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Molestation Convictions Reversed Due to Errors by Trial Counsel

March 2, 2018

In Tezeno v. State, the Georgia Court of Appeals reversed the defendant’s convictions on two counts of aggravated child molestation, two counts of sodomy, one count of enticing a child for indecent purposes and one count of solicitation of sodomy, finding that his trial counsel rendered ineffective assistance in several respects.

At trial, the evidence showed that the alleged 14-year-old victim and other neighborhood children had routinely performed yard work for the defendant. An investigator testified that the alleged victim, in a follow-up interview, had said that the defendant once offered money in exchange for performing oral sex on him. The boy testified at trial that the defendant had performed oral sex on him on two separate occasions.

The boy allegedly told his mother later about both incidents of oral sex, though he had previously denied that anything happened when his mother had initially questioned him. The mother testified that her son’s behavior changed drastically in the weeks following his outcry and led to multiple suspensions from school for disobedience and fighting.

Following a pretrial hearing, the State also presented testimony from two witnesses concerning a prior allegation that the defendant had molested another child.

The State also introduced expert testimony from the district attorney’s director of forensic services, who testified as an expert in forensic interviews and child sexual abuse evaluations. The expert testified regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) – a controversial theory that certain characteristics of abused children may prevent them from disclosing the abuse. The cross examination of the expert by the defendant’s trial attorney was minimal and mostly inconsequential.

At the hearing on the defendant’s motion for new trial, appellate counsel stated that he had obtained records showing that the mother had two felony convictions consisting of charges of forgery in the first degree and theft by receiving stolen property. Appellate counsel also obtained the alleged victim’s school records which showed that he had been suspended from school for various behavioral issues prior to the dates of the alleged incidents with the defendant. This contradicted the mother’s claims at trial that there were no disciplinary issues prior to the incidents.

Trial counsel admitted that he did not fully comprehend the expert’s testimony and had not conducted any research into CSAAS. He also admitted that he was aware of a videotaped interview with the prior alleged victim which would have been exculpatory as the child gave no indication in the interview that he had been molested. The attorney failed to request a copy of the video or ask for a continuance so he could obtain it.

In light of the above, the Court of Appeals held that trial counsel’s performance was deficient and that, but for counsel’s errors, there was a reasonable probability that the outcome of the trial would have been different.

As a result, the Court vacated the defendant’s convictions and remanded the case for a new trial.

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