Bryson v. State

• Decision Date: 20 October 2006
• Docket Number: No. A06A1344.,A06A1344.
• Citation: 282 Ga. App. 36,638 S.E.2d 181
• Court: Georgia Court of Appeals
• Parties: BRYSON v. The STATE.

282 Ga. App. 36

Page 181

638 S.E.2d 181

BRYSON v. The STATE.

No. A06A1344.

Court of Appeals of Georgia.

October 20, 2006.

Robert P. Bryson, pro se.

Michael H. Crawford, District Attorney, Richard K. Bridgeman, Assistant District Attorney, for appellee.

BERNES, Judge.

A Stephens County jury found Robert Pearl Bryson guilty of two counts of aggravated sodomy, four counts of aggravated child molestation, one count of child molestation, and two counts of failure to register as a sex offender. On appeal, Bryson claims that the evidence was insufficient to support his convictions on the aggravated sodomy, child molestation, and failure to register as a sex offender counts. Bryson also contends that the trial court erred in denying his motions to quash the indictment, in denying his trial counsel's motion to withdraw from representation, in denying his motion to sever the charges of failure to register as a sex offender, and in admitting into evidence a plea of no contest. Finally, Bryson argues that he was denied effective assistance of trial counsel. We find no error and affirm.

1. (a) Bryson claims that the evidence was insufficient to support the jury's verdict of guilty on the two counts of aggravated sodomy. "A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." OCGA § 16-6-2(a)(2). Count 1 of the indictment charged Bryson with committing aggravated sodomy in that he "did unlawfully perform a sexual act involving [his] sex organs . . . and the anus of [B.S.]" Count 2 charged him with committing aggravated sodomy in that he "did unlawfully perform a sexual act involving [his] mouth ... and the sex organs of [B.S.]"

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Rosser v. State, 276 Ga.App. 261, 262(1), 623 S.E.2d 142 (2005).

So viewed, the evidence shows that during the summer of 2003, fifty-one-year-old Bryson befriended eight-year-old B.S. and ten-year-old K.S. Amongst other activities, Bryson engaged the children by taking them swimming and taking them to the store for ice cream. The children's mother became concerned that her children were spending too much time with Bryson and consequently instructed Bryson to stay away from the children. Bryson disregarded her request and instead left candy for the children on a stump by the road near their house. Bryson then began appearing in their yard. After Bryson took one of the boy's bicycles, the mother called the police.

After speaking with the police, the mother decided to ask her children whether they had been touched inappropriately. She spoke with each child separately, and B.S. told his mother that Bryson had touched him "on the front down below." K.S. told his mother that Bryson "tried to put his thing in my butt."

B.S. and K.S. were interviewed by an investigator with the Department of Family and Children Services. The interviews were recorded on videotape and played for the jury. B.S. described acts of oral and anal sodomy to the investigator. K.S. was interviewed separately and also described acts of oral and anal sodomy.

At trial, B.S. nodded affirmatively when asked if Bryson had touched B.S.'s penis with Bryson's mouth. B.S. further indicated that Bryson had touched B.S.'s "behind" with Bryson's "private part." K.S. testified that Bryson touched K.S.'s "behind" with Bryson's private part, and that Bryson touched K.S.'s private part with his mouth.

Bryson contends that the evidence was insufficient to show that he engaged in a sexual act involving his sexual organs and the anus of B.S., a child less than ten years of age, and engaged in a sexual act involving his mouth and the sex organs of B.S. We disagree. The evidence presented at trial and summarized above was sufficient to authorize a rational trier of fact to find Bryson guilty beyond a reasonable doubt of aggravated sodomy. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Guzman v. State, 273 Ga.App. 819, 822-823(3), 616 S.E.2d 142 (2005). While Bryson argues that B.S.'s testimony was insufficient to show that Bryson's penis penetrated B.S.'s anus, Georgia law defines sodomy as "any sexual act involving the sex organs of one person and the mouth or anus of another." (Emphasis supplied.) OCGA § 16-6-2(a). A showing of penetration is not required to establish sodomy. A showing of contact is all that is required. See Wimpey v. State, 180 Ga.App. 529, 530(2), 349 S.E.2d 773 (1986).

