Cantrell v. State

• Decision Date: 12 August 2021
• Docket Number: A21A0773
• Citation: 360 Ga.App. 862,862 S.E.2d 329
• Parties: CANTRELL v. The STATE.
• Court: Georgia Court of Appeals

360 Ga.App. 862

862 S.E.2d 329

CANTRELL

v.The STATE.

A21A0773

Court of Appeals of Georgia.

August 12, 2021

Lee William Fitzpatrick, Kennesaw, for Appellant.

Benny Morris Martin, Barbara Alison Sosebee, for Appellee.

Brown, Judge.

Following a jury trial, Billy Joe Cantrell was convicted of three counts of child molestation and one count of sexual battery against a child under the age of sixteen for acts committed against his girlfriend's daughter, beginning when she was nine years old. Cantrell appeals from his convictions and the denial of his amended motion for new trial, contending that the evidence was insufficient to support his convictions, and that the trial court erred in (1) prohibiting trial counsel from asking the State's expert a hypothetical question; (2) including indeterminable banishment as part of his sentence; and (3) failing to merge the sexual battery count into one of the child molestation counts. We affirm.

"Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." (Citation and punctuation omitted.) Robinson v. State , 342 Ga. App. 624, 625, 805 S.E.2d 103 (2017). So viewed, the evidence showed that when the victim was nine years old, Cantrell came into her bedroom, unzipped her pants, touched her between her legs, and masturbated in front of her. The victim kept pushing Cantrell's hand away, told him she would tell if he did not go away, and threatened him with scissors. Several years later, and on at least one occasion, Cantrell put the victim on his back and touched her thighs "in between [her] legs ... [o]n the inside ... [u]p toward the top." The victim waited several years to disclose the molestations because she was terrified and embarrassed, and Cantrell made her mom happy. She also testified that Cantrell told her not to say anything because "he would end up in prison for 20 years like [the victim's] grandfather."¹ At trial, Cantrell testified in his own defense, and denied ever touching the victim inappropriately. According to Cantrell, the victim jumped on his back all the time and thought it was funny, and he told her "to quit."

1. Cantrell contends the evidence was insufficient to support his convictions based on inconsistencies in the victim's story and testimony. For example, the victim claimed the first incident occurred when she nine and living in Morganton, a town she did not live in until she was ten, and she also told the forensic interviewer that it was dark during the first incident and she could not see, but testified at trial that the door was open and she could see.

It is well settled that it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of the witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citation and punctuation omitted.) Whorton v. State , 318 Ga. App. 885, 888 (1) (b), 735 S.E.2d 7 (2012). Here, the victim's testimony alone was legally sufficient to support Cantrell's convictions. See id. at 889 (1) (b), 735 S.E.2d 7 ; Stillwell v. State , 294 Ga. App. 805, 806 (1), 670 S.E.2d 452 (2008). See also OCGA § 24-14-8. Moreover, "[c]onflicts between the victim's testimony at trial and the victim's out-of-court statements were for the jury to resolve," Newton v. State , 296 Ga. App. 332, 335 (1) (a), 674 S.E.2d 379 (2009), and the jury, alone, was authorized to judge the credibility of the victim's testimony. Whorton , 318 Ga. App. at 889 (1) (b), 735 S.E.2d 7. See also Stillwell , 294 Ga. App. at 806 (1), 670 S.E.2d 452 ; Little v. State , 262 Ga. App. 377, 378 (a), 585 S.E.2d 677 (2003) (differences between victim's earlier statement to police and his trial testimony "simply present[ed] a credibility determination for the trier of fact"). Accordingly, this argument lacks merit.

Cantrell also argues that the evidence was insufficient to support his convictions under Counts 22 and 26 of the indictment because there was no evidence of his intent to arouse or satisfy his sexual desire by his acts described in those counts, "both [of which] occurred during piggyback rides." Count 22 charged Cantrell with molesting the victim when she was nine years old "with the intent to arouse and satisfy the sexual desires of the accused by placing his hand into contact with [the victim's] clothing and unbuttoning her pants." Count 26 charged Cantrell with molesting the victim when she was somewhere between 12 and 14 years old, "by placing his hand into contact with and rubbing [the victim's] upper thigh area of her leg" with the intent to arouse and satisfy his sexual desires.

