Becton v. State

• Citation: 358 Ga.App. 321,853 S.E.2d 125
• Decision Date: 04 December 2020
• Docket Number: A20A1837
• Parties: BECTON v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 321

853 S.E.2d 125

BECTON

v.The STATE.

A20A1837

Court of Appeals of Georgia.

December 4, 2020

Reconsideration Denied February 5, 2021

David T. Lock, Savannah, for Appellant.

Margaret Heap, District Attorney, Timothy Patrick Dean, Assistant District Attorney, for Appellee.

Brown, Judge.

A jury found Raymont Becton guilty of eight counts of child molestation, four counts of aggravated child molestation, two counts of aggravated sexual battery, and one count each of cruelty to children in the first degree, aggravated sodomy, and statutory rape for acts involving his girlfriend's two daughters and two other victims.¹ Becton appeals from his convictions and the denial of his amended motion for new trial, contending that the trial court erred in denying his motion for a mistrial after the State introduced improper character evidence, and that the evidence was insufficient to support three of the convictions. For the reasons that follow, we affirm.

"On appeal from his criminal conviction, [Becton] is no longer presumed innocent and all of the evidence is viewed in the light most favorable to the jury's verdict."

Meddings v. State , 346 Ga. App. 294, 816 S.E.2d 140 (2018). So viewed, the evidence shows that Becton lived with his girlfriend, and the girlfriend's two daughters, T. R. and M. J., who were respectively 11 and 16 years old at the time of trial. T. R. explained at trial that it was "very uncomfortable, and ... dangerous" living with Becton because he would get her out of her bed every night, carry her into the living room, put her on the couch, and touch and rub her "private part" and her "tiddies." T. R. testified that Becton put his fingers inside her private parts and that it hurt and made her want to cry. He also put his penis in her panties and "it really hurt[ ]," and white stuff came out. Another time, Becton took T. R. out of bed, put her on the couch, unzipped his zipper, took his penis out, and "started to wiggle [it] around" in her private part. T. R. explained that during this incident Becton's penis did not go "in between [her] flaps"; rather, the top of his penis touched the top of her vagina. T. R. testified that one time, Becton called her into a room to rub his back and he had his penis out. T. R. grabbed a broom, hit Becton with it, and ran out of the room. Besides the sexual acts, T. R. described that Becton punished her by hitting her with a wooden paddle and a belt and locking her in her room. One time, Becton hit T. R. in the eye with a metal belt buckle. According to T. R., Becton forced her sister, M. J., to "suck [Becton's] penis" while their mother was out. T. R. also testified that Becton would choke her mother, hold her down on the couch, and hit her with a lamp. Becton told T. R. that if she ever told anyone about what he did, he would hurt her and "put a knife over [her] mom's neck."

T. R.’s sister, M. J., testified at trial that Becton pulled out his penis and forced her to suck it; that he touched her chest; and that he put his hands in her pants and stuck his finger inside her private parts. M. J. also testified that Becton "beat [her]," "whooped" her sister with a belt, and slapped her mother.

The sisters reported the abuse to their cousin, aunt, and great-grandmother at a Super Bowl party. T. R. told her aunt that she and M. J. did not disclose the molestation because Becton had threatened to hurt their mother. The great-grandmother reported the abuse to the Division of Family and Children Services. Both girls were interviewed separately by a forensic interviewer at the Coastal Children's Advocacy Center, and their interviews were played for the jury.

The sisters’ cousin, T. J., who was 18 years old at the time of trial, testified that when she was 15 years old, she was living with T. R. and T. R.’s mother when Becton brushed up from behind her and intentionally touched her bottom and chest. She told him to stop and reported the incident to her father, her sister, and T. R.’s mother.

