THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

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.

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THE TIMES SET BY OUR COURT RULES.

September 8, 2020

In the Court of Appeals of Georgia

A20A1554. STEVENS v. THE STATE.

MCFADDEN, Chief Judge.

After a jury trial, Brandon Stevens was convicted of two counts of aggravated

child molestation, child molestation, statutory rape, and enticing a child for indecent

purposes. He appeals his convictions, arguing that the trial court erred in giving a

coercive jury charge, but we hold that the charge was not coercive. He arguesthat the

trial court erred by charging the entire aggravated child molestation statute, but we

hold that any error in this regard was not harmful. He argues that the trial court erred

by prohibiting him from questioning one of the victims about her allegations of

molestation committed by other parties, but we hold that the evidence was not

admissible, so the trial court did not err. Finally, he argues that trial counsel was
ineffective, but we hold that he has not shown that trial counsel performed

deficiently. So we affirm.

1. Factual background.

Viewed in the light most favorable to the jury’s verdict, see Jackson v.

Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the

evidence showed that Stevens was convicted for committing acts against his two

cousins, D. G. and C. G., who are sisters. After D. G. and C. G. revealed to each other

that Stevens had committed similar acts against them, D. G. and C. G. decided that

D. G. would confront Stevens. 

D. G. asked Stevens to meet her outside their grandmother’s house and she

confronted him. Stevens responded that his interactions with D. G. had been

consensual and that he was sorry for his interactions with C. G. D. G. demanded that

Stevens disclose the acts to their family. 

Stevens’ parents, his wife, his brother, and the father and stepmother of C. G.

and D. G. gathered at Stevens’ and D. G.’s grandmother’s house. Stevens “told them

what had gone on,” admitting to having committed sexual acts with D. G. and C. G.

Stevens said that he was a monster and that he was sorry. The father of D. G. and C.

G. called the police. As soon as the responding officer arrived at the house, Stevens

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spontaneously said, “I did it, I need counseling and I accept responsibility for my

actions.” 

Stevens testified at trial and admitted having sexual intercourse with D. G.

from the time she was 13 years old, but he denied any sexual contact with C. G. 

2. Jury charges.

On appeal, Stevens challenges two jury instructions, one about aggravated

child molestation and one about the jury’s deliberations. He correctly argues that the

charges are subject to review only for plain error, as he failed to object to the court’s

instructions when they were given. See OCGA § 17-8-58 (b). Under plain error

review, we consider four steps:

First, there must be an error or defect — some sort of deviation from a

legal rule — that has not been intentionally relinquished or abandoned,

i.e., affirmatively waived, by the appellant. Second, the legal error must

be clear or obvious, rather than subject to reasonable dispute. Third, the

error must have affected the appellant’s substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome of

the trial court proceedings. Fourth and finally, if the above three prongs

are satisfied, the appellate court has the discretion to remedy the error

— discretion which ought to be exercised only if the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings. Satisfying all four prongs of this standard is difficult, as it

should be.

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Hampton v. State, 302 Ga. 166, 167-168 (2) (805 SE2d 902) (2017) (citations and

punctuation omitted).

(a) Aggravated child molestation.

Stevens argues that the trial court erred in charging the entirety of OCGA §

16-6-4 (c), the aggravated childmolestation statute, given that the indictment charged

him with aggravated child molestation only by committing acts of sodomy, not by

causing physical injury to the victims. See OCGA § 16-6-4 (c) (“A person commits

the offense of aggravated child molestation when such person commits an offense of

child molestation which act physically injures the child or involves an act of

sodomy.”). Specifically, he argues that because the state introduced evidence that C.

G. had suffered a physical injury, the tearing of her hymen, charging the entirety of

OCGA § 16-6-4 (c) raised the possibility that the jury believed he committed

aggravated child molestation in a manner not charged in the indictment.

“Viewing the charge here as a whole, it is highly unlikely that the jury was

misled by the portion of the charge defining OCGA § 16-6-4 (c) in its entirety.”

Anderson v. State, 282 Ga. App. 58, 61 (2) (637 SE2d 790) (2006), overruled in part

on other grounds by Schofield v. Holsey, 281 Ga. 809, 811 (II) n. 1 (642 SE2d 56)

(2007). The trial court sent out the indictment with the jury for review during

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deliberations. The court instructed the jury that “[t]he burden of proof rests upon the

state to prove every material allegation of the indictment and every essential element

of the crime beyond a reasonable doubt[;]” that Stevens was on trial “for the offenses

charged against him in this bill of indictment only and not for any other acts, even

though such acts may incidentally be criminal[;]” and that “should [the jury] find and

believe beyond a reasonable doubt that [Stevens] did . . . as alleged in the indictment

commit the offenses as alleged then [it] would be authorized to find [him] guilty.”

