Ayers v. State, A07A0219.

• Decision Date: 16 July 2007
• Docket Number: No. A07A0219.,A07A0219.
• Citation: 650 S.E.2d 370
• Parties: AYERS v. The STATE.
• Court: Georgia Court of Appeals

650 S.E.2d 370

AYERS v. The STATE.

No. A07A0219.

Court of Appeals of Georgia.

July 16, 2007.

Reconsideration denied July 31, 2007.

Gordon & Brown, Gerald W. Brown, for Appellant.

Robert W. Lavender, Dist. Atty., Leon Jourolmon, Asst. Dist. Atty., for Appellee.

RUFFIN, Judge.

Odis David Ayers was charged with the following counts against eight different victims: two counts of kidnapping; two counts of aggravated child molestation; two counts of aggravated sodomy; eight counts of child molestation; two counts of enticing a child for indecent purposes; six counts of false imprisonment; and one count of furnishing harmful material to a minor. Following a trial, the jury found Ayers guilty of the following counts against four of the victims: two counts of kidnapping; three counts of child molestation; two counts of enticing a child for indecent purposes; and two counts of false imprisonment. The jury found him not guilty of the remaining 14 charges. On appeal, Ayers challenges the sufficiency of the evidence and alleges that the trial court erred by refusing to allow both defense attorneys to present closing argument, in failing to permit certain witnesses to testify, by admitting certain evidence, and in charging the jury. He further contends that he received ineffective assistance of counsel. Although we find the evidence sufficient, we agree with Ayers that the trial court erred in denying his request to have two attorneys present closing argument on his behalf and reverse.¹

1. In reviewing Ayers's challenge to the sufficiency of the evidence, we construe the evidence and all inferences drawn therefrom in a light most favorable to the verdict to determine if a rational trier of fact could have found Ayers guilty beyond a reasonable doubt.² So viewed, the evidence shows that Ayers was married and had two sons and four foster children. Ayers also coached a baseball team and was a Cub Scout leader.

M.S., who was nine years old at the time of trial, played on a baseball team that Ayers coached. On one occasion, Ayers played a "tickling game" with M.S. while in Ayers's bedroom. According to M.S., Ayers wrapped a rope around him and tickled him, "mostly under [his] arms." Ayers's sons were in the room at the time of the incident. At one point, Ayers put M.S., who was still tied up, in the closet when Ayers heard his wife, Sharon, approaching; when Ayers took M.S. out of the closet a few seconds later, Sharon was gone.

C.C., who was 12 years old at the time of the trial, was friends with one of Ayers's sons. Sometime around July 4, 2002, C.C.'s mother left C.C. at Ayers's house; Ayers was the only person at home. Ayers used rope to tie C.C.'s hands and feet together behind his back, and put tape over C.C.'s eyes and mouth. C.C. testified that there was a video camera pointed toward the area where Ayers tied him up, and C.C. told the police that he saw "an image on [Ayers's] computer of somebody tied up." Ayers also touched C.C.'s "privates" over his clothes. C.C. tried to tell Ayers to stop, but was unable to do so because his mouth was taped. Ayers untied C.C., "wrestled" with him, and then took him home.

B.Z., who was eight at the time of trial, was also friends with one of Ayers's sons. In July 2002, Ayers called B.Z.'s mother and invited B.Z. to come to his house to play with his sons. B.Z.'s mother agreed, and Ayers went to B.Z.'s house to get him. Ayers, who was alone, explained that he was going to get his sons from day care and then take the children to his house to play. Instead, Ayers took B.Z. to Ayers's house, where no one else was present. He tied B.Z.'s hands and feet behind his back, put tape on his eyes and mouth, and tickled him. After Ayers removed the tape from B.Z.'s mouth, B.Z. told Ayers to stop tickling him, and Ayers agreed to give B.Z. pudding instead. Ayers fed the pudding to him, although B.Z. asked him not to. B.Z. could not see what Ayers was using to feed him because his eyes were still taped closed, but he described the object as "smooth" and "hard" and told the police that he thought it was Ayers's finger. B.Z. testified that Ayers inserted the object into his mouth approximately seven times and tickled him more forcefully, despite B.Z.'s demands that he stop.

