Russell Calvin McCurdy v. State
A21A0540
| Ga. Ct. App. | Jun 30, 2021Background
- Russell McCurdy was convicted by a jury of rape, multiple counts of child molestation and aggravated child molestation, and 55 counts of sexual exploitation of a minor based on media found on his devices.
- Multiple child victims (ages ranging from pre‑school to teens) reported sexual abuse; several forensic interviews were played for the jury and some victims recanted or gave inconsistent trial testimony.
- Investigators recovered video clips on a single device showing sexual abuse of a young girl (K.A.); circumstantial identifiers included tattoos, a distinctive green‑painted bedroom, a dog’s name called on a recording, and a shirt identified by the child’s mother.
- A forensic computer expert linked the camera and a computer to McCurdy, documented thousands of child‑pornography searches on his devices, and located numerous illicit images and videos on the same device.
- McCurdy challenged the sufficiency of the evidence (identity, venue, and possession) and argued that the multiple counts for possession of visual media should merge for sentencing; the State partly conceded merger for many counts but resisted merging two “home‑grown” video counts.
- The Court of Appeals affirmed convictions on all substantive counts (finding the evidence sufficient) but vacated and remanded for resentencing to merge the sexual‑exploitation convictions into a single count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of identification for rape/aggravated molestation (Counts 1–3) | McCurdy: identity and venue unproven because his face is not visible in the abuse clips. | State: tattoos, distinctive bedroom, voice/audio cues, shirt ID, and other clips tie McCurdy to the recordings and location. | Evidence sufficient to support convictions. |
| Sufficiency of molestation allegations and inconsistent testimony (Counts 4–10) | McCurdy: victim recantations and inconsistencies undermine proof. | State: prior forensic statements admissible as substantive evidence; jury resolves credibility; verbal acts can satisfy molestation statute. | Evidence sufficient; jury properly resolved inconsistencies. |
| Sufficiency of possession of sexual‑media (Counts 11–67 as charged) | McCurdy: no direct proof he was the user "behind the computer" that stored the media. | State: forensic links between camera and McCurdy’s computer, same device held the K.A. clips and other illicit material, plus device search history. | Evidence sufficed to convict for possession counts. |
| Merger of multiple sexual‑exploitation counts for sentencing | McCurdy: simultaneous possession of multiple visual media should merge into a single offense. | State: conceded merger for many counts but argued two home‑made video counts were distinct because of different timestamps/creation dates. | Under Edvalson and Coates, simultaneous possession of multiple media is one offense; the sexual‑exploitation sentences were vacated and remanded to be merged into one count. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency review)
- Edvalson v. State, 310 Ga. 7 (2020) (multiple items of visual media possessed simultaneously constitute one offense)
- Coates v. State, 304 Ga. 329 (2018) (possessing multiple prohibited items focuses on possession, not item count)
- Green v. State, 304 Ga. 385 (2018) (jury resolves witness credibility and conflicting evidence)
- Hicks v. State, 254 Ga. App. 814 (2002) (verbal acts can satisfy child‑molestation statute)