Andrew Jamaal Nembhard v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 4, 2021
In the Court of Appeals of Georgia
A21A0263. NEMBHARD v. THE STATE.
MILLER, Presiding Judge.
Following a jury trial, Andrew Jamaal Nembhard was convicted of two counts
of child molestation (OCGA § 16-6-4 (a)) and two counts of sexual battery (OCGA
§ 16-6-22.1 (d)). He appeals from the denial of his motion for new trial, contending
that (1) the evidence was insufficient to support his convictions on two of the counts,
(2) the trial court erroneously admitted hearsay and bolstering evidence, and (3) he
received ineffective assistance of counsel. For the reasons that follow, we affirm.
On appeal from a criminal conviction, a defendant no longer enjoys the
presumption of innocence, and the evidence is viewed in the light most
favorable to the guilty verdict. . . . [W]e neither weigh the evidence nor
assess the credibility of witnesses, but merely ascertain that the evidence
is sufficient to prove each element of the crime beyond a reasonable
doubt. Moreover, conflicts in the testimony of the witnesses are a matter
of credibility for the jury to resolve. As long as there is some competent
evidence, even though contradicted, to support each fact necessary to
make out the [S]tate’s case, the jury’s verdict will be upheld.
(Punctuation and footnotes omitted.) Goss v. State, 305 Ga. App. 497, 497-498 (1)
(699 SE2d 819) (2010).
So viewed, the evidence shows that after Nembhard’s former neighbors, John
and Demetria Dargon, mentioned that they wanted to find a reading tutor for their
eleven-year-old daughter N. D., Nembhard offered to tutor both N. D. and Z. D., the
Dargons’ younger daughter. A few days later, Nembhard went to the Dargons’ home
to tutor the girls. Nembhard and N. D. went to the family’s study area while Demetria
and Z. D. were in the living room. When their time was over, Nembhard brought N.
D. to Demetria, who noticed that N. D. looked sad. After Nembhard took Z. D. to the
study area for her tutoring session, Demetria asked N. D. what was wrong. N. D. got
weepy and told her mother that Nembhard had touched her on her chest and between
her legs. At trial, N. D. testified that Nembhard pulled her onto his lap and, when she
read a word correctly, rubbed her chest with his hands. Nembhard also lifted N. D.’s
skirt and put his hands “down there.” N. D. felt uncomfortable and unsafe when
Nembhard touched her, but she continued reading because she was scared.
2
Demetria took N. D. to her bedroom and called John, then she left the room to
get Z. D. As she approached the study area, Demetria noticed that Z. D. was on
Nembhard’s lap, and she immediately took Z. D. into the living room. Z. D. later
disclosed that Nembhard had touched her hips, “private part,” and lower back while
they were reading. John arrived home soon after Demetria and N. D. called him, and
he spoke to N. D. in his car, recording part of their conversation, before entering the
house. The Dargons called 911, and police officers responded to the scene.
Nembhard was charged with four counts of child molestation. As to Counts 1
and 2, those related to N. D., the jury convicted Nembhard of child molestation. As
to Counts 3 and 4, those related to Z. D., the jury convicted him of the lesser included
offense of sexual battery. The trial court imposed a 25-year sentence, with the first
12 years to be served in confinement and the remainder to be served on probation.
Nembhard filed a motion for new trial, which the trial court denied. He then filed this
appeal.
1.
Nembhard contends that the evidence was insufficient to sustain his sexual
battery convictions on Counts 3 and 4, those relating to Z. D., because the State failed
to show that the touching of Z. D. was without her consent. Noting Z. D. testified that
3
she sat on his lap consensually, Nembhard emphasizes that Z. D. did not testify that
she was scared of him or that she told him to stop once the touching began. We are
not persuaded that Z. D. consented to the touching.
To establish the offense of sexual battery, the State must prove three elements:
“(1) physical contact with the victim’s intimate body parts; (2) intent to have such
contact; and (3) lack of consent on the part of the victim.” Watson v. State, 297 Ga.
