Gaston v. State

731 S.E.2d 79, 317 Ga. App. 645, 2012 Fulton County D. Rep. 2640, 2012 WL 3240819, 2012 Ga. App. LEXIS 712
CourtCourt of Appeals of Georgia
DecidedAugust 7, 2012
DocketA12A0962
StatusPublished
Cited by17 cases

This text of 731 S.E.2d 79 (Gaston 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
Gaston v. State, 731 S.E.2d 79, 317 Ga. App. 645, 2012 Fulton County D. Rep. 2640, 2012 WL 3240819, 2012 Ga. App. LEXIS 712 (Ga. Ct. App. 2012).

Opinion

McFadden, Judge.

After a jury trial, Melvin Gaston was convicted of child molestation, aggravated child molestation, and aggravated sexual battery against R. C., who was his girlfriend’s minor daughter. The trial court allowed R. C.’s father to give testimony that improperly bolstered her credibility, over the defense’s objection and without a curative instruction or other corrective action. This was reversible error. There is no [646]*646merit, however, in Gaston’s arguments that the evidence was insufficient to support his convictions or that certain of his convictions must be merged for sentencing purposes. Finally, in light of our reversal of the convictions in this case, we do not address Gaston’s argument that he received ineffective assistance of trial counsel.

Viewed in the light most favorable to the verdict, see Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004), the evidence showed that R. C. lived with her father in Texas and visited her mother in Georgia several times a year. R. C. visited her mother during the summer of 2006, when she was seven years old. One evening during that visit, Gaston, who was babysitting R. C., followed the girl into the bedroom of her mother’s apartment, pushed her onto the bed, pulled down her pajama pants, and licked her genitals. R. C. told her mother what had happened as soon as the mother returned to the apartment, but the mother did nothing other than to talk to Gaston.

Upon returning to Texas at the end of the summer, R. C. told first her childcare provider and then her father what had happened. She also wrote and illustrated a story at school related to the incident. R. C. attended therapy sessions with a counselor, to whom she described the incident. She began biting her nails and having nightmares, and her grades at school fell. Although R. C.’s father contacted the police and an investigation was begun in Georgia, the investigation later was suspended with no action taken against Gaston.

While visiting her mother during the summer of2008, R. C., then nine years old, began sleeping in her mother’s bedroom because she was afraid of some spiders she had seen in her own bedroom. Gaston was staying at the mother’s apartment as well, and R. C. would sleep in the bed with her mother and Gaston. One night she awoke to feel Gaston’s hand between her legs, touching her beneath her pajamas and underwear. She spoke to Gaston, and he removed his hand. The next morning she told her mother what had happened, but her mother did nothing other than to say “okay.” A few nights later, R. C. again awoke to feel Gaston’s hand under her pajamas and underwear and his finger on and inside her vagina. She spoke to him, and he stopped. Again, R. C. told her mother the following morning, and again her mother did nothing other than to say “okay.”

Sometime during the fall of 2008, after R. C. returned to Texas, she revealed to relatives that Gaston had touched her inappropriately during her summer visit to Georgia. At the relatives’ urging, R. C. then told her father what had occurred. R. C. did not return to Georgia to visit her mother after the summer of 2008.

After learning of the 2008 incidents, R. C.’s father contacted the police, and an investigation was begun. As a part of the investigation, R. C. was interviewed by a child forensic interviewer in January 2009. [647]*647In that interview, R. C. described what had occurred in 2006 and 2008. Two years later, R. C. gave another interview to the child forensic interviewer, focusing on the specific time frame during which the incidents occurred.

R. C. continued to see her therapist after the summer of 2008, and she told her therapist about the sexual abuse. During therapy, she drew pictures and created artwork related to the incident. The therapist testified that R. C. manifested symptoms of sexual abuse such as having nightmares and flashbacks, exhibiting hypersensitivity, and expressing the need to keep all of the doors in the house closed.

1. Gaston argues that the court improperly allowed testimony that invaded the jury’s province as the arbiter of witness credibility and amounted to improper bolstering of R. C. We agree.

