Arnold v. The State

• Decision Date: 08 July 2010
• Docket Number: No. A10A0678.,A10A0678.
• Citation: 699 S.E.2d 77,305 Ga.App. 45
• Parties: ARNOLDv.The STATE.
• Court: Georgia Court of Appeals

305 Ga.App. 45

699 S.E.2d 77

ARNOLDv.The STATE.

No. A10A0678.

Court of Appeals of Georgia.

July 8, 2010.

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Jackson & Schiavone, George T. Jackson, Savannah, for appellant.

Richard A. Mallard, Dist. Atty., Michael T. Muldrew, Asst. Dist. Atty., for appellee.

DOYLE, Judge.

Following a jury trial, Ricky Arnold appeals from his conviction of aggravated child molestation,¹ attempted aggravated child molestation,² child molestation,³ and aggravated sexual battery,⁴ contending that (1) the evidence was insufficient as to certain counts, (2) the trial court erroneously denied his special demurrer to the indictment, (3) the trial court erred by admitting a prior consistent statement of a witness, (4) the trial court erroneously admitted bad character evidence, (5) the State misstated the evidence in a question on cross-examination, (6) the jury was improperly charged as to the form of its verdict, and (7) the trial court's charge on “mere presence” improperly expressed the court's opinion on the evidence. For the reasons that follow, we affirm.

Construed in favor of the verdict,⁵ the evidence shows that Arnold periodically entered his stepdaughter's bedroom late at night and fondled her breasts and vagina, performed oral sex on her, and attempted to force her to perform oral sex on him. The abuse occurred over the two- to three-year period leading up to the sixteenth birthday of the victim, A.M., and it stopped shortly thereafter in August 2005, when A.M.'s mother discovered Arnold by A.M.'s bed with his underwear down.⁶

In a six-count indictment, Arnold was accused of crimes based on the abuse, and a jury found him guilty of four of the counts.⁷ Following the denial of his motion for new trial, Arnold appeals.

1. Arnold contends that the evidence was insufficient to support the guilty verdict as to aggravated child molestation (Count 1) and attempted aggravated child molestation (lesser included as to Count 2) as alleged in the indictment. Viewed under the appropriate standard of review, the record shows otherwise.

(a) Aggravated child molestation. The indictment accused Arnold of committing aggravated child molestation by “plac[ing] his mouth upon the sex organ of [A.M.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of the accused....” Arnold contends that the evidence failed to show that he committed the act before A.M. turned 16. He relies on A.M.'s statement on re-direct examination, two years after the abuse, in which she stated that Arnold did not put his mouth on her sex organ until “shortly after” she was sixteen. However, A.M.'s testimony also revealed that she had only been sixteen for approximately one month before Arnold was discovered by her mother, and the abuse had been ongoing for two to three years. A.M. further testified that Arnold had first abused her by touching her breasts, but “[i]t eventually got to where he would do more things, ... where he'd put his finger inside me and then his tongue.” A.M. explained that this had occurred at least twice a week over the preceding years, and that Arnold would “do the same thing every night,” including “go to my private area and tongue it.”

When we review a challenge to the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.⁸

Further,

it is not the function of this Court to re-weigh the evidence or to determine the credibility of the witnesses[.] The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems

contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.⁹

Based on these standards, we hold that A.M.'s testimony-including that the abuse was long term and ongoing, that it had escalated to include oral sex, and that Arnold had generally done the same thing on each occasion-was sufficient to authorize the jury to find Arnold guilty of Count 1.¹⁰

(b) Attempted aggravated child molestation. Count 2 of the indictment accused Arnold of committing aggravated child molestation by “plac[ing] his sex organ upon the mouth of [A.M.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of the accused....” At trial, A.M. testified that Arnold “would try to put his private in [her] mouth,” but she would not let him, and that Arnold tried to “place his sex organ ... [tried] to put it in [A.M.'s] mouth.”

Arnold moved for a directed verdict on Count 2 arguing that the evidence did not show that he committed Count 2, only that he attempted it. The trial court denied the motion, and the jury later found Arnold not guilty of aggravated child molestation but guilty of the lesser included charge of attempted aggravated child molestation.

Arnold now argues that he could not be convicted of criminal attempt, relying on Legg v. State,¹¹ which reversed a trial court's denial of a directed verdict because a fatal variance existed between the facts alleged in the indictment and those proven at trial. This conclusion was based on the fact that “the victim did not indicate that appellant had done anything more than to attempt” an act involving the sex organs of the accused and the mouth of the victim.¹²

However, it is not clear in Legg that the jury was instructed as to the lesser included offense of criminal attempt, as was done here, and the defendant in Legg was actually convicted of the greater offense despite evidence showing only an attempt.¹³ Here, by contrast, Arnold was convicted only of the offense of criminal attempt, which was supported by the evidence. Because “[a] person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment,” ¹⁴ Arnold could be convicted of the lesser included offense of criminal attempt pursuant to a proper jury instruction. Therefore, we do not find Legg controlling, and we discern no error.¹⁵

2. Arnold contends that the trial court erred by denying his pre-trial special demurrer with respect to Counts 1, 2, and 3 of the indictment, which alleged that the offenses occurred “between July 24, 2002 [,] and July 24, 2005,” because the indictment did not allege a specific date on which the crimes were committed.

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. [However, t]his Court has recognized an exception to this rule where the evidence does not permit the [S]tate to identify a single date on which the offense occurred.¹⁶

[E]vidence that the victim is a minor who is incapable of adequately articulating exactly when the offense occurred is a factor the trial court can take into account in determining whether the [S]tate carried its burden of showing that it cannot establish a specific date or time frame in which the offense or recurring offenses occurred....¹⁷

Here, prior to trial, the trial court held a hearing and found that the State “presented evidence in support of its arguments that the alleged victim does not know the exact dates of the alleged offenses and that the alleged victim is a minor who is incapable of adequately articulating exactly when the offense occurred.” The record does not include a transcript (or authorized substitute) of this hearing, and absent these, we must presume that the trial court's evidentiary findings were correct.¹⁸ Furthermore, there was trial evidence showing that A.M. was a minor at the time of the offenses, that A.M. could not recall specifically when the offenses occurred, that the abuse occurred on at least a weekly basis over the two or three years leading up to August 2005, and that A.M. kept no diary or calendar that might aid her memory. Under these circumstances, we discern no error. ¹⁹

3. Arnold next contends that the trial court erred by admitting as a prior consistent statement an investigator's summary of A.M.'s out-of-court statement. We disagree.

During the State's case-in-chief, the State called a sexual abuse investigator who participated in an interview of A.M. on the night Arnold was discovered in her room. On cross-examination, Arnold elicited the fact that the interviewer's specialized training occurred after she interviewed A.M. On re-direct, apparently to demonstrate the reliability of the interview technique, the State asked the investigator to read her summary of the interview with A.M.²⁰ Arnold made a hearsay objection, and the State argued that the summary was admissible as a prior consistent statement by A.M., based on Arnold's previous challenge to her credibility on the stand. The trial court overruled the objection, and Arnold now asserts that this was error.

A witness's prior consistent statement is admissible only where: (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the

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