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Boyd v. State

Court of Appeals of Georgia, Fifth Division

May 17, 2019

BOYD
v.
THE STATE.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Mark Bradley Boyd was convicted of child molestation for having sexual intercourse with 14-year-old V. B. and for sexual exploitation of a child for knowingly possessing a digital image of V. B.'s genitals on his cellular phone. Boyd argues that the state failed to prove venue as to either offense, but the evidence was sufficient to authorize the jury to find that the crimes were committed in Coweta County, as charged. Boyd argues that the trial court erred in admitting evidence that he had engaged in other acts of sexual intercourse with minors, but the trial court did not abuse his discretion in that ruling. Finally, Boyd argues that his trial counsel was ineffective in failing to seek to strike a juror who had been molested as a child, but he has not shown both that this failure constituted deficient performance and that he was prejudiced by it. So we affirm.

         1. Evidence.

         On appeal from a criminal conviction, we view the evidence "in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence[.]" Morris v. State, 322 Ga.App. 682 (1) (746 S.E.2d 162) (2013) (citation omitted). So viewed, the evidence showed that for several months in late 2014, Boyd dated V. B.'s mother. During that time, Boyd sometimes made suggestive comments to V. B., the two exchanged sexual messages over a messaging app on their cellular devices, and V. B. sent Boyd some nude photographs of herself, including a photograph of her genitals. On December 15, 2014, V. B. spent the night at Boyd's house and the two had sexual intercourse. V. B. disclosed that event to Boyd's daughter, who was her school friend. In January 2015, after Boyd and V. B.'s mother broke off their relationship, V. B. disclosed to her mother that Boyd had molested her. She repeated this disclosure to a psychologist during a forensic examination. Law enforcement officers arrested Boyd, and they recovered from his cellular phone nude photographs of V. B.

         Although Boyd does not challenge the sufficiency of the evidence except as to venue, the evidence recited above is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See generally OCGA § 16-6-4 (a) (1) ("A person commits the offense of child molestation when such person . . . [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 § 16-12-100 (b) (8) ("It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct."); OCGA § 16-12-100 (a) (4) (D) ("[s]exually explicit conduct" means "actual or simulated . . . [l]ewd exhibition of the genitals or pubic area of any person").

         2. Venue. Boyd argues that the state failed to prove venue as to either offense. We disagree.

         As with the other elements of a criminal offense, the state must prove the element of venue beyond a reasonable doubt. See Pike v. State, 302 Ga. 795, 797 (1) (809 S.E.2d 756) (2018). On appeal, "we view the evidence of venue in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime or crimes were committed in the county in which the defendant was indicted." Worthen v. State, 304 Ga. 862, 865 (3) (a) (823 S.E.2d 291) (2019) (citation and punctuation omitted). "Whether the state met its burden as to venue is a matter resting soundly within the purview of the jury, and ambiguities in the trial evidence must be resolved by the trial jury, not appellate courts." Garza v. State, 347 Ga.App. 335, 337 (1) (b) (819 S.E.2d 497) (2018) (citations and punctuation omitted).

         (a) Evidence of venue as to child molestation.

         The trial evidence, viewed most favorably to the verdict, showed that Boyd's act of child molestation - having sexual intercourse with 14-year-old V. B. - occurred at his house. Boyd argues that the evidence was insufficient to show that his house was located in Coweta County, where he was indicted. But V. B. testified at trial that she thought Boyd's house was in Coweta County. When asked the location of the house, she first replied that it was in the city of Moreland. She was then asked, "Do you know what county that is?" She replied, "I think that's still in Coweta County."

         V. B.'s testimony authorized the jury to find that the act of child molestation occurred, as charged, in Coweta County. See Liggins v. State, 239 Ga. 452, 454 (2) (238 S.E.2d 34) (1977) (victim's testimony that crime occurred in particular county was sufficient to establish venue); Long v. State, 324 Ga.App. 882, 889 (1) (752 S.E.2d 54) (2013) (same). We find no merit in Boyd's argument that, because V. B. prefaced her testimony with the phrase "I think," her testimony about the location of Boyd's house was a lay opinion subject to the foundational requirements of OCGA § 24-7-701 (a). See generally Butler v. State, 292 Ga. 400, 405-406 (3) (a) & n. 10 (738 S.E.2d 74) (2013) (discussing difference between fact testimony and opinion testimony). While the phrase "I think" may have raised a question about the certainty of V. B.'s testimony that the house was in Coweta County, it was for the jury as factfinder, rather than this court, to determine whether to credit the testimony. See In the Interest of S. W., 337 Ga.App. 110, 111-112 (1) (786 S.E.2d 499) (2016) (trier of fact was authorized to resolve any apparent uncertainties in evidence regarding venue).

         (b) Evidence of venue as to sexual exploitation.

         The state charged Boyd with committing, in Coweta County, the offense of sexual exploitation of a child by possessing a digital image of V. B.'s genitals. Boyd challenges the evidence that his workplace was located in Coweta County. While the state offered no direct evidence of this fact, [1] circumstantial evidence authorized the jury to find the necessary venue.

         Viewed most favorably to the verdict, the trial evidence showed that the image was on Boyd's cellular phone from November 2014, when he received it, through January 21, 2015, when he was apprehended and the phone seized from him while he was at work. As discussed above, the trial evidence also showed that Boyd lived in Coweta County during this time frame. "[L]ike any other fact, venue may be proved by circumstantial evidence, and it is enough if the fact of venue is properly inferable from all the evidence." Worthen, 304 Ga. at 871 (3) (e) n. 6 (citation and punctuation omitted). The jury could properly infer from this evidence that Boyd possessed his cellular phone, and thus possessed the image of V. B.'s genitals, in Coweta County on some date within the statute of limitation. See Weyer v. State, 333 Ga.App. 706, 712 (1) (b) (776 S.E.2d 304) (2015) (jurors are permitted to consider "their own common-sense understanding of the world" when drawing reasonable inferences from circumstantial evidence). Contrary to Boyd's assertion, the state was not required to prove that he possessed ...


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