MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
Pinto Marroquin appeals from his conviction for aggravated
sexual battery. We find no merit in either his challenge to
the sufficiency of the evidence or his assertion that the
trial court abused his discretion in admitting a photograph
of the victim into evidence. So we affirm.
Sufficiency of the evidence.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, with the defendant
no longer enjoying a presumption of innocence."
Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d
165) (2004) (citation omitted). We neither weigh the evidence
nor judge the credibility of witnesses, but determine only
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) (citation and emphasis omitted).
viewed, the evidence showed that on a morning in January
2014, nine-year-old H. A. was asleep in a bed with her mother
and two siblings. Marroquin, who was H. A.'s mother's
boyfriend, was asleep at the foot of the bed. After H.
A.'s mother got out of bed and left the room, Marroquin
moved so that he was lying under the covers next to H. A.,
facing her back. Marroquin reached around H. A.'s body,
put his hand down her underwear, and inserted a finger in her
vagina. H. A. pushed Marroquin's hand away, and he told
her not to tell her mother. Marroquin got out of bed and
left. H. A. then told her mother what had happened. H.
A.'s mother confronted Marroquin, who told her he had
mistaken H. A. for her.
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). "[A]
finger constitutes a 'foreign object' for purposes of
this crime." Johnson v. State, 276 Ga. 57, 58
(1) (573 S.E.2d 362) (2002) (citation omitted). See OCGA
§ 16-6-22.2 (a).
Marroquin does not dispute that he penetrated H. A.'s
sexual organ with his finger, he asserts that he mistook H.
A. for her mother, his girlfriend, and so there was
insufficient evidence of his criminal intent. "On the
issue of intent, the [s]tate must prove that the
defendant's act of penetrating the victim's sexual
organ or anus was intentional and that the defendant knew or
should have known that the victim did not consent or lacked
the capacity to consent." Lee v. State, 300
Ga.App. 214, 216 (1) (684 S.E.2d 348) (2009) (citations
omitted). Marroquin argues that the state did not meet this
burden because it "offered no evidence to negate or
disprove beyond a reasonable doubt that [his] actions were
something other than a mistake." We disagree. The state
presented evidence describing the physical differences
between nine-year-old H. A. and her adult mother in January
2014. In addition, the state presented evidence that
Marroquin told H. A. not to tell her mother about his actions
before H. A. pushed his hand away from her. From
this evidence, the jury was authorized to find that Marroquin
intended to perpetrate his acts on H. A., not her mother. The
evidence supported Marroquin's conviction for aggravated
Admission of victim's photograph.
Marroquin's objection, the trial court admitted into
evidence a school photograph of H. A. taken approximately
eight months before January 2014. Marroquin argues that this
was error because the photograph's "probative value
was substantially outweighed by the danger of unfair
prejudice[.]" OCGA § 24-4-403. Whether to exclude
evidence on this ground
is a matter committed principally to the discretion of the
trial court[. Moreover, ] the exclusion of evidence under
OCGA § 24-4-403 is an extraordinary remedy which should
be used only sparingly. The major function of OCGA §
24-4-403 is to exclude matter of scant or cumulative
probative force, dragged in by the heels for the sake of its
prejudicial effect. In close cases, the balance should be
struck in favor of admissibility.
Dixon v. State, 341 Ga.App. 255, 260 (1) (b) (800
S.E.2d 11) (2017) (citations and punctuation omitted).
photograph at issue had probative value - it tended to show
that around January 2014 H. A. looked like a child, not an
adult, thereby making Marroquin's claim that he mistook
H. A. for her mother less probable. See generally
Dixon, supra at 261 (1) (b) (discussing concepts of
relevance and probative value). Although the photograph was
taken several months earlier, there was evidence that H.
A.'s appearance in January 2014 did not differ markedly
from the photograph. But there was evidence that H. A.'s
appearance had changed between the January 2014
incident and the November 2015 trial at which she testified.
not persuaded by Marroquin's assertion that the probative
value of the photograph was outweighed by a danger of unfair
prejudice from it. Marroquin cites to our Supreme Court's
opinion in Ragan v. State, 299 Ga. 828, 832-834 (3)
(792 S.E.2d 342) (2016), which concerned the prejudicial
nature of the admission of several "in-life"
photographs of a murder victim that the Court found had
little if any probative value. Here, in contrast, the
photograph directly pertained to a critical, disputed issue -