Abernathy v. State
| Citation | 630 S.E.2d 421,278 Ga. App. 574 |
| Decision Date | 30 March 2006 |
| Docket Number | No. A05A1801.,A05A1801. |
| Parties | ABERNATHY v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Bowens, Guerra & Yeager, Carl Bowers, Cindi Yeager, Marietta, for Appellant.
Jason Deal, District Attorney, Northeastern Judicial Circuit, Lee Darragh, Jennifer Bagwell, Assistant District Attorneys, for Appellee.
Michael Abernathy appeals after a jury convicted him of four counts of aggravated child molestation, one count of incest, five counts of child molestation and twelve counts of misdemeanor sexual exploitation of children. For the reasons set forth below, we reverse Abernathy's convictions on ten of the twelve counts of sexual exploitation and affirm his convictions on the remaining charges.
"On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility." (Punctuation and footnote omitted.) Williams v. State, 277 Ga.App. 106(1), 625 S.E.2d 509 (2005).
Viewed in that light, the evidence shows that in 1998, 12-year-old J.I. moved with his mother, Lori Abernathy, and his older sister, A.I., to live with Michael Abernathy, his new stepfather. One day in late December 1999, a few days before J.I.'s thirteenth birthday, Lori began wrestling with J.I. in the living room. Abernathy, who was watching, told them that the winner of the match would be the one who was able to get the other person's clothes off first. After J.I. removed his mother's clothes and she removed his, they wrestled naked while Abernathy watched. J.I. saw his sister, A.I., come into the room, and then quickly go back into her own room.
A few days later, on New Year's Day, 2000, after J.I. turned 13, Abernathy showed him pictures of naked children and adults on the computer and tried to get J.I. to talk to women in internet chat rooms about sex. A couple of nights later, Abernathy and J.I. were again on the computer when Abernathy began talking in a computer chat room to a man who was describing having sex with his own mother. Lori was in the room at the time.
Lori left to take A.I. to work, and when she returned Abernathy told Lori and J.I. to go into the living room and lie down on the floor. Abernathy began touching Lori's breasts with his mouth and hands and instructed J.I. to do the same. Abernathy also placed J.I.'s finger in Lori's vagina. Abernathy then began performing oral sex on Lori and told J.I. to perform oral sex on his mother. With Lori's encouragement, J.I. put his mouth on Lori's vagina. When the telephone rang, J.I. left the other two and went into his bedroom.
Three or four months later, in the spring of 2000, J.I. was lying on the sofa in the living room watching television, and Abernathy and Lori were sitting together. After conferring with Abernathy, Lori came over to the couch and started touching J.I.'s penis. She instructed him to put his hands on her breasts. Abernathy then suggested that they put some pillows on the living room floor. Lori invited J.I. to lie on the floor with her and she removed his jogging pants. She then removed her own clothing. Lori began touching J.I.'s penis, while Abernathy touched Lori's breasts and vagina with his hands and his mouth, instructing J.I. to do likewise. Abernathy told J.I. to put his mouth on Lori's vagina, which he did. He then told Lori to give J.I. a "treat" because he had given her one. In response, Lori performed oral sex on J.I.
Abernathy then suggested that J.I. have sexual intercourse with his mother, but J.I. demurred. Lori got up and went into the bedroom saying her back was hurting, and J.I. followed. Abernathy again suggested that J.I. have sex with his mother to make her "feel better." J.I. asked Lori if she wanted him to, and she replied that she did. Lori began kissing J.I. and touching his penis to get him aroused. At Abernathy's direction, J.I. stuck his penis in Lori's vagina and moved up and down on top of her. Afterward, Abernathy had anal sex with Lori, and suggested that J.I. do the same. With Lori's encouragement, J.I. began to have anal intercourse with her. When he was unable to continue, Abernathy came up behind J.I. and placed his hands and mouth on J.I.'s penis in an attempt to arouse him. J.I. "jerked away from him real quick" and went into his own bedroom.
