Earnest Rhodes v. State

• Court: Court of Appeals of Georgia
• Decided: February 5, 2013
• Docket: A12A2275
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

February 5, 2013

In the Court of Appeals of Georgia A12A2275. RHODES v. THE STATE.

MILLER, Presiding Judge.

Following a jury trial, Earnest Rhodes was convicted of child molestation

(OCGA § 16-6-4 (a)) and incest (OCGA § 16-6-22). Rhodes appeals from the denial

of his motion for new trial, contending that (1) the trial court erred in failing to

suppress the DNA evidence; (2) the trial court erred in charging the jury on similar

transaction evidence; and (3) he received ineffective assistance of counsel. For the

reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the

presumption of innocence, and the evidence is viewed in the light most favorable to

the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d

819) (2010). So viewed, the evidence shows that the victim was born in 1985. Rhodes

married the victim’s mother in 1991. When the victim was approximately eight years

old, Rhodes made her come into her mother’s room and watch pornography while he

sat there, played with his penis and ejaculated. When the victim was approximately

10 years old, Rhodes started penetrating her vagina with his fingers and penis. After

the first time, Rhodes forced the victim to perform oral sex and had sexual intercourse

with her several times per week. Rhodes threatened to punish the victim if she refused

to do what he wanted or reported him to anyone. Rhodes also told the victim that he

would say she was a bad child, was out of control and was lying if she told anyone

about the sexual abuse.

In 1998, when she was 13 years old, the victim gave birth to a full term baby.

The victim subsequently reported that Rhodes had been molesting her and that he was

the father of her child. Several years later, a Richmond County Crime Scene Unit

investigator obtained a search warrant for DNA buccal swabs from Rhodes for the

purposes of DNA comparison and paternity testing. Subsequent DNA testing

confirmed that there was a 99.99 percent probability that Rhodes fathered the victim’s

child. Rhodes was subsequently arrested and indicted for child molestation (OCGA

§ 16-6-4 (a)) and incest (OCGA § 16-6-22).

2 At trial, the state presented similar transaction evidence1 showing that Rhodes

watched pornographic movies with the victim’s sister, and had sexual intercourse

with her several times a month beginning when she was 12 years old, and continuing

until she was 18 years old. Following the presentation of evidence, the jury found

Rhodes guilty of child molestation and incest.

1. Rhodes contends that the trial court erred in denying his motion to suppress

the DNA evidence since there was insufficient probable cause to support the warrant

to extract buccal swabs from his person for the DNA testing. We disagree.

“In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.”

(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237)

(2009).

1 The trial court held a hearing pursuant to USCR 31.3 (B), found that the State met its burden of proof pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), and granted the State’s request to present the similar transaction evidence for the appropriate purpose of showing Rhodes’s course of conduct and bent of mind.

3 “In determining whether probable cause exists for issuance of a search warrant, the magistrate’s task is simply to make a practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

(Citation and punctuation omitted.) Flewelling v. State, 300 Ga. App. 505, 509 (2)

(685 SE2d 758) (2009).

Rhodes argues that the search warrant affidavit was insufficient because it

omitted the fact that the victim had previously made inconsistent and contradictory

claims regarding who fathered her child, the omitted information was material, and

omission of this information was deliberately misleading.

[I]f a court determines that an affidavit submitted contains material misrepresentations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Flewelling, supra, 300 Ga. App. at 512 (2) (b).

Assuming that the omitted information was material, and considering the

affidavit as if the information had been included, the magistrate nevertheless had

4 probable cause for issuing the search warrant. The affidavit in support of the search

warrant stated that Rhodes had possibly fathered the victim’s child, Rhodes began a

sexual relationship with the victim when she was 10 years old, the sexual relationship

continued until the victim was 15 years old, the victim’s son was conceived during

that time period, and the son’s father had not been scientifically identified. The

information contained in the affidavit clearly implied the possibility that Rhodes was

not the father of the victim’s child. “Therefore, the affidavit showed a substantial

basis for the magistrate to conclude that a crime had been committed and that

evidence of that crime would be found in [Rhodes’] blood[,]. . .[and] the information

that [Rhodes] claims was improperly omitted [did] not alter the basis for the issuance

of the search warrant.” (Citations and punctuation omitted.) Farris v. State, 293 Ga.

App. 674, 676 (1) (667 SE2d 676) (2008).

2. Rhodes contends that the trial court erred in charging the jury on similar

transaction evidence. We find no error.

During the sister’s testimony regarding similar transactions, the trial court

charged the jury that they could consider evidence of Rhodes’s similar transactions

for the limited purpose of showing his state of mind, knowledge or intent in the

charged crimes. The trial court gave a nearly identical instruction in its final jury

5 charge, except that the trial court stated that the jury could consider the similar

transaction evidence for the limited purpose of showing Rhodes’s bent of mind or

course of conduct in the charged crimes. The trial court’s initial and final similar

transaction charges were taken nearly verbatim from the pattern charge on similar

transaction which both the State and Rhodes submitted at the beginning of trial.2 V1,

R51, R63-64, R84, R97-98

Rhodes did not object to the trial court’s similar transaction charges, however,

he belatedly attempted to reserve objections on the record after the trial court sent the

jury out for deliberations. “When a party fails to object to a jury charge or the

omission of a charge during trial but raises the issue on appeal, this Court reviews the

charge for plain error. The proper inquiry is whether the instruction was erroneous,

whether it was obviously so, and whether it likely affected the outcome of the

proceeding.” (Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 712

(9) (b) (733 SE2d 280) (2012).

