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Cawthon v. State

Court of Appeals of Georgia, Third Division

June 21, 2019

CAWTHON
v.
THE STATE.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          DILLARD, CHIEF JUDGE.

         Kristopher Cawthon appeals his conviction for abuse of a disabled adult, arguing that there was insufficient evidence to support the verdict; and that the trial court erred in (1) denying his motion for a directed verdict; (2) ruling that knowledge is not an essential element of his offense; (3) allowing a witness to speculate as to his state of mind; and (4) denying his motion for a mistrial. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that H. R., the victim, was born with a disability, and at the time of the relevant events, she was 31 years old and had always lived with her parents. According to her father, H. R. did not begin walking until she was three years old, and she did not start talking until she was between three-and-a-half and four years old. During her childhood, H. R. was a slow learner and "didn't know a lot of things like other children did." And as an adult, H. R. does not have a job, but she helps her mother, who is blind, with "little chores around the house[.]" In her free time, H. R. watches cartoons and Disney movies, and she also "does a lot of pretending" with dolls. Additionally, H. R.'s parents provide her with, inter alia, housing, food, clothing, medicine, and transportation. Indeed, H. R. does not drive, has never had a license, and is even afraid to ride a bicycle. And while H. R. receives government benefits and has a checking account, the account is in her mother's name because she is not capable of managing her own financial affairs.

         In early 2016, Cawthon moved in with S. W., one of H. R.'s neighbors in the trailer park where she lived, and shortly thereafter, S. W. and H. R. became acquainted. After they met, H. R. would stop by S. W.'s trailer occasionally to see her baby and bring him toys. But when H. R. learned that Cawthon was living with S. W., H. R. began coming over every day because she "kind of liked him a lot." At some point after meeting him, H. R. began sending Cawthon "friendly" Facebook messages, and for several weeks, Cawthon did not respond. But eventually, on March 27, 2016, Cawthon sent H. R. a message that said, "Boo. Hang out? Are you trying to get me naked?" When H. R. responded that she only wanted to hang out and talk to him, Cawthon told her that he was a "sex addict." H. R. and Cawthon continued to exchange Facebook messages for the next couple of weeks, but Cawthon told H. R. not to tell anyone that they were messaging each other.

         On April 5, 2016, Cawthon sent a message to H. R., telling her that he wanted to have sex with her. Although H. R. told Cawthon that she did not want to do that, she went to his trailer sometime after midnight to "[j]ust talk to him as friends." When Cawthon started asking H. R. "weird like questions about sex and stuff[, ]" she told him that she was a virgin and did not want to have sex. Despite H. R.'s insistence that she did not want to have sex, Cawthon brought her into his room and forced her to touch his penis. Cawthon then held her down on the floor, pulled her pants down, and penetrated her vagina with his penis. During the attack, H. R. cried and tried to fight back, but Cawthon overpowered her. When Cawthon was finished, he told H. R. not to tell anyone what happened, and she went home.

         In the days following the assault, H. R.'s parents learned about the attack and reported it to law enforcement. Then, after an investigation into the matter, Cawthon was charged, via indictment, with rape and abuse of a disabled adult. Following a jury trial, he was acquitted of rape, but convicted of abuse of a disabled adult. Thereafter, Cawthon filed a motion for a new trial, which he later amended twice; and following a hearing, the motion was denied. This appeal follows.

         Prior to considering Cawthon's claims of error, we first note that the deficiencies in his brief have hindered our review of his appeal. Specifically, his statement of facts, purporting to summarize his 3-day jury trial-at which nine witnesses testified and 71 exhibits were submitted-is a single-page long and references only five pages of the trial transcript and two exhibits. Suffice it to say, this fails to comply with our rules. Indeed, Georgia Court of Appeals Rule 25 (a) (1) requires appellants to provide "a succinct and accurate statement of . . . the material facts relevant to the appeal . . . [and] a citation to the parts of the record or transcript essential to a consideration of the errors . . . ." And given that Cawthon challenges, inter alia, the sufficiency of all the evidence presented at trial to support his conviction, his cursory statement of facts, largely unsupported by record or transcript citations, fails to set forth all of the material facts relevant to at least that claim of error. Similarly, the argument sections of Cawthon's brief dedicated to each enumeration of error likewise include scant record and transcript citations, if any at all. Thus, Cawthon's brief also violates Georgia Court of Appeals Rule 25 (c) (2) (i), which provides that "[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript."[2] And absent such specific references, "[this] Court will not search for and may not consider that enumeration."[3]

         As we have repeatedly cautioned litigants, it is not the function of this Court to "cull the record on behalf of a party in search of instances of error[.]"[4] Instead, the burden is upon the party alleging error to "show it affirmatively in the record."[5]Needless to say, Cawthon has failed to satisfy this burden. Nevertheless, because Cawthon's brief is not entirely devoid of citations to the record and the evidence is relatively straightforward, we exercise our discretion and will attempt (when possible) to consider his appeal on the merits based on our independent review of the record and with the aid of the citations provided by the State.[6] But if we have missed something in the record or misconstrued an argument, "the responsibility rests with [Cawthon's] counsel."[7] Finally, we note that our requirements as to the form of appellate briefs were created, "not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court."[8] With the foregoing in mind, we turn now to the merits of Cawthon's appeal.

         1. In his first three claims of error, Cawthon argues that the evidence was insufficient to support his conviction, the trial court erred in denying his motion for a directed verdict, and the trial court erred in finding that knowledge is not an element of his offense. We disagree.