During the state’s direct examination of R. C.’s father, the following exchange occurred over the objections of Gaston’s counsel:

Q. . . . [Wjhen [R. C.] told you that she had been sexually molested by Melvin Gaston in 2006, did you believe her?
A. Yes.
Q. What was the answer [?]
A. Yes.
Q. You believed her, but then you sent her back in 2007 and 2008?
A. Yes.
Q. And why did you do that?
A. I was told to.
Q. Do you regret that decision?
A. I regret it.
Q. When [R. C.] told you that she had been molested by Melvin Gaston twice in 2008, did you believe her?
A. Yes.

The court overruled Gaston’s contemporaneous objections to this testimony. It also denied Gaston’s later motion for mistrial based on this testimony and declined to give a curative jury instruction.

The credibility of a witness, including a victim witness, is a matter for the jury’s determination under proper instruction from the court. It is well established that in no circum[648]*648stance may a witnesses] credibility be bolstered by the opinion of another... as to whether the witness is telling the truth.

(Citations and punctuation omitted.) Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995); see OCGA § 24-9-80. The state argues that the father’s testimony that he believed R. C.’s 2006 and 2008 outcries did not bolster her credibility because the testimony concerned his state of mind rather than the girl’s truthfulness. This is not a meaningful distinction. See Bly v. State, 283 Ga. 453, 459 (3) (660 SE2d 713) (2008) (witness’s testimony was improper bolstering where it “was necessarily predicated upon [his] belief in the veracity of [victim’s] statements to him as repeated by [victim] at trial”); Gooden v. State, 316 Ga. App. 12, 14 (1) (728 SE2d 693) (2012) (pediatrician’s testimony that he believed victim had told him the truth about being sexually assaulted by her father was improper bolstering). “Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim.” (Citation omitted.) Buice v. State, 239 Ga. App. 52, 55 (2) (520 SE2d 258) (1999).

The state argues that Gaston should be precluded from objecting to the impermissible bolstering because, during opening statements, his counsel raised the issue of whether the father believed R. C. by questioning the father’s decision to send the girl back to Georgia after her 2006 outcry. Specifically, the state points to the following assertion by Gaston’s counsel: <cYou’re going to hear from . . . the child’s father. And [the prosecutor] is saying that [the father] felt he had to send the child back.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People of Guam v. Derick James Simmons
2025 Guam 13 (Supreme Court of Guam, 2025)
Rene Flores-Avila v. State
Court of Appeals of Georgia, 2025
Joseph Wayne Collins v. State
Court of Appeals of Georgia, 2021
Thomas Edward Zerbarini v. State
Court of Appeals of Georgia, 2021
Ronnie Antwan Stone v. State
Court of Appeals of Georgia, 2021
Randall Hogg v. State
Court of Appeals of Georgia, 2020
Jonathan Chitwood v. State
Court of Appeals of Georgia, 2019
WIMBUSH v. the STATE.
812 S.E.2d 489 (Court of Appeals of Georgia, 2018)
Cecil Ray Wright v. State
Court of Appeals of Georgia, 2014
Wright v. State
760 S.E.2d 661 (Court of Appeals of Georgia, 2014)
Carey Granger v. State
Court of Appeals of Georgia, 2013
Granger v. State
740 S.E.2d 313 (Court of Appeals of Georgia, 2013)
Jorris Nemoy Alford v. State
Court of Appeals of Georgia, 2013
Alford v. State
738 S.E.2d 124 (Court of Appeals of Georgia, 2013)
Raul Lopez v. State
Court of Appeals of Georgia, 2012
Lopez v. State
735 S.E.2d 812 (Court of Appeals of Georgia, 2012)
Jones v. State
733 S.E.2d 407 (Court of Appeals of Georgia, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
731 S.E.2d 79, 317 Ga. App. 645, 2012 Fulton County D. Rep. 2640, 2012 WL 3240819, 2012 Ga. App. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaston-v-state-gactapp-2012.