Anderson v. State

• Court: Georgia Court of Appeals
• Writing for the Court: MIKELL
• Citation: Anderson v. State, 315 Ga. App. 679, 727 S.E.2d 504, 12 FCDR 1487 (Ga. App. 2012)
• Decision Date: 19 April 2012
• Docket Number: No. A12A0306.,A12A0306.
• Parties: ANDERSON v. The STATE.

315 Ga.App. 679

727 S.E.2d 504

12 FCDR 1487

ANDERSON

v.The STATE.

No. A12A0306.

Court of Appeals of Georgia.

April 19, 2012.

Patricia Margaret Moon, for appellant.

Richard Randolph Read, Dist. Atty., Roberta A. Earnhardt, Asst. Dist. Atty., Conyers, for appellee.

MIKELL, Presiding Judge.

Based on acts of sodomy committed against J.A., his adopted daughter, James Karl Anderson was found guilty by a jury of three counts of aggravated child molestation ¹ and was acquitted of one count of child molestation. Pursuant to OCGA § 17–10–6.1, he was sentenced on each aggravated child molestation count to life in prison, with 25 years to serve on each count, consecutively, and the balance on probation. After hearings, Anderson's amended motion for new trial was denied. He appeals, challenging the sufficiency of the evidence and enumerating other errors. We affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury's verdict, is sufficient under Jackson v. Virginia.² We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ³

Properly viewed, the evidence adduced at trial showed the following. Anderson had married the mother of the victim and had adopted the victim, J.A., when she was small. J.A.'s mother testified that “[s]o far as [J.A.] was concerned, he's pretty well been her father.” At some point, Anderson moved out of his wife's bedroom and into the bonus room in the family home; later, in May 2007, the month J.A. turned nine years old, Anderson moved out of the family home altogether and into his own apartment. Thereafter, on occasions when her mother had to work at night, J.A. and her younger sister, who was developmentally challenged, would from time to time spend the night with Anderson at his apartment.

J.A. was eleven years old and in sixth grade at the time of the August 2009 trial. She testified that the last time she stayed overnight at her father's apartment, he woke her up as she was sleeping on the couch. He was naked and he told her to take her clothes off. When she refused, he got mad, pulled her clothes off, and told her to suck his penis. When she resisted, he pushed her head toward his penis and forced her to comply. He then “put his penis in [her] butt,” while moving “back and forth.” She testified that “it hurt really bad”; that she told him to stop; and that she was crying. He “kept switching back and forth” between forcing her to engage in oral sex and forcing her to engage in anal sex. He pulled a packet with writing on it from under the couch, and she felt “some stuff, something greasy” on her behind. This episode occurred when J.A. was ten years old, two or three weeks before J.A.'s recorded interview with a police investigator on October 17, 2008.

J.A. further testified that Anderson had forced her to engage in oral and anal sex on earlier occasions, although she could not remember how many times; and that the abuse began when she was in the third grade. The abuse took place first at her home and, later, at Anderson's apartment.

On October 16, 2008, J.A., who was “sick and tired” of the abuse, made outcry to her mother. J.A. told her mother that she did not want to spend the night at her dad's apartment. When her mother asked why, J.A. told her that her father sometimes put his penis “in her mouth and also in her butt”; and that the abuse had occurred both at her home and at Anderson's apartment.

The next morning, October 17, 2008, her mother called the police and took J.A. to the Rockdale County Sheriff's Office, where J.A. was interviewed by Jennifer Perry, a P.O.S.T.-certified investigator with the Criminal Investigation Division of the Rockdale County Sheriff's Office. Perry testified for the state at trial. The recording of the interview was admitted into evidence without objection and was played for the jury.

In this interview, J.A. graphically described the abuse she had suffered for the two years prior to October 2008, in a manner consistent with her later testimony at trial. J.A. explained that, when the abuse began, Anderson would make J.A. put her mouth on his penis. On occasion, including the last time J.A. stayed at Anderson's apartment overnight two weeks earlier, Anderson made J.A. suck his penis while he was licking her vagina. J.A. called this “disgusting.” J.A. told Perry that Anderson would not stop until “ stuff” came out of his penis, which he always made her swallow. He told her that it would help her skin.

In February 2007, more than a year before her October 2008 interview with Perry, J.A., then eight years old, had made her first outcry of sexual abuse against her father. The outcry was reported to authorities, and two separate investigations were begun. The investigations were closed, however, when J.A. recanted in March 2007. Later, at the August 2009 trial, J.A. explained that her 2007 accusation against her father “was the truth, but [she] said it was a lie to keep the family together”; and that she recanted the accusation “[b]ecause I felt like I wanted to keep my relationship with my father and I didn't want to break the family apart.” This testimony was consistent with her statements to Perry in the October 2008 recorded interview. At that time, J.A. told Perry that she had recanted her 2007 accusation because Anderson “played the guilt trip on [her] and he was mad”; and she “did not want to be the bad guy.”

Anderson testified at trial and denied the charges against him. He called several witnesses, including investigators of J.A.'s 2007 outcry, as well as a childhood friend who testified as a character witness. At the conclusion of the trial, the jury found Anderson guilty of three counts of aggravated child molestation. His amended motion for new trial was denied, and this appeal followed.

1. In his first enumeration of error, Anderson contends that the evidence was insufficient to support his convictions for aggravated child molestation. We disagree.

A person commits child molestation when he “[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.” ⁴ Aggravated child molestation occurs when a person “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” ⁵ The testimony of J.A., standing alone, was sufficient to support the verdict; ⁶ and the jury was entitled to consider the victim's out-of-court statements, such as those made in the October 2008 police interview, as substantive evidence under the Child Hearsay Statute, OCGA § 24–3–16.⁷ Accordingly, we conclude that any rational trier of fact could have found Anderson guilty beyond a reasonable doubt of the three counts of aggravated child molestation with which he was charged.⁸

Anderson argues that the evidence was insufficient because there was no physical evidence of abuse. However, the victim's testimony, alone, supports his convictions, despite the absence of any physical evidence, because “Georgia law does not require corroboration of a child molestation victim's testimony.” ⁹ Anderson further points to inconsistencies between J.A.'s in-court testimony and her recorded October 2008 police interview, as well as her earlier recantation of her 2007 outcry. But “any inconsistencies between the victim's trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this Court's sufficiency of the evidence review.” ¹⁰ On appellate review, “we determine only the legal sufficiency of the evidence adduced below and do not weigh the evidence or assess the credibility of the witnesses.” ¹¹ Thus, “[a]s long as there is some evidence, even though contradicted, to support each necessary element of the [s]tate's case, the verdict will be upheld.” ¹²

2. Anderson asserts that the recording of the October 2008 interview of J.A. should have been excluded from evidence, because it lacked sufficient indicia of reliability. Under the Child Hearsay Statute, OCGA § 24–3–16, the victim's out-of-court statements are “admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” In this case, following a pre-trial hearing, the trial court ruled that this recording showed “sufficient indicia of reliability” and was admissible under OCGA § 24–3–16. “The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements under OCGA § 24–3–16 only if the trial court abused its discretion.” ¹³ We find no abuse of discretion here.

When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child's statement to the persons present; (3) the child's age; (4) the child's general demeanor; (5) the child's condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the same; and[ ] the nature of the child's statement and type of...