The fourth victim, K. C., testified that she met Becton in 2015 when she was 13 years old, that she began working for his construction business, and that she told him she was 17 or 18 years old. A short time later, the relationship became sexual, and K. C. performed oral sex on Becton twice and also had vaginal sex with him twice. At the time K. C. performed oral sex on Becton, he knew that she was 13 years old. K. C. also testified that she and Becton exchanged messages and had video chats through Facebook. According to K. C., she and Becton did not "chat about anything ... of a sexual nature" over Facebook because Becton felt as though people were listening or watching; in one message, Becton wrote that he did not want to get too explicit over messages because someone might be reading/watching. But, the messages — which were admitted at trial — show that K. C. sent Becton a picture of her naked breasts, and Becton sent K. C. a picture of his penis, to which K. C. responded, "u not on hard lol" and Becton replied, "No ... Not yet lol." In another exchange, K. C. asked Becton "what you want me to give you ... tell me daddy," and Becton replies "Really" with a surprised emoji and then responded, "You can't make it happen now." Another time, Becton asked, "Tell me what you want me to do?" and K. C. responded, "whatever you want to do in your con[t]rol." There are references to "tam[ing] a beast," and Becton stated that he's "gonna tame [K. C.]" In another message, K. C. asked, "but how long we gone go on with our secret."

1. Becton contends that the trial court erred in failing to grant a mistrial after the State, in violation of OCGA §§ 24-4-404 (b), 24-4-413, and 24-4-414, introduced improper character evidence during the video replay of T. R.’s forensic interview. We disagree.

Prior to trial, Becton moved in limine to exclude any statements made by T. R. during her forensic interview that she had seen paperwork indicating that Becton had molested his daughters in Atlanta, arguing that he had not received "any prior notice or anything that's required." The State confirmed that it had redacted from the video "all of that," and the trial court advised the State to be sure that "it doesn't get in." At trial, the State played a three-hour videotape which included two forensic interviews of T. R. and one forensic interview of M. J. During T. R.’s first interview, she told the forensic interviewer that Becton twice tried to make her kiss him on the lips, and that she asked him "why do you do this, what does it get you?" T. R. then recounted to the interviewer that she asked Becton, "[d]o you do this to your daughters," and Becton responded, "[h]ow do you know about that?" The forensic interviewer then stated, "and you asked about his daughters and he didn't know how you knew about his daughters." Several minutes after these statements were played for the jury, Becton moved for a mistrial. The trial court denied the motion, but gave the following curative instruction: "I'm instructing you to disregard the response of [T. R.] that was made during the video as to what occurred after the kissing. You are to disregard her response in that regard entirely." The trial court then confirmed that the jurors would disregard T. R.’s statement by eliciting from them a collective "Yes, sir." Thereafter, Becton renewed his motion for a mistrial, which the trial court denied.

As a general rule, a trial court's denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Citation and punctuation omitted.) Womac v. State , 302 Ga. 681, 683 (2), 808 S.E.2d 709 (2017). See also Earwood v. State , 350 Ga. App. 26, 31 (1), 827 S.E.2d 719 (2019) (decision to deny a mistrial is within the discretion of the trial court, and will not be disturbed on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial). "We also consider additional facts like whether the reference to the improper character evidence is isolated and brief, whether the jury's exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State." (Citation and punctuation omitted.) Smallwood v. State , 334 Ga. App. 224, 225-226 (1), 779 S.E.2d 1 (2015). Moreover, "a trial court generally has the discretion to decide whether a mistrial is the only corrective measure to take or whether proper instructions withdrawing the testimony from the jury's consideration can correct the prejudicial effect." (Citation and punctuation omitted.) Torres v. State , 353 Ga. App. 470, 484 (5), 838 S.E.2d 137 (2020).

Taking into consideration the above factors, the trial court did not abuse its discretion in denying Becton's motion for mistrial. T. R.’s description to the interviewer of her conversation with Becton and the interviewer's response were brief and occurred in the midst of a three-hour-long videotape. See Jackson v. State , 321 Ga. App. 607, 612 (1), 739 S.E.2d 86 (2013) (no reasonable probability that statement in videotape played for jury, referencing defendant's criminal history, contributed to the guilty verdict as the statement was "likely heard by the jury only once" and "was a brief, single comment made toward the end of an approximately 30 minute recording"). Moreover, the exchange was not repeated, and the State's failure to redact it was inadvertent. Additionally, the trial court gave the jury a thorough curative instruction to disregard the statement. "We ordinarily presume that a jury follows such instructions." Coleman v. State , 301 Ga. 720, 722 (3), 804 S.E.2d 24 (2017). And, as we concluded in Earwood , we need not rely on that presumption where, as here, the...