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.

2
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[.]”

3
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.

4
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

5
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).

6
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).

7
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.