Clemmons v. State
| Decision Date | 28 October 2021 |
| Docket Number | A21A0782 |
| Parties | CLEMMONS v. The STATE. |
| Court | Georgia Court of Appeals |
Brian Steel, Atlanta, for Appellant.
Elizabeth A. Baker, Marie Greene Broder, for Appellee.
A Spalding County jury found Armed Cortez Clemmons guilty of aggravated child molestation, two counts of child molestation, and other offenses based on evidence that he arranged sexual encounters between an underage female victim and other men. The trial court thereafter denied his motion for new trial, as amended. On appeal, Clemmons argues that the evidence was insufficient to convict him under the theory that he was a party to the crimes; that certain convictions must be reversed because there were other statutes that prohibited the same aiding-and-abetting conduct; that the trial court committed plain error by improperly commenting on the evidence during an instruction to the jury; and that his trial counsel rendered ineffective assistance by failing to object to the trial court's comment on the evidence. We affirm for the reasons set forth below.
1. In reviewing Clemmons's challenge to the sufficiency of the evidence, we decide only "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony and weighs the evidence. Platt v. State , 335 Ga. App. 49, 49 (1), 778 S.E.2d 416 (2015). "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.) Robinson v. State , 296 Ga. App. 561, 562, 675 S.E.2d 298 (2009).
Viewed in this manner, the evidence showed that in early 2016, J. C., a 14-year-old girl who had a history of running away from home, was told by an acquaintance named Tez that she could make "fast money" if she was willing to "sell [her] body." Tez explained that J. C. "would be posted" online, men would call her, she would meet the men and have sex with them, and she then would hand over the money that she got from the men. Tez said that his brother, Clemmons, would pick her up and "it [would] go from there."
J. C. subsequently met with Clemmons, who arranged for her to prostitute herself through online advertisements. To that end, Clemmons requested that J. C. provide him with photographs of herself, and she complied. Clemmons used the photographs to create a series of advertisements for J. C. on Backpage.com under the section of the website for escorts.1 Clemmons paid for the online advertisements, arranged the sexual encounters between J. C. and the men who responded to the advertisements, set the prices for the sexual acts performed by J. C., and drove J. C. to a Spalding County hotel and other locations for the encounters with the men. Clemmons would wait outside while J. C. met with the men, and he would take the money from J. C. after the sexual encounters. Clemmons would pay to get J. C.’s hair and nails done for her, would give her money and food, and promised to help her get a car. Clemmons also had sexual intercourse with J. C. multiple times at his house in a different county.
At trial, J. C. described several specific occasions when she was 14 years old and Clemmons drove her to locations to perform sexual acts with men in exchange for money. On one occasion, Clemmons set up a meeting between J. C. and a man at a hotel in Spalding County. Clemmons drove J. C. there, coached her on what to do, and waited outside while J. C. went inside the hotel room. J. C. performed oral sex on the man at the hotel and had sexual intercourse with him in exchange for $50. Once they were finished, J. C. left the hotel room, got back in the car with Clemmons, and gave him the money. On a different occasion, Clemmons arranged for J. C. to engage in a sexual encounter at a Spalding County house, but J. C. became uneasy when the man there raised an issue about the money, and she fled before the encounter occurred and had Clemmons pick her up. Separately, there was an occasion in which Clemmons drove J. C. to a house where a man performed oral sex on her and had sexual intercourse with her in exchange for $50. After the man paid her, J. C. got back in the car with Clemmons and gave him the money. The last occasion occurred on a night when Clemmons asked J. C. to have sexual intercourse with his friend in exchange for gas money. J. C. initially refused, but Clemmons convinced her to get into his car and go to the friend's house in Spalding County. J. C. had sexual intercourse with the friend, who paid her, and she gave the money to Clemmons.
The sexual encounters arranged by Clemmons ended in April 2016, when J. C. was sentenced to serve time in a juvenile detention center after committing a probation violation unrelated to this case. While J. C. was in detention, her father kept her cell phone and noticed that she was constantly receiving text messages and phone calls. Her father checked the text messages and discovered that men were soliciting J. C. to have sex with them and were asking for and sending explicit photographs. J. C.’s father contacted the Griffin Police Department about the text messages, and a police investigation ensued.
During their investigation, law enforcement officers located the advertisements for J. C. on Backpage.com, and, through a series of subpoenas and search warrants, they linked Clemmons to a cell phone number and email address that were used to post the advertisements. The officers also discovered Backpage.com advertisements for another young girl that had similar wording and pricing that were linked to Clemmons's cell phone number and email address. Additionally, officers executed a search warrant and obtained messages to and from Tez and Clemmons on Facebook Messenger that referred to having "hoes at da room," a "couple little sluts lined up," and to "Shawty" being 14.
Clemmons subsequently was indicted for aggravated child molestation, two counts of child molestation, sodomy, trafficking a person for sexual servitude, enticing a child for indecent purposes, pimping a person under the age of 18, and computer pornography.
The indictment specifically alleged that with respect to the aggravated child molestation, child molestation, and sodomy counts, Clemmons was a party to the crimes.
At the ensuing jury trial, J. C. testified to events as summarized above. Among other witnesses, the State called J. C.’s father who testified about the text messages he discovered on her cell phone; a friend of J. C. who testified about an occasion in which Clemmons arranged a sexual encounter between her, J. C., and a male buyer that ultimately fell through; the law enforcement officers who located the Backpage.com advertisements and linked them to Clemmons; and an expert on sex trafficking. The State also introduced into evidence screen shots of the Backpage.com advertisements for J. C. and the other young girl, as well as the messages to and from Tez and Clemmons on Facebook Messenger, among other exhibits. Clemmons elected not to testify and did not call any witnesses. Following its deliberations, the jury found Clemmons guilty on all counts of the indictment.
On appeal, Clemmons maintains that the evidence was insufficient to support his convictions on Count 1 (aggravated child molestation) and Count 2 (child molestation) under the theory that he was a party to those crimes.2 We are unpersuaded.
A defendant commits the criminal offense of child molestation when he "[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 crime advances to one of aggravated child molestation when the molestation "involves an act of sodomy." OCGA § 16-6-4 (c). Here, the indictment alleged that Clemmons committed the offenses of aggravated child molestation and child molestation by acting as a party to those crimes.
(Citations and punctuation omitted.) Platt , 335 Ga. App. at 53 (1) (a), 778 S.E.2d 416. See OCGA § 16-2-20.
Applying these principles, our Supreme Court has held that "[e]vidence establishing that [the defendant] was present at the scene of the crime, had knowledge the crime was to be committed and approved of the planned commission of the crime, and had aided the commission of the crime by bringing the victim to the site was sufficient" to support a conviction under a party-to-the-crime theory. Coggins v. State , 275 Ga. 479, 480 (1), 569 S.E.2d 505 (2002). And we have upheld child molestation convictions against sufficiency challenges where there was evidence that the defendant aided and abetted the crimes by...
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