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Chitwood v. State

Court of Appeals of Georgia, Second Division

October 10, 2019

CHITWOOD
v.
THE STATE.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Miller, Presiding Judge.

         Following a jury trial, Jonathan Chitwood was convicted of one count of aggravated sexual battery (OCGA § 16-6-22.2) and three counts of child molestation (OCGA § 16-6-4 (a)). Chitwood appeals from the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his convictions; (2) the trial court failed to fulfill its role as the "thirteenth juror" in adjudicating his motion for new trial; (3) the trial court erred by admitting prior bad act evidence into evidence during trial; and (4) his trial counsel rendered ineffective assistance. For the reasons that follow, we conclude that the evidence was insufficient to sustain two of Chitwood's child molestation convictions, but we otherwise affirm his convictions and total sentence.

         Viewed in the light most favorable to the verdicts, [1] the evidence adduced at trial showed that on May 21, 2015, April Chitwood, who was Chitwood's wife and the minor victim's mother, left her residence to go to the store. Upon her return from the store, she went inside her bedroom and saw Chitwood lying in the bed with their six-year-old daughter, who was sleeping. She observed that Chitwood was not wearing his boxers and that their daughter's underwear had been pulled down. According to April, their daughter woke up screaming that her father had hurt her. Specifically, the victim said that while she was alone with Chtiwood in her mother's bedroom, Chitwood touched her on her "wrong spot," and that it "felt bad" when Chitwood touched it.[2] When April questioned Chitwood about their daughter's claims, Chitwood told April to shut up and leave him alone. April carried their daughter from the bedroom to the living room and tried to call for help but was unable to because Chitwood had her phone. Chitwood told April that if she called anyone that she would regret it. April posted a message on a Facebook group asking for help. An employee with the Department of Family and Children Services ("DFCS") received an anonymous report about April's Facebook post, contacted law enforcement, and went to April's residence and spoke with her about the incident. After speaking with April, the DFCS worker asked Chitwood to leave the residence, and he complied.

         The victim was examined by a nurse who specialized in sexual assault cases, and the examination revealed a significant amount of redness inside and outside of the labia majora and minora. The examination also revealed irregularities with the victim's rectum. The nurse concluded that, based on her examination of the victim, the victim's injuries raised suspicions of sexual assault. Additionally, a program manager for the Harbor House, which is a child advocacy center, conducted a forensic interview with the victim where the victim recounted the details of the incident involving Chitwood. The video recording of the forensic interview was entered into evidence and played for the jury trial. The State also presented similar transaction evidence from a sheriff's deputy who testified that, in 2008, he investigated claims that Chitwood molested his five-year-old cousin. Specifically, Chitwood's cousin told the sheriff that Chitwood had touched her under her clothing on her "pee-pee" area. A medical examination of Chitwood's cousin also raised "suspicions" of sexual abuse. The State entered into evidence a certified copy of Chitwood's conviction for sexual battery of a minor for the 2008 case.

         Chitwood was indicted on one count of aggravated sexual battery (OCGA § 16-6-22.2) and three counts of child molestation (OCGA § 16-6-4 (a)). The jury found Chitwood guilty of all counts, and he was sentenced to life imprisonment, with an additional twenty-year prison sentence. Chitwood filed a motion for new trial, which the trial court denied. This appeal followed.

         1. First, Chitwood argues that the evidence was insufficient to support his convictions. We agree as to Counts 3 and 4 of the indictment, but we disagree as to Counts 1 and 2.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.

(Citation omitted.) Harvey v. State, 344 Ga.App. 761, 763 (811 S.E.2d 479) (2018).

         (a) Aggravated Sexual Battery

         "A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without that person's consent." (Citation omitted.) Reinhard v. State, 331 Ga.App. 235, 237 (1) (a) (770 S.E.2d 314) (2015). "The Code section defines 'foreign object' as any article or instrument other than the sexual organ of a person. A finger is considered a foreign object under OCGA § 16-6-22.2 (a)." (Citation and punctuation omitted.) Williams v. State, 347 Ga.App. 6, 8 (1) (815 S.E.2d 590) (2018). Also, "[p]enetration however slight will suffice to satisfy the statutory penetration element of OCGA § 16-6-22.2 and penetration may be proved by indirect or circumstantial evidence." (Citation and punctuation omitted.) Madison v. State, 329 Ga.App. 856, 863 (1) (c) (766 S.E.2d 206) (2014). Furthermore,

witnesses are not required to describe the acts constituting the commission of crimes in statutory or technical language in order to prove the commission of such acts. Rather, the terms used by witnesses to describe criminal acts may be considered in context to provide meaning, and jurors can be presumed to have some knowledge of slang expressions in common parlance in the vernacular.

(Citation omitted.) Smith v. State, 320 Ga.App. 408, 410-411 (1) (a) (740 S.E.2d 174) (2013).

         Here, April testified that the victim told her that Chitwood had hurt her by touching her vagina, which she referred to as her "wrong spot." The victim also testified against Chitwood at trial, and told the jury that Chitwood touched her wrong spot and that it "felt bad" when he touched it. A program manager for the Harbor House testified that he conducted a forensic interview with the victim and that the victim recounted the details of the incident involving Chitwood. Also, the victim was examined by a nurse who specializes in sexual assault cases, and the examination revealed a significant amount of redness inside and outside of the labia majora and minora. Based upon the victim's examination, the victim's injuries raised suspcions that the victim had been sexually assaulted. We conclude that this evidence was sufficient for a rational trier of fact to find that Chitwood committed the offense of aggravated sexual battery. See Tudor v. State, 320 Ga.App. 487, 489-490 (1) (740 S.E.2d 231) (2013) (holding that the evidence was sufficient to support the defendant's conviction for aggravated sexual battery where the victim testified that defendant had placed his finger in her anus and physical evidence obtained from a medical examination of the victim was consistent with sexual battery). Accordingly, we affirm Chitwood's conviction for aggravated sexual battery.

         (b) Child Molestation

         "A person commits the offense of child molestation when such person does 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." (Citation omitted.) Reinhard, supra, 331 Ga.App. at 237 (1) (a). In explaining an "immoral or indecent act" for purposes of child molestation, we have held that

[i]mmoral or indecent acts constituting child molestation refer to acts which offend against the public's sense of propriety as well as to acts more suggestive of sexually oriented misconduct to a child's body than simply assaultive in nature. An act generally viewed as morally and sexually indelicate, improper and offensive can ...

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