MCFADDEN, P. J., RAY and RICKMAN, JJ.
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.
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).
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."
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.
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.
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.
Williams contends that the evidence is insufficient to
sustain his conviction for aggravated sexual
battery 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
"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).
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. 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).
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.
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
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.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 ...