Metts v. State

• Decision Date: 06 April 2009
• Docket Number: No. A09A0202.,A09A0202.
• Citation: 677 S.E.2d 377,297 Ga. App. 330
• Parties: METTS v. The STATE.
• Court: Georgia Court of Appeals

677 S.E.2d 377

297 Ga. App. 330

METTS v. The STATE.

No. A09A0202.

Court of Appeals of Georgia.

April 6, 2009.

Charles H. Frier, Smyrna, for appellant.

Paul L. Howard Jr., Dist. Atty., David K. Getachew-Smith, Asst. Dist. Atty., for appellee.

BERNES, Judge.

This case arises out of allegations that Tyson Carmin Metts forced his girlfriend's minor daughter to orally sodomize him several times over a three-year period. The jury found Metts guilty of aggravated child molestation, child molestation, and false imprisonment. The trial court denied his amended motion for new trial. On appeal, Metts contends that there was insufficient evidence to convict him; that his due process rights were violated because the state acted with an improper motive in reindicting him; that the false imprisonment count of the indictment lacked the requisite specificity; that his false imprisonment and child molestation convictions should have been merged into his aggravated child molestation conviction; that his conviction and felony sentence for child molestation were improper based on the rule of lenity; that the trial court erred by charging the jury on prior consistent statements; and that the trial court failed to properly recharge on false imprisonment in response to a question from the jury. Additionally, Metts contends that he was denied effective assistance from his trial counsel. Finding no reversible error, we affirm.

1. Following a criminal conviction, a defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury's verdict. Neugent v. State, 294 Ga.App. 284(1), 668 S.E.2d 888 (2008). "We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt." (Citations and punctuation omitted.) Id. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed that Metts was the boyfriend of the victim's mother. He lived with the mother and her four minor children, including the victim, in an apartment and later in a house located in Fulton County. Metts often was home alone with the children while the mother was away at work.

On at least six separate occasions over a three-year period, Metts forced the victim to perform oral sex on him until he ejaculated in her mouth. While the victim was forced to perform oral sex, Metts sometimes would play pornographic movies on the television. On one occasion, Metts locked the door to the house and would not let the victim leave until she had engaged in oral sex. These acts of sexual abuse occurred when the victim was between the ages of six and nine years old.

During this time period, the victim told her mother several times that Metts was forcing her to perform oral sex on him. Eventually, after the victim provided an accurate description of Metts's penis, the mother forced Metts out of the home and took the victim to the hospital. The victim subsequently described the sexual abuse that had occurred to a police investigator and a forensic interviewer. As a result, the victim and her siblings were removed from the home, and both the mother and Metts were arrested and indicted for offenses relating to the sexual abuse.¹

At Metts's trial, the state relied upon the testimony of the victim, her mother, and the police investigator and introduced into evidence a videotape of the victim's forensic interview. Two of the victim's siblings also testified that on one occasion, they had peeked into their mother's bedroom and had seen Metts sitting on the bed with the victim's head going up and down between his legs. In contrast, Metts took the stand and denied that he had ever forced the victim to perform oral sex or watch pornographic movies with him.

After hearing the testimony and viewing the videotaped forensic interview, the jury convicted Metts of aggravated child molestation, child molestation, and false imprisonment. Arguing that "[t]oo many doubts remain about this case," Metts now challenges the sufficiency of the evidence supporting his three convictions. We conclude, however, that any rational trier of fact was entitled to find Metts guilty beyond a reasonable doubt of the offenses as charged. Jackson, 443 U.S. 307, 99 S.Ct. 2781.²

(a) Aggravated Child Molestation. "A person commits the offense of child molestation when he or she 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." OCGA § 16-6-4(a). "Child molestation advances to aggravated child molestation with the addition of either physical injury to the child or sodomy. Sodomy, in turn, is defined as any sexual act involving the sex organs of one person and the mouth or anus of another." (Footnotes omitted.) Wright v. State, 259 Ga.App. 74, 77(2), 576 S.E.2d 64 (2003). See OCGA §§ 16-6-2(a)(1); 16-6-4(c). In the present case, the indictment averred that Metts committed aggravated child molestation "by placing [his] male sex organ into and upon the mouth of [the victim], with the intent to arouse and satisfy [his] sexual desires."

