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Case Summary: Flowers v. The State, A95A2263 (Court of Appeals of Georgia, Feb. 20, 1996)

Factual and Procedural Background

Johnny "Tico" Flowers was indicted on multiple sexual offenses: two counts of child molestation (OCGA § 16-6-4(a)), three counts of aggravated child molestation (OCGA § 16-6-4(c)), one count of incest (OCGA § 16-6-22), and two counts of sodomy (OCGA § 16-6-2). At trial (the second trial after a prior mistrial due to a hung jury), Flowers was convicted of three counts of sexual battery, one count of fornication, and three counts of aggravated child molestation. His motion for new trial was denied, and he appealed.

The victim, J.R., Flowers' stepdaughter, testified that the sexual contacts began when she was around ten, that vaginal intercourse began when she was around eleven and continued past age fourteen, and that anal intercourse and sodomy began when she was thirteen or fourteen and continued after age fourteen. A physician who examined J.R. testified that he found no pelvic abnormalities or scarring and that J.R. had been "sexually active." J.R. did not report the incidents until April 1992.

Legal Issues Presented

  1. Whether the evidence was sufficient to support the convictions under the Jackson v. Virginia standard.
  2. Whether the trial court erred by admitting expert testimony that bolstered the victim's credibility (testimony describing a "credibility enhancement technique").
  3. Whether the defendant was required to be present at the hearing on admission of similar transactions, and the consequences of his absence.
  4. Whether a videotape of the victim's statement was admissible under the Child Hearsay Statute, OCGA § 24-3-16, given the victim's age when the statement was made.
  5. Whether testimony about the victim's sexual conduct (to present an alternative explanation for penetration) was admissible under OCGA § 24-2-3.
  6. Whether the trial court erred in recharging the jury by instructing that sexual battery was a lesser included offense of child molestation.
  7. Whether the State proved the crimes occurred within applicable statutes of limitation and whether the trial court should have charged on limitations periods.
  8. Whether allegations of ineffective assistance of counsel warranted relief (noting the court's treatment of this claim in light of other errors).

Arguments of the Parties

Appellant's Arguments (Flowers)

  • The evidence was insufficient to convict him of the charged offenses.
  • The trial court erroneously admitted expert testimony that impermissibly bolstered the victim's credibility.
  • He was not present at the similar transactions hearing; his absence and counsel's waiver were improper because such a hearing may be evidentiary.
  • A videotape of the victim's statement was improperly admitted under the Child Hearsay Statute.
  • The court improperly excluded testimony regarding the victim's sexual conduct that could have offered an alternative explanation for penetration.
  • The trial court failed to properly recharge the jury and incorrectly stated that sexual battery was a lesser included offense of child molestation.
  • The State failed to prove the crimes occurred within the applicable statutes of limitation, and the trial court failed to charge the applicable limitations law.
  • Claims of ineffective assistance of counsel were raised (later deemed moot by the court in light of Division 2 error).

Appellee's Arguments (The State)

