WATKINS v. THE STATE.
A15A2411
Court of Appeals of Georgia
MARCH 10, 2016
784 SE2d 11
ANDREWS, Presiding Judge.
Moreover, the State can establish each set of offenses without proving the other. Jackson notes that during the sexual assault prosecution, the State will likely offer evidence that he was located trespassing at the apartment complex, and a trial of the unrelated misdemeanor offenses might have included evidence that Officer Higginbotham spotted Jackson while responding to a possible rape report. But the State does not need to prove that the unrelated misdemeanors occurred to establish that Jackson committed sexual assault or made a false statement during the sexual assault investigation. And evidence that Jackson sexually assaulted the victim or made a false statement about the assault was not necessary to convict him of the other misdemeanors.20
The misdemeanor and felony-related offenses in this case did not arise from the same conduct. Accordingly, the trial court properly denied Jackson‘s plea in bar.21
Judgment affirmed. Doyle, C. J., and Boggs, J., concur.
DECIDED MARCH 10, 2016 —
John W. Donnelly, for appellant.
Kenneth W. Mauldin, District Attorney, Jeffrey P. Kwiatkowski, Assistant District Attorney, for appellee.
ANDREWS, Presiding Judge.
Following a jury trial, the Superior Court of Bibb County entered judgments of conviction against Winston Watkins for one count of
1. First, Watkins argues that the State failed to prove his guilt beyond a reasonable doubt.1 We do not agree.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case, the jury‘s verdict will be upheld.
Bradford v. State, 327 Ga. App. 621 (760 SE2d 630) (2014). Relevant to this case, a person commits aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”
So viewed, evidence revealed that the ten-year-old female victim first met Watkins when he moved into her neighborhood on or about June 29, 2011. The two spoke when they saw each other, and the victim would visit Watkins at his residence. A neighbor also reported
At first, Watkins would hug the victim when the two met. However, Watkins began to touch the victim‘s breasts after hugging. He also began to touch her “private part area” both over and under her clothing. In addition, Watkins kissed the victim‘s “private part area” as she lay naked on Watkins’ bed and showed the victim his penis. Watkins also asked the victim to engage in sexual intercourse, but the victim declined. The touching happened on more than one occasion and occurred in Watkins’ bedroom, which the victim was later able to describe to investigators.
The victim was scared to tell her mother about the abuse because Watkins told the victim “he‘s gonna tell my mom I let him do it.” Ultimately, the victim asked her mother to call police on January 1, 2012, and the victim disclosed the abuse when her mother asked her why she wanted to talk to police. For his part, Watkins denied that the victim had ever been inside his residence and that he had ever touched the victim inappropriately.
In sum, we conclude that the evidence adduced at trial was sufficient for a rational trier of fact to find Watkins guilty beyond a reasonable doubt of the crimes for which he was convicted, including aggravated child molestation (for placing his mouth on the victim‘s vagina (Count 1)) and child molestation (for touching the victim‘s vagina (Count 2) and breasts (Count 3) and exposing himself to the victim (Count 4)). Jackson, 443 U. S. 307; Bradford, 327 Ga. App. 621; Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006) (testimony of a child molestation victim alone sufficient to authorize jury to find defendant guilty).
2. Next, Watkins contends the trial court erred in denying his plea in abatement because the indictment did not allege the date of Watkins’ crimes with “sufficient certainty.” Specifically, Watkins appears to argue that the State could have alleged the dates of Watkins’ crimes more specifically than the June 30, 2011 to January 1, 2012 time frame contained in the indictment. We are not persuaded.
Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and
O‘Rourke v. State, 327 Ga. App. 628, 631-632 (2) (760 SE2d 636) (2014) (citing Layman, 279 Ga. at 340-341); Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d 431) (2013) (same). To that end, “[i]n meeting its burden of showing that it is unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, the State is required to present some evidence and may not rely solely upon argument by counsel or mere speculation.” Blanton, 324 Ga. App. at 615 (2).
Here, the State satisfied its burden. In each count of the indictment, the State alleged that Watkins committed the crimes charged “between the 30th day of June, 2011, and the 1st day of January, 2012, the exact date of the offense being unknown to members of the Grand Jury. . . .” In response, Watkins filed a plea in abatement arguing that “the indictment does not allege the dates of the alleged crimes with enough specificity and does not list the dates of the alleged crimes with sufficient particularity.” The trial court conducted an evidentiary hearing, during which the State presented testimony that Watkins moved into a residence in the victim‘s neighborhood on June 30, 2011; that the victim disclosed to her mother, on January 1, 2012, that Watkins had been molesting her; that the molestation began after Watkins moved to the neighborhood; and that the victim had been unable to articulate a more specific time frame for the molestation. In addition, the trial court reviewed a recording of the victim‘s forensic interview. At the conclusion of the hearing, the trial court observed that “[t]here is nothing that I have seen in the interview or heard from the witnesses that leads me to believe [the State] could have done anything other than what they‘ve done.” As a result, the trial court denied Watkins’ plea in abatement.
The evidence produced during the hearing, particularly the details concerning the date of Watkins’ arrival in the victim‘s neighborhood, that the molestation began thereafter, and the date upon which the victim disclosed the molestation, confirmed that the State was “unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates.” See Blanton, 324 Ga. App. at 615-617 (2) (a). See also O‘Rourke, 327 Ga. App. at 632 (2). Accordingly, we conclude that the trial court did not err in denying Watkins’ plea in abatement.
It is axiomatic that “[a] requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” McLean v. State, 291 Ga. 873, 877 (5) (a) (738 SE2d 267) (2012) (citing Stokes v. State, 281 Ga. 875, 877 (3) (644 SE2d 116) (2007)). We examine each proposed instruction in turn.
