Branesky v. State, 584 S.E.2d 669 (Ga. Ct. App. 2003). · Go Syfert
Branesky v. State, 584 S.E.2d 669 (Ga. Ct. App. 2003). Cases Citing This Book View Copy Cite
53 citation events (53 in the last 25 years) across 2 distinct courts.
Strongest positive: Pryor v. the State (gactapp, 2015-05-20)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
cited Cited as authority (rule) Pryor v. the State
Ga. Ct. App. · 2015 · confidence medium
But “the testimony at issue must be reviewed in the context in which it was given.” Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003).
discussed Cited as authority (rule) Strozier v. State
Ga. Ct. App. · 2012 · confidence medium
See generally Roviaro, 353 U. S. at 64 (II) (holding that government committed prejudicial error when the informant was “the sole participant, other than the accused, in the transaction charged” and, thus, “the only witness in a position to amplify or contradict the testimony of government witnesses”). 18 See Leonard, 228 Ga. App. at 796 (2) (trial court properly denied motion when informant “was not present, did not participate in the arrest, or take part in the offense”); Ramsay v. State, 175 Ga. App. 97, 98 (2) ( 332 SE2d 390 ) (1985) (trial court properly denied motion when “…
discussed Cited as authority (rule) Strickland v. State
Ga. Ct. App. · 2011 · confidence medium
NOTES [1] Al-Amin v. State, 278 Ga. 74 (1), 597 S.E.2d 332 (2004). [2] 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). [3] (Footnote omitted.) Jackson v. State, 282 Ga. 494, 497 (2), 651 S.E.2d 702 (2007). [4] (Citation omitted.) Browning v. State, 283 Ga. 528, 529 (2), 661 S.E.2d 552 (2008). [5] (Footnotes omitted.) Brown v. State, 309 Ga.App. 511, 517-518 (4), 710 S.E.2d 674 (2011). [6] (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 , 586 S.E.2d 313 (2003). [7] (Citation and punctuation omitted.) Carrie v. State, 298 Ga.App. 55, 63-64 (7), 679 S.E.2d 30 (2009). […
discussed Cited as authority (rule) Al-Attawy v. State
Ga. Ct. App. · 2008 · confidence medium
Compare Orr, supra at 129 (3) (failure to object to bolstering testimony constituted ineffective assistance of counsel where trial counsel testified that he misunderstood the objectionable and harmful nature of the testimony); Mann, supra at 73 (same, where trial counsel testified that this failure was not part of her trial strategy but rather was due to her lack of trial experience). 12 See Hunt v. State, 268 Ga. App. 568, 572 (2) ( 602 SE2d 312 ) (2004) (grant or denial of mistrial lies in trial court’s discretion unless manifestly abused). 13 See Branesky v. State, 262 Ga. App. 33, 36 (3)…
discussed Cited as authority (rule) Phillips v. State
Ga. Ct. App. · 2007 · confidence medium
Ruffin and Bernes, JJ., concur. 1 OCGA§ 16-6-4 (a). 2 OCGA § 16-6-22.2 (b). 3 Davis v. State, 275 Ga. App. 714, 715 (1) ( 621 SE2d 818 ) (2005). 4 Reynolds v. State, 257 Ga. 725, 726 (2) ( 363 SE2d 249 ) (1988). 5 Gregg v. State, 201 Ga. App. 238, 239 (3) (a) ( 411 SE2d 65 ) (1991). 6 Xulu v. State, 256 Ga. App. 272, 275 (4) ( 568 SE2d 74 ) (2002). 7 Newton v. State, 281 Ga. App. 549, 552 (2) ( 636 SE2d 728 ) (2006). 8 Conley v. State, 257 Ga. App. 563, 565 (2) ( 571 SE2d 554 ) (2002). 9 Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003). 10 Rayburn v. State, 194 Ga. App.…
discussed Cited as authority (rule) Freeman v. State
Ga. Ct. App. · 2006 · confidence medium
Regarding trial counsel’s failure to object to the testimony of the forensic interviewer, “[i]t is true that the credibility of a witness is a matter for the jury, and a witness’ credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Footnote omitted.) Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003).
discussed Cited as authority (rule) Anderson v. State
Ga. Ct. App. · 2006 · confidence medium
NOTES [1] OCGA § 16-6-4(c). [2] OCGA § 16-6-2(a). [3] OCGA § 16-6-3. [4] OCGA § 16-5-40. [5] OCGA § 16-6-5. [6] Berry v. State, 274 Ga.App. 831 (1), 619 S.E.2d 339 (2005). [7] Jackson v. Virginia, 443 U.S. 307, 319 (III)(B), 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). [8] "Sodomy" is defined as a "sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2(a). [9] OCGA §§ 16-4-1; 16-6-2(a). [10] OCGA § 16-6-3(a). [11] Iles v. State, 278 Ga.App. 895, 896 (1), 630 S.E.2d 148 (2006). [12] Mann v. State, 263 Ga.App. 131, 132 (1), 587 S.E.2d 288 (2003). [1…
discussed Cited as authority (rule) Frazier v. State
Ga. Ct. App. · 2006 · confidence medium
