UNDERWOOD v. the STATE.

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, 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.
http://www.gaappeals.us/rules

January 31, 2018

In the Court of Appeals of Georgia
A17A1768. UNDERWOOD v. THE STATE.

MILLER, Presiding Judge.

Walter Underwood was convicted of two counts of child molestation (OCGA

§ 16-6-4 (b) (1)), and sentenced to concurrent 12-year terms of imprisonment.1 He

now appeals from the denial of his motion for new trial. We affirm Underwood’s

convictions because (1) there was no reversible error in the trial court’s determination

that Underwood’s estranged wife could invoke marital privilege and decline to testify,

and (2) Underwood has not shown that trial counsel’s performance was

constitutionally deficient or that he was prejudiced as a result, as required to establish

ineffective assistance of counsel. Although we affirm the convictions, we must vacate

1
Underwood was initially charged with rape in addition to molestation, but a
nolle prosqui was entered on the rape charge.
the sentence imposed and remand for resentencing because, as the State concedes, the

trial court erred in failing to impose a split sentence as required by OCGA § 17-10-

6.2 (b).

Viewing the evidence in the light most favorable to the verdict,2 Underwood

often babysat his several grandchildren, including the victim who was his step grand-

daughter. When the victim was eight years old, Underwood began touching her by

slapping her bottom and touching her breasts while she was clothed. Once, while

babysitting, Underwood told the victim’s brother to go to his room, leaving

Underwood and the victim alone. Underwood then touched the victim’s bottom,

breasts, and vagina. On one occasion, Underwood took the victim into her parents’

bedroom, locked the door, undressed the victim, and started kissing and touching her.

He then removed his own clothes, tried to “put himself inside” the victim, and then

“peed on” her. The victim ran into the bathroom, and Underwood followed her,

instructing her not to tell anyone. The victim was frightened and did not tell anyone

at the time.

2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2
 Underwood continued to touch and kiss the victim after this incident, including

a time when he attempted to remove her clothes but she stopped him.3 In 2013, when

she was about 13-years-old, a friend talked about how she had been molested. This

convinced the victim that she should tell someone what Underwood had been doing

to her, and she told her step-mother, who is Underwood’s daughter. Her step-mother

“sat there and cried, and a few minutes later she [said], I believe you, but I cannot tell

you why.”

After the victim’s accusation, Underwood’s two sons, daughter, sister, and

estranged wife held a family meeting with Underwood. During this meeting,

Underwood admitted that he molested the victim. The family later learned that

Underwood had also molested his niece when she was about 12 years old.

At trial, Underwood testified in his own defense, denying the allegations.

According to Underwood, he suffers from severe medical issues that prevent him

from experiencing sexual desire. He has had several heart attacks, numerous

angioplasties, and has had more than 17 stints placed to open blocked arteries. He

3
In 2013, the victim was interviewed by counselors at the Child Advocacy
Center, consistently describing the molestation and using a drawing to identify where
Underwood touched her. Her testimony in this interview, which was entered into
evidence, was consistent with her testimony at trial.

3
takes 22 different medicines daily for blood pressure, cholesterol, and depression. As

a result, he suffers from erectile dysfunction.

The jury convicted Underwood of both counts of molestation. The trial court

sentenced Underwood to concurrent terms of 12 years’ imprisonment.

1. Underwood contends that the trial court improperly advised his estranged

wife that she could invoke marital privilege and decline to testify because (a) the

privilege does not apply when the crime involved a minor, and (b) Underwood and

his wife were separated at the time of the trial. We discern no reversible error.

Under OCGA § 24-5-503 (a), “[a] husband and wife shall be competent but

shall not be compellable to give evidence in any criminal proceeding for or against

each other.” However, this privilege does not extend to cases in which “[t]he husband

or wife is charged with a crime against the person of a child under the age of 18 . . . .”

OCGA § 24-5-503 (b) (1). In such cases, “such husband or wife shall be compellable

to give evidence only on the specific act for which the accused is charged.” Id. The

privilege belongs to the spouse and not the defendant. Young v. State, 232 Ga. 285,

287 (206 SE2d 439) (1974) (discussing prior version of the statute). Generally, we

apply a harmless error analysis to the issue of whether the trial court erred by

excluding testimony of a witness. See, e.g., Walker v. State, 296 Ga. 161, 167-168 (2)

4
(766 SE2d 28) (2014) (exclusion of testimony that was cumulative, if error, was

harmless); Lynn v. State, 296 Ga. 109, 113 (2) (765 SE2d 322) (2014) (considering

whether exclusion of testimony was harmless, but concluding that it was not because

the testimony concerned a possible motive, was hotly disputed, and was central to the

defendant’s defense, and credibility of witnesses is an issue for the jury).