The opinion does not contain a detailed account of the State's specific legal arguments in opposition to each of Flowers's contentions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Royal v. State, 217 Ga. App. 459, 460 (458 S.E.2d 366) (1995) Reinforcement of the principle that weight and credibility of witnesses are questions for the triers of fact. Used to support the sufficiency analysis and to emphasize that credibility determinations are for the jury, not the appellate court.
Roberson v. State, 214 Ga. App. 208 (447 S.E.2d 640) (1994) Illustrates that evidence, though not overwhelming, may still be sufficient; also cited for the rule that an expert may not testify as to his opinion of the victim's truthfulness. Compared facts and credibility issues to Roberson to conclude the evidence could support conviction under Jackson; cited as authority that expert testimony about a victim's truthfulness is impermissible.
Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L.Ed.2d 560) (1979) Standard for reviewing sufficiency of the evidence: whether a rational trier of fact could find guilt beyond a reasonable doubt. The court applied the Jackson standard in Division 1 to determine the evidence was sufficient to support conviction.
Smith v. State, 259 Ga. 135, 138 (377 S.E.2d 158) (1989) Support for the proposition that an expert may not testify as to his opinion of the victim's truthfulness. Referenced as additional authority for excluding expert testimony expressing belief in victim's truthfulness.
Stamey v. State, 194 Ga. App. 305 (390 S.E.2d 409) (1990) Addressed testimony regarding "credibility patterns" of a young sexual abuse victim; in that case the testimony was found "offensive" but not dispositive because evidence was overwhelming. Court distinguished Stamey: noted it is a physical precedent only (three-judge division) and that the present case differs because the testimony here was a major focus and the evidence was not overwhelming.
Moss v. State, 216 Ga. App. 711, 713-714 (455 S.E.2d 411) (1995) Example where challenged testimony, even if objectionable, would not have changed a guilty verdict due to overwhelming evidence. Used to contrast the present case where the evidence was not overwhelming and expert testimony could have affected the verdict.
McGinnis v. State, 208 Ga. App. 354, 357 (430 S.E.2d 618) (1993) Guidance that a similar transactions hearing may be evidentiary and thus may require the defendant's presence. The court held Flowers' presence will be required at such a hearing on retrial unless he expressly waives it, citing McGinnis.
Williams v. State, 261 Ga. 640 (409 S.E.2d 649) (1991) Procedural guidance for determinations of admissibility of similar transaction evidence (referenced with Uniform Superior Court Rule 31.3). Cited in a footnote: the court made no ruling on admissibility but directed that the trial court should conduct the hearing in accordance with USCR 31.3 and Williams.
Gibby v. State, 213 Ga. App. 20, 22 (443 S.E.2d 852) (1994) Interpretation of "availability" of a child witness under the Child Hearsay Statute (child is "available" if physically available to appear at trial). Noted in connection with similar transactions evidence: if similar-transaction evidence is admissible, a child witness is "available" so long as physically able to appear at trial.
Cuzzort v. State, 254 Ga. 745 (334 S.E.2d 661) (1985) Hearsay concerns about videotaped statements may be satisfied if the declarant is under oath and subject to cross-examination. Applied to note that hearsay concerns regarding the videotape may be satisfied if J.R. is under oath and subject to cross-examination, although the court found the Child Hearsay Statute inapplicable here.
Shepherd v. State, 217 Ga. App. 893 (459 S.E.2d 608) (1995) Authority that sexual battery is not a lesser included offense of child molestation. The court held the trial court's recharge was incorrect to the extent it treated sexual battery as a lesser included offense of child molestation and instructed that the charge should not be given on retrial.
Perkins v. State, 212 Ga. App. 225, 227 (441 S.E.2d 511) (1994) Discusses issues related to lesser included offenses and jury instructions. Cited to support the instruction that sexual battery should not be charged as a lesser included offense of child molestation.
Duck v. State, 210 Ga. App. 205, 207-208 (435 S.E.2d 725) (1993) Addresses lesser included offense issues in jury instructions. Cited in support of the court's instruction regarding improper charging of sexual battery as a lesser included offense.
Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277 (444 S.E.2d 596) (1994) Duty of the trial court to charge the jury on the law applicable to issues where there is any evidence on which to predicate the instructions. The court directed that on retrial the State must prove the crimes occurred within the applicable limitations periods and, if evidence raises limitations issues, the trial court should charge the applicable law.

Court's Reasoning and Analysis

The opinion proceeds in numbered divisions addressing distinct issues raised on appeal. The court's analytical steps are set out below, following the structure of the opinion:

Division 1 — Sufficiency of the Evidence

The court applied the Jackson v. Virginia standard to determine whether a rational trier of fact could find Flowers guilty beyond a reasonable doubt. The court construed the evidence in the light most favorable to the verdict and summarized J.R.'s testimony describing repeated sexual contacts beginning when she was about ten, including vaginal intercourse beginning about age eleven and anal intercourse and sodomy starting at about thirteen or fourteen. The court acknowledged J.R.'s delay in reporting and the physician's testimony that showed no physical abnormalities, but treated those matters as affecting credibility only. Relying on precedent that credibility and weight are for the jury (Royal v. State), the court concluded that, although the evidence was not overwhelming, it was sufficient for a rational jury to find guilt beyond a reasonable doubt (citing Roberson and Jackson).

Division 2 — Improper Expert Testimony (Primary Reversal Ground)

The court found reversible error in the trial court's admission of testimony by a former child and adolescent counselor who described a "credibility enhancement technique" composed of five criteria. The witness testified that J.R. met all five criteria, effectively conveying the witness's belief that J.R. was telling the truth. The court explained the governing rule that an expert may not testify as to his or her opinion of a witness's truthfulness because credibility is within the exclusive province of the jury (citing Roberson and Smith). The testimony was held impermissible because its essence was that the expert believed J.R. to be telling the truth, thus improperly bolstering the victim's testimony.

