BARNES, P. J., MERCIER and BROWN, JJ.
Barnes, Presiding Judge.
with multiple sexual offenses, Darryl Pernell Butler was
found guilty of some counts, and not guilty of others. In
this appeal, Butler contends that the evidence was
insufficient to support a particular child molestation
conviction. We agree, and reverse that conviction. The
judgment of conviction is otherwise affirmed.
underlying indictment charged Butler with committing against
his minor stepdaughter, S. W., nine sexual offenses - one
count each of incest, child molestation, and statutory rape,
alleged to have occurred during three discrete time periods.
In particular, Count Nos. 1 - 3 alleged that Butler committed
the three offenses between February 15, 2015 and March 1,
2015. Count Nos. 4 - 6 accused Butler of committing the three
offenses between April 15, 2015 and April 20, 2015.
Count Nos. 7 - 9 charged Butler with committing the three
offenses between April 20, 2015 and April 21, 2015. During
opening statements at the jury trial, the prosecutor
explained the State's prosecution of Butler:
"Basically in a nutshell the State is alleging that he
had sexual conduct with [S. W.] three different times. So
it's not nine times. It's three." The jury
returned not guilty verdicts on all counts, except Count Nos.
7 - 9 (incest, child molestation, and statutory rape,
respectively), which were alleged to have occurred between
April 20, 2015 and April 21, 2015.
appeal concerns whether the evidence was sufficient as to the
child molestation charged in Count No. 8. Where, as here, an
appellant challenges the sufficiency of the evidence,
"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." (Emphasis in original.) Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
viewed, the evidence showed the following. Butler was born in
1968, and married S. W.'s mother in 2009. In 2015, the
year in question, the three of them were living together in
Mitchell County. On April 21 of that year, S. W.'s mother
found sexually graphic text messages on S. W.'s cell
phone. That same day, S. W.'s mother took
then 14-year-old S. W. and her cell phone to the police
department, and a police investigator interviewed S. W. Also,
that same day, April 21, a nurse conducted a sexual assault
examination upon S. W. As the investigation proceeded, the
investigator interviewed S. W. two additional times; and a
forensic biologist at the GBI crime lab ultimately determined
that vaginal and cervical swabs from S. W.'s sexual
assault examination contained Butler's DNA (collected
from buccal swabs, obtained upon execution of a search
warrant of Butler's bodily fluids). Trial evidence also
showed that Butler had taken S. W. to Florida on April 20,
2015, and that S. W.'s mother did not go with them.
to Butler's specific challenge whether the evidence was
sufficient to sustain his child molestation conviction.
Pursuant to 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." And the child molestation count at issue
in this appeal, Count No. 8, pertinently alleged that Butler,
between the 20th day of April, 2015, and the 21st day of
April 2015, the exact date of the offense being unknown
to the Grand Jury, in Mitchell County, Georgia, did commit an
immoral and indecent act to [S. W.], a child under the age of
16 years, with the intent to arouse and satisfy the sexual
desires of himself by using his hands to grab
victim's buttocks and by using his hands to rub said
victim's vagina and buttocks.
argues that the State failed to prove the "immoral and
indecent act" as alleged (and as emphasized above).
Butler asserts further that when S. W. was called to the
stand, "[she] specifically indicated that her encounter
with [him] on April 20, 2015, which apparently forms the
basis of Count 8, did not involve use of [his]
S. W. was sixteen years old at Butler's 2017 trial, and
testified on direct examination about two sexual episodes
Q: Did you back in April of 2015, did you have a relationship
with [the man sending and receiving the graphic text
messages] and also [Butler]?
A: Yes, sir.
Q: And was that a sexual relationship?
A: Yes, sir.
Q: How many times did you have sex with . . . Butler?
recounted that the first episode with Butler occurred at
their home "between February and March, like after
Valentine's Day kind of." S. W. recounted that the
second episode had occurred in Butler's car when the two
of them traveled to Florida. S. W. was able to identify the
date of the second episode, recalling at trial that on the
day following that sexual incident, she underwent a sexual
assault examination by a nurse. Focusing on that sexual
episode with Butler, the prosecutor asked S. W.:
Q: Okay. What kind of relations did you have with . . .
Butler the day before [you underwent the sexual ...