Reconsideration denied November 21, 2014 -- Cert. applied for.
Statutory rape. Forsyth Superior Court. Before Judge Bagley.
Banks & Stubbs, Rafe Banks III, for appellant.
Penny A. Penn, District Attorney, Ramsey R. Magaro, Assistant District Attorney, for appellee.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
Todd Algren was charged in one indictment with one count of statutory rape and was charged in a second indictment, pertaining to a separate victim, with two counts of child molestation. Following a joinder of the indictments and a consolidated trial, the jury found him guilty on the statutory-rape charge and not guilty on the child-molestation charges. Algren appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in joining the two indictments for trial, failing to charge the jury as to similar-transaction evidence, improperly charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, and sentencing him for felony statutory rape. For the reasons set forth infra, we affirm Algren's conviction.
Viewed in the light most favorable to the jury's verdict, the record shows that S. H. and her older brother had lived with their aunt and uncle since 2005. In June 2008, S. H.'s aunt and uncle, who were both avid scuba divers, planned a diving vacation to the Florida Keys. Consequently, they registered then 14-year-old S. H. and her 16-year-old brother for scuba diving lessons with Algren, who was a certified diving instructor and operated a local dive shop. On the morning of June 29, having completed most of their certification requirements over the course of the previous week, S. H. and her [330 Ga.App. 2] brother met Algren at a coffee shop and then went to a nearby swimming pool for some additional training.
Some time around noon, S. H., her brother, and Algren returned to the dive shop to unload their gear and other equipment, and after doing so, S. H.'s brother offered to go pick up some fast-food for lunch. A few minutes after her brother left the shop, S. H. and Algren, who had been flirting with each other for a couple of days via text messages and phone calls, began kissing. They then went to a room at the back of the dive shop, at which point Algren removed S. H.'s shorts and her bathing suit and had sexual intercourse with her. Subsequently, S. H. and Algren put their clothes back on, and returned to the front part of the dive shop just as S. H.'s brother returned from picking up their lunch.
A few days thereafter, Algren called S. H. at her home to discuss scheduling a time for her to fulfill one of the swimming requirements that she had yet to meet. And during this conversation, S. H. and Algren continued flirting and discussed their sexual liaison. Algren also asked S. H. if she wanted to have sex again and inquired as to whether there
was any chance she could be pregnant, given the fact that they did not use protection during their first encounter. But while S. H. and Algren were talking, S. H.'s uncle, who was suspicious that S. H. was dating a former classmate despite being forbidden to do so, quietly picked up another phone in the house, heard nearly the entire conversation, and realized that S. H. was speaking with Algren.
Not long after S. H. and Algren ended their phone call, S. H.'s aunt and uncle confronted her regarding the conversation that her uncle overheard. Initially, S. H. denied that anything inappropriate occurred, but she eventually admitted that she and Algren had sexual intercourse. That same day, S. H.'s aunt and uncle reported the incident to local law enforcement, who then scheduled a forensic interview for S. H. and began an investigation into S. H.'s allegation against Algren.
While the investigation of S. H.'s statutory-rape allegation was pending, Algren was living with his girlfriend and her two young children. And on April 29, 2010, approximately a year and a half after S. H.'s allegation, K. R., the nine-year-old daughter of Algren's girlfriend, informed a counselor at her elementary school that one night, during the summer of 2009, Algren came into her bedroom and touched her breasts and privates. The counselor contacted K. ...