Contrary to Cantrell's contention, Count 22 has nothing to do with an alleged piggyback ride; Count 22 concerns the masturbation incident.² But, to the extent Cantrell contends the evidence was insufficient on the ground that there was no evidence of his intent to arouse or satisfy his sexual desire by the acts alleged in Count 22, we find no merit. "A person commits the offense of child molestation when such person ... [d]oes 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) (1). The defendant's intent at the time in question is "peculiarly a question for determination by the jury." (Citation and punctuation omitted.) Jordan v. State , 317 Ga. App. 160, 164 (1) (b), 730 S.E.2d 723 (2012). Evidence that Cantrell unbuttoned the victim's pants while masturbating in front of her was sufficient for the jury to infer that Cantrell intended to arouse and satisfy his sexual desires. See Bynum v. State , 300 Ga. App. 163, 165 (1), 684 S.E.2d 330 (2009) (defendant's acts of placing his penis on his 15-year-old daughter's rear end, rubbing her bare bottom, rubbing her bare breasts, and masturbating in her presence sufficient to infer that he acted with the intent to arouse or satisfy his sexual desires), disapproved on other grounds, Martin v. McLaughlin , 298 Ga. 44, 46, n.3, 779 S.E.2d 294 (2015).

As to Count 26, Cantrell argues that because the act occurred while he was giving the victim a piggyback ride, it proves only inadvertent contact during play and no intent to arose or satisfy his sexual desires. The victim's testimony that Cantrell instigated all of the piggyback rides except for one and then touched the victim between her legs, "toward the top," however, was sufficient evidence for the jury to infer that Cantrell acted with the intent to arouse or satisfy his sexual desires. See Gonzalez v. State , 359 Ga. App. 147 (1) (a), 857 S.E.2d 88 (2021) (jury authorized to infer that defendant's act of touching victim on the buttocks was performed with the intent to arouse his sexual desires). See also Wormley v. State , 255 Ga. App. 347, 348, 565 S.E.2d 530 (2002) (touching girls’ thighs, backs, and knees constituted child molestation). The evidence was sufficient to support Cantrell's convictions.

2. Cantrell contends that the trial court erred in restricting his cross-examination of the forensic interviewer. Cantrell sought to ask the forensic interviewer a hypothetical question about whether the victim invented the allegations against him in order to avoid being returned to her mother's care. The trial court sustained the State's objection to this question, ruling that defense counsel was asking the witness to speculate and that he could argue his theory to the jury. We find no error, but for a reason different than that relied upon by the trial court.

"The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion." Nicely v. State , 291 Ga. 788, 796 (4), 733 S.E.2d 715 (2012). "Georgia law forbids expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the ken of the average juror." (Citation and punctuation omitted.) Harris v. State , 283 Ga. App. 374, 379 (3), 641 S.E.2d 619 (2007). Indeed, "[a]n expert may not testify as to his opinion as to the existence [or not] of a fact unless the inference to be drawn from facts in evidence is beyond the ken of the jurors—that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing—from facts in evidence—such an inference for themselves." (Citation and punctuation omitted.) Duncan v. State , 232 Ga. App. 157, 161 (3), 500 S.E.2d 603 (1998). See also OCGA § 24-7-704 ; Robinson v. State , 309 Ga. 729, 734 (3), 848 S.E.2d 441 (2020). Compare DiPietro v. State , 356 Ga. App. 539, 545 (2) (a), 848 S.E.2d 153 (2020). "Where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony." (Citation and punctuation omitted.) Harris , 283 Ga. App. at 379 (3), 641 S.E.2d 619. See also Lopez v. State , 326 Ga. App. 770, 775-776 (4), 757 S.E.2d 436 (2014).

In Duncan , this Court affirmed the trial court's refusal to allow the defendant to elicit from his expert witness an opinion as to whether or not the victims’ allegations were the result of projection or pay back, finding that expert opinion testimony was not required to assist the jury in determining whether or not the victims in the case were truthful in their reports of abuse. 232 Ga. App. at 161 (3), 500 S.E.2d 603. We noted, however, that the...