The court considered but distinguished Stamey v. State, where similar testimony was found "offensive" but not outcome-determinative because the challenged testimony was not a significant addition to otherwise overwhelming evidence. The court noted Stamey is a physical precedent only and emphasized that here the evidence was not overwhelming and the expert's testimony was a major focus; therefore, admission of that testimony was prejudicial and warranted reversal.

Division 3 — Similar Transactions Hearing and Defendant's Presence

Flowers was absent from the hearing on admission of similar transactions, and his counsel stated, "I'll waive his presence." The trial court made no further inquiry. The court held that because a similar transactions hearing may be evidentiary, the defendant's presence is required unless the defendant himself expressly waives presence at the hearing. The court cited McGinnis for this principle and made no ruling on admissibility, directing that admissibility be determined on retrial consistent with Uniform Superior Court Rule 31.3 and Williams v. State.

Division 4 — Videotape and Child Hearsay Statute

The court observed that J.R. was 16 when she made the videotaped statement, and the Child Hearsay Statute applies to statements by a child under 14. Thus the statute was inapplicable to the videotape. Without ruling on tape admissibility, the court noted that hearsay concerns could be satisfied if J.R. were under oath and subject to cross-examination (citing Cuzzort).

Division 5 — Evidence of Victim's Sexual Conduct

Flowers sought to admit testimony regarding the victim's sexual conduct to present an alternative explanation for penetration. The court explained that such evidence is inadmissible under OCGA § 24-2-3 except within the narrow confines of subsection (c). The court did not admit the proffered evidence on the record before it.

Division 6 — Jury Recharge on Lesser Charges

The court addressed Flowers's complaint that the trial court failed to properly recharge the jury when asked to clarify lesser charges. The trial court recharged that sexual battery was a lesser included offense of child molestation and defined sexual battery. The Court of Appeals held that this was incorrect because sexual battery is not a lesser included offense of child molestation (citing Shepherd), and thus the charge should not be given on retrial. The court cited Perkins and Duck in support of its instruction regarding lesser included offenses.

Division 7 — Statute of Limitations

Flowers contended the State failed to prove the crimes occurred within the applicable statutes of limitations and that the trial court convicted despite this failure and failed to charge on limitations. The court directed that on retrial the State bears the burden of proving the charged crimes occurred within the appropriate limitations periods. If evidence raises limitations issues, the trial court should charge the applicable law, citing Blankenship for the duty to charge the jury on applicable law when there is any evidence to predicate the instruction.

Division 8 — Ineffective Assistance

The court stated that Flowers's contentions regarding the effectiveness of counsel were moot in light of the court's holding in Division 2 (the erroneous admission of impermissible expert testimony that requires reversal).

Holding and Implications

Holding: The Court of Appeals reversed the judgment of conviction. The court concluded that, although the evidence was sufficient under Jackson v. Virginia to support conviction, reversible error occurred when the trial court admitted expert testimony that impermissibly bolstered the victim's credibility. The judgment was reversed. (The opinion states: "Judgment reversed.")

Implications and direct effects on the parties:

  • The convictions are reversed due to the admission of impermissible expert testimony that vouched for the victim's truthfulness; the case will be retried consistent with the court's directives.
  • On retrial, the State must prove the crimes occurred within the applicable statutes of limitation; if evidence raises limitations issues, the trial court should instruct the jury on the applicable law (Blankenship).
  • If a similar transactions hearing is held on retrial, the defendant must be present unless he expressly waives presence; the trial court must conduct the hearing consistent with Uniform Superior Court Rule 31.3 and Williams v. State.
  • The Child Hearsay Statute did not apply to the videotaped statement because the victim was 16 when she made the statement; hearsay concerns regarding the tape may be addressed by having the declarant under oath and subject to cross-examination (Cuzzort).
  • Evidence of the victim's sexual conduct is generally inadmissible under OCGA § 24-2-3 unless falling within subsection (c); the trial court should apply that statute on retrial.
  • The trial court must not instruct that sexual battery is a lesser included offense of child molestation on retrial (Shepherd).
  • The court did not make a final ruling on many admissibility questions and directed that several matters be revisited at retrial consistent with the law cited in the opinion.

