Carolina v. State

• Decision Date: 08 November 2005
• Docket Number: No. A05A1466.,A05A1466.
• Citation: 276 Ga. App. 298,623 S.E.2d 151
• Parties: CAROLINA v. The STATE.
• Court: Georgia Court of Appeals

276 Ga. App. 298

Page 151

623 S.E.2d 151

CAROLINA v. The STATE.

No. A05A1466.

Court of Appeals of Georgia.

November 8, 2005.

Cynthia Harrison, Stone Mountain, for Appellant.

Paul Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for Appellee.

BERNES, Judge.

A Fulton County jury convicted Mandell Carolina of one count of enticing a child for indecent purposes¹ and one count of solicitation of sodomy for money with a child under 17.² He appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence in support of his convictions and the denial of his motions for a directed verdict on the charged offenses. Furthermore, Carolina challenges aspects of the hearsay testimony of the child victims and the jury charge. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Carolina asked Q.D., a 12-year-old child, if she wanted to go to the flea market with him to make some money by selling tapes and compact discs. With her mother's permission, Q.D. went along. After eating lunch at a nearby fast food restaurant, Carolina told Q.D. that he needed to go to his house to charge his cellular phone. Again, Q.D. went with him.

Upon getting to Carolina's house, Q.D. saw that there was no furniture in the living room and went into his bedroom. There she found the only chair in the room covered with clothes and sat down on the edge of the bed. Carolina joined Q.D. in the bedroom, started a pornographic videotape, and sat down beside her on the bed to watch it on television. As the videotape ran, Carolina asked Q.D. several questions:

He asked me have I ever came like that? Do I got a boyfriend? Have my boyfriend ever kissed me? Have a boy ever tasted me?... Can he make me feel good? If he gave me money, what I do for him?

Q.D. believed that Carolina was asking her "to have sex with him if he gave [her] money." In addition, Carolina asked Q.D. to engage in what he termed an "experiment" about trust in which she was to lay down on the bed and allow him to apply lotion to her legs. Q.D. asked to leave, and Carolina obliged. As they stood waiting at a bus stop, Carolina asked Q.D. if she could keep a secret.

P.B., an 11-year-old child, testified that she also had accompanied Carolina to the flea market to sell compact discs and tapes. After buying food at the mall, Carolina told P.B. that they would eat at his house, again on the claim that he needed to charge his cellular telephone and pick up more tapes and compact discs. At first, P.B. sat on the front porch; however, she went inside when Carolina told her it would "take a while for [his] phone to charge" and asked her to come into the house.

Once inside, P.B. went into Carolina's bedroom as Q.D. had done. There, she initially sat down on the chair in the room but then moved to the edge of the bed on Carolina's invitation. Carolina sat beside her, took her hand, and began rubbing the center of it. When Carolina laid down still holding her hand in an attempt to have her lay down with him, P.B. "jerked [her] hand away." "When [Carolina] started asking [her] all kinds of questions, [P.B.] told him [she] was ready to go." Carolina persisted and began questioning P.B.:

He asked me have I ever came before. He asked me if a boy ever ate me out before. Do I have a boyfriend? Then he was like, he was like if he give me $40 and some contacts and some CDs, what would I do to make him feel good?

P.B. further testified that the two of them watched music videos on television in which a "man was standing up and the lady was tapping on the man's penis." After asking P.B. if she had "ever seen dancing like that before," Carolina asked her if she had ever done it. Thereafter, Carolina continued questioning P.B. about her boyfriends and about whether she had any prior sexual experience.

Q.D. reported what had happened to her mother. P.B. told her grandmother. When Q.D.'s mother confronted Carolina about what had occurred, he attempted to flee; however, she and a neighbor managed to hold him until the police arrived.

A Fulton County grand jury returned an indictment charging Carolina with two counts of false imprisonment; one count of enticing a child for indecent purposes (which was based on his alleged interaction with Q.D.); and one count of solicitation of sodomy with a child under 17 (which was based on his alleged interaction with P.B.). Following a jury trial, Carolina was acquitted on the two false imprisonment counts but convicted on the remaining two counts.

