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Galvan v. State

Court of Appeals of Georgia

February 4, 2015

GALVAN
v.
THE STATE

Page 774

Aggravated child molestation, etc. Dougherty Superior Court. Before Judge Goss.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

OPINION

Page 775

Barnes, Presiding Judge.

Based on allegations that he sexually abused his stepdaughter, a jury convicted Luis Galvan of two counts of aggravated child molestation and four counts of child molestation. Galvan filed a motion for a new trial, which the trial court denied. On appeal, Galvan contends that the evidence was insufficient to support his convictions because his stepdaughter recanted her allegations; that the trial court erred in allowing a rebuttal witness called by the State to testify to matters that went beyond rebuttal; and that the trial court erred in overruling his objections to allegedly improper comments made by the prosecutor during closing argument. Upon our review, we affirm.[1]

[330 Ga.App. 590] " Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." Anthony v. State, 317 Ga.App. 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that on the morning of April 23, 2009, Galvan dropped off the 11-year-old victim, his stepdaughter, at her elementary school. As the victim got out of the car, Galvan tried to kiss her, but she refused to let him do so. Upset over the attempted kiss and because she did not want Galvan to pick her up from school that afternoon, the victim began to cry and approached a teacher she knew. The victim told the teacher that she was afraid and needed to speak with the school counselor. When asked why she was afraid, the victim disclosed for the first time that Galvan had been touching her inappropriately at her home. Following school procedure, the teacher did not ask for further details and instead took the victim to see the school counselor. The school counselor spoke with the victim and then with the school principal, who called the police.

Later that same day, the victim was taken to a child advocacy center where a recorded forensic interview was conducted. The victim disclosed to the forensic interviewer that Galvan had sexually abused her on several occasions beginning when she was eight or

Page 776

nine years old and continuing until shortly before her disclosure of the abuse at school that morning. The victim stated that the sexual abuse included instances where Galvan kissed her on the mouth and neck, touched her inappropriately, placed his mouth on her genitals, placed her hand on his penis, digitally penetrated her vagina with his finger, and had vaginal and anal intercourse with her. According to the victim, her mother had inadvertently walked into the room and witnessed two incidents in which Galvan had been touching her in a sexual manner. However, the mother did not report the sexual abuse to the police, the abuse continued, and the victim did not tell anyone else about it until her disclosure at school.

After the forensic interview, a nurse at the child advocacy center performed a physical examination of the victim and photographed the injuries that she observed. The victim told the nurse that she was at the child advocacy center because her stepfather had vaginally and anally raped her on several occasions and had touched her genitals, chest, and neck. During the vaginal examination, the nurse noted that the victim reported extreme discomfort when touched in her vagina with a Q-tip, which prevented the nurse from completing her evaluation of the hymen area for injuries. But the nurse did note that the victim had a wound that was healing in another area of her vagina consistent with vaginal penetration. Additionally, during her rectal examination of the victim, the nurse observed anal dilation, or anal [330 Ga.App. 591] laxity, which was consistent with repeated anal penetration, given that the victim did not have a medical history of any bowel problems.

After the nurse completed the physical examination, a police investigator conducted a recorded interview with the victim. The victim repeated to the police investigator the allegations of sexual abuse that she had made to the forensic interviewer earlier that day. The investigator also confirmed that the abuse had occurred in several residences where the victim had lived with her family in Dougherty County. Additionally, the investigator spoke with the victim's mother, who admitted to him that she installed a lock on her children's bedroom door in an effort to keep Galvan out of the room so that the victim and her sisters could sleep at night.

Galvan was arrested and indicted on two counts of aggravated child molestation and four counts of child molestation for sexually abusing the victim. At the ensuing jury trial, the State introduced and showed to the jury a video recording of the victim's forensic interview, an audio recording of the victim's interview with the police investigator, and pictures taken during the nurse's physical examination of the victim. Additionally, the elementary school teacher, the forensic interviewer, and the police investigator testified about ...


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