718, 719 (2) (777 SE2d 677) (2015). The Supreme Court has determined that the
State must establish “actual proof of the victim’s lack of consent, regardless of the
victim’s age.” Id. at 720 (2). The Supreme Court has also acknowledged, however,
that in some circumstances, no rational juror would be able to find that the contact
was consensual. See State v. Williams, 308 Ga. 228, 232-233 (2) (838 SE2d 764)
(2020). In Williams, the defendant was convicted of aggravated sexual battery for
touching his four-year-old granddaughter’s vagina with his finger. Although, the trial
court failed to charge the jury that the State was required to prove a lack of consent,
the Supreme Court of Georgia nevertheless affirmed his conviction. The Court
reasoned that this omission did not affect the defendant’s substantial rights as no
rational juror could have found that the State failed to prove a lack of consent because
“the victim was so very young, the conduct was clearly sexual in nature, the adult was
4
an authority figure in the child’s life, and the evidence was strong [that the touching
actually occurred].” Id. at 233 (2).
We believe that in this case, as in Williams, no rational juror could have found
that the State failed to prove a lack of consent. Z. D. was only eight years old at the
time of the incident, the touching of her “private part” had no benign or non-sexual
purpose, and Nembhard was in an authority position as Z. D.’s tutor. Further,
although Z. D.’s testimony may suggest that she voluntarily sat on Nembhard’s lap
– as she testified that “he told me to come sit on his lap, and so I did” – her testimony
does not suggest that she knew Nembhard would start touching her once she was on
his lap. Importantly, Z. D. recalled that, when they were reading their first page,
Nembhard started touching her hips, “private part,” and lower back around her waist.
Z. D. testified that she felt uncomfortable from the touching and that she “didn’t
really know what he was doing.” If Z. D. had expected the touching when she decided
to sit on Nembhard’s lap, she would not have felt uncomfortable and confused by it.
Accordingly, we reject Nembhard’s argument that there was insufficient evidence that
the touching of Z. D. was without her consent.
2.
5
Nembhard contends that the trial court erred in overruling his objections to
State’s Exhibit 4, a recorded audio statement N. D. made to her father on the day of
the outcry. Nembhard maintains that the recording was hearsay that did not fall within
any exception to the hearsay rule and asserts that it improperly bolstered N. D.’s trial
testimony. We conclude that the trial court correctly admitted this evidence under the
Child Hearsay Statute, which provides:
A statement made by a child younger than 16 years of age describing
any act of sexual contact or physical abuse performed with or on such
child by another or with or on another in the presence of such child shall
be admissible in evidence by the testimony of the person to whom made
if the proponent of such statement provides notice to the adverse party
prior to trial of the intention to use such out-of-court statement and such
child testifies at the trial, unless the adverse party forfeits or waives such
child’s testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the person to whom the
child made such statement is subject to cross-examination regarding the
out-of-court statements.
OCGA § 24-8-820 (effective July 1, 2013). Here, N. D.’s father testified that, after
N. D. told him Nembhard had touched her, he used a tape recorder to record her
detailed account of the events. He identified State’s Exhibit 4 as the audio recording
he made, and he summarized the contents of the recording. N. D. also testified at trial.
6
Nembhard contends that the recording does not fall within the Child Hearsay
Statue because it was not admitted through the testimony of the person to whom it
was made. The record belies this assertion, however, as the trial transcript clearly
reflects that the recording was admitted through the testimony of Mr. Dargon, the
individual who made the recording and the individual to whom N. D. recounted her
story. Nembhard’s contention that the recording improperly bolstered N. D.’s
credibility is equally unpersuasive. The Statute itself contemplates testimony from
both the child and the individual to whom the child made the out-of-court statement,
and our law is clear that, when a recording is admitted under the statute, the
interviewer may testify as to what the victim told him about the incident. See Leggett
v. State, 331 Ga. App. 343, 347 (4) (771 SE2d 50) (2015) (rejecting claim of
bolstering because forensic interviewer’s testimony merely recounted her interview
with the victim and the victim’s statements about the incident and did not include any
testimony that the interviewer believed the victim). Here, N. D.’s father, Mr. Dargon,
testified as to the circumstances under which he made the recording and recounted
what N. D. told him about the incident, but he did not testify that he believed N. D.
was telling the truth. Accordingly, there was no improper bolstering, and the trial
court did not abuse its discretion by admitting this evidence.
7
3. Nembhard contends that his trial counsel was ineffective for (a) failing
to use a peremptory strike on a prospective juror who knew defense counsel and
(b) failing to object to the trial court’s sequential unanimity jury instructions. Upon
a review of the record, we conclude that both of these claims fail.
