Viers v. State

693 S.E.2d 526, 303 Ga. App. 387, 2010 Fulton County D. Rep. 821, 2010 Ga. App. LEXIS 202
CourtCourt of Appeals of Georgia
DecidedMarch 8, 2010
DocketA09A2293
StatusPublished
Cited by3 cases

This text of 693 S.E.2d 526 (Viers 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
Viers v. State, 693 S.E.2d 526, 303 Ga. App. 387, 2010 Fulton County D. Rep. 821, 2010 Ga. App. LEXIS 202 (Ga. Ct. App. 2010).

Opinion

693 S.E.2d 526 (2010)

VIERS
v.
The STATE.

No. A09A2293.

Court of Appeals of Georgia.

March 8, 2010.

*528 Irvin S. Viers, pro se.

Brian M. Rickman, Dist. Atty., for appellee.

DOYLE, Judge.

Following a jury trial,[1] Irvin S. Viers was convicted of aggravated sexual battery[2] and cruelty to a child.[3] Viers appeals pro se, arguing that the evidence was insufficient to support the aggravated sexual battery conviction and that he received ineffective assistance of counsel. We affirm, for reasons that follow.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury's verdict, is sufficient under Jackson v. Virginia.[4] We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[5]

So viewed, the evidence shows that on May 9, 2001, Viers and his wife, Terena, brought their two-and-a-half-year-old daughter, HV, to the emergency room at Habersham County Medical Center. Viers was carrying the child, who was wrapped in a blanket. When Wendy Blackwell, the treating nurse, asked Viers what had happened to HV, he told her that the child "had fallen down some steps" approximately half an hour before and that "[s]he [had] no broken bones, but she [was] bleeding from her vaginal area." HV was naked under the blanket with a white bath towel between her legs. She had grass and twigs in her perineal and groin area, but none in her hair, which was wet. Blackwell observed multiple bruises and marks on HV's abdomen, upper arms, upper torso, and upper thighs, some of which appeared to be old and healing, while others were fresh; Blackwell noted that some of the bruises were in the shape of a hand print. There were no bruises or marks on HV's face, arms, lower legs, or shoulders. Blackwell also observed a five- to six-centimeter laceration on HV's perineal area that was bleeding, along with multiple smaller lacerations to the right of her vaginal area and multiple small lacerations on her mid-chest area extending to her upper thighs. While at the hospital, in addition to his initial claim that HV fell down some steps, Viers also told Blackwell that she fell out of a window and that a dog had her groin in his mouth when he and Terena found the child. Terena told Blackwell that HV had rolled down a hill.

The police tested HV's car seat and found traces of blood, which matched HV's DNA. They also found blood in the bathroom of the house where HV was injured. The diaper that HV was wearing immediately before she went to the hospital had holes in it and was dirty and ripped. HV's clothes, which the Viers turned in to the hospital, were wet and the pants had holes in them in the bottom; the clothing did not test positive for blood, however.

*529 The authorities interviewed Terena, who gave a statement indicating that she found HV outside, quiet, naked, and bleeding, and that a dog was licking the toddler between her legs. Terena stated that HV rode to the hospital in Viers's lap instead of in her car seat. According to Terena, Viers washed the car seat while HV was being treated at the hospital. Terena also admitted to the police that she struck HV with her hand and a hickory switch because she was angry with her.

Law enforcement also interviewed Viers, who stated that he thought HV fell off the porch into the bushes; Viers also suggested that perhaps a stranger injured HV. According to one investigator, Viers stated that he washed HV's car seat while she was in the hospital, and this assertion was confirmed by another investigator.

Dr. Roger Pitt, the pediatric surgeon who performed corrective surgery on HV's perineum, testified that she had multiple diffuse bruises on her trunk extending down onto her legs and superficial lacerations. HV also had an injury to her perineal area, between her vagina and anal opening, which was caused by significant force. Dr. Pitt testified that HV's injuries were not consistent with a fall from the porch depicted in photographs, and he did not believe that her injuries were caused by a dog. Dr. Pitt opined that her injuries were consistent with abuse and could have been caused by repeated penetration with a stick. He also stated that the circular bruises on HV's right leg were consistent with a stick being used to punch at her upper thigh. On cross-examination, Dr. Pitt conceded that HV's injuries could have been caused "by a significant straddle injury," and stated that some of her lacerations were "consistent with a hickory [switch] being used . . . across her torso, across her buttocks, across her back."

Dr. Steven Dunton, a forensic pediatrician who examined HV at Children's Healthcare of Atlanta the day after surgery on her perineum, testified that he observed lacerations in HV's anus. When questioned about the cause of the child's injury, Dr. Dunton testified as follows:

Did a dog bite cause this? The answer is no. Did a fall down the steps cause this? The answer is no. Did a fall into bushes cause this? I very much doubt it. The possibility remains that this child may have received what is called a straddle injury, where a child falls, and you typically see it on a playground or under a bicycle or something like that, where that area between the genitalia and the anus strikes something hard and can bruise or lacerate the skin. I was not supplied a history that would suggest that a straddle injury had happened, but I cannot rule it out.

According to Dr. Dunton, HV's injuries were consistent with sexual abuse and insertion of a stick into her anus.

Dr. Nancy Aldridge met with HV six times and conducted a forensic evaluation of the child. During the interviews, HV indicated that she had "boo-boos" on various parts of her body, indicating on dolls that they were on her arms, abdomen, buttocks, and vaginal and genital areas. HV told Dr. Aldridge that her "da-da" caused the boo-boo in her vaginal area.[6] When Dr. Aldridge asked her what her father had used to hurt her, HV replied that he used a stick from the front yard on one occasion and a bat at another time. According to Dr. Aldridge, HV indicated that her vaginal injury occurred after she had a dirty diaper.

HV's foster father, Dennis Abercrombie, testified that HV seemed afraid of men and tentative around women. She also had frequent nightmares and would become hysterical after soiling her diaper. On one occasion, while looking at photographs of her family, HV volunteered that "Daddy hurt [her] boo-boo."

Viers testified that he was at his sister-in-law's house when Terena yelled that HV was bleeding. Viers ran outside, where he found HV on the ground on her side, with the dog leaning over her. HV's pants were pulled down to her knees, and she was "kicking, propelling herself away from the dog." The Viers rushed HV to the hospital, with Viers holding her in the back seat; he took off *530 HV's clothes in the car so he could examine her injuries. Viers testified that HV had grass in her hair, but he pulled it all out on the way to the hospital.

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

Related

Irvin Shay Viers v. Warden
605 F. App'x 933 (Eleventh Circuit, 2015)
St. Louis v. State
763 S.E.2d 126 (Court of Appeals of Georgia, 2014)
Kelly v. State
722 S.E.2d 175 (Court of Appeals of Georgia, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
693 S.E.2d 526, 303 Ga. App. 387, 2010 Fulton County D. Rep. 821, 2010 Ga. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viers-v-state-gactapp-2010.