(a) Jury Charge No. 15. First, Watkins requested a jury instruction on accidental touching. However, to support an instruction on accident, “the defendant must admit to having committed an act that would constitute the crime charged.” Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006). Therefore, “[t]he essence of the defense of accident is that the defendant‘s act that otherwise would have been criminal was not done intentionally.” Id. at 82-83 (2) (b); Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993). In this case, Watkins denied any touching occurred, accidental or otherwise. Accordingly, “[t]he theory of the case as submitted to the jury was that the molestation either happened or it did not — not that it happened by accident.” Haynes, 281 Ga. App. at 83 (2) (b). Because Watkins’ requested charge on accident “was not adjusted to the evidence, the trial court did not err in failing to give the requested charge.” Id. Compare Metts, 210 Ga. App. at 198 (2) (accident charge required where defendant claimed he may have touched victim inadvertently when sleeping in the same bed with victim).
(b) Jury Charge Nos. 16, 18, and 22-25. In a series of proposed charges, Watkins asked the trial court to instruct the jury concerning the victim‘s delay in reporting the molestation, the victim‘s motive for testifying, and various factors the jury should consider in evaluating the victim‘s testimony. Watkins’ arguments that the trial court erred in declining to give these proposed charges are unavailing.
Each of Watkins’ proposed charges address the jury‘s assessment of the victim‘s credibility. “There is no error in refusing to give a requested charge where the applicable principles are fairly given to the jury in the general charge of the court.” Madison v. State, 329 Ga. App. 856, 869 (6) (766 SE2d 206) (2014). See also Gamble v. State, 291 Ga. 581, 582 (2) (731 SE2d 758) (2012) (“A trial court does not abuse its discretion in refusing to give a jury charge in the exact language requested when the charge given substantially covers the correct
[t]he jury must determine the credibility of the witnesses. In deciding this you may consider all of the facts and circumstances of the case, including the witnesses’ manner of testifying, their means and opportunity of knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, their interest or lack of interest in the outcome of the case, and their personal credibility as you observe it.
Moreover, the trial court instructed the jury on impeachment of a witness and the manner in which impeachment may be shown. Viewing the trial court‘s jury charge as a whole, we conclude that the trial court properly instructed the jury on the factors it may consider in evaluating a witness’ credibility. See Gamble, 291 Ga. at 582 (2). Accordingly, because the trial court‘s instructions substantially covered the correct principles of law, the trial court did not err in declining to give Watkins’ proposed charges on witness credibility. See id.; Madison, 329 Ga. App. at 869 (6).
(c) Jury Charge Nos. 19 and 20. Watkins also requested charges on the lesser included offenses of simple assault, simple battery, and sexual battery. “[W]here the state‘s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Madison, 329 Ga. App. at 869 (6). Pretermitting whether simple assault, simple battery, and sexual battery can ever be lesser included offenses of child molestation, see State v. Stonaker, 236 Ga. 1, 3 (222 SE2d 354) (1976), Madison, 329 Ga. App. at 869-870 (6) (a) and Rash v. State, 207 Ga. App. 585, 588 (6) (428 SE2d 799) (1993), Watkins’ proposed instructions were not tailored to the evidence in this case. At trial, Watkins denied any improper touching of the victim while the victim offered explicit testimony concerning Watkins’ actions. “Under this testimony, [Watkins] either committed an act of child molestation or he did not.” Ney v. State, 227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997). As a result, “[t]he evidence in this case offered the jury a choice between a completed crime or no crime.” Madison, 329 Ga. App. at 870 (6) (a). It follows that there was no error in declining to give the proposed instructions on certain lesser included offenses. See Haynes, 281 Ga. App. at 83 (2) (b).
(d) Jury Charge No. 26. Related to the charge of aggravated child molestation, Watkins also requested an instruction on the lesser included offense of child molestation. As noted in Divisions 3 (a) and (c), supra, Watkins alleged that no contact occurred between the
4. Next, Watkins asserts that his conviction for child molestation (Count 2) should have merged into his aggravated child molestation conviction because the “conduct set out in both counts constitutes only one single act.” We are not persuaded.
Watkins’ argument necessarily “ignores the language of the indictment, which based each count on different conduct.” Carver v. State, 331 Ga. App. 120, 122 (4) (769 SE2d 722) (2015). Count 1 charged Watkins with aggravated child molestation “by placing his mouth on the vagina of [the victim].” Count 2 alleged Watkins committed child molestation “by touching the vagina of [the victim].” The victim revealed that on one occasion Watkins kissed her vagina as she lay naked on Watkins’ bed. See
5. Finally, Watkins contends that the trial court erred in sentencing him on each of his convictions for child molestation to a term of confinement rather than exercising discretion and imposing split sentences.2 See
Prior to trial, the State filed a notice of intent to produce Watkins’ prior convictions in aggravation of sentencing. Watkins’ prior convictions included possession of drugs by an inmate, aggravated assault, terroristic threats, entering an automobile, and burglary.3 Based upon these convictions, the trial court sentenced Watkins as a recidivist to life in prison on Count 1 (aggravated child molestation), 20 years in confinement on Count 2 (child molestation) consecutive to
Watkins asserts that
. . . [A]ny person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
However, because Watkins had no prior conviction for child molestation, Watkins’ sentences were also governed by
As we have noted recently, “[
Judgment affirmed in part and vacated in part, and case remanded for resentencing. Branch and Peterson, JJ., concur.
DECIDED MARCH 10, 2016.
Robert M. Bearden, Jr., for appellant.
K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.