Case Information
*1 SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY , JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
October 22, 2014 In the Court of Appeals of Georgia
A14A0742. WATSON v. THE STATE.
M C F ADDEN , Judge.
After a jury trial, Patrick Watson was convicted of two counts of sexual battery (as lesser included offenses to the indicted offenses of child molestation) against his teenaged daughter, K. P., and one count of child molestation against his daughter’s friend, M. S. Watson argues that the evidence did not support the child molestation conviction, but we find the evidence sufficient. He argues that the trial court gave an erroneous “unanimity charge” to the jury, but we find the challenged charge did not insist upon unanimity. He argues that the trial court improperly charged the jury that a minor cannot consent to sexual conduct in the context of sexual battery, but we find that the challenged charge correctly stated the law and Watson did not raise or obtain *2 a ruling in the trial court on whether the statute setting forth the offense of sexual battery is overly broad when applied to a minor. Watson argues that the trial court erred in preventing him from presenting certain good character evidence, but we find that he did not lay a foundation for the evidence. He argues his counsel was ineffective for failing to object to the alleged “unanimity” jury charge, but we find no deficiency because the charge did not insist on unanimity. Finally, he argues that the trial court should have merged his two sexual battery convictions for sentencing purposes, but we find that the convictions were to charges in the indictment that Watson committed separate and distinct acts. Accordingly, we affirm.
1. Trial evidence.
K. P., who was 14 years old at the time of the August 2008 trial, testified that she moved in with Watson when she was 11 years old. On three or four occasions, when she informed Watson that she needed a larger bra, he examined her breasts by touching them under her clothing. He did this even though K. P. told him it made her feel uncomfortable. On several other occasions, Watson examined and touched K. P.’s pubic area to determine if she was shaving that area. Again, Watson persisted in this conduct even though K. P. told him it made her uncomfortable. K. P. described an instance where, as she was leaving the bathroom wearing a towel, Watson stopped *3 her and asked her if she had shaved her pubic area. K. P. testified that she “ended up laying down in front of him and the bottom part of [her] towel he lifted up and he touched to see if [she] shaved.”
K. P. testified that her friend M. S. spent the night with K. P. on November 11, 2007. While the two girls were in K. P.’s bedroom, they overheard what they believed to be sexual activity between Watson and a female acquaintance in another room, and they began joking and giggling about it. Later, Watson entered K. P.’s bedroom wearing a towel, and he asked if the girls were sexually aroused. He then sat on the bed and touched K. P.’s thigh near her vagina. K. P. discussed this incident with police the following day.
M. S., who was 15 years old at the time of trial, testified about the November 11 incident. She said that Watson came into the bedroom wearing a towel and asked K. P. if she was aroused. M. S. was lying on her stomach on the bed, and Watson lay across her legs, reached out his hand and touched her breasts, and then placed his hand on her buttocks. M. S. testified that she jumped off of the bed and Watson then put his hand down her pants, touching her vagina. When M. S. moved Watson’s hand away, he again placed it on her pubic area, this time over her clothing. The next day, M. S. reported this incident to a friend, to a relative, and to the police. M. S. also *4 testified that, on a previous occasion, Watson had told her he “want[ed] to taste [her]” and “eat [her] pussy.”
A special agent for the United States Naval Criminal Investigative Services testified that he became involved in the case because Watson was employed by the Navy. He testified that he interviewed Watson, who offered several different accounts of the November 11th incident. At points during the interview, Watson stated that he had asked if the girls were sexually aroused; that he had touched M. S.’s vagina (which he claimed was accidental); that he had talked with both girls about shaving their pubic regions; that during the shaving discussion he had pulled M. S.’s shorts to the side, exposed and touched her pubic area, and used two fingers to rub the hair next to her vagina; that he had made sexually explicit comments to the girls; that he had previously told M. S. he wanted to perform oral sex on her; and that he had showed K. P. how to check her breasts for lumps after she complained of breast pain. The jury heard a recording of that interview.
At trial, Watson presented witnesses who testified that K. P. had a reputation for untruthfulness. He also presented his direct naval commander, from whom he attempted to elicit testimony about his good reputation in the workplace, but the trial court excluded the testimony as irrelevant. On cross-examination, the state elicited *5 from this witness that Watson had a reputation for truthfulness. Finally, Watson presented testimony from his former girlfriend, who had lived with Watson and K. P. for two years and who testified that she had discussed issues about shaving and adolescent development with the girl.
2. Sufficiency of the evidence.
Watson argues that the evidence was insufficient to support the jury verdict that
he committed child molestation by “plac[ing] his hand upon the vagina of [M. S.], a
child under the age of sixteen, with the intent to arouse and satisfy [his] sexual
desires,” as alleged in the indictment. We disagree. The evidence, viewed in the light
most favorable to the verdict,
Morris v. State
,
3. Jury charges.
Watson challenges the jury charges in two respects. He argues that the trial court erred in her charge on sexual battery as a lesser included offense to child molestation, a charge given in connection with the crimes against K. P. Watson also argues that the trial court erred when, in charging on sexual battery, the trial court instructed the jury that a person under the age of 16 lacked the legal capacity to consent to sexual conduct. Neither argument provides grounds for reversal.
(a) Charge on lesser included offense.