Here, the trial court advised Underwood’s wife, Debra, that she could invoke

the privilege and decline to testify, which she elected to do. At the hearing on the

motion for new trial, Debra testified that she and Underwood had been separated

about a year and a half at the time of the trial. She stated that she was aware

Underwood experienced erectile dysfunction, but she could not attest to his sexual

health while the two were separated. The trial court acknowledged that the marital

privilege would not apply in cases involving minors, but that any testimony provided

would be limited to the “specific act.” The trial court then concluded that proof of

penetration was not necessary in a molestation case and therefore, testimony

regarding Underwood’s erectile dysfunction was not related to the “specific act.”

Moreover, the court noted that Underwood’s defense was that the acts never

happened – not that he could not commit them. Thus, testimony about erectile

5
dysfunction was not relevant to his defense. The trial court also concluded that the

privilege would continue even if the spouses separated.

Pretermitting whether the exception to marital privilege in § 24-5-503 (b) (1)

would apply in this case, either due to the parties’ separation or because the testimony

involved the “specific act” with which Underwood was charged, we conclude that any

error in advising Debra that she could invoke the privilege was harmless.

Underwood testified at length about his medical condition, asserting that it left

him devoid of any sexual desire and suffering from erectile dysfunction. Had Debra

testified, she would have confirmed the erectile dysfunction diagnosis. However,

Debra was in no position to testify to Underwood’s ability to achieve sexual arousal,

and her testimony would not have negated an element of the crime. Cline v. State, 224

Ga. App. 235, 236 (1) (480 SE2d 269) (1997) (rejecting the argument that State failed

to prove child molestation where evidence showed he did not obtain or maintain an

erection during the conduct). Thus, any error in advising Debra that she could assert

marital privilege was harmless.

2. In his second enumeration of error, Underwood argues that his trial counsel

was constitutionally deficient in failing to (a) call Debra as a witness to testify

regarding his medical condition; (b) object to hearsay evidence in the victim’s

6
testimony about her step-mother’s response to the allegations; and (c) investigate his

sexual health.

To prevail on a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that the
deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. [See] Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant
fails to meet his or her burden of proving either prong of the Strickland
test, the reviewing court does not have to examine the other prong. In
reviewing the trial court’s decision, we accept the trial court’s factual
findings and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3)

(729 SE2d 442) (2012). To meet the prejudice prong of the analysis, the defendant

must show that there was a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009). With this

standard in mind, we address each of Underwood’s enumerations of error in turn.

(a) Failing to call Debra as a witness

7
 Underwood contends that Debra’s testimony would have corroborated the

nature and severity of his medical condition and erectile dysfunction, and that trial

counsel was deficient in failing to understand the legal standard applicable to the use

of marital privilege. We disagree.

The trial court concluded that counsel’s performance was reasonable and that

Underwood failed to show prejudice. We agree that Underwood cannot show

prejudice because there is no reasonable probability that Debra’s testimony would

have changed the outcome of the trial. As noted, although Debra could have

corroborated that Underwood suffered from erectile dysfunction, she could not testify

to his ability to feel sexual arousal. Duvall v. State, 273 Ga. App. 143 (1) (a) (614

SE2d 234) (2005) (“Intent, which is a mental attitude, is commonly detectible only

inferentially, and the law accommodates this.”) (citation omitted). Importantly,

Underwood’s inability to show his arousal through an erection does not negate the

charges against him because the child molestation statute “does not require proof of

[the defendant’s] actual arousal.” Cline, supra, 224 Ga. App. at 236 (1); see also

Brown v. State, 324 Ga. App. 718, 721 (1) (751 SE2d 517) (2013) (“the law requires

only that the defendant have acted with the intent to arouse his sexual desires. The

question of intent is peculiarly a question of fact for determination by the jury, which

8
may infer a defendant’s intent from the evidence presented at trial.”) (citations and

punctuation omitted).

