Boddie v. State

760 S.E.2d 668, 327 Ga. App. 667, 2014 WL 2766736, 2014 Ga. App. LEXIS 402
CourtCourt of Appeals of Georgia
DecidedJune 19, 2014
DocketA14A0682
StatusPublished
Cited by1 cases

This text of 760 S.E.2d 668 (Boddie 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
Boddie v. State, 760 S.E.2d 668, 327 Ga. App. 667, 2014 WL 2766736, 2014 Ga. App. LEXIS 402 (Ga. Ct. App. 2014).

Opinion

RAY, Judge.

The State indicted Kenneth Wayne Boddie for eight counts of sexual offenses against two of his four children.1 Ajury convicted him of incest (OCGA § 16-6-22 (a) (1)), child molestation (OCGA § 16-6-4 (a) (1)), and three counts of aggravated child molestation (OCGA § 16-6-4 (c)) for crimes committed against one of his daughters, S. B. He appeals from the denial of his particularized motion for a new trial contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

At trial, S. B. testified that her father raped, sodomized, had oral sex with her, and “sexually abused” her with his hands, penis, or mouth on “my vagina, my breasts, and my butt” in an ongoing course of conduct occurring approximately “twice a week” when she was in sixth and seventh grades. Testimony showed that the last time she had sexual intercourse with her father was in January 2009, about two weeks before she made outcry to school counselors on February 3,2009. The police officer who interviewed S. B. testified that she told him her father had been forcing her to have sexual encounters with him for about a year prior to the interview date of February 3, 2009. The indictment charged that the crimes occurred between August 9, 2007, and January 19, 2009.

Boddie testified in his own defense. He denied sexual conduct with S. B., but repeatedly stated that she asked him for sex and that he walked around the house naked after she did so. He acknowledged that when interviewed by police, he first denied having sex with S. B., then admitted to molesting her. He testified that this was not a voluntary statement and that he confessed only because “I felt like if I hadn’t, that they would arrest my wife and my daughter.” He did not explain why he believed that the police might arrest his underage daughter.

On appeal, Boddie argues that he received ineffective assistance of counsel. In raising ineffective assistance, Boddie

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the [668]*668outcome of the proceedings would have been different. . . . The likelihood of a different result must be substantial, not just conceivable.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

In the instant case, the trial court in a detailed order found that Boddie had received effective assistance of counsel.

The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.

(Footnote omitted.) Sarratt v. State, 299 Ga. App. 568, 569 (2) (683 SE2d 10) (2009). “[W] e independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

1. Boddie argues that his trial lawyer was ineffective in failing to file a special demurrer requiring the State to allege specific dates for the child molestation and three aggravated child molestation charges. Boddie argues that greater specificity would have allowed him to provide an alibi defense.

“To succeed on his ineffective assistance claim, [Boddie] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.” (Citation and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 47 (1) (a) (733 SE2d 351) (2012). He additionally was required to show that counsel’s performance fell below the broad range of reasonable professional assistance presumed to be rendered by members of the bar. Id. at 46 (1).

Here, the indictment provided a range of dates for the four charges, alleging that they occurred between August 9, 2007, and January 19, 2009, “the exact date of the offense[s] being unknown to the Grand Jury[.]” The indictment did not specifically allege that the dates were material. “For this reason, the date[s] alleged [were] not... material element[s] to be proven with specificity by the State.” (Citation omitted.) Chalk, supra at 47 (1) (a).

At the hearing on his motion for new trial, Boddie testified that he was away from S. B. at certain times between August and December, but in most instances did not testify as to specific dates or years, or whether he was out of town or just absent for a few hours. The most specific instance of his testimony showed that his wife was [669]*669hospitalized on November 24, 2008, and that he spent time with her. There was no testimony as to whether he spent the night at the hospital or was only away from S. B. for a few hours. He also testified that his wife’s birthday is September 28, and that on that date in both 2007 and 2008 he spent time with her, but did not travel away from home. Finally, he testified that between December 28 and January 4, he was testifying in a trial involving a woman with whom he was having an affair. He did not indicate in what year the trial occurred, nor did he state whether he was out of town for those days or merely gone for some hours. He also stated that once school started, he only spent about four hours a day with the children.

Boddie “did not proffer any evidence showing that he had a possible defense” for the series of offenses that recurred approximately twice weekly between August 9, 2007, and January 19, 2009. (Citation omitted.) Chalk, supra at 47 (1) (a). “Consequently, [Boddie] has failed to demonstrate that he was surprised or unable to present a defense due to the [range of dates] in the indictment; therefore, his claim of ineffective assistance of counsel on this ground affords no basis for reversal.” (Citation omitted.) Id. See Eberhardt v. State, 257 Ga. 420, 421 (2) (359 SE2d 908) (1987) (where State shows a pattern of ongoing occurrence of abuse, defendant cannot claim surprise if “every date of alleged abuse was not specified in the indictment”). See also Adams v. State, 288 Ga. 695, 699 (2) (707 SE2d 359) (2011) (where approximate dates for the commission of crimes may be determined by the evidence presented, the evidence is sufficient to support the allegations in the indictment).

[I] t is well established that where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitation [ ].

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Related

Moran v. the State
780 S.E.2d 529 (Court of Appeals of Georgia, 2015)

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Bluebook (online)
760 S.E.2d 668, 327 Ga. App. 667, 2014 WL 2766736, 2014 Ga. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boddie-v-state-gactapp-2014.