B.P., who was ten years old at the time of trial, also played on the baseball team that Ayers coached. Ayers called B.P.'s father and asked if B.P. could come to his house to play with one of his foster children. Ayers, who was alone, got B.P. and took him to Ayers's house, where no one else was present. Ayers used a rope to tie B.P.'s hands and feet behind his back and put duct tape over B.P.'s eyes. Ayers then retrieved pudding from the refrigerator and fed it to B.P. with a spoon. B.P. thought he "heard a zipper," and then felt another object touch his lips. Although he was unable to describe the object, B.P. stated that it was not a spoon.

The Georgia Bureau of Investigation ("GBI") investigated the allegations against Ayers. Authorities obtained a search warrant for Ayers's residence. When GBI agents arrived at Ayers's home, he consented to the search. After he was advised of his Miranda rights, Ayers agreed to speak to the authorities. Ayers told authorities that he "hog-tied" B.Z. with rope and tickled him for several minutes. Ayers admitted that he took B.P. to his home, where no one else was present, and fed pudding to him; he claimed that after he retrieved his son and foster son, he brought the three children to his home, tied them, and tickled them. He also admitted that while they were alone in his house, he tied C.C. in a hog-tie position — with his hands and feet behind his back — and tickled him on his sides and arms.

During their search of Ayers's residence, the GBI found rope, duct tape, pudding, a belt, and an empty pudding container. The GBI also seized a computer from Ayers's house. At trial, a forensic computer specialist for the GBI testified that there were over 1,300 images on the computer obtained from Ayers's residence. Over Ayers's objection, the trial court admitted several exhibits containing images from sexually explicit web sites that were accessed from the computer taken from Ayers's home. The exhibits contained multiple images involving bondage, in which individuals, both male and female, were tied in various positions with rope. Many of the individuals' mouths were gagged or covered.

Ayers testified at trial, admitting that he tickled and/or wrestled with B.P., C.C., and B.Z. He denied that he restrained C.C. or that he used rope to tie B.P., but stated that he did wrap a belt around B.P. Ayers characterized his actions as "wrestling" and "horseplay," and specifically denied that his actions were intended to arouse his sexual desires or that of the children.

(a) Child Molestation

The jury found Ayers guilty of child molestation against B.P., B.Z., and C.C. In Georgia, a person who "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" is guilty of child molestation.³ Here, C.C.'s testimony that Ayers touched his "privates" is sufficient to authorize Ayers's child molestation conviction against C.C., as the jury was authorized to conclude that such touching was made with the intent to arouse Ayers.⁴

Ayers hog-tied B.P. and B.Z., taped their eyes, tickled them, and fed pudding to them. Ayers inserted a smooth, hard, pudding-covered object — that B.Z. said felt like a finger — into B.Z.'s mouth seven times. B.P. testified that he "heard a zipper," and Ayers then touched his lips with an unknown object. Construing this evidence and inferences therefrom in favor the verdict, we conclude that a rational trier of fact could have found Ayers guilty of child molestation against B.P. and B.Z. beyond a reasonable doubt.⁵

(b) Enticing a Child for Indecent Purposes

Ayers was found guilty of enticing B.Z. and B.P. for indecent purposes. "A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts."⁶ Here, Ayers retrieved the victims from their own homes — after misleading their parents regarding his reason for doing so — and took them to his house, hog-tied them, taped their eyes and mouth, tickled them, and inserted an object into their mouths. Thus, we conclude that the evidence in this case supports the conclusion that Ayers took B.Z. and B.P. to his house with the present intent of either molesting the children or engaging in indecent acts.⁷

(c) False Imprisonment

The jury found Ayers guilty of falsely imprisoning M.S. and C.C. Pursuant to OCGA § 16-5-41(a), "[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority." The evidence that Ayers bound C.C. and M.S. with rope was sufficient for a jury to find that they were illegally detained against their will.⁸

(d) Kidnapping

Ayers was found guilty of kidnapping B.P. and B.Z. "A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will."⁹ "The abduction required by the kidnapping statute need not be accomplished by force — inducement, persuasion or fraud is sufficient to prove abduction."¹⁰ Here, Ayers persuaded the victims' parents that he was going to get his own children from school and then take all of the children — including the victims — back to his house to play. Instead, Ayers took the victims to his house, while no one else was there, tied them, and tickled them. Thus, his actions in deceiving the parents to give their permission and in inducing the boys to go with him constituted an abduction within the...