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Kruel v. State

Court of Appeals of Georgia, Fifth Division

January 12, 2018

KRUEL
v.
THE STATE.

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

          McFadden, Presiding Judge.

         Larry Arthur Kruel, Jr., appeals from his convictions for child molestation (OCGA § 16-6-4 (a)) and third degree cruelty to children (OCGA § 16-5-70 (d)). He challenges the sufficiency of the evidence and argues that the trial court should have granted him a new trial on the general grounds, but the evidence met the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). He argues that the trial court erred in ruling that a witness was qualified to give expert opinion testimony, but the trial court did not abuse his discretion in this regard. And Kruel argues that the trial court erred in requiring him to register as a sex offender as part of his sentence, but the trial court was authorized to do so under OCGA § 42-1-12. So we affirm.

         1. Sufficiency of the evidence.

         Kruel challenges the sufficiency of the evidence supporting his convictions. In reviewing this challenge, 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, supra, 443 U.S. at 319 (III) (B) (emphasis in original).

         So viewed, the evidence showed that in late August 2012, Kruel was babysitting nine-year-old R. H. and her twin brother, D. H., at Kruel's house. While R. H. sat on Kruel's lap on a sofa, Kruel touched her vaginal area with his hand and placed a small vibrating massager between her open legs, holding it there for up to a minute and a half even though she told him to stop. D. H. was nearby and witnessed the incident with the massager.

         In addition, Kruel brushed R. H.'s vaginal area with his hand as he helped her put on a cut-off jean skirt that he had made for her, which resembled a skirt worn by a model in an adult magazine, titled "Young and Wild, " found in a kitchen cabinet in Kruel's house. The skirt was so short it showed R. H.'s underwear when she bent over. Kruel accompanied R. H. as she played outside while wearing the skirt.

         (a) Child molestation.

         This evidence authorized the trial court to find Kruel guilty of two counts of child molestation for touching R. H.'s vagina with his hand and with the massager. A person commits the offense of child molestation, among other ways, when he "[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]" OCGA § 16-6-4 (a) (1).

         Although Kruel admitted at trial that he held the massager between R. H.'s legs and that he may have brushed his hand against her vaginal area, he argues that there was no evidence that he did so with the intent to arouse his or the girl's sexual desires. He specifically points to a lack of evidence that either he or R. H. was actually aroused. But

[t]he child molestation statute does not require proof of . . . actual arousal. Instead, the law requires only that the defendant have acted with the intent to arouse his [or the child's] sexual desires. The question of intent is peculiarly a question of fact for determination by the [finder of fact, who] may infer a defendant's intent from the evidence presented at trial. Where the [finder of fact] finds the requisite intent, that finding will not be reversed on appeal provided there is some evidence supporting the [finder of fact's] inference.

Brown v. State, 324 Ga.App. 718, 720-721 (1) (751 S.E.2d 517) (2013) (citations and punctuation omitted). See Parrott v. State, 318 Ga.App. 545, 553 (3) (736 S.E.2d 436) (2012) (whether defendant's intentions were innocent or to arouse his own sexual desires was peculiarly a question of fact for the factfinder).

         The evidence in this case, viewed in the light most favorable to the prosecution, supported the trial court's inference that Kruel intended to arouse his or R. H.'s sexual desires. Kruel touched R. H.'s vaginal area with both his hand and a massager. He held the massager in place between the girl's open legs despite her request that he stop. He made for R. H. a revealing skirt similar to one worn by a model in an adult magazine in his possession. And he accompanied the girl outside as she played in the revealing skirt. From this evidence, a "rational trier of fact could have found [Kruel] guilty of child molestation beyond a reasonable doubt." Wiley v. State, 271 Ga.App. 393, 396 (1) (609 S.E.2d 731) (2005) (citations and punctuation omitted) (affirming conviction of defendant who excessively viewed pornography and admitted touching and viewing his daughter's unclothed vagina multiple times, but asserted that he did so for medical reasons). See Reyes-Vera v. State, 313 Ga.App. 467, 469 (722 S.E.2d 95) (2011) (affirming conviction of defendant who touched child inappropriately, fondled his buttocks, rubbed his body, and attempted to kiss him); Andrew v. State, 216 Ga.App. 427, 428 (454 S.E.2d 542) (1995) (affirming conviction of defendant who "tickled" his daughter's vagina and, on more than one occasion while she was in bed, "pressed a hard, oval shaped object that was long like a pen against her vagina").

         (b) Cruelt ...


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