McCurdy v. State

• Decision Date: 18 June 2021
• Docket Number: A21A0540
• Citation: 359 Ga.App. 885,860 S.E.2d 172
• Court: Georgia Court of Appeals
• Parties: MCCURDY v. The STATE.

359 Ga.App. 885

860 S.E.2d 172

MCCURDY

v.The STATE.

A21A0540

Court of Appeals of Georgia.

June 18, 2021

Eric C. Crawford, Monroe, for Appellant.

Joshua Bradley Smith, Henry Wayne Syms Jr., Jared Tolton Williams, Augusta, for Appellee.

Pipkin, Judge.

Russell Calvin McCurdy was convicted by a jury of rape, multiple counts of child molestation and aggravated child molestation, and 55 counts of sexual exploitation of a minor.¹ McCurdy appeals, arguing that the evidence was insufficient and that the trial court should have merged his convictions for sexual exploitation of a minor. While we find the evidence sufficient to support the guilty verdicts on all counts, we agree, as more fully set forth below, that merger is required as to his convictions and sentences for sexual exploitation of a minor. Accordingly, we vacate his sentence as to those counts and remand for resentencing consistent with this opinion.

1. McCurdy first contends that the evidence was insufficient.

Viewed in the light most favorable to the verdict,² the evidence shows that children of all ages, some of whom were related to McCurdy's girlfriend or his ex-wife, frequently played at McCurdy's house without their parents being present. Five of these children were named in the counts charging McCurdy with rape, child molestation and aggravated child molestation. The sexual exploitation of children counts each alleged that McCurdy possessed an "animated visual medium" depicting a child or children engaged in sexually explicit conduct. See OCGA § 16-12-100 (b) (8). We consider McCurdy's challenge to the sufficiency of the evidence as to the various counts and separate victims in turn, setting out additional evidence as it pertains to those counts.

(a) Counts 1 through 3. Counts 1 through 3 of the indictment allege that McCurdy committed the crimes of rape, aggravated child molestation (by an act of oral sodomy) and child molestation (by placing his hands on the buttocks and vagina) against K. A. The evidence shows that K. A.’s mother contacted police after learning that K. A. had reported to a family member that McCurdy had "messed" with her. Although the victim, who was only four years old at the time the crimes were committed, testified at trial she did not remember McCurdy or the sexual acts he perpetrated against her,³ K. A. reported during a forensic interview conducted several weeks after she made her outcry that "Papa Russell" had pulled down her pants and touched her on her privates and buttocks while she was sleeping, "making her [privates] feel worse." Further, during a search of McCurdy's home, police found video recordings stored on one of his computers showing a man rubbing his penis on the labia and then forcing his penis into the vagina of a sleeping or unconscious young girl, a man placing his tongue on the labia and inside the vagina of a sleeping or unconscious young girl, and a man masturbating while he fondled the buttocks and vagina of a sleeping or unconscious young girl; these video clips were played for the jury at trial. K. A.’s mother identified K. A. as the child in the video clips, and she gave police the shirt that the child was seen wearing in some of them. Although McCurdy argues that the evidence was insufficient to establish his identity and venue since his face was not seen during the sex acts, another video clip stored in the same folder shows McCurdy's face, parts of his distinctive tattoos can be seen while he was adjusting the video camera in the clips, and the part of his bedroom painted a distinctive green is visible in some of the clips;⁴ screen shots of this evidence were also shown to the jury at trial, and it is clear from the video clips that it is the same man abusing the same young girl in all the clips. Additionally, during one of the videos, an adult's voice is heard asking "Where's Bonnie," and testimony was presented that a dog named Bonnie lived at the residence where the acts were alleged to have occurred. This evidence, as well as other evidence presented at trial linking McCurdy to the videos,⁵ was more than sufficient under the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to authorize McCurdy's convictions for the crimes charged in Counts 1 through 3 of the indictment.