1. Carolina contends that insufficient evidence supports his conviction for enticing Q.D. for indecent purposes. He argues that there was insufficient evidence showing that he enticed Q.D. to his home with the present intention to commit acts of indecency or child molestation. Carolina further argues that the State failed to prove the "asportation" element of the offense. Additionally, Carolina challenges the sufficiency of the evidence supporting his conviction for solicitation of sodomy, contending that P.B. only testified that he sought "sex" with her, not an act of sodomy.

When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(a) Enticing a Child for Indecent Purposes. The indictment charged Carolina with enticing Q.D. for indecent purposes in violation of OCGA § 16-6-5. "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." OCGA § 16-6-5(a).

The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. Accordingly, neither the act of enticing a child without the requisite intent nor the intent to commit acts of indecency or child molestation without the requisite act would constitute a crime under OCGA § 16-6-5.

Lasseter v. State, 197 Ga.App. 498(1), 399 S.E.2d 85 (1990). Asportation is an element of enticing a child for indecent purposes, see id., and is satisfied whether the "taking" involves physical force, enticement, or persuasion. See Cimildoro v. State, 259 Ga. 788, 789(1), 387 S.E.2d 335 (1990); Dennis v. State, 158 Ga.App. 142(2), 279 S.E.2d 275 (1981).

The evidence in this case supports the conclusion that Carolina enticed Q.D. to his house with the present intention of attempting to engage in a sexual encounter with her. Viewing the facts in the light most favorable to the verdict, the jury was entitled to conclude that Carolina lured Q.D. to his home under the false pretense of needing to charge his cell phone. That Carolina's real reason for taking Q.D. to his home was to engage in sexual conduct was established by Carolina's subsequent actions inside his home after he had lured Q.D. there. See Peavy v. State, 159 Ga.App. 280, 282(1)(a), 283 S.E.2d 346 (1981). Based on Q.D.'s testimony, the jury could conclude that Carolina placed a pornographic videotape in his videocassette recorder in Q.D.'s presence; asked her sexually suggestive questions regarding the contents of the videotape as they watched it; and, in the context of the videotape, asked her what she would do "to make him feel good" for money. This evidence was sufficient to establish that Carolina acted with the requisite intent at the time he enticed Q.D.

The evidence also was sufficient to establish the asportation element of the charged offense. The fact that Q.D. went voluntarily with Carolina to his home did not foreclose a showing of asportation because it is clear from the evidence that Carolina persuaded Q.D. to come with him. See Cimildoro, 259 Ga. at 789(1), 387 S.E.2d 335; Dennis, 158 Ga.App. at 142(2), 279 S.E.2d 275. Asportation thus was sufficiently shown in this case.

Under these circumstances, we conclude that a rational trier of fact could have found Carolina guilty beyond a reasonable doubt of enticing a child for indecent purposes. Jackson, 443 U.S. at 318-319(III)(B), 99 S.Ct. 2781.

(b) Solicitation of Sodomy. The indictment charged Carolina with soliciting P.B. to perform an act of sodomy in violation of OCGA § 16-6-15. "Sodomy" is defined as "any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2(a).

On direct examination, the prosecutor asked P.B. what she thought Carolina meant when he offered to give her money "to make him feel good" after he had asked her if she had ever "came before" and whether "a boy ever ate her out." P.B. responded that she believed that he was asking her "to have sex with him" in exchange for money.

Carolina argues that the term "sex" as used by P.B. was too vague to support a conviction for sodomy. However, the jury was authorized to consider P.B.'s use of the term "sex" in the context in which it was used rather than in the language of the statute or other technical language to such effect. See Anderson v. State, 142 Ga.App 282, 283(1), 235 S.E.2d 675 (1977). As argued by the State, "sex" could mean "oral sex" in this context, considering the fact that Carolina asked P.B. if she would "make him feel good" after questioning her about whether oral sex had ever been performed on her. Therefore, the evidence authorized the verdict and judgment as to the offense of solicitation of sodomy. Jac...