NOTES [1] OCGA § 16-6-4(a). [2] Davis v. State, 275 Ga.App. 714, 715 (1), 621 S.E.2d 818 (2005). [3] Branesky v. State, 262 Ga.App. 33, 36 (3)(a), 584 S.E.2d 669 (2003). [4] Odom v. State, 243 Ga.App. 227, 228 (1), 531 S.E.2d 207 (2000). [5] Mayo v. State, 261 Ga.App. 314, 318 (5), 582 S.E.2d 482 (2003). [6] In the Interest of M.F., 276 Ga.App. 402 , 404(2), 623 S.E.2d 234 (2005). [7] Horne v. State, 262 Ga.App. 604, 606 (1), 586 S.E.2d 13 (2003). [8] Gregg v. State, 201 Ga.App. 238, 239 (3)(a), 411 S.E.2d 65 (1991). [9] Campos v. State, 263 Ga.App. 119, 121 , 587 S.E.2d 264 (2003). [10] Smit…
discussed Cited as authority (rule) Davenport v. State
Ga. Ct. App. · 2006 · confidence medium
"It is true that the credibility of a witness is a matter for the jury, and a witness' credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth." (Footnote omitted.) Branesky v. State, 262 Ga.App. 33, 36 (3)(a), 584 S.E.2d 669 (2003).
discussed Cited as authority (rule) Davenport v. State
Ga. Ct. App. · 2006 · confidence medium
“It is true that the credibility of a witness is a matter for the jury, and a witness’ credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Footnote omitted.) Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003).
discussed Cited as authority (rule) Bravo v. State
Ga. Ct. App. · 2004 · confidence medium
Barnes and Mikell, JJ., concur. 1 OCGA § 16-6-1 (a). 2 OCGA § 16-5-41 (a). 3 OCGA § 16-11-106 (b). 4 Johnson v. State, 257 Ga. App. 30, 31 ( 570 SE2d 344 ) (2002). 5 Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 6 Baynes v. State, 218 Ga. App. 687, 690-691 (4) ( 463 SE2d 144 ) (1995). 7 Nichols v. State, 177 Ga. App. 689, 693 (2) ( 340 SE2d 654 ) (1986). 8 Gosnell v. State, 247 Ga. App. 508, 510 (2) (c) ( 544 SE2d 477 ) (2001). 9 Branesky v. State, 262 Ga. App. 33, 35 (2) ( 584 SE2d 669 ) (2003). 10 Jones v. State, 246 Ga. App. 596, 597 (2) ( 539 SE2d 602 ) (200…
discussed Cited "see" Clarence Taylor v. State (2×)
Ga. Ct. App. · 2022 · signal: see · confidence high
See Branesky v. State, 262 Ga. App. 33, 36 (1) (a) ( 584 SE2d 669 ) (2003) (context of challenged testimony is important to harm analysis, whether contested remark commented directly on allegations is relevant).
discussed Cited "see" Tommy R. Picklesimer v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See Branesky v. State, 262 Ga. App. 33, 34 (1) ( 584 SE2d 669 ) (2003) (evidence that defendant made 23 child touch his penis was sufficient to sustain conviction for child molestation).
discussed Cited "see" Carrie v. State (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
See Nejad, v. State, 296 Ga. App. 163, 169 ( 674 SE2d 60 ) (2009) (Smith, E J., concurring specially). 24 Keith v. State, 279 Ga. App. 819, 827 (6) (f) ( 632 SE2d 669 ) (2006). 25 Rayshad v. State, 295 Ga. App. 29, 36 (2) (a) ( 670 SE2d 849 ) (2008). 26 Adams v. State, 283 Ga. 298, 302 (3) (e) ( 658 SE2d 627 ) (2008). 27 Boyd v. State, 289 Ga. App. 342, 345-346 (4) ( 656 SE2d 864 ) (2008). 28 Williamson v. State, 285 Ga. App. 779, 784-785 (5) (a) ( 648 SE2d 118 ) (2007). 29 Navarro v. State, 279 Ga. App. 311, 318 (4) (c) ( 630 SE2d 893 ) (2006). 30 Jackson v. State, 282 Ga. 494, 498 (3) ( 651 …
discussed Cited "see" Newman v. State (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Branesky v. State, 262 Ga. App. 33, 35 (2) ( 584 SE2d 669 ) (2003). (b) We have reviewed the record, and find that the evidence outlined above was sufficient to support both defendants’ convictions for child molestation.
examined Cited "see" Colon v. State (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2005 · signal: see · confidence high
See Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003).
discussed Cited "see, e.g." Wiggins v. State (2×)
Ga. Ct. App. · 2016 · signal: see also · confidence medium
See also Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003); Brownlow v. State, 248 Ga. App. 366, 369 (2) (b) ( 544 SE2d 472 ) (2001).
discussed Cited "see, e.g." Rebecca Wiggins v. State (2×)
Ga. Ct. App. · 2016 · signal: see also · confidence medium
See also Branesky v. State, 262 Ga. App. 33, 36 (3) (a) ( 584 SE2d 669 ) (2003); Brownlow v. State, 248 Ga. App. 366, 369 (2) (b) ( 544 SE2d 472 ) (2001).
Retrieving the full opinion text from the archive…
Branesky
v.
the State
A03A0181.
Court of Appeals of Georgia.
Jun 27, 2003.
584 S.E.2d 669
2003 Ga. App. LEXIS 835
Alfred F Zachry, for appellant., Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Charles M. Lane, Assistant District Attorneys, for appellee.
Johnson, Eldridge, Mikell.
Cited by 24 opinions  |  Published
Johnson, Presiding Judge.

