BARNES, P. J., MERCIER and BROWN, JJ.
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. 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. 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.
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).
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. The babysitter was Espinosa's live-in
girlfriend. 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.
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.
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
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.
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. 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]
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.
§ 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.
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) ...