Maurer v. State

• Decision Date: 21 March 2013
• Docket Number: No. A12A1672.,A12A1672.
• Citation: 320 Ga.App. 585,740 S.E.2d 318
• Parties: MAURER v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 585

740 S.E.2d 318

MAURER

v.The STATE.

No. A12A1672.

Court of Appeals of Georgia.

March 21, 2013.

Henrickson & Sereebutra, Aaron Scott Henrickson, for Appellant.

Dick Donovan, Dist. Atty., Douglasville, Thomas A. Cole, Asst. Dist. Atty., for Appellee.

BOGGS, Judge.

A jury found David Edward Maurer guilty of child molestation. Following the denial of his amended motion for new trial, Maurer appeals, asserting several claims of error. Having reviewed these claims, we discern no error and affirm.

Construed in favor of the verdict, the evidence showed that in July 2007 Maurer was watching a movie in the garage while lying on a blow-up mattress with his then 10–year–old stepdaughter V.G. and her younger brother. At some point, after the younger brother had fallen asleep, Maurer made V.G. massage his penis to the point of ejaculation. The next day, V.G. told her older brother B.G. what happened the night before. The following week, the brother disclosed to his mother what V.G. had told him. The family said nothing about the incident until two years later, when the mother told a close friend what Maurer had done to V.G. The friend reported the incident to police.

V.G. took the stand, and when asked about what occurred in July 2007 she responded, “I don't want to talk about it,” and repeated that assertion throughout her testimony. She explained that Maurer “was a great father to all of us and we cared very much about him and I don't want to talk about it and I don't want to see him get prosecuted or anything. That's why I don't want to talk about it.” When asked why she “can't come in here and tell the truth about what happened,” V.G. stated, “Because we had forgave [sic] him a long time ago and I don't want anything to happen to him.” And when asked “what did you forgive him for?,” she replied, “I don't want to say.” She did state, however, that Maurer was her step-father, that he lived with her and her family in July 2007, that during that month, she was watching a movie with Maurer and her younger brother in the garage, and that her younger brother fell asleep. She acknowledged that she spoke with a forensic interviewer, stated that what she told the interviewer was the truth, and admitted that she had told her older brother B.G. “about something that happened.”

The forensic interviewer testified that she interviewed V.G. in January 2009. Using an anatomical drawing, V.G. indicated that Maurer made her touch his penis. In the forensic interview, admitted into evidence and played for the jury, V.G. stated that she was lying between Maurer and her younger brother while watching a movie in the garage. She explained that Maurer pushed his shorts down, grabbed her hand, put it on his penis, and moved it up and down. She said that Maurer was drunk and was “pushing her down” under the covers. V.G. explained further that something white “squirted out” and onto her forehead. She heard Maurer say “I'm sorry, I'm sorry,” as he fell asleep.

V.G. told the interviewer that the next day, she told B.G. what happened the night before and that B.G. told her mother the following week. She stated that the three of them discussed the incident as a family and that she forgave Maurer. Near the end of the interview, V.G. stated that she had nightmares following the incident.

V.G.'s older brother, B.G., took the stand and when asked about “something troubling [him] in July of 2007,” he responded, “I don't really want to answer any questions or anything.” B.G. admitted that the prosecutor talked to him the Friday before trial and that they “went over a lot of things that your sister, [V.G.], had told you[.]” He too stated, “I just don't want to see him prosecuted or anything like that ... he's always been there for us.”

V.G.'s mother took the stand and initially stated that she did not “want to answer any questions” and that she “want[ed] to end this. I don't want to see [Maurer] prosecuted. I care a lot about him.” When the trial court directed her to answer the questions posed by counsel, the mother stated that B.G. “told me that one night when we were at home watching movies the kids decided to go watch a movie ... he told me that [V.G.] had told him what—that [V.G.] told him that next morning that [Maurer] had [V.G.] massage his private ... his penis.” She stated further that B.G. told her he observed “some stuff on [V.G.'s] hair, just some white stuff.” The mother testified that she asked V.G. “if what [B.G.] was saying was true and she just nodded her head.... She said yes. She nodded [her head] and was crying.” When she later asked V.G. exactly what happened, V.G. told her that Maurer had her touch and massage his penis and that V.G. demonstrated that she did so “with her hand going up and down.” She explained further that she, V.G. and B.G. “talked about it ... and we decided to give him another chance because we believe he was drunk. He had been drinking a lot at the time.”