To prevail on a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that the
deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. See Strickland v. Washington, 466 U. S.
668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to
meet his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong. In reviewing
the trial court’s decision, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. Furthermore, there
is a strong presumption that the performance of counsel was within the
wide range of reasonable professional lawyering, and we cannot reach
a contrary conclusion unless defendant successfully rebuts the
presumption by clear and convincing evidence. Judicial scrutiny of
counsel’s performance must be highly deferential.
(Citations and punctuation removed). Littlejohn v. State, 320 Ga. App. 197, 205-206
(5) (739 SE2d 682) (2013). Importantly, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if “they were so patently
8
unreasonable that no competent attorney would have followed such a course.”
(Citation omitted.) Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016).
And unless clearly erroneous, this Court will “uphold a trial court’s factual
determinations with respect to claims of ineffective assistance of counsel; however,
a trial court’s legal conclusions in this regard are reviewed de novo.” Sowell v. State,
327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).
(a)
Nembhard contends that his trial counsel performed deficiently by failing to
use a peremptory strike on Juror 15, who indicated during voir dire that she knew
counsel because he served as the defense attorney in an armed robbery and kidnaping
case in which she was a victim.
During voir dire, Juror 15 indicated that she knew Nembhard’s attorney
because she was a victim in an armed robbery and kidnaping case in which he
represented the defendant. The trial court asked Juror 15, “[D]o you feel like you can
be a fair juror under the circumstances?” and she answered, “Yes, sir.” Juror 15
explained that she and her brother were victims in the prior case, and the assailant
was a stranger to them. In response to questioning by Nembhard’s attorney, Juror 15
acknowledged that counsel had cross-examined her and her brother in the earlier case.
9
Counsel asked, “Would that in any way, shape or form cause you to have any ill
feelings towards my client or be skewed toward the case in any shape, way or form?”
The prospective juror answered, “No sir. Even though that person was accused, you
know, we weren’t in favor for him. We knew that you, you know, you were doing
your job, so just doing what you had to do.” Ultimately, counsel decided against using
a peremptory strike, despite having such strikes available, and Juror 15 served as a
juror for Nembhard’s trial.
On appeal, Nembhard argues that his trial counsel rendered ineffective
assistance by failing to use a peremptory strike, despite having such strikes available,
to prevent Juror 15 from serving on the jury. During the hearing on Nembhard’s
motion for new trial, trial counsel testified that he is a criminal defense attorney who
has been in practice since 2003. He acknowledged that he had cross-examined Juror
15 in the previous trial but noted that the questioning was not hostile because her
direct testimony was favorable to his client. As to why he did not move to strike this
juror, trial counsel explained that he knew he would be exhausting all of his
peremptory strikes, so he had to decide between a “rock and a hard place” when
choosing which prospective jurors to strike. Although he could not recall all the
factors he considered, counsel assured the court that the nine jurors he struck were,
10
in his opinion at the time, worse for the defense than Juror 15. As strategic reasons
for his decision not to strike Juror 15, counsel noted that she was young, did not have
children,”was a person that would hold the government to their standard of proof,”
and had shown no signs of having a vendetta against him. Counsel also testified that
he discussed potential strikes with Nembhard.
Nembhard contends that trial counsel’s decision not to strike Juror 15 was
objectively unreasonable. But which, and how many, prospective jurors to strike is
a “quintessential strategic decision.” (Citation and punctuation omitted.) Simpson v.
State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016). And we cannot say under the
circumstances of this case that “no competent attorney would have struck the jury as
this lawyer did.” Id. at 318-319 (4). Thus, Nembhard has not demonstrated that his
trial counsel performed deficiently with respect to the failure to strike this juror. See
id. at 318-319 (4) (holding that despite trial counsel second-guessing his own
performance at the hearing on the motion for new trial, his overall testimony
demonstrated his decision to not use a peremptory strike to remove a correctional
officer from the jury was strategic).
Moreover, Nembhard has not shown there is a reasonable probability that the
allegedly deficient performance of his trial counsel changed the outcome of the trial.
