JACKSON v. the STATE.
JACKSON v. the STATE.
Opinion
After a jury trial, Quanta Jackson was convicted of two counts of child molestation and one count of theft by taking. He challenges the sufficiency of the evidence as to one of the counts of child molestation, in which he was alleged to have masturbated in front of his 13-year-old stepson, J. B., but the evidence authorized the conviction. He also argues that his trial counsel was ineffective, but he has not shown that his counsel performed deficiently. So we affirm.
1. Sufficiency of the evidence.
On appeal, in considering a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only 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.
Carter v. State
,
So viewed, the evidence showed that on the morning of October 31, 2013, Jackson suggested to J. B. that the boy stay home from school. J. B.'s mother was not home at the time. After placing blankets over the windows of their apartment, Jackson showed J. B. a pornographic video of a man and a woman having sexual intercourse and told the boy that he was going to show him how to masturbate. Jackson then pulled out his penis and began stroking himself. He told J. B. to remove his shirt and begin masturbating, too. Jackson also pulled J. B.'s pants down, placed his hand over the boy's hand, and moved the boy's hand up and down on the boy's penis. J. B. was afraid and, after telling Jackson that he felt uncomfortable, he put his clothes on and left the apartment for school.
That afternoon, a visibly shaken J. B. told his mother what had happened with Jackson.
*674 J. B.'s mother called Jackson at his workplace, a hotel where Jackson worked as a front desk clerk. Jackson apologized repeatedly, stated that he did not "mean to do it," offered to leave, and asked the boy's mother not to call the police. J. B.'s mother hung up on Jackson and called the boy's father, who went to confront Jackson at the hotel. When J. B.'s father arrived, Jackson had disappeared and money was missing from the hotel's two cash drawers and a cash box.
Later that evening, J. B. gave a forensic interview to a police officer, in which he described what Jackson had done. That night, J. B. also discussed with his father what had happened.
The jury found Jackson guilty of two counts of child molestation, for masturbating in front of J. B. and for taking J. B.'s hand and moving it up and down on the boy's penis. The jury also found him guilty of theft by taking of the money from the hotel. The trial court entered judgment on the verdict and denied Jackson's motion for new trial. Jackson challenges the sufficiency of the evidence supporting his conviction of child molestation for masturbating in front of J. B., but we find no merit in this claim of error. A person commits the offense of child molestation, among other ways, by doing "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) (1). Evidence that a defendant masturbated in a child's presence can support a child molestation conviction. See
Klausen v. State
,
Jackson argues that the evidence was insufficient because, at trial, J. B. testified that he closed his eyes when Jackson pulled out his penis. But it was not necessary for J. B. to actually see Jackson masturbate, so long as that act occurred in his presence. See
Klausen
,
2. Assistance of trial counsel.
Jackson argues that he received ineffective assistance of trial counsel in two respects: because his trial counsel failed to object to evidence that Jackson contends improperly bolstered J. B.'s testimony and because his trial counsel advised Jackson not to testify at trial. To prevail on his claim, Jackson
must show both that trial counsel's performance was deficient in that it fell below a reasonable standard of conduct and that it was prejudicial because there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel's deficient performance.
If [Jackson] fails to prove either prong of the two-part test, this relieves [us] of the need to address the other prong.
Latta v. State
,
(a) Failure to object to bolstering evidence.
Jackson argues that his trial counsel rendered ineffective assistance by failing to object to testimony from J. B.'s mother and father about the boy's statements to them about Jackson's actions, and by failing to object to the admission of a recording of J. B.'s forensic interview with police. Jackson argues that this evidence impermissibly bolstered J. B.'s trial testimony. But trial counsel did not perform deficiently in failing to object because the evidence was admissible under the Child Hearsay Statute, OCGA § 24-8-820. 1
The Child Hearsay Statute
provides that, so long as certain conditions are met, a statement made by a child describing any act of sexual contact is admissible in evidence by the person to whom the statement was made. As such, the Child Hearsay Statute actually contemplates testimony from both the child and those witnessing the child's later reaction, even if the hearsay may be bolstering.
Laster v. State
,
The outcry testimony and recorded forensic interview were admissible under the Child Hearsay Statute because the conditions required by that statute were met. Those conditions are: that J. B. was younger than 16 years old when he made the out-of-court statements; that his out-of-court statements described acts of sexual contact performed on him or in his presence by Jackson; that the state provided Jackson with notice prior to trial of its intention to use the out-of-court statements; that J. B. testified at trial; and that the persons to whom J. B. made the statements were subject to cross-examination. See OCGA § 24-8-820 ;
Latta
,
Jackson cites our decision in
Pepe-Frazier v. State
,
(b) Advice not to testify.
Jackson argues his trial counsel was ineffective in advising him not to testify. A defendant's "decision whether or not to testify is a tactical one, made by [the] defendant with the advice of counsel."
King v. State
,
At the hearing on Jackson's motion for new trial, his trial counsel testified that he advised Jackson not to testify because he did not want to give the state the ability to introduce, as impeachment evidence, an inculpatory
*676
custodial statement that Jackson had made to police. Earlier, the trial court had ruled to suppress the custodial statement. Because Jackson's trial testimony could have subjected him to the possible negative consequence of opening the door to this otherwise inadmissible statement, his trial counsel's advice not to testify was not unreasonable. See
Felder v. State
,
Judgment affirmed.
Branch and Bethel, JJ., concur.
The version of the Child Hearsay Statute set forth in OCGA § 24-8-820 applies in this case because the acts of child molestation occurred after July 1, 2013.
State v. Walker
,
Reference
- Full Case Name
- Quanta Jackson v. State
- Cited By
- 3 cases
- Status
- Published