A detective testified that the mother told her that “in July of 2007 [Maurer] had made her daughter, [V.G.], touch his private. It was disclosed to her by her older son when [V.G.] woke up ... he saw her and she had some stuff on her head and in her hair.” Maurer agreed to speak with police, and in a recorded interview, admitted into evidence and played for the jury, Maurer told the detective that he did watch a movie on a mattress with V.G. and her younger brother in the garage and that the three of them fell asleep. But he explained that he had no memory of what happened that night and that he was “excessively” drunk. At different times during the interview, Maurer stated he did not believe that he had V.G. touch him, but at other points he stated that it must be true because it was what he was told, and that he “can't see [V.G.] making it up.” Maurer explained that his family had forgiven him and that they were trying to move past the incident in the hopes that V.G. would forget.

1. Maurer argues that the evidence was insufficient to sustain his conviction.

On appeal of a criminal conviction, this Court's duty is to determine 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 ... Jackson v. Virginia, 443 U.S. 307, 319([III])(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury's assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Walker v. State, 282 Ga. 406, 651 S.E.2d 12 (2007). The evidence summarized above was sufficient to sustain Maurer's conviction for child molestation under the standard of Jackson, supra. See OCGA § 16–6–4(a)(1) (a person commits child molestation when he does an “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”); Westbrooks v. State, 309 Ga.App. 398, 400–401(1), 710 S.E.2d 594 (2011) (evidence sufficient to sustain child molestation conviction; although victim did not provide details of molestation, step-uncle and forensic interviewer testified to victim's disclosure); Amerson v. State, 268 Ga.App. 855(1), 602 S.E.2d 857 (2004) (evidence sufficient to sustain molestation conviction; although victim refused to speak, forensic interview was admitted into evidence).

2. Maurer argues that his Sixth Amendment right to confrontation was violated because the trial court failed to compel V.G. to testify. V.G. took the stand and testified, but refused to answer questions concerning what occurred on the night she and her younger brother were in the garage with Maurer. She did state, however, that what she told the forensic interviewer was the truth, and that she had also told B.G. about the incident.

Under [former] OCGA § 24–3–16,¹ hearsay statements by underage victims of sexual abuse are admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements under [former] OCGA § 24–3–16 only if the trial court abused its discretion.

Estrada v. State, 319 Ga.App. 762, 763(1), 738 S.E.2d 344 (2013).

The Georgia Supreme Court has recently held that to comport with the Confrontation Clause, the child whose statements are at issue must actually testify at trial. Hatley v. State, 290 Ga. 480, 483(I), 722 S.E.2d 67 (2012); see Bunn v. State, 291 Ga. 183, 189(2)(b) n. 4, 728 S.E.2d 569 (2012). But former OCGA § 24–3–16 “does not require the child to corroborate the hearsay testimony.” (Citations and punctuation omitted.) Kapua v. State, 228 Ga.App. 193, 194(1), 491 S.E.2d 387 (1997). And the right of confrontation may be waived by the failure to object. Hatley, supra. Here, Maurer made no objection that his right to confrontation was violated by V.G.'s failure to answer questions concerning the incident. Moreover, we find no authority requiring that V.G. be compelled to testify about the incident. Indeed, one of the reasons for allowing a child victim's hearsay statement to come into evidence is “society's desire to spare children who are subjected to abuse from further unnecessary trauma in the courtroom.” (Citation and punctuation omitted.) Bunn, supra, 291 Ga. at 187(2)(b), 728 S.E.2d 569.

3. Maurer argues that the State was allowed to improperly introduce hearsay through its questioning of V.G. But because, as Maurer acknowledges, he made no objection to the State's questioning of V.G. on this ground,...