11
See Simpson, supra, 298 Ga. at 319 (4). He has not established that the juror at issue
was not qualified, and he has not demonstrated that “any of the prospective jurors
who were stricken by [his trial counsel] were more favorably inclined toward his case
than the juror at issue who actually was selected.” Id. Accordingly, even if his trial
counsel had performed deficiently, reversal is not required because Nembhard has not
affirmatively shown that he was prejudiced by his trial counsel’s failure to move to
strike the juror at issue. See id. (holding that even if trial counsel performed
deficiently in failing to strike correctional officer from jury, defendant failed to show
that such performance changed the outcome of the trial); Eason v. State, 331 Ga. App.
59, 67 (4) (c) (769 SE2d 772) (2015) (finding that defendant’s claim that trial counsel
rendered ineffective assistance in jury selection failed given the fact that defendant
did not make “any showing that any of the jurors who served harbored any prejudice
toward him or were disinclined to acquit him based on reasons other than the
evidence presented at trial”).
(b) Nembhard also contends that his trial counsel was ineffective for failing
to object to the trial court’s jury instructions on lesser-included offenses. He asserts
that his trial counsel had no strategic reason for failing to object when the trial court
gave a sequential unanimity jury instruction – in other words, when the court told the
12
jury they must unanimously acquit Nembhard of child molestation before they could
consider the lesser-included offense of sexual battery. This would be an incorrect
statement of law, as “unanimity is not required for the greater offense before the jury
can vote on the included offense.” Cantrell v. State, 266 Ga. 700, 703 (469 SE2d 660)
(1996).
A review of the transcript reveals, however, that the trial court did not give the
jury a sequential unanimity instruction in this case. In its jury instructions, the trial
court charged the jury on the elements of child molestation and then advised,
“Although not set out in the indictment, as you consider the evidence during your
deliberations, you may also consider the following lesser included offense: sexual
battery.” After reading the definition of sexual battery, the trial court instructed the
jury as follows:
If you do not believe that the Defendant is guilty as alleged in Count I,
or if you have any reasonable doubt as to the Defendant’s guilty as to
Count I, then it would be your duty to acquit the Defendant in which
event the form of your verdict would be, we, the jury, find the Defendant
not guilty.
Or, if after considering the testimony and evidence presented to you
together with the Charge of the Court, you do not believe that the
Defendant is guilty of child molestation as alleged in Count I, but find
13
and believe beyond reasonable doubt that the Defendant did commit the
lesser included offense of sexual battery, you would be authorized to
find the Defendant guilty of the lesser included offense of sexual battery
as to Count I. In that event the form of your verdict would be, we, the
jury, find the Defendant guilty of sexual battery.
The trial court read the same charge for each of the four counts.
We disagree with Nembhard’s argument that this was an impermissible
sequential unanimity charge. As we have explained,
[a] jury must consider a greater offense before it can vote on a lesser
offense. Accordingly, although a trial court may not instruct the jury that
it must reach a unanimous verdict on a greater offense before
considering a lesser offense, the trial court may instruct the jury to
consider the greater offense before considering the lesser offense.
(Citations omitted; emphasis supplied). Watson v. State, 329 Ga. App. 334, 338 (3)
(a) (765 SE2d 24) (2014), reversed in part by Watson v. State, 297 Ga. 718 (777 SE2d
677) (2015). This is not a case where the judge told the jurors that they must
unanimously acquit the defendant of the charged offense before they could consider
the lesser-included offense. Compare Kunselman v. State, 232 Ga. App. 323, 325 (1)
(501 SE2d 834) (1998) (retrial was required because “the jury was instructed that if
it found [the defendant] not guilty, ‘then and only then’ could it consider the lesser
14
offense”). Instead, the trial court properly advised the jurors that if they found the
defendant not guilty of the charged crime, they would be authorized to consider
whether he committed the lesser-included crime. See Camphor v. State, 272 Ga. 408,
414 (6) (d) (529 SE2d 121) (2000) (no error where trial court charged the jury,
“Should you find the defendant not guilty of the crime of burglary, you would be
authorized to consider under the evidence whether or not he did, at said time and
place, commit the lesser offense of criminal trespass”). Accordingly, the trial court’s
jury instructions were not erroneous, and trial counsel was not deficient for failing to
object on this ground.
For the foregoing reasons, we conclude that the trial court properly denied
Nembhard’s motion for new trial, and we therefore affirm the trial court’s judgment.
Judgment affirmed. Hodges and Pipkin, JJ., concur.
15