Disposition: Judgment reversed. Birdsong, P.J., and Johnson, J., concur.

FLOWERS v. THE STATE

SMITH, Judge.

Johnny "Tico" Flowers was indicted on two counts of child molestation, OCGA § 16-6-4(a), three counts of aggravated child molestation, OCGA § 16-6-4(c), one count of incest, OCGA § 16-6-22, and two counts of sodomy, OCGA § 16-6-2. He was convicted of three counts of sexual battery, one count of fornication, and three counts of aggravated child molestation. (This trial was the second trial, the first ending in a mistrial due to a hung jury.) His motion for new trial was denied, and he appeals.

1. Flowers contends the evidence was insufficient to enable the jury to convict him of the crimes charged. We disagree. Construed to support the verdict, evidence was presented that when J.R., the victim and Flowers' stepdaughter, was around age ten, Flowers rubbed her "bottom," breasts, and vagina, an act that occurred frequently over the next years, both before and after J.R. reached the age of fourteen. J.R. testified that vaginal intercourse began when she was around age eleven and continued until after she reached age fourteen, and that anal intercourse and sodomy with Flowers began when she was thirteen or fourteen and continued until after age fourteen.

While J.R. admitted she did not report the alleged incidents, either at home, school, or church, until April 1992, some time after the alleged events occurred, her delay in reporting the incidents affects only her credibility. Similarly, testimony of the physician who examined J.R. that he found no pelvic abnormalities or evidence of scarring or tearing around the vagina or rectum and that J.R. had been "sexually active" affects J.R.'s credibility. Although Flowers challenges J.R.'s credibility on appeal, "the weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence [they give] credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence." (Citations and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) ( 458 S.E.2d 366) (1995). As in Roberson v. State, 214 Ga. App. 208, ( 447 S.E.2d 640) (1994), the evidence adduced at trial, though not overwhelming, was sufficient to authorize a rational trier of fact to find Flowers guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979).

2. While we find sufficient evidence existed to enable a rational trier of fact to find Flowers guilty beyond a reasonable doubt under the standard of Jackson v. Virginia, we find the trial court erroneously admitted expert testimony that improperly bolstered the victim's testimony. We therefore must reverse.

One of the State's witnesses, a former child and adolescent counselor, described the "credibility enhancement technique" used to substantiate allegations of sexual abuse. She testified that a determination regarding the truthfulness of an alleged abuse victim depended on whether she observed the presence of five criteria as a result of interviewing the victim: (1) evidence that multiple sexual incidents had occurred over time; (2) observations that a progression of sexual activities had occurred; (3) observations that the incidents were kept secret; (4) observations that coercion was involved with the incidents; and (5) provision by the alleged victim of explicit details of sexual behavior. She stated, "If an allegation meets all five of the criteria, then we say that meets all of the information that we have that says, yes, sexual abuse did occur." She then described her observations regarding each of the criteria. Although she did not directly state she believed J.R. to have been truthful, the witness did testify that all five criteria were met by J.R. The witness's testimony thus established that she believed J.R. to have been telling the truth. A witness's credibility cannot be bolstered by another's testimony that the witness is telling the truth. "An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the jurors. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim's truthfulness." (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) ( 447 S.E.2d 640) (1994). See also Smith v. State, 259 Ga. 135, 138 (2) ( 377 S.E.2d 158) (1989). Because the essence of the expert's testimony was that she believed J.R. to be telling the truth, her testimony was impermissible.

We recognize that in Stamey v. State, 194 Ga. App. 305 ( 390 S.E.2d 409) (1990), we found testimony regarding "credibility patterns" of a young sexual abuse victim to be "offensive" but not "a significant addition to [the expert's] main testimony, so as to displace the jury's minds on the issue and usurp their authority." Id. at 306. Stamey, however, was a decision by a single three-judge division of this court with two of those judges concurring specially. For that reason, it is a physical precedent only, and we are not bound by it. Court of Appeals Rule 33(a). Also, this case differs in a substantive way from Stamey. In Stamey, the evidence against the defendant was overwhelming. See also Moss v. State, 216 Ga. App. 711, 713-714 ( 455 S.E.2d 411) (1995) (challenged testimony, even if objectionable, would not have changed guilty verdict.) Here, as noted in Division 1, the evidence against Flowers, like that in Roberson, "was not overwhelming and credibility of the witnesses was a key issue in the case." 214 Ga. App. at 210. Moreover, unlike Stamey, testimony regarding the "credibility enhancement technique" was not merely an insignificant addition to the expert's main testimony as to J.R.'s credibility but was a major focus of her testimony. The trial court erred in admitting evidence of the "credibility enhancement technique" and in denying Flowers' motion for new trial on this basis.

