Wadley v. State

730 S.E.2d 536, 317 Ga. App. 333, 2012 Fulton County D. Rep. 2424, 2012 WL 2849855, 2012 Ga. App. LEXIS 658
CourtCourt of Appeals of Georgia
DecidedJuly 12, 2012
DocketA12A0445
StatusPublished
Cited by3 cases

This text of 730 S.E.2d 536 (Wadley 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
Wadley v. State, 730 S.E.2d 536, 317 Ga. App. 333, 2012 Fulton County D. Rep. 2424, 2012 WL 2849855, 2012 Ga. App. LEXIS 658 (Ga. Ct. App. 2012).

Opinion

Barnes, Presiding Judge.

Following the denial of his plea in bar asserting double jeopardy, Vincent Wadley appeals and contends that the trial court erred in overruling his objection to the child’s hearsay testimony, denying his' motion for directed verdict, and in failing to grant his motion for new trial on sufficiency grounds. He further contends that the trial court erred in denying his plea in bar, and asserts that the trial court erred [334]*334in finding that the Child Hearsay Statute permitted the introduction of testimony from a child witness who did not testify at trial, that the evidence was sufficient, and that there was no prosecutorial misconduct. Wadley also contends that the trial court erred in denying his motion for bond.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Leonard v. State, 275 Ga. App. 667, 667-668 (621 SE2d 599) (2005).

The record reveals that on May 24, 2010, following a jury trial, Wadley was convicted of one count of child molestation. Thereafter, his trial counsel filed a motion to disqualify the trial judge from further proceedings in Wadley’s case and several other pending cases. The motion was granted, as to Wadley’s case only, based on evidence of the judge’s “bias, prejudice or a systematic pattern against defense counsel.” Wadley then filed a motion for new trial claiming multiple errors, including the trial judge’s bias, the sufficiency of the evidence, and that the child’s hearsay evidence was inadmissible.

The trial court granted Wadley a new trial on the basis that the actions by the trial court exhibited bias, that the trial court had commented on the evidence in the presence of jurors as prohibited by OCGA § 17-8-57, and that over Wadley’s objection, the trial court had held a hearing on sealed Department of Family and Children Services (“DFACS”) records without him being present, presumably as an in camera inspection under OCGA § 49-5-41 (a) (2). The trial court specifically rejected Wadley’s arguments as to the sufficiency of the evidence and the admissibility of certain hearsay under the Child Hearsay Statute.

Facing a second trial, Wadley filed a “Plea in Bar and Motion to Dismiss Indictment with Prejudice Based on Double Jeopardy, Prosecutorial Misconduct and Other Misconduct of the State,” challenging, among other things, the sufficiency of the evidence and the admissibility of the child’s hearsay testimony. The trial court denied the motion, and Wadley appeals.

1. In several enumerations of error, Wadley contends that the evidence was insufficient to support his conviction. He asserts this error within the context of the denial on general grounds of his motion for directed verdict, motion for new trial, and plea in bar. He essentially argues that he cannot be retried because the evidence was insufficient to support his conviction. We do not agree.

“The Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Ricketts v. Williams, 242 Ga. 303 (248 SE2d 673) (1978). “[I]t makes no [335]*335difference whether the decision on the insufficiency of the evidence is made by the trial court or the reviewing court. The result is the same. . . .” Id. at 303-304. However, “[a]s a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial.” State v. D’Auria, 229 Ga. App. 34, 35 (492 SE2d 918) (1997). Thus, if “the evidence meets the standard of Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)] the case may be retried.” Lively v. State; 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

Under that standard, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citation omitted.) Prather v. State, 303 Ga. App. 374, 376 (1) (693 SE2d 546) (2010).

So viewed, the evidence shows that Wadley, an investigator with the Albany Police Department, had previously been in a relationship with the victim’s mother. The mother was reported to DFACS for leaving her three younger children alone and on March 10, 2008, a safety plan was developed to avoid a deprivation petition. Per the plan, Wadley, with whom the mother was no longer in a romantic relationship, agreed to keep the children, including the then-seven-year-old victim, during the weekends while the mother was working. The arrangement lasted until August and September 2008, during which time Wadley had entered a new relationship.

In September 2009, the victim told her sister that Wadley had “got [ten] on top of her.” When the sister told the mother what the victim said, the mother took her daughter into her room where the victim “laid [sic] on the bed and . .. moved up and down” to show her mother what Wadley did to her. The mother testified that she asked Wadley about the incident, but that he denied touching the victim. The mother told an acquaintance that “her ex-boyfriend had touched... one of her daughters” and that he was a policeman, after which the acquaintance reported the incident to an officer that he knew. The [336]*336acquaintance testified that he told the officer that a policeman with the Albany Police Department had “sexually assaulted a friend’s daughter” and that his friend had not reported the incident because she was afraid.

The officer reported the incident to his supervisor, and also spoke with the mother who “started crying” and told him that it had happened to the now nine-year-old victim. The victim told the forensic investigator who interviewed her that “[Wadley] took his clothes off, got on top of her as she was fully clothed [and]... moved his body up and down.” The victim said that Wadley rubbed his penis against her buttocks. Wadley was arrested and charged with one count of child molestation.

A person commits the offense of child molestation when he or she “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Here, there is competent evidence, even if contradicted, to support each element of this offense. See Chalker v. State, 281 Ga. App. 305, 308 (635 SE2d 890) (2006).

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.E.2d 536, 317 Ga. App. 333, 2012 Fulton County D. Rep. 2424, 2012 WL 2849855, 2012 Ga. App. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wadley-v-state-gactapp-2012.