Child molestation, etc. Chatham Superior Court. Before Judge Bass.
Judgment affirmed in part and reversed in part.
Miller & Key, J. Scott Key, for appellant.
Meg E. Heap, District Attorney, Emily C. Puhala, Assistant District Attorney, for appellee.
BOGGS, Judge. Barnes, P. J., and Branch, J., concur.
Lawrence Madison appeals from his convictions for child molestation, two counts of sexual battery, and aggravated sexual battery. He asserts the general grounds and that numerous errors below entitle him to a new trial. For the reasons explained below, we affirm Madison's child molestation conviction. But, based upon an error in the trial court's charge to the jury, we reverse his sexual battery and aggravated sexual battery convictions.
In reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
So viewed, the record shows that Madison's child molestation conviction arose out of his conduct in October 2006 when the victim, Madison's adopted stepdaughter, was 15 years old. His sexual battery and aggravated sexual battery convictions relate to his actions in [329 Ga.App. 857] October 2009, when the victim was 18 years old. Evidence of the victim's allegation that Madison molested her in 2003 was admitted during the trial, but Madison was not charged with a crime for this alleged conduct.
The State submitted evidence showing that in 2003, when the victim was 11 years old, she reported to an after-school care provider that her stepfather was touching her inappropriately. The provider informed the victim's mother as well as the police about the victim's allegation. The victim testified that in 2003, Madison would give her a back massage and then " he moved to the front" and touched her breasts. She explained that " [w]hen it would happen I kinda froze and I just didn't ... I knew that it was happening but I didn't really pay attention to it, I guess. Like I would always focus on something else to keep my mind ... away from what was happening basically." She explained that she later denied that Madison did anything inappropriate in the ensuing investigation, because Madison and her mother attacked her, told her " not to tell the whole truth," she " didn't want him to get in trouble," and did not want to be taken away from her family. She stated that she had been taken to a runaway shelter and " she did not want to stay there anymore and [she] just wanted out of the whole situation."
The victim's mother testified that the victim told her in 2003 that she was uncomfortable with Madison touching her shoulders and nothing more. She denied coaching the victim, and explained that there was an agreement in the family after this report " for him not to touch her shoulders." A police investigator testified that after her investigation, including an interview with the victim in which she denied that her father touched her breasts, a decision was made " that there wasn't really criminal conduct involved."
The victim testified that after she returned home in 2003, Madison once again started hovering over her, rubbing her feet, brushing her hair, and watching her while she slept in the middle of the night. When she yelled for her mother in the middle of the night, her mother would come running, and Madison would make an excuse for being in her room claiming, for example, that he was looking for something. The victim testified that after she made these reports, she would go stay with her grandmother for a few weeks or a month before returning home. Between 2003 and 2006, she stayed with her grandmother approximately six times. The victim's mother denied that the victim ever told her during this time period that Madison was making her uncomfortable or going into her room.
[329 Ga.App. 858] 2006 Incident
With regard to the 2006 incident, the victim testified that she asked Madison for a back massage, because she had been in a car accident. She was watching a movie, and her mom was in the kitchen doing dishes. She testified that she was lying on the couch on her stomach and " he just walked over and sat on my butt and massaged me" and " as he's massaging me he's like grinding against me and, of course, I feel his boner just on my back, you know, just chillin'." She explained that when Madison " first got on me it was completely soft and then as soon as he started rubbing me it was hard." After the victim reported it to her school counselor, her
mom an[d] grandma came up to the school and we were all yelling at each other in the counselor's office. They were calling me a liar again. My mom threatened to take my phone away from me because of everything. And I'd been offered a place to stay at [a friend]'s house ... and my house [sic] said no, she can go to foster care instead.
So she basically sent me to foster care. ...
After a period of time in foster care, the victim lived with her grandmother and " basically was forced to put on a happy face."
The victim's mother testified that both she and the victim's brother had been in the room at the time of the alleged incident and " had not seen anything" inappropriate. She explained that after the victim's first report to DFACS, she never left the victim alone with Madison. If she left the room to go the bathroom, she would make sure her son remained in the room with the victim. Because the mother was unwilling to go through another case plan with DFACS when she had been in the room when it allegedly happened, she made arrangements for the victim to live with her grandmother through the age of 18.
During cross-examination of a police officer, the defense established that the grand jury returned a " no bill" concluding that insufficient evidence existed to charge Madison with a crime in connection with the 2006 incident.
In 2009, the victim graduated from high school and was still living with her grandmother while attending college. Madison offered for her to work part-time at his office to earn extra money in addition to her job at a restaurant. When cross-examined about why she [329 Ga.App. 859] " would even go near him," the victim explained:
Because I was kinda forced to put on a ... a smile about this whole thing. I was ... I was forced to be nice to him. He offered to give me a job. What ... eighteen year old isn't gonna ... is gonna turn away a job where you get pretty much free money for bein[g] on Facebook? ... I didn't have to do crap over at his office. ... It was very easy money and I needed extra money because I was going on trips. I was 'sposed to be going to ... I had just come back from Costa Rica, I was gon' be going on a bunch of other stuff. It ... I needed money. I wanted it.
She noticed after she started working in Madison's office that his pattern with her was forming again. He " was paying more attention to me, he was coming up behind me a lot, putting his hands on my shoulders. Not really rubbing them but just putting them on my ...