Watson argues that, as to several counts, the trial court improperly instructed the jury that it was required to reach a unanimous verdict on the greater offense of child molestation before it could consider the lesser offense of sexual battery. He so challenges instructions as to several counts of child molestation and as to the verdict form. Discussing one of the counts alleging molestation of K. P., the trial court instructed:
Now, Ladies and Gentlemen, sexual [b]attery is a lesser included offense of child molestation. If you believe the Defendant is not guilty of child molestation as alleged in Count Two of this indictment you must then decide whether the Defendant is guilty of sexual battery[.] *7 The trial court gave similar instructions as to other counts alleging child molestation. Discussing the verdict form, the trial court instructed:
The first thing you need to do in each one of these is to answer the first
question. And it says, for example, in question one, as to Count Two,
child molestation, we, the jury, find the defendant either guilty or not
guilty. You put your verdict in here. Once you put your verdict in here,
depending upon what your verdict is you still need to read what, the
instructions in parentheses. If you find the Defendant guilty go to
question two. If you find the Defendant not guilty answer the following
question. And the following question is, as to sexual battery on Count
Two, we, the jury, find the Defendant either guilty or not guilty. Now,
Ladies and Gentlemen, whether you get to the second part depends on
your answer in the first part so please be sure to understand that by
going over this I’m not suggesting any answers, I’m just telling you you
need to read and decide then after your first answer whether you need to
answer what’s after the parentheses or drop down to the next question.
We disagree with Watson’s argument that these were impermissible
“unanimity” charges. A jury must consider a greater offense before it can vote on a
lesser offense.
Cantrell v. State
, 266 Ga. 700, 703 n. 3 (469 SE2d 660) (1996)
Accordingly, although a trial court may not instruct the jury that it must reach a
unanimous verdict on a greater offense before considering a lesser offense, the trial
*8
court may instruct the jury to
consider
the greater offense before considering the
lesser offense.
Armstrong v. State
,
The charges challenged by Watson were sequential charges that instructed the
jury to first consider the greater offense and to proceed to consider the lesser offense
if it found Watson not guilty of the greater offense. In that respect they were
indistinguishable from the acceptable charges discussed by our Supreme Court in
cases such as
Yaeger
,
(b) Charge on minor’s ability to consent in the context of sexual battery. Watson argues that the trial court erred when, in the charge on sexual battery, the trial court instructed the jury over Watson’s objection that “under Georgia law a person under the age of sixteen lacks legal capacity to consent to sexual conduct.” He argues that the rule regarding a minor’s inability to consent should not apply to the offense of sexual battery because it removes the element of “lack of consent” from that offense, rendering the offense overly broad. We find no ground for reversal.
The trial court’s charge “was an accurate statement of the law and was adjusted
to the facts of this case.”
Johnson v. State
,
Nevertheless, in his appellate brief Watson argues that the rule that someone under 16 cannot consent to sexual conduct, when applied to the sexual battery statute, OCGA § 16-6-22.1, renders that statute overly broad. That statute provides that “[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person,” and it defines “intimate parts” to mean “the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.” OCGA § 16-6-22.1 (a), (b). Watson argues that, if persons under the age of 16 can never consent to the touching of their intimate parts, then the statute criminalizes conduct that, he asserts, “does not necessarily involve immoral/indecent conduct and does not always involve a sexual act.” See generally Strickland , 223 Ga. App. at 774 (1) (a) (noting that sexual battery requires only general intent). He offers, as examples of overbreadth, scenarios such as a mother putting diaper rash cream on a child, a grandfather (or a mall Santa Claus) allowing a child to sit on his lap, and teenage basketball players blocking each other from rebounds with their buttocks and hips.
We acknowledge the possibility that the language of OCGA § 16-6-22.1 could
be construed to include non-sexual scenarios such as those proposed by Watson. But
*12
Watson’s challenge to the statute’s potential overbreadth is a challenge to its
constitutionality. The appellate courts of this state “will not pass upon the
constitutionality of a statute when the challenge was not directly and properly made
in the trial court and distinctly ruled on by the trial court.”
In re D. H.
,
4. Good character evidence.
Watson argues that the trial court erred in preventing his commanding naval
officer from testifying about Watson’s good character. He proffered that the witness
would testify that he knew Watson’s reputation among the employees at his job, and
that the reputation was “very good.” The witness admitted, however, that he had no
knowledge of Watson’s reputation in the community outside of his workplace. The
*13
trial court ruled the proffered testimony inadmissible on the grounds that Watson’s
reputation on the job was not relevant. We find no error. Under the rules of evidence
in effect at the time of trial, “[r]estricting counsel from asking a witness about an
individual’s reputation at business and among the employees is not error, as this is not
the correct test” for the admission of good character evidence.
Haralson v. State
, 223
Ga. App. 787, 792 (5) (
5. Effectiveness of counsel.
Watson argues that his trial counsel was ineffective in failing to object to the
allegedly improper “unanimity” jury charges discussed in Division 3 (a), supra.
Because the charges were not improper, the trial court was not deficient in failing to
object to them. See
Williams v. State
,
6. Merger.
Watson argues that the trial court was required to merge for purposes of
sentencing his two convictions of sexual battery against K. P. The first conviction
was for sexual battery as a lesser included offense to child molestation, which the
indictment alleged Watson committed by “plac[ing] his hand upon the pubic area of
[K. P.],” and the second conviction was for sexual battery as a lesser included offense
to child molestation, which the indictment alleged Watson committed by “plac[ing]
his hand upon the breasts of [K. P.].” Because these counts of the indictment charged
Watson with separate and distinct acts, the trial court did not err in refusing to merge
for sentencing purposes the convictions that were based on those counts. See
Anderson v. State
,
Judgment affirmed. Andrews, P. J., and Ray, J., concur .