(b) Counts 4 and 5. Counts 4 and 5 charge McCurdy with committing acts constituting the offenses of aggravated child molestation (by placing his mouth on the victim's vagina) and child molestation (by touching the victim's vagina) against L. N. R. This victim, who was 14 years old when she testified at trial, testified that McCurdy and her Aunt Lindsey lived together and that sometimes she and her sisters would spend several nights there or stay the weekend. She recounted that one time McCurdy touched her on her "girl's area" with his hand and said that it made her uncomfortable and nervous to talk about it. In her forensic interview, which was played for the jury, L. N. R. told the interviewer that "my Auntie's boyfriend" had touched and licked her on her "girl's part," and she indicated on an anatomical drawing that her "girl's part" was her vagina. This evidence was sufficient to convict McCurdy of the crimes of child molestation and aggravated child molestation as charged in Counts 4 and 5 of the indictment.

(c) Counts 6 and 7. Counts 6 and 7 of the indictment allege that McCurdy committed acts of aggravated child molestation (by placing his mouth on the victim's vagina) and child molestation (by touching the victim's vagina and attempting to have her touch his penis) against L. L. R. This victim, who was 13 years old at the time of trial, told the jury that one night when she stayed over at his house, McCurdy touched her private part with his mouth; she identified her "private part" as the part below the belt that a girl uses to go to the bathroom. She testified that during her forensic interview at the Child Advocacy Center, she also told the interviewer about "other stuff" McCurdy did to her, and when the interview was played for the jury, they heard the victim tell the interviewer that McCurdy pulled her pants down and touched her on her private part with his hand and that he had her touch him on his private part. Although McCurdy points to inconsistencies between L. L. R.’s recorded forensic interview and her testimony at trial, "[i]t is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient." (Citation and punctuation omitted.) Green v. State , 304 Ga. 385, 387-388 (1), 818 S.E.2d 535 (2018). Jackson v. State , 330 Ga. App. 822, 825, 769 S.E.2d 567 (2015) (same).

(d) Counts 8 and 9. Counts 8 and 9 allege McCurdy committed acts of child molestation against T. C. by placing his hand on her breast and vagina and placing her hand on his penis. T. C. told a forensic interviewer that when she was almost 12 years old, McCurdy touched her under her bathing suit while they were in a Jacuzzi at his house and that on another occasion, he touched her on her breast with his hand and made her touch his private with her hand; this interview was played for the jury at trial. At trial, T. C. admitted that she made those statements but denied that the molestations had occurred. However, it has been firmly established that the resolution of conflicts between a victim's trial testimony and her pretrial inconsistent statement is for the jury. Walker v. State , 348 Ga. App. 273, 275 (1), n.1, 821 S.E.2d 567 (2018).

This is true even in cases in which the victim recants her previous accusation against the defendant. The reason for this rule is that the victim's prior inconsistent statements are admissible as substantive evidence for the jury's consideration. Thus, a jury is authorized to believe the victim's pre-trial statement rather than her in-court disavowal.

(Citation omitted.) Miller v. State , 300 Ga. App. 652, 655, 686 S.E.2d 302 (2009).⁶

(e) Count 10. Count 10 of the indictment alleges that McCurdy committed child molestation by asking L. A. R. to perform oral sex on him. L. A. R. testified at trial that when she was in the seventh grade, the following conversation occurred when she went to the store with McCurdy:

[McCurdy] was like, do you know what a 69 is? And I was like, no. And he was like, do you want to know what it is, and like do you want to find out? And I was like, no. And he was like, is it because you're scared or you don't want people to find out about it?

The victim testified he also described what he was talking about: "He was like, you go down on me and I like go down on you, like at the same time."

McCurdy argues on appeal that the evidence was insufficient because he just asked L. A. R. a question and never touched her; he says that at most, he was guilty of attempted child molestation, not child molestation. We disagree. Pursuant to OCGA § 16-6-4 (a) "A person commits the offense of child molestation when such person: (1) Does 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[.]" Although not directly posed as a question, ascertaining whether L. A. R. would commit the act with him was clearly the import of the conversation. And McCurdy did not merely proposition the victim – he also explained an oral sex position to a...