, P. J. and McFadden, J., concur.
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