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Kea v. State

Court of Appeals of Georgia, Fifth Division

January 12, 2018

KEA
v.
THE STATE

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         In these related appeals, Joseph Bernard Kea, III appeals from his convictions for sexual battery (OCGA § 16-6-22.1), pandering (OCGA § 16-6-12), and use of a license plate to conceal the identity of a vehicle (OCGA § 40-2-5). He argues that the evidence was insufficient to support the convictions and that the trial court should have granted him a new trial under the general grounds set forth in OCGA §§ 5-5-20 and 5-5-21. Because the evidence authorized the convictions for sexual battery and pandering, we affirm the judgments in Cases No. A17A1555 and A17A1556. Because the evidence did not authorize the conviction for use of a license plate to conceal the identity of a vehicle, we reverse the judgment in Case No. A17A1557 to the extent it pertains to that offense. (Kea was also convicted of theft by receiving in Case No. A17A1557. To the extent his enumerations of error in Case No. A17A1557 encompass the theft by receiving conviction, they are deemed abandoned under Ct. App. R. 25 (c) (2) because he cites no authority and presents no argument in support of any assertion that the trial court erred in connection with that conviction.)

         1. Sexual Battery (Case No. A17A1555).

         (a) Sufficiency of the evidence.

         In reviewing a challenge to the sufficiency of the evidence to support a conviction, 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." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (emphasis in original). In applying this standard, we do not resolve conflicts in the testimony, weigh the evidence, or draw inferences from the evidence, as those are functions of the jury. See id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the jury's verdict will be upheld." Miller v. State, 273 Ga. 831, 832 (546 S.E.2d 524) (2001) (citation and punctuation omitted).

         Viewed in this light, the evidence showed that on August 15, 2015, Kea interviewed A. B. for a dispatcher position at the trucking company where Kea worked. Kea informed A. B. that she was not qualified for the position but told her that he was going to give her a "bonus." He asked her to stand up, approached her with money in his hand, walked behind her, then pulled her pants and underwear away from her body and moved his hand downward, trying to put the money in her pants. A. B. turned around to stop Kea and asked what he was doing. Later that day A. B. reported the incident to the police.

         This evidence was sufficient to authorize the trial court to find that Kea committed the offense of sexual battery, which is committed when a person "intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person." OCGA § 16-6-22.1 (b). Kea argues that there is no evidence that he made physical contact with A. B.'s intimate parts. But the term "intimate parts" includes the buttocks, OCGA § 16-6-22.1 (a), and A. B. testified that Kea placed his hand in the area of her buttocks and touched her. Kea also argues that there is no evidence that he intended to touch A. B.'s buttocks. But

[t]he intent with which an act is done is peculiarly a question of fact for determination by the [factfinder]. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. The [trial court] could certainly infer from [Kea's] actions [of trying to put money down the back of A. B.'s pants] that he acted with the intent to [make physical contact with an intimate part of her body, her buttocks].

Duvall v. State, 273 Ga.App. 143 (1) (a) (614 S.E.2d 234) (2005) (citation and punctuation omitted).

         (b) Motion for new trial under OCGA §§ 5-5-20 and 5-5-21.

         Citing OCGA §§ 5-5-20 and 5-5-21, Kea argues that the trial court should have exercised her discretion to grant a new trial on the general grounds, that is because her finding of guilt was decidedly and strongly against the weight of the evidence. We disagree.

         OCGA § 5-5-20 provides that "[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury." (Emphasis supplied.) OCGA § 5-5-21 provides that "[t]he presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding." (Emphasis supplied.) We note that while a bench trial does not involve a jury and, technically, "there is no verdict in a bench trial, " Woodham v. State, 253 Ga.App. 112, 113 (1) (558 S.E.2d 454) (2001) (citations omitted), a motion for new trial raising the general grounds is a proper means of seeking retrial or reexamination in the trial court of that same court's decision on an issue of fact. Gully v. Glover, 190 Ga.App. 238, 239 (1) (378 S.E.2d 411) (1989).

         But our review of this claim is limited to the legal sufficiency of the evidence under the standard set forth in Jackson v. ...


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