Granger v. State

740 S.E.2d 313, 320 Ga. App. 580, 2013 Fulton County D. Rep. 980, 2013 WL 1136998, 2013 Ga. App. LEXIS 235
CourtCourt of Appeals of Georgia
DecidedMarch 20, 2013
DocketA12A2466
StatusPublished
Cited by5 cases

This text of 740 S.E.2d 313 (Granger 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
Granger v. State, 740 S.E.2d 313, 320 Ga. App. 580, 2013 Fulton County D. Rep. 980, 2013 WL 1136998, 2013 Ga. App. LEXIS 235 (Ga. Ct. App. 2013).

Opinion

RAY, Judge.

Having been convicted of statutory rape1 and child molestation2 for having sexual contact with his then fourteen-year-old niece, appellant Carey Lee Granger appeals and seeks a new trial, contending that his lawyer was ineffective, and that his case was prejudiced by (1) his lawyer’s failure to object to unfair bolstering of the victim’s testimony at trial and to improper argument put forth by the prosecutor during the closing arguments, and (2) the admission into evidence of statements made by Granger while on the phone in the police investigation room, in which he used an offensive, derogatory term. As we believe that Granger received effective legal representation and that the alleged errors, if any, were harmless, we affirm.

Construed in the light most favorable to the verdict of the jury,3 the evidence shows that in July 2009 that T. G., the 14-year-old female victim, was visiting family in Georgia and staying at her aunt’s home. Granger, who was then 25 and is T. G.’s uncle,4 came to visit her. Granger ended up staying over for the night, and he and T. G. fell asleep side by side on a couch while watching television.

What happened next was disputed at trial. T. G. claims that during the evening she awoke to Granger touching her. She contends [581]*581that she told him to stop, but that he refused and threatened to hurt her if she screamed. Granger then pulled down her pants and “gently placed” his lips on her private area; pulled out his penis and put it in her private area; forced his penis inside her vagina until she “jumped back”; and pulled out his penis and demanded that she “stroke” it, at which time he ejaculated on her stomach. T. G. claimed that she did as she was told, due to his threats and out of fear that Granger would harm her if she did not. Afterward, T. G. claimed that Granger gave her a blue towel and told her to clean up the semen, which she did. Granger purportedly fell asleep thereafter.

Granger admits to having sexual contact with his niece, but claims that it was all initiated by T. G. He testified that T. G. asked him several times if he had a condom, as she wanted a condom to use with him and wanted to “get some.” She asked him to kiss her, which he refused, and she then started touching his chest and stomach. He claims that T. G. then unbuckled his pants, began touching his penis, and masturbated him. Granger claimed T. G. asked him to ejaculate on her stomach, which he did. Granger denied, however, performing any oral sex on T. G. or having sexual intercourse with her.

Upon learning the next morning of T. G.’s allegations that she had been raped by Granger, her aunt called the police, and T. G. was then taken to the hospital where a sexual assault examination was performed. A nurse testified that the evaluation revealed that T. G.’s vagina was torn and bleeding, and she also testified as to her interpretation of T. G.’s demeanor, stating on direct examination that the victim was “very shocked, very withdrawn by what had occurred.” When asked to explain this, the nurse testified that “she was not kidding with us.”

Granger was taken to the police headquarters for an interview. Although he invoked his right to counsel, thus stopping the questioning, he was recorded in the interview room some time later having a phone conversation on his cell phone with an unidentified person, wherein Granger said, “for like five minutes nigger . . . and then I stopped.” Both the nurse’s statements about T. G.’s demeanor during the hospital examination and Granger’s statement during his phone conversation were admitted at trial, without objection.

Granger faced trial on six charges: rape, aggravated child molestation, incest, sodomy, statutory rape, and child molestation. The trial court directed a verdict on the incest charge, and the jury acquitted Granger on the rape, aggravated child molestation and sodomy charges. He was convicted of only statutory rape and child molestation, for which he was sentenced to a total of 40 years, 15 to serve and 25 years on probation. It is from this conviction that Granger appeals.

[582]*5821. Granger claims that his trial counsel was ineffective for failing to object to improper bolstering of T. G. through the nurse’s testimony and for failing to move for a mistrial. We disagree.

In explaining T. G.’s demeanor upon arriving at the hospital, the nurse testified that she “could tell that [T. G.] was not kidding with us.” Granger correctly points out:

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 circumstance may a witness’ credibility be bolstered by the opinion of another as to whether the witness is telling the truth.5

In cases involving sexual offenses, where the victim’s and the defendant’s credibility are at issue, which is often the case, a defendant might have his conviction reversed if there has been improper bolstering.6

Yet, to prevail on an ineffective assistance of counsel claim, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington.7 Thus, Granger “must show that [his] counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for the counsel’s errors, the outcome of trial would have been different.”8 If an appellant fails to meet either prong of this test, the reviewing court need not examine the other prong.9 When reviewing a claim of ineffective assistance of counsel, this Court will not contest a trial court’s finding of effective assistance of counsel unless it was clearly erroneous.10 This claim was presented to the trial court within Granger’s motion for new trial, and it was denied. Bearing these principles in mind, we find no merit to Granger’s claim.

Pretermitting whether the nurse’s testimony constituted an improper bolstering of T. G.’s credibility, it was hardly beneficial to the State or harmful to Granger, as he was acquitted by the jury of rape, aggravated child molestation, and sodomy. Thus, the jury obviously accepted Granger’s contention that he had not had forced [583]*583sexual intercourse with T. G., that he had not performed oral sex upon her, and that he had not physically injured her (in the process of performing sodomy upon her), thus concluding that T. G. was not credible as to the allegations supporting these charges. While Granger was convicted of both statutory rape and child molestation, independent evidence other than T. G.’s testimony provided support for these charges, namely Granger’s own testimony that he allowed her to masturbate him, the physical evidence that T. G.’s vagina was torn and bleeding, and the presence of his DNAon swabs which collected bodily fluid from T. G.’s vaginal area. Support can also be found in the circumstantial evidence of Granger’s comments captured on the video recording, which is discussed in Division 3, infra.11

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Bluebook (online)
740 S.E.2d 313, 320 Ga. App. 580, 2013 Fulton County D. Rep. 980, 2013 WL 1136998, 2013 Ga. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granger-v-state-gactapp-2013.