3. Because other errors enumerated by Flowers may recur on retrial, we address them here. Flowers was not present at the hearing on admission of similar transactions, and his trial counsel stated at the hearing, "I'll waive his presence." The trial court made no further inquiry about Flowers' absence. Because a similar transactions hearing may be evidentiary, Flowers's presence will be required, unless Flowers himself expressly waives his presence at the hearing. See generally McGinnis v. State, 208 Ga. App. 354, 357 (4) ( 430 S.E.2d 618) (1993).

We make no ruling here whether the alleged similar transactions are admissible, as that determination depends on the evidence adduced at the hearing conducted by the trial court in accordance with Uniform Superior Court Rule 31.3 and Williams v. State, 261 Ga. 640 ( 409 S.E.2d 649) (1991). But with regard to Flowers's contention about the availability of a child witness, if the trial court determines similar transaction evidence is admissible, we note that "a child witness is `available' for purposes of the Child Hearsay Statute as long as the child is physically available to appear at trial. [Cits.]" Gibby v. State, 213 Ga. App. 20, 22 (2)(d) ( 443 S.E.2d 852) (1994).

4. Flowers contends a videotape of J.R.'s statement was erroneously admitted under the Child Hearsay Statute, OCGA § 24-3-16. It is undisputed that J.R. was 16 when she made the statement and that the Child Hearsay Statute applies to statements made by a child under 14, provided certain criteria are met. Thus, the statute is inapplicable. Without ruling on the admissibility of the tape, we note that hearsay concerns about the videotape may be satisfied if J.R. is under oath and subject to cross-examination regarding her statement. See Cuzzort v. State, 254 Ga. 745 ( 334 S.E.2d 661) (1985).

5. Flowers complains of the trial court's refusal to admit testimony regarding sexual conduct of the victim "which would have presented an alternative explanation . . . that there was sexual penetration." Such evidence is inadmissible under OCGA § 24-2-3, unless the evidence falls within the narrow confines of subsection (c) of that provision.

6. Flowers complains the trial court failed to properly recharge the jury after the jury asked for "clarification of lesser charges, sexual battery and fornication." The court recharged the jury that a lesser included offense of child molestation and incest was fornication and defined the offense of fornication. The court also charged that a lesser included offense of all counts was sexual battery and defined sexual battery. This charge was incorrect. Sexual battery is not a lesser included offense of child molestation. Shepherd v. State, 217 Ga. App. 893 ( 459 S.E.2d 608) (1995) (but see special concurrences arguing that sexual battery is a lesser included offense of child molestation). The charge should not be given upon retrial. See also Perkins v. State, 212 Ga. App. 225, 227 ( 441 S.E.2d 511) (1994); Duck v. State, 210 Ga. App. 205, 207-208 (4) ( 435 S.E.2d 725) (1993).

7. Flowers contends the State failed to prove that the crimes occurred within the applicable statutes of limitations, that the trial court entered a conviction despite this failure of proof, and that the trial court erroneously failed to charge on the applicable statutes of limitation. On retrial, it will be the State's burden to prove the charged crimes occurred within the applicable limitations periods. If the evidence raises statute of limitations issues, the trial court should charge the applicable law regarding the appropriate limitations periods. See generally Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277 ( 444 S.E.2d 596) (1994): "It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions." (Citations and punctuation omitted.)

8. Flowers's contentions regarding effectiveness of counsel are moot in light of our holding in Division 2.

Judgment reversed. Birdsong, P.J., and Johnson, J., concur.

SMITH, Judge.

DECIDED FEBRUARY 20, 1996 — RECONSIDERATION DENIED MARCH 26, 1996 — CERT. APPLIED FOR.
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FLOWERS v. STATE
(Feb 20, 1996)