Child molestation, etc. Camden Superior Court. Before Judge Lane.
Ross & Pines, Noah H. Pines, for appellant.
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Katie M. Gropper, Assistant District Attorneys, for appellee.
McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.
After a jury trial, Patrick Watson was convicted of two counts of sexual battery (as lesser included offenses to the indicted offenses of child molestation) against his teenaged daughter, K. P., and one count of child molestation against his daughter's friend, M. S. Watson argues that the evidence did not support the child molestation conviction, but we find the evidence sufficient. He argues that the trial court gave an erroneous " unanimity charge" to the jury, but we find the challenged charge did not insist upon unanimity. He argues that the trial court improperly charged the jury that a minor cannot consent to sexual conduct in the context of sexual battery, but we find [329 Ga.App. 335] that the challenged charge correctly stated the law and Watson did not raise or obtain a ruling in the trial court on whether the statute setting forth the offense of sexual battery is overly broad when applied to a minor. Watson argues that the trial court erred in preventing him from presenting certain good character evidence, but we find that he did not lay a foundation for the evidence. He argues his counsel was ineffective for failing
to object to the alleged " unanimity" jury charge, but we find no deficiency because the charge did not insist on unanimity. Finally, he argues that the trial court should have merged his two sexual battery convictions for sentencing purposes, but we find that the convictions were to charges in the indictment that Watson committed separate and distinct acts. Accordingly, we affirm.
1. Trial evidence.
K. P., who was 14 years old at the time of the August 2008 trial, testified that she moved in with Watson when she was 11 years old. On three or four occasions, when she informed Watson that she needed a larger bra, he examined her breasts by touching them under her clothing. He did this even though K. P. told him it made her feel uncomfortable. On several other occasions, Watson examined and touched K. P.'s pubic area to determine if she was shaving that area. Again, Watson persisted in this conduct even though K. P. told him it made her uncomfortable. K. P. described an instance where, as she was leaving the bathroom wearing a towel, Watson stopped her and asked her if she had shaved her pubic area. K. P. testified that she " ended up laying down in front of him and the bottom part of [her] towel he lifted up and he touched to see if [she] shaved."
K. P. testified that her friend M. S. spent the night with K. P. on November 11, 2007. While the two girls were in K. P.'s bedroom, they overheard what they believed to be sexual activity between Watson and a female acquaintance in another room, and they began joking and giggling about it. Later, Watson entered K. P.'s bedroom wearing a towel, and he asked if the girls were sexually aroused. He then sat on the bed and touched K. P.'s thigh near her vagina. K. P. discussed this incident with police the following day.
M. S., who was 15 years old at the time of trial, testified about the November 11 incident. She said that Watson came into the bedroom wearing a towel and asked K. P. if she was aroused. M. S. was lying on her stomach on the bed, and Watson lay across her legs, reached out his hand and touched her breasts, and then placed his hand on her buttocks. M. S. testified that she jumped off the bed and Watson then put his hand down her pants, touching her vagina. When M. S. moved Watson's hand away, he again placed it on her pubic area, this time over her clothing. The next day, M. S. reported this incident to a [329 Ga.App. 336] friend, to a relative, and to the police. M. S. also testified that, on a previous occasion, Watson had told her he " want[ed] to taste [her]" and " eat [her] pussy."
A special agent for the United States Naval Criminal Investigative Services testified that he became involved in the case because Watson was employed by the Navy. He testified that he interviewed Watson, who offered several different accounts of the November 11 incident. At points during the interview, Watson stated that he had asked if the girls were sexually aroused; that he had touched M. S.'s vagina (which he claimed was accidental); that he had talked with both girls about shaving their pubic regions; that during the shaving discussion he had pulled M. S.'s shorts to the side, exposed and touched her pubic area, and used two fingers to rub the hair next to her vagina; that he had made sexually explicit comments to the girls; that he had previously ...