Sims v. State

731 S.E.2d 105, 317 Ga. App. 420, 2012 Fulton County D. Rep. 2658, 2012 WL 3290017, 2012 Ga. App. LEXIS 724
Court of Appeals of Georgia·Decided August 14, 2012·No. A12A1142·Published·Cited by 7 cases

Opinion

Barnes, Presiding Judge.

A Henry County jury found Thomas Lincoln Sims guilty of two counts of child molestation,1 and the trial court denied his motion for new trial. In the first appearance of this case on appeal, we rejected several claims of error raised by Sims and affirmed his convictions, but remanded the case to the trial court for a hearing on his claims of ineffective assistance of counsel. See Sims v. State, 296 Ga. App. 368, 371-372 (3) (674 SE2d 392) (2009) (“Sims I").2 On remand, the trial court, after conducting an evidentiary hearing, concluded that Sims could not succeed on his ineffective assistance claims and thus was not entitled to a new trial on that basis. It is from that order that Sims now appeals. We affirm.

[421] In Sims I, 296 Ga. App. at 368-369, we summarized the record in this case:

Viewed in the light most favorable to the verdict, the record shows that on three separate occasions between January 1,2004, and August 31, 2004, Sims inappropriately touched his ten-year-old stepdaughter B. H. while her mother was at church. B. H. testified that on two occasions, Sims came into her bedroom, wearing only his boxer shorts, and touched her breasts and vagina on top of her pajamas. The third time, Sims touched B. H.’s breasts and vagina under her clothing, and exposed himself to her. B. H. testified that the three incidents occurred at the home she shared with her mother, brother, and Sims, in Locust Grove, Henry County. B. H. also testified about two other encounters with Sims. On one occasion, B. H. was sitting on Sims’s lap driving his car down a dirt road when Sims unbuttoned her pants and “started messing with [the] lower part of [her] body.” On the other occasion, Sims took B. H. to a “bootleg house” in Spalding County, removed her clothing, and tried unsuccessfully to put his penis in her vagina. B. H. also described a sixth encounter with Sims, which occurred at her grandmother’s home in Lithonia, DeKalb County. B. H. told her mother[ ] . . . about the incidents and [her mother] called the police. When [B. H.’s mother] questioned Sims about the incidents, Sims told her that he did it and then turned himself in to police.
As similar transaction evidence, the [S]tate introduced the testimony of Sims’s biological daughter, S. S., who testified that on more than one occasion in 1991, when she was eight or nine years old, Sims touched her vagina with his hands and penis, and had intercourse with her. S. S. testified that she contracted a sexually transmitted disease from her father. Sims pled guilty to one count of child molestation involving S. S. and was sentenced to twelve years (the [S] tate nolle prossed a charge of aggravated child molestation).

(Footnote omitted.)

In the current appeal, Sims maintains that the trial court should have granted his motion for new trial because his trial counsel rendered ineffective assistance in several respects. To succeed on an ineffective assistance of counsel claim under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), “[Sims] must prove both that his trial counsel’s [422] performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007) . If Sims fails to establish either prong of the Strickland test, he cannot prove ineffective assistance, and we need not analyze the other prong. Id. at 771-772 (2). In reviewing a trial court’s ruling on an ineffective assistance claim, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003). Mindful of this framework, we turn to Sims’s specific claims of ineffective assistance.

1. Sims first contends that his trial counsel was ineffective for failing to request a contemporaneous limiting instruction on similar transaction evidence when the State introduced the testimony of his biological daughter, S. S., who testified that Sims had molested her when she was eight or nine years old. We disagree.

Sims’s trial counsel testified at the hearing on the motion for new trial that he did not ask for a contemporaneous limiting instruction on similar transaction evidence because he wanted to “try to draw the least amount of attention to it as possible.” “An attorney’s decision not to seek a limiting instruction to avoid drawing attention to the subject of the instruction is a matter of trial strategy that falls within the range of reasonable professional conduct when, as here, it is a reasonable decision.” Ford v. State, 290 Ga. 45, 49 (5) (d) (717 SE2d 464) (2011). Hence, Sims cannot show that his counsel was deficient for declining to ask for a contemporaneous limiting instruction.

Furthermore, the trial court gave a limiting instruction on similar transaction evidence in its final charge to the jury. Thus, even if counsel had been deficient in failing to request a contemporaneous instruction, Sims cannot show that but for this deficiency, there is a reasonable probability that the trial result would have been different. See Breazeale v. State, 290 Ga. App. 632, 634 (3) (660 SE2d 376) (2008) ; Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d 100) (2005).

Sims contends that the prejudice caused by his trial counsel’s failure to request a contemporaneous limiting instruction was greater than in cases like Copeland, given that S. S. was called as the State’s first witness, and further details about the similar transaction were ; elicited from a police investigator during cross-examination. We are unpersuaded. The jury was fully apprised of the evidentiary principles applicable to similar transaction evidence at the conclusion of [423] the case immediately before its deliberations, and this was sufficient to cure any potential confusion caused by trial counsel’s failure to obtain a limiting instruction when S. S. and the investigator testified about the similar transaction. It follows that Sims cannot prove his claim of ineffective assistance.

2. Sims next argues that his trial counsel was ineffective in his cross-examination of the police investigator assigned to the case. According to Sims, his counsel opened the door during cross-examination for the investigator to emphasize how Sims’s prior molestation of S. S. was similar to and corroborated B. H.’s allegations of molestation. Sims asserts that the investigator’s testimony elicited by his trial counsel was highly damaging because it amplified for the jury the similarity between the incidents of molestation “over and above” what had been shown through the testimony of S. S.

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Sims v. State, 731 S.E.2d 105, 317 Ga. App. 420, 2012 Fulton County D. Rep. 2658, 2012 WL 3290017, 2012 Ga. App. LEXIS 724 (Ga. Ct. App. 2012).

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