A.I. testified at trial to a similar transaction involving Abernathy. One night in the summer of 1999, A.I. asked Lori to sleep with her because she was afraid of a mouse they had seen earlier. Abernathy announced that he was going to sleep with them also. A.I. was asleep when Abernathy put his hand in her underwear and put his fingers inside her vagina. She tried to push him off, and when he would not stop, she turned toward the wall where he could not reach her. He then left. A.I. told her mother what had happened, but her mother took no action and the matter was dropped.
In addition, A.I. testified that sometimes when she was using the computer, Abernathy would come in after everyone else was asleep and ask her to visit sexual chat rooms with him. On another occasion, when Lori and J.I. were out, Abernathy tried to show A.I. a magazine with pictures of naked women. She told him that she had to go to work. When she was in the bathroom getting ready for work, Abernathy came into the room, with his penis showing and asked her what she thought about it. She just turned and went out of the bathroom. A.I. needed to take a shower, but she was afraid that Abernathy would come in because the bathroom lock was broken. She turned the shower on before getting undressed and waited. Shortly thereafter, Abernathy came into the bathroom. When he saw her standing there dressed, he gave her a hug and told her not to tell her mother anything that happened.
A.I. also testified that she had walked into the living room around New Year's Eve of 1999 and saw Lori and J.I. on the floor "wrestling with no clothes on at all . . . and Michael Abernathy was telling them what to do . . . you know, how to . . . wrestle." She said that she turned around and went back into her bedroom. Later she saw Abernathy showing J.I. a picture of a naked teenage girl on the computer. A.I. moved out of the house a few months later in April 2000.
By 2001, Abernathy and Lori began to experience marital problems. At one point, they argued over a period of three days and discussed divorce. One night the arguments were so bad that J.I. did not get any sleep. The next day Lori called her sister, Melody Brown, and told her that something had happened between Abernathy, J.I. and her and that Melody would hate her for it. She then put J.I. on the phone and he began to tell his aunt what had happened. J.I. told her that Abernathy had made him touch and kiss Lori's breasts and put his fingers in Lori's vagina. Brown told J.I. that she had heard enough. She told him to pack his things and said that she was coming to get him. Brown took J.I. to her home in Walker County, and Lori came to her house several days later. Brown testified that the night Lori arrived she admitted that there had been some inappropriate touching between J.I., Abernathy and her, and the next day she checked herself into a psychiatric hospital.
That night, J.I. told Brown what had occurred, stating that it had started with Abernathy showing him pornography on the internet, with his mother watching. J.I. also recounted the incidents of sexual intercourse in more detail to his aunt, telling them, inter alia, that Abernathy had touched his penis with his hand and mouth to get him aroused so J.I. could have sex with Lori.
That same night, Brown spoke with Abernathy, who stated that he was sorry for what he done to A.I. and J.I. and that he thought his actions may have been due to some things that had happened to him in his past and that he was going to get help.
When Lori checked herself into the psychiatric hospital, she left her belongings with Brown. Among these items was a cardboard box of computer disks, which Brown turned over to police. Chief Assistant District Attorney Lee Darragh testified that he took the box of computer disks to a technology service and had them consolidated for easy reference. He then reviewed and labeled each of the images and identified a number of photographs taken from the disks. These images, which contained sexually explicit subject matter, were introduced in connection with the 12 counts of misdemeanor sexual exploitation of children.
J.I. later talked to police about the incidents involving his mother and Abernathy. During a meeting with Sergeant Mason Brewer of the Walker County Sheriff's Office, J.I. identified on anatomical drawings the "places that I touched Michael or that Michael had touched me and places that I had touched my mom and places my mom had touched me." J.I. identified these drawings at trial and they were admitted into evidence. A videotape of Sergeant Brewer's interview with J.I. was played for the jury.
Abernathy and Lori were tried separately on these charges. Lori did not testify at Abernathy's trial, but Abernathy testified that A.I. and J.I. were very unhappy living at his house in Hall County away from their friends. Abernathy recounted an incident in which he inadvertently discovered J.I. having a sexually explicit conversation in an internet chat room. He told J.I. never to do that again. Abernathy denied owning or downloading any pornographic pictures onto the computer disks introduced into evidence and also denied taking part in any of the sexual activities described by A.I. and J.I. Abernathy further testified that he was recovering from a broken foot at the time the incidents were supposed to have occurred and thus he could not have taken...
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