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Butler v. State

Court of Appeals of Georgia, First Division

October 28, 2019

BUTLER
v.
THE STATE.

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

          Barnes, Presiding Judge.

         Charged 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.

         The 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.

         And 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.

         This 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).

         So 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.[1] 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.

         We turn 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.[2]

         Butler 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] hands."[3]

S. W. was sixteen years old at Butler's 2017 trial, and testified on direct examination about two sexual episodes with Butler.
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?
A: Two.

         S. W. 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 ...

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