“Under these circumstances, we discern no reasonable possibility that the jury was

misled and convicted [Stevens] of aggravated child molestation [for causing physical

injury] not alleged in the indictment. Accordingly, the error of charging OCGA §

16-6-4 (c) in its entirety was harmless.” Anderson, 282 Ga. App. at 61-62 (2). So

Stevens has notshown that the trial court’s error affected the outcome of histrialsuch

that he is entitled to reversal under the plain error standard of review. See Hampton,

302 Ga. at 168 (2). 

(b) Allegedly coercive charge.

Stevens arguesthat the trial court’sinstructionsto the jury after they had begun

deliberating were coercive, particularly in light of two jurors’ medical issues. We

disagree.

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The record shows that during deliberations, the jury sent out several notes and

the court addressed them without objection from either Stevens or the state. In one

note, the jury stated that the jurors had decided seven counts but were undecided on

five counts and “[s]eems no one will change.” The jury asked, “Are we a hung jury

or can we submit what we have?” The court stated to counsel that it was too early to

give an Allen charge, so he would urge the jury to continue deliberations. The court

returned the jury’s note with the notation,”You are not a hung jury. I urge you to

continue your deliberations.” Neither side objected. 

Next the jury sent a note indicating that two jurors needed to address medical

issues and asking whether the jury could return the next day. The court responded,

“Please provide a list of immediate needs including phone numbers, if necessary,

requesting that you continue deliberations.” Neither side objected.The jury responded

with notes indicating that a juror needed a cell phone to make a personal call and that

the jury was still deliberating with no change. 

The trial court called the jurors into the courtroom to address the issues about

medical needs and phone calls and asked the jurors to give him phone numbers and

specify their other needs. After the jurors exited the court room, the court addressed

counsel, noting that the jury had been deliberating more than five hours and stating:

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This is what I’d like to do subject to you all agreeing to as well, and

what prompted it the bailiff that took the phone caller the woman made

a comment to the person she was talking to that they are still where they

were in this case two hours ago. I’d like to ask, since they’ve given us

numbers before, is on the counts that they are undecided on without

telling us what the verdict of guilty, not guilty, what the split is give me

the number, give me the counts without telling me, you know, what your

verdict is or what the split is, I should say, without telling me on the

ones that you have not reached a verdict because they’ve reached a

verdict, yes, I think seven, I sent the note back. All right? . . . Yeah, so

those that are — on those counts that they have not reached a verdict I

want them to go and to tell me, without telling me what the split is just

tell me what the division is by number. Is there any objection to my

asking that information of them?

The court and the attorneys discussed how to proceed and they agreed that the court

would ask the jury to list in writing the counts that the jurors had decided and then the

court would release them for the evening. The jury returned to the courtroom and the

court instructed:

Let me add again, thank you so much for your diligence and patience

and, [addressing one of the jurors with medical needs,] sir, I’m going to

— we’re going to talk about you in just a second. Okay? I’m — I need

you to do something for me. This is in response to an earlier note you

sent me. Without, this is important, without telling me what the split is

on those counts as I understand you remain there’s a split, there’s not

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any unanimity on those — on certain counts, might I ask you — I want

you to go back and do this in writing, not tell me here, go back and write

it, on those counts if you’ll tell me the number of the break down. I

don’t need to know what the split is, guilty or not guilty do not tell me

that, on those countsthat you have not reached a verdict, okay, and from

my understanding you are where you were two hours ago, the same

place? I see heads nodding all over the place. All right. I need to know

on those counts that you are — have not been able to reach a unanimous

verdict where you are split wise, number wise, do not again tell me what

the split is based on guilty or not guilty. I just need to know the numeric

number as well. I think that may be enlightening for you and for the

Court as well. Okay? If you could do that for me and send it back out to

me as well that will, I think, give us a little bit of clarity as to where we

are. Okay?

Sir, is it possible — is there anything — we can — we’re going to

resolve it one way or the other. I’m not going to keep you here all night,

folks, and I’m not trying to sweat you out of a verdict. I would love us

to reach closure, if we possibly can, and if you can’t, you can’t, all right,

but obviously as it relates to that and we can come back tomorrow. I

want you to hear me say that, if need be, for doing so, but if we can

resolve it that’s why I’m asking you to go back and do that for me first

before we come to a resolution as to what we’re going to do about our

evening. Okay? That shouldn’t take you long given what you’ve been

telling me you’ve been doing for the last two hours. Okay? If you’ll give

me that split, Mr. or Madame Foreperson, I’m not sure who it is and I

don’t want to know, just write it down on a paper for me and tell me

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what that split is without telling me guilty or not guilty, give me the

split, you can tell me the counts too, that will be helpful to know that

you have not been able to reach a unanimous verdict on. All right?