2 The State’s request to charge stated that the jury could consider the evidence for the limited purposes of showing the defendant’s bent of mind, and course of conduct in the charged crimes. Rhodes’s request to charge stated that the jury could consider the evidence for the limited purpose of showing the defendant’s state of mind, e.g., knowledge or intent in the charged crimes.

6 Rhodes failed to show plain error. Contrary to Rhodes’ argument, the charge

in this case in not virtually identical to the charge in Rivers v. State, 236 Ga. App. 709

(513 SE2d 263) (1999). The similar transaction charge in Rivers impermissibly

expanded the limited purposes for which similar transaction evidence can be used by

informing the jury that it could consider the similar transaction evidence for the

“purpose of showing the crimes charged in the case, and in considering an element

of the offense charged in the indictment.” Id. at 712 (1) (b). The charge in this case

properly instructed the jury that similar transaction evidence may be considered for

the limited purpose of showing the defendant’s bent of mind or course of conduct in

the charged crimes. See Jordan v. State, 230 Ga. App. 560, 561-562 (497 SE2d 48)

(1998) (holding that trial court properly charged jury that it could consider similar

transaction for limited purpose of showing defendant’s state of mind, lustful

disposition or course of conduct.)

3. Rhodes contends that his trial counsel was constitutionally deficient.

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 SC 2052, 80 LE2d 674] (1984). If an appellant fails to

7 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. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

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

(729 SE2d 442) (2012).

(a) Rhodes contends that his trial counsel was ineffective for failing to properly

object to the admissibility of the DNA evidence. We discern no error.

Rhodes argues that trial counsel’s objection to the DNA results and

conclusions, based on a gap in the chain of custody of the evidence, was incomplete

because the buccal swabs were not handled in a routine manner. However, he does

not point to any evidence supporting his claim.

“The chain of custody rule concerns itself with fungible evidence. To show a

chain of custody adequate to preserve the identity of fungible evidence, the State must

prove with reasonable certainty that the evidence is the same as that seized and that

8 there has been no tampering or substitution.” (Citations and punctuation omitted.)

Hines v. State, 307 Ga. App. 807, 809 (2) (706 SE2d 156) (2011). Here, the State

established the chain of custody of the DNA evidence. The investigator who collected

and sealed the buccal swabs (“samples”) from the victim, the victim’s son and

Rhodes, testified that he took the sealed DNA samples to the State crime lab. The

investigator identified the samples at trial, and the State admitted the samples into

evidence without objection. A forensic biologist from the State crime lab stated that

he received the sealed samples. The samples for each individual were submitted in

separate envelopes sealed with tamper-proof tape. The envelopes were marked by the

agency that collected them, and each envelope received a unique bar code and case

number upon arrival at the crime lab. The forensic biologist identified the samples at

trial as the sealed samples he received, opened and tested, and he stated that there was

no evidence of tampering with the samples. Consequently, there is no evidence to

support Rhodes’s claim that the DNA evidence was handled in an irregular manner.

Moreover, trial counsel did not testify at the hearing on Rhodes’s motion for

a new trial. Where trial counsel does not testify at the motion for a new trial hearing,

it is extremely difficult to overcome the presumption that his performance was

reasonable. See Fields v. State, 311 Ga. App. 528, 530 (1) (716 SE2d 587) (2011).

9 Because counsel did not testify at the new trial hearing, Rhodes has not over come the

presumption that trial counsel’s failure to interpose a more complete objection or

further objections to the chain of custody of the DNA evidence fell outside the wide

range of reasonable professional conduct. See Fields, supra, 311 Ga. App. at 531 (1).

(b) Rhodes also contends that trial counsel was deficient for failing to request

and receive expert assistance with the State’s DNA evidence, and for failing to move

for independent testing of the DNA evidence. Again we discern no error.

Notwithstanding Rhodes’s argument that he would have been acquitted if trial

counsel had requested independent testing of the DNA evidence, he presented no

evidence showing that the State’s DNA evidence was defective. See Lanier v. State,

288 Ga. 109, 111 (3) (a) (702 SE2d 141) (2010). Furthermore, the DNA evidence in

this case was not the sole link between Rhodes and the crimes at issue. See Williams

v. State, 284 Ga. 849, 852 (3) (672 SE2d 619) (2009). Notably, the victim testified

that Rhodes forced her to perform oral sex and had sexual intercourse with her several

times per week, and the victim reported that Rhodes had been molesting her and that

he was the father of her child. Rhodes’s baseless speculation regarding the potential

for a different DNA test result than the one which the State introduced at trial did not

10 constitute a showing of professionally deficient performance by trial counsel. For

these reasons, the judgment is affirmed.

Judgment affirmed. Ray and Branch, JJ., concur.