Here, the evidence showed that Underwood touched the victim’s breasts and

bottom, kissed her, removed her clothes, and touched her vagina. This was sufficient

for the jury to find that Underwood intended to arouse himself in doing so. See

Brown, supra, 324 Ga. App. at 721 (1) (fondling the victim supported inference that

the defendant intended to arouse himself). Debra’s testimony that Underwood

suffered from erectile dysfunction had no bearing on any element of the crime

charged. Cline, supra, 224 Ga. App. at 236 (1). Therefore, Underwood cannot show

that the outcome of his trial would have been different had Debra testified, and his

claim of ineffective assistance of counsel fails on this ground.

(b) Hearsay testimony4

Underwood next argues that trial counsel was deficient for failing to object

when the victim testified that her step-mother said she believed the victim. However,

other than stating that counsel was ineffective for failing to object, he cites no law to

4
Underwood does not argue that the step-mother’s testimony improperly
bolstered the victim’s credibility. See Wright v. State, 327 Ga. App. 658, 661 (2) (a)
(760 SE2d 661) (2014). Therefore, we do not address whether the testimony was
improper on this ground.

9
support said argument. Thus, he arguably has waived it. Court of Appeals Rule 25 (c)

(2).

Nevertheless, we conclude that Underwood cannot show prejudice. The jury

heard the victim’s testimony and watched the recorded interview she gave as part of

the investigation, all of which were consistent with the allegations. The jury also

heard testimony from other family members that Underwood admitted to molesting

the victim when he was confronted. Additionally, the jury heard Underwood’s

testimony denying that he engaged in any inappropriate conduct. It is the jury’s role

to determine the credibility of witnesses and to weigh the evidence. Bibb v. State, 315

Ga. App. 49 (1) (726 SE2d 534) (2012). On this record, we conclude that Underwood

has not shown that the outcome would have been different had counsel objected to

this single statement. Wright v. State, 327 Ga. App. 658, 662 (2) (c) (760 SE2d 661)

(2014) (improper hearsay evidence was cumulative and thus did not prejudice

defendant).

(c) Failure to investigate sexual health

Underwood next asserts that trial counsel was deficient in failing to inquire into

his sexual health and medical conditions through expert testimony. We discern no

error.

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 First, Underwood failed to provide any proffer as to what an investigation

would have shown or how this information would have changed the outcome of his

trial, and his mere speculation is insufficient. See Lupoe v. State, 300 Ga. 233, 241

(2) (b) (794 SE2d 67) (2016) (defendant failed to show prejudice from counsel’s lack

of investigation where he did not present evidence of what such investigation would

have uncovered or how such information would have changed the outcome). At the

motion for new trial, Underwood did not present any medical records, call any

medical experts, or otherwise establish what favorable evidence the investigation

would have uncovered. See Hughes v. State, 289 Ga. 98, 100 (3) (709 SE2d 764)

(2011) (failure to call expert at hearing on motion for new trial made it impossible for

defendant to show prejudice); Puckett v. State, 342 Ga. App. 518, 526 (2) (804 SE2d

648) (2017) (defendant failed to demonstrate prejudice where, at hearing on motion

for new trial, there was no expert testimony on battered person syndrome to show that

the outcome of trial could have been different had counsel called expert to testify).

“Absent a proffer of what the testimony of [an] expert would have been at trial, [a

defendant] cannot show that there is a reasonable probability that the outcome of the

trial would have been different had . . . counsel taken the suggested course.” (Citation

omitted.) Ware v. State, 273 Ga. 16, 17 (3) (537 SE2d 657) (2000). Thus,

11
Underwood’s failure to proffer any evidence at the hearing on the motion for new

trial is fatal to his claim of ineffective assistance of counsel on this ground.

3. Finally, Underwood argues - and the State concedes - that his sentence was

improper because it failed to include a split sentence, as required under OCGA § 17-

10-6.2 (b).

OCGA § 17-10-6.2 (b) (5) instructs that a defendant be sentenced to a split

sentence upon conviction for child molestation that includes the minimum term of

imprisonment and a least one year of probation.5 Because the trial court failed to

impose such a sentence, we vacate the sentence imposed and remand the case for

resentencing consistent with OCGA § 17-10-6.2 (b).

Judgment affirmed; sentence vacated, and case remanded. Doyle, P. J., and

Reese, J., concur.

5
At the hearing on the motion for new trial, the trial court indicated its intent
to resentence Underwood in conformity with OCGA § 17-10-6.2 (b). However, the
record does not establish that the trial court has done so.

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