A jury found David Branesky guilty of five counts of child molestation and one count of aggravated sexual battery for acts committed against his son and daughter, who were seven and five years old at the time of the offenses. He appeals from the conviction entered on the jury’s verdict, arguing that the state failed to prove venue beyond a reasonable doubt, that he was denied effective assistance of counsel, and that the evidence was insufficient to prove one of the child molestation charges. None of the enumerations has merit, so we affirm the convictions.

Viewed in a light most favorable to the verdict, the evidence shows that five-year-old M. B. and seven-year-old L. B. went to live with their aunt and uncle in January 2000. The children’s mother had left the children with her grandmother, but the grandmother was not able to care for the children. Their father, Branesky, was in California in the military for about two months.

One night the children’s uncle, Lee Collins, went into the children’s bedroom and found the children in bed together. L. B., the male child, was on top of M. B. Her brother L. B.’s pants were pulled[*34] down, M. B.’s gown was pulled up, and L. B. was kissing his sister and acting as if he was having sexual intercourse with her. M. B. was crying, telling him to stop, and trying to push him away. When Collins confronted the children, L. B. began to cry Collins asked L. B. where he learned to do that. He replied that his father taught him. Collins then asked M. B. who taught her to act like that, and she replied that her father had. M. B. also told Collins that Branesky had touched her “privates.” M. B. told Collins’ wife that Branesky had touched her vagina with his fingers and that he tried to put his private part inside her private part, but that it would not fit.

At trial, M. B. testified that Branesky had taught L. B. to get on top of her, that Branesky had touched her front private part, that Branesky “put his finger in [her] front private part,” that she had touched Branesky’s private part with her hand, and that Branesky rubbed his private part on her private part.

A caseworker with the Meriwether County Department of Family and Children Services testified that M. B. told her that Branesky touched her genital area with his finger and that her brother had inserted his penis into her vagina. A psychologist testified that Branesky made L. B. get on top of M. B. and simulate sexual intercourse with her, and that he showed L. B. how to do this “by doing something to his sister.”

1. Branesky claims there was insufficient evidence to support the verdict of guilty on Count 3. That count accused Branesky of committing child molestation by “making [M. B.] touch his penis.” According to Branesky, the state elicited testimony from the child that she touched his penis, but the state failed to prove that he made her do it. Branesky’s argument implies that the state needed to show that the five-year-old child was forced or compelled to touch his penis.

First, we point out that there was evidence that he made the child touch his penis. On redirect, the state asked the child: “And he had you touch his private?” The child replied: Wes.” Although the child did not use the word “made,” a rational trier of fact could interpret the words “made” and “had” as being synonymous.

Secondly, the offense of child molestation does not require force. [1] And, even in those types of cases in which force is required, e.g., rape of a child, force may be shown by proof of physical violence, intimidation, threats, or fear, as shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him. [2] The child testified that Branesky did bad things to[*35] her, was mean to her and her older sisters, kicked them, hit them in the head, and yelled a lot. The evidence was sufficient.

2. According to Branesky, the state failed to prove that any of the offenses occurred in Meriwether County. We disagree.

Generally, a criminal action must be tried in the county in which the crime was committed, and the state may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. [3] On appeal, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted. [4]

At trial, M. B., who was now six years old, was not certain of the city or county in which the crimes occurred. Yet, she testified that before living with her aunt and uncle, she lived with Branesky; and that Branesky showed L. B. how to have sex with her in the house in which they lived with Branesky. The deputy investigating the crime, who worked for the Meriwether County Sheriff’s Department, testified that the allegations arose out of and occurred in Meriwether County, and that they occurred at Branesky’s residence on Foster Street. When asked specifically about Counts 1 through 6, the deputy replied that they occurred in Meriwether County. We note that the caseworker assigned to the case worked for the Meriwether County Department of Family and Children Services.