         We review the denial of a motion for directed verdict "under the same standard as that for determining the sufficiency of the evidence to support a conviction."[9] And when a criminal conviction is appealed, the evidence must be viewed "in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."[10] In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[11] Accordingly, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[12] With these guiding principles in mind, we turn now to Cawthon's specific challenge to the sufficiency of the evidence to support his conviction.

         (a) Disability.

         Cawthon first argues that, while H. R. was an adult at the time of the attack, the State failed to prove she was disabled. But in doing so, he cites only to the statutory definitions of "disabled adult" and "mentally or physically incapacitated" set forth infra, and details his version of the evidence presented at trial without a single citation to the record, trial transcript, or exhibits. Cawthon then summarily asserts that, under those statutory definitions, "[H. R.] is not a disabled adult." As previously noted, this Court will not typically address arguments in the complete absence of record and transcript citations.[13] Furthermore, an assertion of error followed by a legal citation is not legal analysis, which is, at a minimum, "a discussion of the appropriate law as applied to the relevant facts."[14] Nevertheless, given the significant liberty interests at stake and the straightforward nature of the evidence presented, we will address this issue.

         Here, the indictment charged Cawthon

with the offense of ABUSE OF A DISABLED ADULT for that . . . [Cawthon] . . . on or about the 6th day of April, 2016, did willfully inflict physical pain, sexual abuse, mental anguish[, ] and unreasonable confinement upon [H. R.], a disabled adult, by locking the door to his residence to prevent her from leaving, taking her to his bedroom, pushing her to the floor, feeling her breasts, pulling her pants down, touching her pubic area, pushing her panties to one side and inserting his penis into her vagina and engaging in sexual intercourse with her until he ejaculated inside her, all while [she] was crying, telling him to stop[, ] and trying to push him off of her and then telling her not to tell anyone . . . .

         OCGA § 16-5-102 (a) provides, in relevant part:

Any person who knowingly and willfully exploits a disabled adult, elder person, or resident, willfully inflicts physical pain, physical injury, sexual abuse, mental anguish, or unreasonable confinement upon a disabled adult, elder person, or resident, or willfully deprives of essential services a disabled adult, elder person, or resident shall be guilty of a felony . . . .[15]

         And under OCGA § 16-5-100 (3), "'[d]isabled adult' means a person 18 years of age or older who is mentally or physically incapacitated . . . ." Furthermore,

"[m]entally or physically incapacitated" means an impairment which substantially affects an individual's ability to: (A) Provide personal protection; (B) Provide necessities, including but not limited to food, shelter, clothing, medical, or other health care; (C) Carry out the activities of daily living; or (D) Manage his or her resources.[16]

         Here, the State presented evidence that because H. R. could not provide basic necessities for herself, she lived with her parents, who provided her with food, shelter, clothing, healthcare expenses, and transportation. Indeed, H. R.'s father testified that, while H. R. received certain government benefits, she was unable to manage her own financial affairs, and as a result, her mother did so for her. Additionally, a licensed psychologist testified that he evaluated H. R. on January 9, 2012, just over a year before the attack, and determined that she "had a full scale IQ score of 67." To put that score in context, the Supreme Court of Georgia has advised that IQ scores between 70 and 84 indicate "borderline intellectual functioning[.]"[17]H. R.'s IQ score, then, was below the range of scores that indicate borderline intellectual functioning. In sum, H. R.'s inability to provide for herself and manage her financial resources combined with her low IQ score constituted sufficient evidence to support the jury's conclusion that she was mentally or physically incapacitated during the relevant time period.[18]

         (b) Knowledge.

         Cawthon also argues that the trial court erred in finding that his knowledge of H. R.'s disability is not an essential element of his offense.

         When interpreting any statute, we necessarily begin our analysis with "familiar and binding canons of construction."[19] In considering the meaning of a statute, our charge is to "presume that the General Assembly meant what it said and said what it meant."[20] And toward that end, we must afford the statutory text its plain and ordinary meaning, [21] consider the text contextually, [22] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would, "[23] and seek to "avoid a construction that makes some language mere surplusage."[24] Further, when the language of a statute is "plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly."[25]

         OCGA § 16-5-102 (a) provides, in relevant part:

Any person who knowingly and willfully exploits a disabled adult, elder person, or resident, willfully inflicts physical pain, physical injury, sexual abuse, mental anguish, or unreasonable confinement upon a disabled adult, elder person, or resident, or willfully deprives of essential services a disabled adult, elder person, or resident shall be guilty of a felony . . . .[26]

         The plain language of the foregoing statutory provision provides three distinct ways, listed disjunctively, in which someone can commit the crime of abusing a disabled adult. Specifically, a person commits this offense if he (1) exploits a disabled adult; (2) inflicts physical pain, physical injury, sexual abuse, mental anguish, or unreasonable confinement upon a disabled adult; or (3) deprives a disabled adult of essential services. OCGA § 16-5-102 (a) also plainly provides that, while exploitation of a disabled adult must be done "knowingly and willfully[, ]" the second and third ways in which the offense can be committed require only that the conduct be willful.[27]

          Additionally, as our Supreme Court has explained, the canon of statutory construction known as "the 'rule of the last antecedent,' a qualifying phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows."[28]And here, the only phrase immediately following the word "knowingly" is "exploits a disabled adult . . . ." Furthermore, given the repeated use of the word "willfully" in OCGA ยง 16-5-102 (a), construing the phrase "knowingly and willfully" to apply to all descriptions of the offenses set forth in the statute ...


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