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Espinosa v. State

Court of Appeals of Georgia, First Division

August 21, 2019

ESPINOSA
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Mercier, Judge.

         A jury found Justo Espinosa guilty of four counts of child molestation and one count of criminal attempt to commit child molestation (as a lesser-included offense of child molestation - Count 5), for acts involving three children his girlfriend was babysitting.[1] Espinosa appeals the convictions entered on the verdict and the partial denial of his motion for new trial, contending that the evidence was insufficient to support one of the child molestation counts (Count 4), that the court erred in disallowing certain testimony from a defense witness, and that trial counsel provided ineffective assistance.[2] Because the evidence was insufficient as to Count 4, we reverse the judgment as to that conviction. However, Espinosa's other contentions are without merit, so we affirm the judgment as to the remaining counts.

         1. Espinosa contends that the evidence was insufficient to prove Count 4 of the indictment. We agree.

When an appellant challenges the sufficiency of the evidence to support the conviction, the relevant question is 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. The appellant no longer enjoys a presumption of innocence, and an appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.

English v. State, 301 Ga.App. 842 (689 S.E.2d 130) (2010) (citations and punctuation omitted).

         So viewed, the evidence introduced at trial included the following. Beginning in 2011, the mother of three girls, E. C., R. C., and C. C., left the children at the home of a babysitter for before- and after- school care while she worked.[3] The babysitter was Espinosa's live-in girlfriend.[4] In January 2012, R. C. told her mother she was "very happy because [the babysitter]" was going to call the police. The mother asked R. C. why she was happy and why the babysitter was going to call the police. R. C. replied that Espinosa "was trying to touch her." The mother then spoke with E. C., who told her that Espinosa had kissed her on the mouth while she was sleeping. The mother next spoke to C. C., who told her that Espinosa had hugged and tried to undress the children. The mother contacted police to report the allegations.

         Forensic interviews were conducted separately with each of the children. The interviews were videotaped and the recordings were played for the jury. The interviewer, who was deemed an expert in forensic interviewing, testified at trial.

         In her interview, E. C. stated that Espinosa kissed her on the mouth, touched her vaginal area with his hand, exposed his penis, and made her touch his exposed penis with her hand. E. C. described in detail Espinosa's conduct and the circumstances surrounding them, and described with specificity various events that were happening at the time and her physical reactions to his conduct. E. C. said she had been afraid to report the incidents. At trial, the interviewer testified that she did not observe any signs of coaching.

         In her interview, R. C. reported that Espinosa touched her stomach and tried to touch her vaginal area and buttocks, but that he did not succeed because she pushed his hand away. R. C. also saw Espinosa try to kiss E. C., but he stopped when he saw that R. C. was watching. R. C. told the babysitter what Espinosa did, and the babysitter told Espinosa that if he did not stop, she would call the police. R. C. added that the babysitter saw Espinosa "do things" to them, and that the babysitter screamed at Espinosa and said she was going to tell the police what he was doing, but that "every time [the babysitter] says that, she forgets" to do so. R. C.'s descriptions of the acts and surrounding circumstances were detailed and consistent with her sisters' accounts.

         In her interview, C. C. reported that Espinosa tried to kiss her on the mouth, but that she ran and told the babysitter. C. C. also stated that on one occasion Espinosa tried to touch her "private part" with his hand, but that she stopped him by kicking him and went to tell the babysitter that he was touching her. When the interviewer asked C. C. if Espinosa had touched her private part, the child replied, "Yes. No," and continued to give conflicting answers to that question throughout the interview. The interviewer said, "It's okay, either way. I just don't understand. Was he trying to touch your private part or did he touch that part?" C. C. replied that Espinosa did touch her private part, and then described the manner in which he had done so. The interviewer, who was trained to identify signs of coaching, testified at trial that she did not see indicators that C. C. had been coached.[5] The interviewer added that each of the children said "something to the fact (sic) that [the babysitter] was going to call . . . the police if [Espinosa] didn't stop."

         All three children testified at trial. E. C. testified that she told the forensic interviewer the truth and that no one told her what to say. R. C. testified that Espinosa had tried to touch her, but that he could not because she moved his hand away. When asked if she had told the interviewer the truth about what happened, R. C. replied that she had. She also testified that she told her mother that Espinosa "was trying to touch us." C. C. testified that she told the interviewer the truth about somebody touching her, and confirmed that she "told [her] mom that something bad had happened" at the babysitter's house.

         OCGA § 16-6-4 (a) provides, in relevant part, that "[a] person commits the offense of child molestation when such person: (1) [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[.]" Count 4 alleged that Espinosa committed the offense of child molestation by touching the vaginal area of R. C., a child, with his hand.

         As recounted above, R. C. testified at trial that Espinosa had tried to touch her vaginal area, but never actually did so because she moved his hand. And in her forensic interview, she stated that Espinosa had attempted to touch her vaginal area and buttocks but that he was unable to do so. R. C.'s mother testified that R. C. told her that Espinosa had tried to touch her. There was no evidence that Espinosa touched R. C.'s vaginal area. Given this lack of evidence, the conviction for child molestation involving R. C. cannot stand. SeeWoods v. State, 244 Ga.App. 359, 360 (2) (535 S.E.2d 524) (2000) ...


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