Improper Bolstering Issue Leads to Reversal of Child Molestation Conviction

In Flores-Avila v. State, the Georgia Court of Appeals granted the defendant a new trial in a child molestation case where the mother of the alleged victim improperly bolstered the child’s credibility by testifying that she believed the child was “telling the truth.”

Background

The defendant was convicted of aggravated sexual battery and child molestation. He was accused of molesting the granddaughter of his long-time girlfriend. The allegation came about after the girl’s mother found her watching YouTube videos of naked people on her father’s cell phone.

The mother questioned the child about this on several occasions over a period of 1-2 years. Eventually, in response to this questioning, the girl said that the defendant was the one who showed her these videos but denied that he had engaged in any sexual acts with her.

The mother continued to question the child over the next several years, directly asking her on more than one occasion whether the defendant ever touched her inappropriately. Finally, when the girl was 11 years old, she told her mother in response to this questioning that the defendant had in fact touched her.

The mother reported this to the police. The girl then made statements in a forensic interview that the defendant would show her videos of people without clothes, would touch her chest, and put his fingers inside her vagina. At trial, the forensic interviewer testified that in her expert opinion she did not see any signs that the girl had been coached to make these statements.

At trial, the girl repeated these statements and said that she initially did not disclose the abuse because she “was confused and scared and…didn’t understand.”

The defendant adamantly denied committing any of these acts and testified in his defense at trial. Also, the girl’s grandmother testified that she had never witnessed him act inappropriately with the child. The grandmother also gave testimony that contradicted some of the details the girl gave in her forensic interview about when and where these incidents occurred.

The defense also introduced evidence that the girl’s maternal grandfather had been accused of molesting other children and showing inappropriate videos to them. Although this grandfather lived in Costa Rica, he did have some contact with the girl and her family during the time period that the girl claimed the abuse occurred.

Interestingly, the mother testified that the child would refer to this grandfather as “Abuelo” – the same name that she used when referring to the defendant.

Improper Bolstering Issue

At trial, the girl’s mother was questioned about whether her father (the maternal grandfather) could have been the one who molested her. She responded emphatically that it was not the case and that “my daughter doesn’t lie…She’s telling the truth.”

This type of testimony is inadmissible as it constitutes the improper bolstering of a witness. Under Georgia law, “a witness can never bolster the credibility of another witness as to whether the witness is telling the truth.”

The defendant’s trial attorney did not object to this testimony. He stated that he just “missed the objection.” On appeal, appellate counsel contended that the failure to object constituted ineffective assistance of counsel.

Court of Appeals’ Analysis

To establish ineffective assistance of counsel, it must be shown that (1) trial counsel’s performance was deficient; and (2) that his performance prejudiced the defendant such that there’s a reasonable probability that it affected the outcome of the trial.

At the outset, the Court of Appeals noted that the evidence in the case was far from overwhelming. There was no physical evidence and the girl’s credibility was challenged in a number of ways.

The Court pointed out the defense’s arguments regarding the delay in the outcry, her initial denial that the defendant had touched her, the mother’s repeated questioning of her, and the role that this repeated questioning played in the girl’s outcry.

In addition to this was the evidence regarding the maternal grandfather and the testimony of the grandmother that contradicted certain details of the girl’s allegation.

Based on this, the Court found that trial counsel’s performance was deficient and that it prejudiced the defendant. It concluded that due to the lack of overwhelming evidence, the bolstering testimony was harmful and there was a reasonable probability that had he objected to this testimony the result of the trial would have been different.

The Court reasoned that the specific circumstances of this case distinguish it from other cases where the convictions were affirmed despite improper bolstering by a witness. In those cases, the Court cited to other evidence that either corroborated the accuser’s allegation or minimized the effect of the bolstering testimony.

The Court held that these facts more closely align with other cases in which it ruled that the improper bolstering testimony did affect the outcome of the trial.

Therefore, the Court concluded that the trial attorney’s failure to object constituted ineffective assistance of counsel and warranted reversal of the defendant’s conviction.