Hunter v. State

638 S.E.2d 804, 282 Ga. App. 355, 2006 Fulton County D. Rep. 3513, 2006 Ga. App. LEXIS 1391
CourtCourt of Appeals of Georgia
DecidedNovember 9, 2006
DocketA06A1568
StatusPublished
Cited by6 cases

This text of 638 S.E.2d 804 (Hunter 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
Hunter v. State, 638 S.E.2d 804, 282 Ga. App. 355, 2006 Fulton County D. Rep. 3513, 2006 Ga. App. LEXIS 1391 (Ga. Ct. App. 2006).

Opinion

Barnes, Judge.

On appeal from his conviction for child molestation and aggravated child molestation, Curtis Hunter argues that the evidence was insufficient, that the trial court mishandled voir dire and a juror’s dismissal, that the State improperly bolstered witnesses’ testimony and argued Hunter’s future dangerousness, and that trial counsel was ineffective. We find no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on May 19, 2003, an eleven-year-old girl told two school counselors that Hunter, the girl’s mother’s boyfriend at the time, had repeatedly over a period of months put his mouth on the girl’s vagina and forced her to put her mouth on his penis. When the victim first recounted the molestation, she began to cry so hard that both counselors thought she was going to throw up. Hunter had given the victim money and gifts to entice her to continue the sexual activity. The victim repeated her allegations to two police officers and at least one other adult.

*356 In the months before the victim’s outcry, Hunter began giving money to the victim’s cousin, telling her not to tell anyone else about the gifts. When the first victim found out about these gifts, she feared that Hunter was molesting her cousin as well, and asked her what she had to do to get the money. During a Mother’s Day party at his home, Hunter played a sexually explicit video for both girls in his bedroom while he stood watch outside, instructing them to turn off the video if he signaled them to do so. Hunter was later convicted of two counts each of child molestation and aggravated child molestation and sentenced to twenty years with fifteen to serve. His motion for new trial was denied.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. Williams v. State, 261 Ga. App. 793, 794 (1) (584 SE2d 64) (2003). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Having reviewed the record, we find that the evidence was sufficient to sustain Hunter’s conviction for child molestation and aggravated child molestation. OCGA§ 16-6-4 (a), (c); Jackson, supra.

2. Hunter asserts that the trial court erred when it posed certain questions to the jurors concerning the State’s efforts in prosecuting child molestation charges and when it dismissed a juror after she realized that she knew the second victim. Hunter failed to object to either the questions or the dismissal, however, and has thus waived both issues on appeal. Primas v. State, 231 Ga. App. 861, 862 (2) (501 SE2d 28) (1998) (failure to object to voir dire questions); Worthy v. State, 223 Ga. App. 612, 614 (1) (478 SE2d 421) (1996) (failure to state grounds of objection to dismissal of juror). We have reviewed the record, moreover, and find that there was nothing improper, let alone an abuse of discretion, in the trial court’s questions or comments. See Walker v. State, 214 Ga. App. 777, 779 (3) (449 SE2d 322) (1994) (no abuse of discretion in trial court’s handling of defendant’s proposed voir dire question); Worthy, supra, 223 Ga. App. at 614 (1) (no error in trial court’s dismissal of juror or in its explanation of the event to the jury).

3. Hunter also argues that (a) the State should not have been allowed to refresh one of its witnesses’ recollection with a police report and (b) the State improperly bolstered the credibility of the first victim when it asked her mother whether the victim had made accusations against the mother’s new boyfriend. We reject these contentions.

*357 (a) It is true that under OCGA § 24-9-69, a witness whose memory is refreshed with a document must continue her testimony on the basis of recollection alone. This was not the basis for Hunter’s objection below, however. There, he argued that the police report was improperly used because it was not prepared by this particular witness. “Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.” Waugh v. State, 218 Ga. App. 301, 304 (5) (460 SE2d 871) (1995). Moreover, as the trial court ruled, a witness’s memory may indeed be refreshed by a document prepared by someone else. See Penland v. State, 258 Ga. App. 659, 661 (2) (574 SE2d 880) (2002). There was no error here.

(b) In response to Hunter’s claim that the victim’s accusations against Hunter were motivated by her jealousy of his relationship with her mother, the State asked the mother whether the victim had ever accused her present boyfriend of a molestation. Hunter did not object to the question, and the mother replied in the negative. Here, the State was eliciting testimony for the purpose of refuting one of Hunter’s claims. Again, Hunter failed to object, and has thus waived the issue on appeal. Carr v. State, 259 Ga. 318, 320 (1) (380 SE2d 700) (1989). Even if Hunter had objected, the Supreme Court of Georgia has held that when a defendant has attacked a witness’s credibility, that witness’s availability for cross-examination obviates any inquiry into bolstering. See Edwards v. State, 255 Ga. 149, 151 (2) (335 SE2d 869) (1985); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). There was no error here.

4. Hunter next argues that the State made impermissible references to his future dangerousness when it argued to the jury that “you can protect the children right now, the buck stops here,” that given Hunter’s efforts to “groom” a second victim for future molestation, “only you can make it stop,” and that “with your verdict, you really can send a message.” Trial counsel objected to this line of argument on the ground that “the jury’s job is not to send a message to anybody,” but the trial court overruled the objection.

If and when a prosecutor’s comments are improper, the grant of a mistrial for improper argument is a matter largely within the trial court’s discretion. Pace v. State, 271 Ga. 829, 841 (27) (524 SE2d 490) (1999). We have held, however, that “[i]t is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.” (Citation and punctuation omitted.) Jowers v. State, 272 Ga. App. 614, 617 (2) (613 SE2d 14) (2005) (no error when State requested jury to send a message to the people of Columbus that violence would not be tolerated).

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Bluebook (online)
638 S.E.2d 804, 282 Ga. App. 355, 2006 Fulton County D. Rep. 3513, 2006 Ga. App. LEXIS 1391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-state-gactapp-2006.