Arnold v. State
| Decision Date | 24 January 2001 |
| Docket Number | No. A00A2375.,A00A2375. |
| Citation | 249 Ga. App. 156,545 S.E.2d 312 |
| Court | Georgia Court of Appeals |
| Parties | ARNOLD v. The STATE. |
OPINION TEXT STARTS HERE
Lawrence W. Daniel, for appellant.
Patrick H. Head, Dist. Atty., Timothy B. Lumpkin, Dana J. Norman, Asst. Dist. Attys., for appellee. RUFFIN, Judge.
A jury found Gary James Arnold guilty of child molestation, felony obstruction of an officer, and attempted interference with government property. Arnold appeals, challenging the sufficiency of the evidence, the trial court's jury instructions, and the court's failure to grant a mistrial due to purportedly inadmissible character evidence and impermissible closing argument. For reasons that follow, we affirm.
1. In two enumerations of error, Arnold asserts that the evidence is insufficient to support the jury's verdict finding him guilty of child molestation and felony obstruction of an officer. In reviewing these assertions, we do not weigh the evidence or determine witness credibility.1 Instead, we review the evidence presented at trial in the light most favorable to support the jury's verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Arnold guilty of each element of the charged offenses beyond a reasonable doubt.2
(a) Viewed in this light, the evidence supporting Arnold's conviction for child molestation shows that the victim was eight-year-old H.C. On the afternoon of the incident, H.C. walked home from school to the apartment where she lived. Finding the front door locked and nobody home, H.C. went to a pay phone in the apartment complex to call her mother. A man, later identified as Arnold, was using the phone. When Arnold finished, H.C. approached the phone to call her mother, but realized she had no change. Arnold gave H.C. money to make the call, then stood in the doorway of a nearby apartment. The pay phone, however, would not accept the coins, and H.C. returned the money to Arnold, who remained in the doorway.
After H.C. gave the money to Arnold, he began asking her questions about her family. Arnold then asked H.C. if she wanted to use his phone. H.C. declined, and Arnold asked her if she wanted to come in his apartment. H.C. again declined, and Arnold, still standing in the doorway, asked her if she wanted to see something. Curious about what Arnold would show her, H.C. acquiesced. Arnold then put a hand on his genitals, unbuckled his belt, and unzipped his pants. According to H.C., she "turned around when [Arnold] had got finished unzipping his pants because [she] knew what was going— what he was going to do." Although Arnold told H.C. to turn back around to see him, she refused until she heard him zipping his pants back up and buckling his belt. H.C. testified that Arnold asked her if she "want[ed] to see it again" and that he "started unzipping and unbuckling his pants." When H.C. realized what Arnold was doing, she turned away again, and he asked her if she knew anything about sex. Arnold then informed H.C. that her mother's car had just pulled up and told her not to tell her mother what happened. H.C. ran home and told her mother what occurred.
H.C.'s mother immediately went to the apartment and confronted Arnold, who was wearing a bandanna on his head. According to H.C.'s mother, Arnold "acknowledged it, but he said it was someone else, and that he had cursed them out, told them that they were wrong, and that they shouldn't have done it." H.C.'s mother suspected that Arnold was the culprit and asked him to wait for H.C. to come to the apartment to allay her suspicion. H.C.'s mother testified that Arnold "got real nervous," said he had to use the bathroom, and closed the door.
Still trying to determine whether Arnold was the culprit, H.C.'s mother asked H.C. whether the man was wearing a bandanna on his head. When H.C. confirmed that he was, her mother called the police.
After speaking with H.C.'s mother, the two responding officers, Charles Curl and J.J. Mack, went to Arnold's apartment. Officer Curl testified that when they questioned him about the incident, Arnold offered the following explanation:
He was coming out of the bathroom. His genitals were still out of his pants.... He was adjusting himself, putting his penis back in his pants, walking through the living room area of the apartment, when he looked over at the doorway, which was open, and the child was standing in his doorway, and that the child had seen his penis. But it was all innocent, accidental.
Arnold did not testify at trial, but he presented testimony from an expert forensic psychologist specializing in sexual deviancy. The psychologist rendered his opinion that Arnold's motivation in exposing himself was not sexual gratification. Instead, the psychologist testified that Arnold's conduct
Arnold asserts that these facts are insufficient to support the jury's verdict "because the victim never saw his penis or [saw him] touch [ ] himself inappropriately." We disagree.
Under Georgia law, "(a) person commits the offense of child molestation when he or she does 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."3 Although a strict construction of this statute requires that the perpetrator perform the immoral or indecent act in the child's presence,4 we are aware of no authority which requires the child to observe the entire act. Here, the evidence showed that the victim observed Arnold put his hand on his genitals and begin disrobing. And Arnold, in his explanation to the investigating officers, acknowledged that he touched his exposed penis in the child's presence, though he asserted he was merely adjusting himself after using the bathroom. Although the evidence showed that Arnold was unsuccessful in his attempt to coax H.C. to look at his exposed penis, his conduct is rendered no less culpable by the victim's good judgment in turning her head away.5
The jury was permitted to infer sexual intent from Arnold's conduct, including his encouragement for H.C. to look at him and his query about her sexual knowledge.
Finally, contrary to Arnold's assertion, the jury was not required to find that he touched himself inappropriately. The act of intentionally exposing his penis in the child's presence to satisfy his own sexual desires was sufficient to support the jury's verdict.7
(b) Arnold also asserts that the evidence was insufficient to support the jury's verdict that he is guilty of felony obstruction of an officer. Viewed in a light most favorable to support the jury's verdict, the evidence shows that while questioning Arnold, Officer Curl requested a computer check of his name from the dispatcher. The computer check revealed an outstanding felony warrant. Upon learning of the warrant, the officers handcuffed Arnold and placed him in a patrol car. Once in the car, Arnold became belligerent and began kicking the car window. When Arnold ignored Officer Mack's request to stop kicking the window, Officers Mack and Curl removed him from the car. During their attempts to restrain Arnold, he became aggressive and threatened Officer Mack. Arnold stated that "if he saw [Officer Mack] again, he was going to pop a cap in his ass." Officer Curl testified that Arnold's threat is street slang for shooting somebody. Based on this threat, Arnold was indicted for felony obstruction of an officer.
The felony offense of obstructing or hindering law enforcement officers is defined by OCGA § 16-10-24(b), which provides that "[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony." Where, as here, the offense is grounded on verbal acts, the "[s]peech must reasonably be interpreted as a threat of violence in order to constitute an offer of violence under OCGA § 16-10-24(b)."8 The interpretation of the speech is a task for the jury.9 Viewing the evidence that Arnold threatened to shoot an arresting officer in a light most favorable to support the jury's verdict, we find that it was sufficient to authorize a rational trier of fact to find him guilty of felony obstruction beyond a reasonable doubt.10
2. In addition to challenging the evidence supporting his conviction for felony obstruction, Arnold asserts that the trial court erred by refusing to charge the jury on the lesser included offense of misdemeanor obstruction. In response, the State asserts, among other argument, that the trial court did not err because Arnold never requested the charge in writing. The State has obviously neglected to refer to Arnold's trial transcript citation which includes a six-page colloquy during which counsel and the trial judge discussed the propriety of Arnold's written request to charge on the lesser included offense of misdemeanor obstruction. Likewise, the State's argument disregards Arnold's written charge request on misdemeanor obstruction, also contained in the record....
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