The court asked one of the jurors with medical needs, “Is there anything I can give

you temporarily for the next five minutes ‘til we resolve that, sir? That we can send

to you, anything that you don’t have in the room?” The juror responded no, and the

court concluded by stating, “Can you do that for us to make that fine? We’re going

to make this resolution and get out of here one way or the other. Okay? Go back and

do that for me, please, and come back and send it right out to me and I’ll respond

appropriately.” 

The jurors left the courtroom. The bailiff returned to the courtroom and,

surprising the court and counsel, informed them that the jury had reached a verdict.

The jury returned to the courtroom and read the verdict of guilty on five counts and

not guilty on seven counts. The court polled the jurors, all of whom confirmed that

the verdict was theirs. 

“Where a defendant claims that a supplemental instruction coerced the jury’s

verdict, we look to the totality of the circumstances, and we consider whether the

charge was coercive so as to cause a juror to abandon an honest conviction for

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reasons other than those based upon the trial or the arguments of other jurors.”

Drayton v. State, 297 Ga. 743, 748 (2) (b) (778 SE2d 179) (2015) (citation and

punctuation omitted). Here, the courtspecifically told the jury, “I’mnot going to keep

you here all night, folks, and I’m not trying to sweat you out of a verdict,” and that

they could return the next day. Nothing in the court’s language would cause “a juror

to abandon an honest conviction for reasons other than those based upon the trial or

the arguments of other jurors.” Mayfield v. State, 276 Ga. 324, 331 (2) (b) (578 SE2d

438) (2003) (citation and punctuation omitted). “Considering the totality of these

circumstances, we conclude that the trial court’s actions did not coerce the jury’s

verdicts.” Smith v. State, 302 Ga. 717, 723 (808 SE2d 661) (2017). So Stevens “has

failed to demonstrate any error, much less a plain error, on the part of the trial court.”

Floyd v. State, 307 Ga. 789, 799 (3) (837 SE2d 790) (2020).

3. Cross-examination of C. G.

Stevens argues that the trial court erred by refusing to permit him to crossexamine C. G. about her allegations that she had been molested by other people. We

disagree. 

Stevens was tried in May 2013. The pertinent provision of the Rape Shield

Statute in effect at that time stated that in certain prosecutions, 

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evidence relating to the pastsexual behavior of the complaining witness

may be introduced if the court . . . finds that the past sexual behavior

directly involved the participation of the accused and finds that the

evidence expected to be introduced supports an inference that the

accused could have reasonably believed that the complaining witness

consented to the conduct complained of in the prosecution.

OCGA § 24-4-412 (b) (2013). (The statute wassubstantially revised in 2019. See Ga.

L. 2019, p. 81, § 5.) Under the plain language of this version of OCGA § 24-4-412,

evidence of a complaining witness’s past sexual behavior was admissible only if the

behavior directly involved the defendant and was relevant to the issue of consent.

White v. State, 305 Ga. 111, 118 (2) (823 SE2d 794) (2019). There was no other

exception to the evidentiary restrictions of the Rape Shield Statute. Id. Stevens did

not seek to question C. G. about allegations directly involving him or for any reason

related to consent. So the trial court did not err by excluding this evidence.

4. Ineffective assistance of counsel.

Stevens argues that trial counsel was ineffective for failing to object to the

allegedly coercive jury instruction and for failing to introduce evidence about C. G.’s

sexual relationship with her boyfriend. We disagree. 

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As we held in Division 2 (b), the jury instruction was not coercive. “Because

the instruction was not erroneous, [Stevens’] attorney did not act unreasonably by

failing to object to it.” Simpson v. State, 277 Ga. 356, 359 (4) (a) (589 SE2d 90)

(2003). As we held in Division 3, at the time of trial, evidence of a complaining

witness’s pastsexual behavior was admissible only if it directly involved the accused

and was relevant to the issue of consent. White, 305 Ga. at 118 (2). Evidence about

C. G.’s sexual relationship with her boyfriend was not related to the issue of C. G.

consenting to sexual acts with Stevens, so the evidence was not admissible. “Counsel

cannot be charged with deficient performance in failing to attempt to introduce

inadmissible evidence.” Shelnutt v. State, 289 Ga. App. 528, 533 (4) (657 SE2d 611)

(2008).

So “[t]hese alleged errors simply do not rise to the standard set for a claim of

ineffective assistance of counsel,” Simpson, 277 Ga. at 359 (4), and do not entitle

Stevens to reversal.

Judgment affirmed. Doyle, P. J., and Hodges, J., concur.

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