McMurtry v. State

• Citation: 791 S.E.2d 196,338 Ga.App. 622
• Decision Date: 15 September 2016
• Docket Number: A16A1142
• Parties: McMurtry v. The State.
• Court: United States Court of Appeals (Georgia)

338 Ga.App. 622

791 S.E.2d 196

McMurtry

v.The State.

A16A1142

Court of Appeals of Georgia.

September 15, 2016

Frances C. Kuo, Lawrenceville, for Appellant.

Jon Wesley Setzer, Daniel J. Porter, Lawrenceville, Michael Powers DiOrio, Atlanta, for Appellee.

Ray

, Judge.

A jury convicted Jerome McMurtry of one count of sexual battery (OCGA § 16–6–22.1

) as a lesser-included offense to child molestation and two counts of child molestation (OCGA § 16–6–4 ) under a redacted indictment. ¹

The convictions resulted from his actions toward A.L., a 10–year–old girl. He appeals from the denial of his motion for new trial, arguing that the trial court erred in denying his motion for new trial on the general grounds; in refusing to instruct the jury on simple battery as a lesser-included offense to child molestation; and in admitting A.L.'s prior out-of-court statements. He also argues that the State failed to disprove his defense of accident and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Under the standard set forth in Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

, the evidence shows that McMurtry stayed as a guest in A.L.'s home in December 2013. He is A.L.'s great uncle. A.L. testified that he “would say nasty things” to her, “[l]ike you're sexy or stuff like that.” She testified that at one point while they both were clothed, he told her to “get on the floor,” got behind her, and “dry-humped” her while laughing. On another occasion, McMurtry told A.L. to “sit on his lap,” but when her mother opened the garage door, he told her to get off and not to tell anyone. Additionally, when using the bathroom, he left the door open, then told her to “look, I'm done[,]” and when she looked, his penis was out. One night, after she had gone to bed, she felt “something down near in my private part” and awoke to find him bending over her, with his hand in her nightclothes, “pushing up like into my private part.” She told McMurtry to “get out.” She then woke her parents, telling them that McMurtry “put his hands in my pants. Well, on me.” When A.L.'s mother confronted McMurtry shortly after her daughter's outcry, he initially said he was looking for the remote. When she challenged him, saying, “under her covers?” he then said, “I was just playing with her.”

At trial, McMurtry testified in his own defense. When the State asked McMurtry if his explanation was that he was just looking for a remote control “in a ten-year-old girl's bed between her legs[,]” he responded that “everybody looks for a controller in that house, man ... [everybody] pulled up the cover. I've done it, the father been there and done it. I mean looking for the controller. Wasn't no hanky-panky towards his daughter.... I did not molest her.”

He testified that he was drunk on the evening that A.L. reported the inappropriate touching. He stated that during the week he stayed at A.L.'s house, he was drunk for two or three days and that his “pattern” was to black out, and “when you're blackout drunk, you don't know what you're doing.” However, he acknowledged that he did remember a little bit about the evening when A.L. said he touched her inappropriately and recalled interactions with A.L.'s parents, although he said he could not recall touching A.L. He agreed that when police, in a recorded interview, asked if he touched A.L.'s vagina, he responded that he was “stone drunk. I don't know what I did[,]” and acknowledged that this was a “contradiction” to his outright denial that he had molested her.

A.L.'s mother testified that although McMurtry had been drinking earlier during the day that A.L. said he molested her, the mother was familiar with what he was like when drunk. She testified that, by contrast, when she confronted him shortly after A.L. had reported the touching around midnight, he was walking, talking and coherent.

1. McMurtry contends that the trial court “abused its discretion when it failed to grant a motion for new trial on the general grounds” as to Count 2 of the redacted indictment.² This count accused McMurtry of “rubbing [A.L.'s] vagina over the clothing with the intent to arouse and satisfy the sexual desires of said accused[.]” He argues that the evidence was “insufficient” to show the intent required by OCGA § 16–6–4 (a)

. He essentially contends that as there was no evidence to show he was not intoxicated and that his intoxication precluded his ability to form the requisite intent when he touched A.L.

