Hamby v. State

• Decision Date: 14 January 2021
• Docket Number: A20A1821
• Citation: 358 Ga.App. 105,853 S.E.2d 874
• Parties: HAMBY v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 105

853 S.E.2d 874

HAMBY

v.The STATE.

A20A1821

Court of Appeals of Georgia.

January 14, 2021

Stephen Randall Scarborough, Atlanta, for Appellant.

Patricia Jean Brooks, James Bradley Smith, Alix L. Daniel, for Appellee.

Colvin, Judge.

After a jury trial, Kyle Jordan Hamby was convicted of one count of aggravated child molestation, one count of aggravated sodomy, one count of cruelty to children, and two counts of child molestation.¹ He appeals from the denial of his motion for new trial, arguing that his aggravated sodomy conviction was not supported by sufficient evidence at trial, or alternatively that it should have been merged with the aggravated child molestation conviction for the purpose of sentencing. He also argues that the trial court erred by allowing prejudicial evidence at trial. For the following reasons, we affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.) Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine 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 omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence shows that E. G. was born in June 1999. In 2005, E. G., along with her sister T. G. and their mother, moved into a trailer with Hamby and his son in Hall County, where the group lived until 2007. Hamby watched E. G. and the other children while E. G.’s mother worked the night shift at Wal-Mart. It was during this time that Hamby began molesting E. G. E. G. testified that when she lived in the Hall County trailer, Hamby would wait until everyone else in the house was asleep and would take her into the living room and perform oral sex on her, and once showed her naked body to another man over a web camera.

In 2007, E. G.’s mother moved to a new house on Cabots Court in Auburn, Georgia. Hamby lived with them for a short period of time before moving to another home. During this time, Hamby babysat for for E. G. and her sister. In 2009, E. G.’s mother got married and moved with her daughters to a yet another home, renting the Cabots Court home to Hamby and his family. E. G. and her sister would often spend the night with Hamby, during which time Hamby continued to molest E. G. while the other children were asleep.

E. G. testified about several specific incidents of molestation that occurred after 2007. E. G. described a time when Hamby shaved her pubic area and performed oral sex on her. E. G. also testified that Hamby ordered pornography over the phone to watch with her and gave her underwear and a sex toy. E. G. described another occasion in which Hamby took her clothes off and raped her one morning before school, but stopped because E. G. was crying due to the "immense pain." E. G. testified that she did not want to do these acts, and every time one happened, Hamby would make her "pinky promise" that she would not tell anyone.

E. G.’s mother testified that in 2011, E. G. stopped wanting to go to Hamby's house. Around that same time, E. G.’s behavior began to change. E. G. became withdrawn and began cutting herself. In October 2012, E. G.’s mother approached E. G. about her behavior, and E. G. disclosed the abuse. E. G.’s mother then contacted the police.

Investigator Michael Fugett had E. G. and her mother provide written statements. He scheduled a forensic interview of E. G. with Becky Lee at the Treehouse, a children's advocacy center. During the forensic interview, E. G. disclosed that Hamby had molested her and described the incidents she testified to at trial. At trial, Lee testified that E. G. exhibited consistency throughout her interview and that she would correct Lee about details, which illustrates a resistance to suggestibility.

The State called Alicia Chandler as an expert in forensic interviewing. Chandler testified that, based upon her review of E. G.’s forensic interview and written statements of E. G. and her mother, that she believed that Lee conducted a "sound, credible interview." Chandler also explained that a majority of sexual abuse disclosures are delayed, and that children do not remember every detail or date of abuse inflicted upon them.

Hamby testified at trial. He claimed that E. G. had never spent the night with him when he would have been alone with her. Hamby, as well as his wife and his mother, testified that E. G. was never alone with Hamby. They further testified that another man lived in Hamby's house, and that he was also present anytime that E. G. would have had the opportunity to be alone with him.

1. Hamby argues that there was insufficient evidence to support his conviction for aggravated sodomy because there was no evidence of force. We find no error.

