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Williams v. State

Court of Appeals of Georgia, Fifth Division

June 7, 2018

WILLIAMS
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          Ray, Judge.

         A jury convicted Kenneth Williams of two counts of child molestation (OCGA § 16-6-4 (a)) and one count of aggravated sexual battery (OCGA § 16-6-22.2). He filed the instant appeal from the denial of his motions for new trial. For the reasons that follow, we affirm Williams' convictions for child molestation. We are constrained by a 2017 decision of the Georgia Supreme Court to reverse his conviction for aggravated sexual battery and remand the case for a new trial on that issue.

         On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to the jury's verdict. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only whether the jury was authorized by the evidence to find the defendant guilty of the crimes charged. Laster v. State, 340 Ga.App. 96, 97 (796 S.E.2d 484) (2017).

         The evidence adduced at trial showed that in 2013, E. H., who was four years old at the time and staying at her grandmother and Williams' house, contacted her mother via FaceTime, crying and asking to come home. Williams was E. H.'s step-grandfather. In the car on the way home, E. H. told her mother that she had a "secret" with Williams, whom she called "Poppy." E. H. said that Williams had been touching her privates. At trial, E. H. responded affirmatively when asked if Williams touched her "in" her privates, but also testified that he only touched her on the outside of her privates and that her panties were "up" when he touched her. Specifically, E. H. told her mother, "Poppy touches my hoo-hoo and I touch his wee-wee." These were words that E. H.'s family used, respectively, to refer to the vagina and the penis. E. H. later made a consistent report about the touching to her father, and was upset and crying when she did so. E. H.'s behavior was matter-of-fact and normal when she relayed this information to her mother. The mother said E. H. was "adamant" that the touching had happened. At some point in 2013, E. H. told her mother that Williams "had put his finger inside her vagina."

          After E. H. made outcry to her mother, Williams told his wife, E. H.'s grandmother, about a number of incidents occurring between September 2012 and July 2013 in which E. H. approached him, squeezed his penis or testicles, sometimes punched his testicles, and took his finger to touch her vagina. The grandmother testified that Williams demonstrated for her how he touched E. H. at the top of her vagina, on the outside, and agreed that it was "undisputed" that this had happened. The grandmother testified that Williams never said specifically that he did not put his finger inside E. H.'s vagina. The grandmother took notes on these incidents in an email that she eventually sent to E. H.'s mother and from which she was questioned at trial. When asked if E. H. "would touch his penis and he would touch her vagina, " the grandmother said Williams had told her that it did not happen on each visit, but "[i]f it happened, it only happened once" each time E. H. visited.

         Jill Hesterlee, a registered nurse and forensic interviewer, interviewed E. H. in August 2013 at the Carroll County Child Advocacy Center. It was a recorded video interview, which was tendered into evidence and played for the jury. During the interview, Hesterlee showed E. H. drawings of male and female subjects, and had her identify various body parts. E. H., pointing at the genitals on the drawings, said that "Poppy" (Williams) touched her and she touched him, more than once, in places that were not okay, but that "he said it was okay" and "we don't want grammy to see because it was just our secret." E. H. also told Hesterlee that she and Williams pulled their pants and underwear down, and that he touched her vagina "with his fingers." When Hesterlee asked E. H. whether Williams touched her "hoo-hoo" (vagina) on the outside or the inside, E. H. responded, "both" and "both, sometimes." Asked what this felt like, E. H. responded, "It tickles a little bit and it feels so good . . . it feels good in and out." E. H. said she did not want Williams to stop. Hesterlee then asked, "So he does his finger in and out?" E. H. nodded affirmatively.

         E. H. told a counselor, whom she was seeing at the time of trial, that she felt bad for not telling Williams "no" when he touched her, that she wanted the touching to stop, and that she did not feel comfortable.

         1. Williams contends that the evidence is insufficient to sustain his conviction for aggravated sexual battery[1] because no rational trier of fact could have found the element of penetration beyond a reasonable doubt. He argues that E. H.'s testimony was inconsistent, and that her statements in a forensic interview "were not very clear" and were "the product of suggestive questioning."

          "A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2 (b). The Code section defines "foreign object" as "any article or instrument other than the sexual organ of a person." OCGA § 16-6-22.2 (a). A finger is considered a foreign object under OCGA § 16-6-22.2 (a). Hardeman v. State, 247 Ga.App. 503, 504 (2) (544 S.E.2d 481) (2001).

         Although E. H. gave some conflicting testimony, there was some evidence, as outlined above, that Williams' finger went into E. H.'s vagina. See Kirkland v. State, 334 Ga.App. 26, 27-28, 33 (3) (778 S.E.2d 42) (evidence sufficient to sustain defendant's conviction for aggravated sodomy where relatives of child victim testified that child told them defendant made her engage in oral sex, but victim, who was four years old when testifying at trial, only nodded affirmatively to related questions, said she forgot, or refused to answer). There also was evidence that E. H. did not consent, in that she told one of her counselors that she did not want Williams to touch her and wanted him to stop.[2] Any issues of inconsistency or credibility of testimony are for the jury, not this Court, and the jury was authorized by the evidence to conclude that aggravated sexual battery occurred. Pearce v. State, 300 Ga.App. 777, 779-780 (1) (686 S.E.2d 392) (2009).

         2. Williams argues that the trial court erred by instructing the jury, in regard to the aggravated sexual battery count, that a child under the age of 16 lacks the legal capacity to consent to any sexual act. This instruction, Williams contends, relieved the State of its burden to prove that the crime was committed without the child's consent.

         The trial court charged the jury that, "[a] person commits the offense of aggravate[d] sexual battery when one intentionally penetrates with a foreign object the sexual organ of another person without the consent of that person." See OCGA § 16-6-22.2 (b). The trial court immediately added, "As I previously charged, a child under the age of 16 cannot legally consent to any sexual act."

         As Williams concedes, "[a]lthough the charge was a correct statement of the law at the time it was given, following the trial, the Supreme Court of Georgia held that the crime of sexual battery requires actual proof of the victim's lack of consent, regardless of the victim's age." (Punctuation omitted.) Laster, supra at 100 (2), citing Watson v. State, 297 Ga. 718, 720-721 (2) (777 S.E.2d 677) (2015). In Duncan v. State, 342 Ga.App. 530, 540-541 (6) (804 S.E.2d 156) (2017), which also involved a case in the appellate pipeline when Watson was decided, this Court found that the State also must prove a victim's lack of consent in cases of aggravated sexual battery. Williams argues, for the first time on appeal, that the instant case was not yet final and, thus, was in the appellate "pipeline" at the time Watson was decided.[3]Harris v. State, 273 Ga. 608, 610 (2) (543 S.E.2d 716) (2001) (applying new rule of criminal procedure regarding jury instructions to "all cases in the 'pipeline' - i.e., cases which are pending on direct review or not yet final") (citations omitted). Thus, "the Watson holding governs our analysis. We therefore must determine whether the charge was harmless, i.e., whether it is highly probable that ...


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