[A] motion for new trial based on OCGA § 5–5–20

, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on OCGA § 5–5–21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials. Thus, even when an appellant asks this Court to review a trial court's refusal to grant a new trial on the general grounds, this Court must review the case under the standard set forth in Jackson v. Virginia , supra, that is, if the evidence viewed in the light most favorable to the prosecution, supports the verdict or verdicts.

(Citations and punctuation omitted.) Allen v. State , 296 Ga. 738, 741, 770 S.E.2d 625 (2015)

. The record shows that the trial court correctly exercised its discretion. See Leggett v. State , 331 Ga.App. 343, 345, 771 S.E.2d 50 (2015) (appellate courts will not presume that a trial court erred where such fact does not affirmatively appear).

Despite McMurtry's contentions that his intoxication negated his intent, McMurtry testified that on the night of the touching and outcry, he was drinking with A.L.'s parents and that he visits them for that purpose: “I go over there to drink.” As McMurtry's own testimony indicates that he drank voluntarily on the night in question and on other days implicated in the indictment, his alleged intoxication cannot negate his intent. OCGA § 16–3–4 (c)

(“Voluntary intoxication shall not be an excuse for any criminal act”). Compare OCGA § 16–3–4 (a) and (b).

Further, A.L.'s mother testified that when she confronted McMurtry that night after her daughter reported the inappropriate touching, he was walking and talking, was not incoherent and had not been drinking to the point where he “had no idea” what had happened. A.L. testified, as outlined above, to McMurtry's inappropriate touching. Witness credibility is, of course, for the trier of fact rather than this Court. Couch v. State , 248 Ga.App. 238, 238, 545 S.E.2d 685 (2001)

(where defendant testified that he fondled underage girl in the shower because it was too dark to see and he thought she was his wife, jury was authorized to believe child's testimony that it was light enough to see). Here, a trier of fact could reasonably question McMurtry's credibility given that he testified that he had “blacked out” and could not recall what happened, yet also testified that he knew he was looking for the remote in the child's bed. A trier of fact could reasonably believe from the evidence that McMurtry was not looking for the remote but was in fact touching a 10–year–old's private parts with the intent to sexually arouse himself. Brown v. State , 295 Ga.App. 542, 543–544 and n. 7, 672 S.E.2d 514 (2009)

(jury was authorized to infer intent where child testified that defendant exposed himself to her, but defendant testified that he was asleep on the couch and that child must have looked up his shorts). We find no error.

2. McMurtry argues that the State failed to disprove his defense of accident, on which the jury was instructed, beyond a reasonable doubt. See OCGA § 16–2–2

. McMurtry contends that no witness testified that he was not drunk and searching for a remote when he lifted the covers on A.L.'s bed, and that in his drunkenness, any touching was accidental rather than intentional. However, given the evidence outlined above, including but not limited to the testimony from A.L. that McMurtry's hand was “in my dress” and was “pushing up like into my private part” and the mother's testimony that McMurtry was not incoherent immediately after the incident, the trier of fact was authorized to find that the State met its burden. Black v. State , 261 Ga.App. 263, 264–265, 582 S.E.2d 213 (2003).

3. McMurtry argues that the trial court erred in refusing to instruct the jury on simple battery as a lesser-included offense of child molestation. We find no error.

While the transcript shows that McMurtry's defense counsel verbally asked the trial court to charge simple battery as a lesser-included offense, his written request seeks a lesser-included charge on battery. Simple battery and battery are separate crimes. Compare OCGA § 16–5–23 (a)

(simple battery) with OCGA § 16–5–23.1 (battery). ³

McMurtry points us to no written request to charge on simple battery. “A trial judge never errs in failing to instruct the jury on a lesser included offense where there is no written request to so charge.” (Punctuation and footnote omitted.) Elrod v. State , 316 Ga.App. 491, 494, 729 S.E.2d 593 (2012)

. An oral request to charge does not alter this mandate. Benefield v. State , 204 Ga.App. 87, 87, 418 S.E.2d 447 (1992).

Further, even pretermitting McMurtry's failure to make a written request to charge on simple battery, the trial court did not err because the evidence failed to support such a charge. See Williams v. State , 252 Ga.App. 280, 280, 556 S.E.2d 170 (2001)

(even absent a written request, appellate courts review erroneous charges for substantial error that was harmful as a matter of law). “It is axiomatic that a requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” (Citations and punctuation omitted.) Watkins v....