The victim testified at trial that Metts forced her to perform oral sex on him until he ejaculated on at least six separate occasions. "The testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-4-8. Furthermore, the videotaped forensic interview and the testimony of the police investigator and the victim's mother concerning what the victim told them were admissible as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16.³ See, e.g., Lamb v. State, 293 Ga.App. 65, 66, 666 S.E.2d 462 (2008). Finally, the jury was entitled to consider the eyewitness testimony of two of the victim's siblings to one of the incidents of forced oral sodomy. Accordingly, there was more than sufficient evidence to support Metts's aggravated child molestation conviction. Jackson, 443 U.S. 307, 99 S.Ct. 2781. See OCGA §§ 16-6-2(a)(1); 16-6-4(c); Mullis v. State, 292 Ga.App. 218, 218-219(1), 664 S.E.2d 271 (2008); Berman v. State, 279 Ga.App. 867, 869(1), 632 S.E.2d 757 (2006).

(b) Child Molestation. The indictment averred that Metts committed child molestation "by causing [the victim] to view video images depicting adults engaged in sexually explicit conduct while in [Metts's] presence, with the intent to arouse and satisfy [Metts's] sexual desires." Metts argues that there was insufficient evidence presented at trial that he "caus[ed]" the victim to view the pornographic video images. His argument is without merit.

The victim testified that she watched a "nasty movie" depicting sexual intercourse between a man and woman on more than one occasion in the company of Metts. In turn, the police investigator who interviewed the victim testified that the victim stated that Metts "had called her in to the bedroom, forced her to put his penis in her mouth, and he also had a pornographic movie on at that time that he was watching while ... he had her doing this to him." The investigator further testified that the victim told him that Metts "forced her to perform oral sex on him while watching a pornographic movie." Given this testimony, it cannot be said that Metts played a merely passive role in the victim's watching of the pornographic movie. Sufficient evidence was provided by the state to support Metts's conviction for child molestation. Jackson, 443 U.S. 307, 99 S.Ct. 2781. See OCGA § 16-6-4(a); Mullis, 292 Ga.App. at 218-219(1), 664 S.E.2d 271; Berman, 279 Ga.App. at 869(1), 632 S.E.2d 757.

(c) False Imprisonment. Tracking the language of the criminal statute,⁴ the indictment averred that Metts committed false imprisonment in that "[he] did unlawfully detain [the victim], without legal authority and in violation of the personal liberty of said [victim]." The police investigator testified that the victim told him that on one occasion, Metts "had locked the house, would not let her out, called her into the bedroom, and forced her to perform oral sex on him." The victim did not herself testify that Metts ever locked her in the house.

Metts contends that the investigator's testimony was inadmissible hearsay because the victim's statement that she was locked in the house was not a statement "describing any act of sexual contact or physical abuse performed with or on the child," as required by the Child Hearsay Statute, OCGA § 24-3-16. As such, Metts contends that there was no competent evidence establishing the crime of false imprisonment. We are unpersuaded.

It is true that the victim's statement that Metts locked her in the house and would not let her leave does not in itself describe an act of sexual contact or physical abuse if considered in a vacuum. But a child's statement is admissible under the Child Hearsay Statute if it is "an inextricable part of the child's description of the act of sexual abuse at issue." In the Interest of B.H., 295 Ga.App. 297, 303(6)(a), 671 S.E.2d 303 (2008). See also Brewton v. State, 216 Ga.App. 346, 350(5), 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996) (concluding that "statements as to the circumstances in which appellant chased her son down the hall while carrying a maul constitute[] statements regarding `any act' of physical abuse within the meaning of the [Child Hearsay Statute]"). And when read in context rather than in isolation, the victim's statement clearly was part of the victim's description of an act of sexual abuse, namely, Metts's act of forcing her to perform oral sex on him. Hence, the investigator's testimony concerning the victim's statement was admissible as substantive evidence under the Child Hearsay Statute and was sufficient, standing alone, to support the false imprisonment conviction. See id. See...