It is presumed that the deputy acted within his territorial jurisdiction. [5] Although the deputy did not personally witness the crimes, his testimony was not hearsay. [6] The child testified that the crime took place at a certain location, and the deputy testified that the location identified by the child is in Meriwether County. The state established that the offenses occurred in Meriwether County.

3. In three enumerations, Branesky contends he was denied effective assistance of trial counsel because his attorneys failed to object to a caseworker’s testimony which he says served to bolster the children’s testimony; failed to object to a comment by the children’s aunt that M. B. told her of things she saw Branesky doing with M. B.’s older sisters; and failed to object to separate sentencing for Counts 1 and 2, when the counts merged as a matter of fact. None of the arguments presents grounds for reversal.

In order to show ineffective assistance of trial counsel, an appellant must show both that (1) trial counsel’s representation fell below[*36] an objective standard of reasonableness; and (2) there is a reasonable probability that but for trial counsel’s error, the outcome would have been different. [7]

(a) Branesky complains of the following testimony from a caseworker: “[W]hen I talked to the children, the children were able to tell me what happened, and I believed them in what they were telling me.”

It is true that the credibility of a witness is a matter for the jury, and a witness’ credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth. [8] We do not agree, however, that the testimony complained of would have required a mistrial.

In this case, the testimony at issue must be reviewed in the context in which it was given. The state did not elicit any credibility evidence from the caseworker. Instead, the testimony was volunteered during a colloquy regarding who had custody of the children just before and after the outcry was made, and whether there was a custody battle between the parents. It was at the end of a somewhat lengthy discussion about who had the children that the caseworker made the unsolicited comment. The remark was not a clear comment on the children’s credibility as to their allegations of molestation. In any event, since the jury had abundant other evidence from which it could judge the victims’ credibility, reversal is not warranted based on ineffective assistance of trial counsel. [9]

(b) M. B.’s aunt testified as to what the child told her regarding what happened. The aunt stated that Branesky taught L. B. “how to get on top of her. And she has told me things of what she has seen him doing with her older sisters.” According to Branesky, the comment improperly introduces similar transaction testimony, and his defense attorneys were ineffective for not objecting. Under Strickland v. Washington, [10] Branesky is required to show that counsel’s deficient performance prejudiced the defense. [11] We note that the witness did not specify what “things” the child allegedly saw Branesky do. In light of the general nature of the challenged testimony, combined with the overwhelming evidence of Branesky’s guilt, any possible error in not objecting to the testimony was harmless. [12]

[*37] Decided June 27, 2003. Alfred F Zachry, for appellant. Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Charles M. Lane, Assistant District Attorneys, for appellee.

(c) Branesky’s trial attorneys were not ineffective for failing to object to the separate sentencing as to Count 1 (child molestation by touching M. B.’s vagina) and Count 2 (aggravated sexual battery by penetrating M. B.’s vagina with his finger). The two offenses did not merge factually.

The evidence demonstrates that Branesky’s convictions of child molestation and aggravated sexual battery were supported by separate facts. The child molestation conviction was supported by testimony that Branesky touched M. B.’s “front private” during the six-month period specified in the indictment. The aggravated sexual báttery conviction was based on separate testimony that Branesky put his finger “in” M. B.’s private part. Therefore, the crimes did not merge, and the trial court was correct in sentencing Branesky on each count. [13] Branesky has not shown ineffective assistance of counsel.

Judgment affirmed.

Eldridge and Mikell, JJ, concur.
2

Siharath v. State, 246 Ga. App. 736, 739 (2) (541 SE2d 71) (2000).

3

Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000).

4

Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002).

5

Jones v. State, 246 Ga. App. 596, 597 (2) (539 SE2d 602) (2000).

7

Tucker v. State, 245 Ga. App. 551, 554 (3) (538 SE2d 458) (2000).

8

Roberson v. State, 241 Ga. App. 226, 227 (1) (526 SE2d 428) (1999) (physical precedent only).

9

See Castro v. State, 241 Ga. App. 546, 549 (2) (527 SE2d 12) (1999) (physical precedent only); Dickerson v. State, 207 Ga. App. 241, 242 (2) (427 SE2d 591) (1993).

10

466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

11

Baitey v. State, 275 Ga. 681, 682 (2) (571 SE2d 733) (2002).

12

See Dixon v. State, 240 Ga. App. 644, 647 (2) (524 SE2d 734) (1999).

13

See Seidenfaden v. State, 249 Ga. App. 314, 319 (4) (547 SE2d 578) (2001).