Count 5 of the indictment charged Hamby with aggravated sodomy, alleging that he "did commit an act of sodomy with force and against the will of [E. G.], a child, when [he] placed his mouth on the sex organ of said child[.]" "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). The State bears the burden of proving the element of force to support an aggravated sodomy conviction with a child victim. Brewer v. State , 271 Ga. 605, 606, 523 S.E.2d 18 (1999). However, the "quantum of evidence to prove force against a child is minimal." (Citation omitted.) Madison v. State , 329 Ga. App. 856, 867 (4), 766 S.E.2d 206 (2014). Force "may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is not legally cognizable consent but is force." (Footnote and punctuation omitted.) Schneider v. State , 267 Ga. App. 508, 510, 603 S.E.2d 663 (2004).

Further, force "may be inferred by evidence of intimidation arising from a familial relationship." Id.

Although there is not testimony that Hamby held E. G. down against her will, there was testimony that Hamby was a father-figure to E. G. who exhibited a "kind of power over her." Further, E. G. testified that Hamby came to her when she was "half asleep" and undressed her before performing oral sex on her and raping her. See Schneider, 267 Ga.App. at 510 (1), 603 S.E.2d 663 (sufficient evidence of force to sustain an aggravated sodomy conviction when child victim testified that he saw the defendant as a father-figure and told him to stop). Hamby also intimidated E. G. into not disclosing the abuse by making her "pinky-promise" that she would not tell after each incidence of abuse. E. G. testified that she did not disclose the molestation earlier because she was afraid "what would happen if [she] did tell." This was sufficient evidence of force for the jury to find that Hamby committed aggravated sodomy. See Boileau v. State , 285 Ga. App. 221, 223 (1) (a), 645 S.E.2d 577 (2007) (evidence sufficient to convict for aggravated sodomy because defendant's act of pulling down victim's pants and underwear while she was asleep was evidence of physical force).

2. Hamby argues that the trial court should have merged his aggravated sodomy and aggravated child molestation convictions. "Whether offenses merge is a legal question, which we review de novo." (Citation and punctuation omitted.) Metcalf v. State , 349 Ga. App. 408, 414 (2) (c), 825 S.E.2d 909 (2019).We find no error.

It is true that if only a single act of sodomy was proved during trial, the single act would be "necessary to prove the aggravated sodomy count of the indictment, so there [is] no remaining evidence upon which to base [a defendant's] conviction for an additional count of aggravated child molestation." Metcalf , 349 Ga. App. at 417-418 (2) (c), 825 S.E.2d 909 (referencing OCGA § 16-1-7 (a) ).² However, in this case, OCGA § 16-1-7 (a) does not apply because there was evidence of two separate incidents of oral sodomy. E. G. described an incident where he shaved her pubic area and then performed oral sex upon her, and a separate incident where he found her sleeping, undressed her and performed oral sex on her before raping her. Given that there were two separate and distinct acts of sodomy, the proof of aggravated sodomy did not "us[e] up" the evidence that constituted the sodomy related to the aggravated child molestation charge. Metcalf , 349 Ga. App. at 417 (2) (c), 825 S.E.2d 909. The trial court did not err by failing to merge the two convictions.

3. Hamby argues that the trial court erred in denying his motion in limine to exclude evidence that he made E. G. participate in online sexual performances. We find no reversible error.

Although the indictment originally charged Hamby for crimes arising from the incidents that occurred in Hall County, the State nolle prossed these counts because they took place in a different venue. Hamby filed a motion in limine to exclude reference to these nolle prossed counts in the indictment. The State objected to Hamby's motion in limine and sought to introduce the incident where Hamby showed E. G.’s naked body to others using a webcam as a prior bad act or difficulty pursuant to OCGA § 24-4-404 (b). The trial court denied Hamby's motion, but issued a curative instruction on prior difficulties prior to the admission of the evidence.

Although the trial court's oral ruling does not state which code section it relies upon when denying the motion in limine, the State sought to admit the evidence under OCGA § 24-4-404 (b) ("Rule 404 (b)").³ It is true that under Georgia's former Evidence Code, this evidence would have been admissible under Rule 404 (b) because the evidence was relevant to establish...