Davenport v. State

628 S.E.2d 120, 278 Ga. App. 16, 2006 Fulton County D. Rep. 634, 2006 Ga. App. LEXIS 188
Court of Appeals of Georgia·Decided February 22, 2006·No. A05A1728·Published·Cited by 12 cases

Opinion

628 S.E.2d 120 (2006)
278 Ga. App. 16

DAVENPORT
v.
The STATE.

No. A05A1728.

Court of Appeals of Georgia.

February 22, 2006.
Reconsideration Denied March 7, 2006.

*122 Dwight L. Thomas, Atlanta, for appellant.

Peter J. Skandalakis, District Attorney, Bruce P. Dutcher, Raymond C. Mayer, Assistant District Attorneys, for appellee.

BERNES, Judge.

A Coweta County jury convicted Curtis P. Davenport of one count of rape and four counts of child molestation. On appeal from the denial of his amended motion for new trial, Davenport does not contest the sufficiency of the evidence to convict him on all counts. Rather, he contends that the trial court committed plain error by allowing two of the State's witnesses to provide improper opinion testimony about the truthfulness of the victim. Davenport also argues that his trial counsel was constitutionally ineffective on several grounds. Finding no reversible error, we affirm.

Viewed in the light most favorable to the verdict, the evidence presented at trial shows that on December 2, 2002, Davenport pled guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to two counts of child molestation for molesting his nine-year-old stepdaughter, T.C. Davenport was sentenced to ten years, with two months served in confinement and the remainder of the sentence served on probation. As part of his probation, Davenport was forbidden from having unsupervised contact with T.C.

Within three weeks after he was released from jail, Davenport violated his probation and had unsupervised contact with T.C. One night, Davenport went to the home where T.C. was living. T.C., her mother, and her brother were sleeping in the living room. Davenport entered the home, awakened T.C., and told her to go to her brother's bedroom. Davenport told T.C., "I want to look at you" and offered her $50 to take off her clothes. After T.C. undressed, Davenport touched her between her legs and on her chest, placed his penis "in between the sides" of her vagina "[a] little bit," and ejaculated on her body. Davenport then told her to go clean herself up.

T.C. thereafter moved to a new address. Following the move, Davenport came by T.C.'s home every day. One night, Davenport went into the bedroom where T.C. and her brother were sleeping. Davenport awakened T.C. and persuaded her to go into the bathroom with him by telling her that he would finally buy her a computer. Once they were alone in the bathroom, Davenport "did the same thing he did the first time," including placing his penis on her vagina and ejaculating on her.

A few days later, Davenport again visited T.C. at her new home. It was very early in the morning, and T.C. and her seven-year-old brother had sneaked downstairs to heat up some food and watch a movie. Davenport entered the home and sent T.C.'s brother to bed. T.C. then attempted to go to bed along with her brother, but Davenport went into the bedroom where T.C. and her brother were lying down. Davenport ordered T.C.'s brother to cover his head, and he whispered to T.C. that if she would go to the bathroom and undress, he would buy her some new clothes. When T.C. declined, Davenport left the bedroom. However, later that morning, Davenport reentered the bedroom and ordered T.C.'s brother to go outside and clean the trunk of the car. Once alone with T.C., Davenport touched her the "[s]ame as the first and second time," caused "a little bit" of his penis to "go inside" her vagina, and ejaculated on her.

Subsequently, T.C.'s brother told the children's long-time babysitter, Marilyn Talbert, that Davenport had come over to his house late at night, caught T.C. and him heating up food and getting ready to watch a movie, and ordered him to go to bed. He told Ms. Talbert that after T.C. followed him up to the bedroom and they both lay down in bed, Davenport came into the bedroom, told him to cover his head with the covers, and whispered something into T.C.'s ear. Based on what she learned from T.C.'s brother, and given her knowledge about Davenport's previous indictment for child molestation, Ms. Talbert asked T.C. about what had happened. T.C. became upset and started to cry, told Ms. Talbert that "he did it again," and described to her the incidents of molestation that had occurred since Davenport had been released from jail. Based on what she *123 learned, Ms. Talbert contacted the Department of Family and Children Services.

Davenport was arrested and indicted for rape and child molestation. At trial, the trial court permitted the State to introduce evidence of Davenport's previous guilty plea on the two counts of child molestation committed against T.C. The State called multiple witnesses, including T.C., who testified in graphic detail about the incidents of sexual abuse that had occurred after Davenport was released from jail. The State also called T.C.'s brother, who testified about what he observed on the night that T.C. and he were attempting to watch a late night movie.

Ms. Talbert, the children's babysitter and current custodian, testified on behalf of the State as well. She related what T.C. and her brother had told her about the incidents at issue. Ms. Talbert further testified that T.C. suffered from insomnia, had trouble controlling her anger, and had problems with wetting herself multiple times throughout the day and night, problems that had begun to subside the first time that Davenport went to jail, reappeared upon his release, and once again began to subside after his arrest in this case.

The State also presented evidence that T.C. had described Davenport as having grey pubic hair and bumps on his penis. Her description was confirmed by a law enforcement officer who physically examined Davenport. When he took the stand in his own defense, Davenport himself conceded that T.C.'s physical description of his genitalia was accurate.

Finally, the State called two expert witnesses: Roberta Leinweber, a certified pediatric nurse practitioner with Children's Health Care of Atlanta who specializes in medically evaluating sexually abused children, and Dr. Julie Medlin, a licensed psychologist who specializes in evaluating and treating sexual abuse victims and perpetrators. Nurse Leinweber testified that while her physical examination of T.C. did not reveal any physical signs of sexual abuse, the lack of physical findings was entirely consistent with the allegations of slight penetration made by T.C. Dr. Medlin testified that she conducted a battery of psychological tests, and T.C. scored high in categories indicating that she suffered from sexual fears and high emotional distress, had an unusually high level of sexual preoccupation, and exhibited atypical sexual behaviors for her pre-adolescent age group, among other things.

1. Davenport first contends that the trial court committed plain error by allowing the State to elicit testimony from Nurse Leinweber and Dr. Medlin that constituted an improper comment upon T.C.'s truthfulness and bolstered her credibility.

Plain error is error that is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or one that seriously affects the fairness, integrity, or public reputation of a judicial proceeding. Although our Supreme Court has restricted application of the plain error doctrine to death penalty cases and cases in which the court has allegedly opined on the guilt of the defendant, this court's application of the doctrine has been less restrictive.

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Davenport v. State, 628 S.E.2d 120, 278 Ga. App. 16, 2006 Fulton County D. Rep. 634, 2006 Ga. App. LEXIS 188 (Ga. Ct. App. 2006).

628 S.E.2d 120 (Davenport v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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