Berman v. State

632 S.E.2d 757, 279 Ga. App. 867, 2006 Fulton County D. Rep. 2011, 2006 Ga. App. LEXIS 707
CourtCourt of Appeals of Georgia
DecidedJune 16, 2006
DocketA06A0481
StatusPublished
Cited by24 cases

This text of 632 S.E.2d 757 (Berman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berman v. State, 632 S.E.2d 757, 279 Ga. App. 867, 2006 Fulton County D. Rep. 2011, 2006 Ga. App. LEXIS 707 (Ga. Ct. App. 2006).

Opinion

Ruffin, Chief Judge.

A jury found Frank William Berman III guilty of aggravated child molestation and two counts of child molestation. Berman appeals, challenging the sufficiency of the evidence. He also argues the trial court erred in admitting certain evidence, charging the jury, and allowing the jury to watch the child victim’s videotaped interview during its deliberations. Finally, he argues that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.

1. On appeal from his criminal convictions, Berman no longer enjoys a presumption of innocence, and we construe the evidence in *868 a light favorable to the jury’s verdict. 1 We do not weigh the evidence or assess witness credibility, “but merely determine whether the evidence [was] sufficient to enable a rational trier of fact to find all the essential elements of the crime charged beyond a reasonable doubt.” 2

Viewed in this manner, the evidence shows that Berman is the victim’s uncle. The victim, who was 12 years old at the time of trial, lived with her mother, her brother, and Berman in Berman’s house at various periods between her fifth and eleventh birthdays.

The victim testified that at one point when she was between seven and nine years old, she got out of the bath, wrapped herself in a towel, and went into Berman’s room to ask him a question. Berman entered and told her she needed to “open” her legs. He then forced her legs apart while she was on the bed, dropped to his knees, and licked her vagina. On two subsequent occasions, Berman masturbated in front of her, once while she was jumping rope downstairs and once when she entered his bathroom. During the bathroom incident, Berman began to ejaculate, then asked the victim “to taste it.”

The victim referred to Berman’s masturbation as “the hand thing.” And she testified that prior to her birthday one year, she asked for an expensive gift, and Berman stated that she would need to do “[t] he hand thing at least twice to get it.” She also stated that when she sat with Berman on his lap, she could feel his “private part” move “up.”

During the summer that the victim turned 11, she and her brother visited for an extended period with their father and stepmother in Florida. That summer, she reported Berman’s conduct to her brother, and he advised her to tell her stepmother. The victim then described some of Berman’s actions to her stepmother, who informed the victim’s father.

The victim’s brother confirmed at trial that the victim told him that Berman had been “ ‘messing with her.’ ” Specifically, she described to him one incident during which Berman masturbated in front of her, as well as the time Berman forced open her legs and licked her “private area.” The victim’s stepmother also testified that the victim reported Berman’s conduct to her.

After the outcry, Faye Frazer, a clinical case coordinator with the University of Florida Child Protection Team, conducted a forensic interview with the victim. During the interview, the victim told Frazer about Berman’s actions. The interview was videotaped and played for the jury.

*869 Gwinnett County Police Detective D. L. Brewster investigated the allegations and interviewed the victim, who again described the incidents. Brewster also interviewed Berman. Although Berman denied the allegations, he admitted that the victim had once entered the bathroom without knocking when he was masturbating and had also seen him naked in the shower. Berman testified at trial and denied touching the victim inappropriately.

Based on this and other evidence, the jury found Berman guilty of aggravated child molestation by placing his mouth on the victim’s vagina, child molestation by masturbating in front of her, and child molestation by asking the victim to taste his ejaculate. Particularly given the victim’s detailed testimony about these incidents, we find the evidence more than sufficient to sustain the jury’s findings. 3 Any discrepancies in the victim’s statements to various people, contradictions in the time line, or evidence regarding animosity between the victim’s mother and father presented credibility issues for the jury, not this Court, to resolve. 4

2. Berman argues that the trial court improperly admitted the victim’s out-of-court statements under the Child Hearsay Statute 5 without first determining their reliability. But Berman has not pointed to — and we have not found — any place in the record where he objected to the admission of this evidence. For example, no such objection appears during the testimony of the victim’s brother, the victim’s stepmother, Faye Frazer, or Detective Brewster, all of whom testified extensively about the victim’s statements to them. And Berman’s counsel stated that he had no objection to the admission of the victim’s videotaped interview with Frazer. Under these circumstances, Berman has waived this claim of error for purposes of appeal. 6

3. Berman also argues that the trial court erred in permitting Detective Brewster to “bolster” the victim’s credibility. The record shows that Brewster testified about his technique when interviewing children, including his admonitions to them regarding telling the truth. At one point during this testimony, he stated, “I wasn’t about to let something happen to somebody,” and defense counsel objected *870 that the statement was improper. The trial court asked whether this was something Brewster told the victim. Brewster responded affirmatively, and the trial court overruled the objection. Brewster then testified: “I said that, you know, I want her to make sure she tells me the truth, you know, as I’m talking to her because I’m not going to let something happen to somebody if I’m not getting the truth.”

We find no error. It is true that under “no circumstance may a witness’s credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” 7 The record shows, however, that Brewster merely testified as to his instructions and statements to the victim regarding the need for truth. The objected-to statement does not constitute an opinion as to whether the victim was, in fact, truthful. 8

We recognize that, on several occasions, Brewster testified that the victim was “solid” in the retelling of her story and did not waver, despite his efforts to “trip[ ] [her] up.” Again, however, Berman interposed no objection to this testimony. To the extent that he claims such testimony improperly bolstered the victim, therefore, this claim of error was waived. 9

4. Next, Berman claims that the trial court erred in charging the jury with respect to the statute of limitation.

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Bluebook (online)
632 S.E.2d 757, 279 Ga. App. 867, 2006 Fulton County D. Rep. 2011, 2006 Ga. App. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berman-v-state-gactapp-2006.