Hogg v. State

• Decision Date: 29 June 2020
• Docket Number: A20A0394
• Parties: HOGG v. The STATE.
• Court: Georgia Court of Appeals

356 Ga.App. 11

846 S.E.2d 183

HOGG

v.The STATE.

A20A0394

Court of Appeals of Georgia.

June 29, 2020

Jennifer Elaine Hildebrand, LaFayette, for Appellant.

Herbert E. Franklin, LaFayette, Elizabeth Overcamp Evans, for Appellee.

Brown, Judge.

A jury convicted Randall Hogg of aggravated sexual battery, stalking, and three counts of child molestation in 2005. Hogg appeals his convictions and the denial of his amended motion for new trial, arguing insufficient evidence and ineffective assistance of counsel. For the reasons explained below, we affirm Hogg's convictions, but vacate his sentence as to Counts 1 and 3 of the indictment and remand the case for resentencing.

"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." Smith v. State , 348 Ga. App. 643, 643-644, 824 S.E.2d 382 (2019). So viewed, the evidence shows that Hogg was married to the victim's maternal aunt. The aunt kept the victim from the time she was an infant to three years old, while the victim's mother worked. The victim's mother eventually enrolled her in daycare when the aunt needed to go back to work.

In July 2004, the mother arrived at the daycare to drop off the then five-year-old victim. When the mother exited the daycare, Hogg was parked outside of the entrance and asked to speak with the victim. The mother was unsure whether the daycare would allow Hogg to go inside to speak with the victim so Hogg agreed to just wave at the victim through the window. The victim refused to come to the window to see Hogg. On the following day, the mother again was dropping off the victim at daycare when Hogg pulled into the parking lot. The victim refused to get out of the car, hid under her blanket, and refused to acknowledge Hogg. The mother testified that this behavior toward Hogg was unusual. She further testified that around this time, she noticed the victim had become "stand-offish" toward Hogg and did not want to be around him or for him to touch her, which the mother called "a big change." Due to the victim's unusual behavior, the mother stayed inside the daycare with her until Hogg left. On the following day, Hogg again came to the daycare at the time the mother was dropping off the victim. The mother testified that Hogg pulled up to the daycare window, attempting to look inside, causing the victim to cry. The victim's teacher testified that the victim curled into the fetal position in a corner when Hogg appeared outside the window, looking for her. After leaving, the mother informed Hogg that she did not want him coming to the daycare again, and Hogg appeared angry at her request. The mother testified that on the following day, the victim did not want to go to daycare because she believed Hogg would be there looking at her. The victim told her that this made her "uncomfortable" and that when Hogg looked at her, "her skin got hot ... and her arms ... were prickly."

The daycare director contacted the mother and the police after teachers reported Hogg showing up at the daycare and the victim's resulting behavior. In response, an officer was posted at the daycare, and a detective contacted the mother and recommended that the victim undergo a forensic interview. During the interview, the victim refused to discuss Hogg and did not make any disclosures. That night, while the victim was taking a bath, the mother noticed the victim touching her genital area with a soap bottle. When the mother told her not to do that, the victim replied, "well [Hogg] does." The victim then explained that Hogg had taken her to a park and touched her private parts "in the front twice and once in the back." The mother contacted the detective the next day to report what the victim had disclosed, and the detective set up a second forensic interview for that day.

During the second interview, the victim was again reluctant to talk and intimated that she wanted the mother present. The detective testified that he allowed the mother to sit in the interview room, but instructed her not to suggest anything or ask any questions. While the mother sat in the room, the victim again disclosed that Hogg had molested her, motioning to her vagina and bottom. Both interviews were recorded and played for the jury, but both recordings were lost at some point during the fourteen-year period between the 2005 trial and this appeal.

In the week following the victim's initial disclosure, the victim provided the mother with more details. The mother testified that the victim explained that Hogg had raised up her dress when she was on the swings and put his hands inside her panties, with one hand in the front and the other in the rear. The victim told her that it had hurt when Hogg touched her bottom. The victim also told her that she had seen Hogg's "swim pants," what the victim called men's underwear. The victim explained that she had hit Hogg's hand and told him to stop and that he then walked away from her and the "bushes [were] shaking." The victim told the mother that Hogg said they could not go home until "the smell went away," and the victim clarified: "my smell, it was on his hands."

The victim's other aunt testified that a few months after the initial disclosure, the victim spontaneously disclosed to her that Hogg had touched her private parts. The other aunt testified that the victim referred to Hogg as a "monster," was scared of him, and drew pictures of Hogg behind bars. The victim testified during the trial that Hogg had touched her private parts at a park when no one was there and that he told her he would hit her if she told anyone. The victim refused to testify to any other details and denied some details that the mother had testified the victim told her. Hogg testified in his defense and denied ever taking the victim to a park alone or touching her inappropriately. The jury returned a guilty verdict on all counts in the indictment, and the trial court sentenced Hogg to 40 years to serve 15 in confinement.

1. Hogg contends the evidence was insufficient to support his convictions based on inconsistencies in the victim's story and testimony.

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 Hogg'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. Accordingly, this argument lacks merit.

Hogg also argues that the evidence was insufficient to support his convictions under Counts 3 and 4 of the indictment because there was no evidence presented at trial that he inserted his fingers into the victim's vagina. Count 3 charged Hogg with committing the offense of child molestation by "insert[ing] his finger in the vagina of [the victim]" while Count 4 charged him with committing aggravated sexual battery by "penetrat[ing] with a foreign object the sexual organ of [the victim]."

"[P]enetration may be proved by indirect or circumstantial evidence." (Citation omitted.) Chitwood v. State , 352 Ga. App. 218, 220 (1) (a), 834 S.E.2d 334 (2019). Here, the mother testified that the victim disclosed that Hogg had put his hands in the front and rear, that it had hurt, and that Hogg had told her they could not go home until her smell on his hands went away. We conclude that this evidence was sufficient for a rational trier of fact to find that Hogg committed the offenses charged in Counts 3 and 4 of the indictment. See id. (evidence sufficient to show penetration in support of aggravated sexual battery conviction where the victim's mother testified that the victim told her defendant had hurt her by touching her vagina, victim testified that defendant had touched her "wrong spot," and physical examination revealed redness).

2. Hogg next contends that trial counsel was ineffective in failing to "speak up and tell the [trial] court that counts 3 and 4 in the indictment should have merged." Based on our review of his brief, Hogg has improperly framed a sentencing error claim as an ineffective assistance of counsel claim. Compare Andrews v. State , 320 Ga. App. 816, 818 (1) (b), 739 S.E.2d 445 (2013) (addressing defendant's contention that trial counsel was deficient in failing to properly advise him about the potential merger of charged offenses where defendant sought to withdraw his guilty plea). "A conviction that merges with another conviction is void — a nullity — and a sentence imposed on such a void conviction is illegal and will be vacated if noticed by this Court, even if no merger claim was raised in the trial court and even if the defendant does not enumerate the error on appeal."¹ (Citation and punctuation omitted.) Jones v. State , 354 Ga.App. 568 (1) (c) (ii), 841 S.E.2d 112 (2020).

(a) Counts 3 and 4. As previously stated, Count 3 alleges that Hogg committed child molestation by inserting his finger into the victim's vagina, and Count 4 alleges that he committed aggravated...