(b) Bryson also claims that the evidence was insufficient to convict him of child molestation. "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." OCGA § 16-6-4(a). In this count, the indictment alleged that Bryson performed an immoral and indecent act on K.S., a child under the age of 16 years, by kissing K.S. on the mouth with the intent to arouse and satisfy Bryson's sexual desires.

A witness testified that she saw Bryson kiss K.S. on the lips while Bryson and K.S. were swimming at a lake. Bryson argues that the evidence failed to show that this kiss was made with the intent to arouse Bryson's sexual desires, "as opposed to just being a kiss of greeting." We disagree. "In determining the intent with which an act is done, the jury may consider the defendant's words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." Phillips v. State, 269 Ga.App. 619, 629(8), 604 S.E.2d 520 (2004). Here, the circumstances show that a fifty-one-year-old man kissed an unrelated ten-year-old boy on the mouth while the two were swimming together within the context of a relationship involving other acts of molestation. As such, a rational jury could infer that Bryson kissed K.S. with the intent to gratify Bryson's sexual desires. "A reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous." (Citation and punctuation omitted.) Ney v. State, 227 Ga.App. 496, 497-498(1), 489 S.E.2d 509 (1997). We conclude that the evidence was sufficient for any rational trier of fact to find Bryson guilty beyond a reasonable doubt of child molestation. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Phillips, 269 Ga.App. at 629-630(8), 604 S.E.2d 520.

(c) Bryson argues that the trial court erred in denying his motion for a directed verdict on Count 8 of the indictment, which alleged that he failed to register as a sex offender under OCGA § 42-1-12.¹ "On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction." (Footnote omitted.) Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001).

Former OCGA § 42-1-12(b)(4)(B) (2003) provided that a person required to register under the Code section shall "[r]eport in person within ten days to the appropriate sheriff or sheriffs if the person changes residence address...."² Count 8 of the indictment alleged that on or between July 8, 2003 and July 31, 2003, Bryson failed to report his change of residence address in person within ten days to the Stephens County sheriff. According to Count 8, Bryson was required to register and make such a report because on September 27, 1999, he had been convicted of indecent liberties with a minor in North Carolina.

Evidence at trial did show that in 1999, Bryson had been convicted in North Carolina of the felony of indecent liberties with a minor. It also showed that in February 2003, Bryson registered as a sex offender in Stephens County. However, in July 2003, when an officer attempted to talk to Bryson about the incidents alleged in the indictment, Bryson fled the county. He was eventually apprehended at a bus stop in Tennessee during the summer of 2004. He told one of the arresting officers that he had come from North Carolina. At trial, Bryson admitted that he left Georgia and stayed away for more than a year. The evidence is undisputed that during the year that Bryson was away, he failed to apprise Stephens County authorities of his change in residence address.

Bryson nevertheless argues that the evidence failed to show that he either changed his residence address or moved to another state after having registered as a sex offender in Stephens County. Relying on the law of domicile, Bryson argues that "[i]f a person leaves the place of his domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in his domicile, he will not be considered as having changed his domicile." (Citations and punctuation omitted.) Williams v. Williams, 226 Ga. 734, 736(2), 177 S.E.2d 481 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974). Bryson further contends that there is no evidence that he actually took up residence elsewhere than Stephens County.

We disagree with Bryson's arguments. OCGA § 42-1-12(b)(4)(B) (2003) does not speak to the concept of "domicile," but to residence address and moving. "Residence usually includes an intent to live in the place for the time being. Domicile, unlike residence, means a permanent place of habitat." (Citations and punctuation omitted.) ADC Constr. Co. v....