Miller v. State

• Decision Date: 27 April 2021
• Docket Number: A21A0643
• Citation: 359 Ga.App. 380,857 S.E.2d 830
• Court: Georgia Court of Appeals
• Parties: MILLER v. The STATE.

359 Ga.App. 380

857 S.E.2d 830

MILLER

v.The STATE.

A21A0643

Court of Appeals of Georgia.

April 27, 2021

David Eric Webb, for Appellant.

Julia F. Slater, District Attorney, William A. Lisenby, Jr., Assistant District Attorney, for Appellee.

Phipps, Senior Appellate Judge.

A Harris County jury found Tony Louis Miller, Jr., guilty of rape, kidnapping, five counts of child molestation, four counts of sexual battery against a child under sixteen years of age, three counts of enticing a child for indecent purposes, three counts of false imprisonment, and three counts of simple battery. Miller appeals following the denial of his motion and amended motion for new trial. He asserts that the evidence was insufficient to support his convictions, his trial counsel was ineffective by failing to move for a mistrial following a spontaneous outburst by the victim's father during trial, and the trial court erred in allowing individuals to remain in the courtroom after the rule of sequestration had been invoked. For the following reasons, we affirm Miller's convictions.

1. We turn first to Miller's assertion that the evidence was insufficient to support his convictions.¹ In so doing, we recognize well settled principles regarding the sufficiency of the evidence standard:

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And, of course, in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. We will, then, uphold a jury's verdict so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.

Garner v. State , 346 Ga. App. 351, 353-354 (1), 816 S.E.2d 368 (2018) (citations and punctuation omitted).

So viewed, the record shows that at the 2019 trial, the victim testified that she was 15 years old, and she knew Miller because he lived at both "Granny's house"² and his father's house in her neighborhood. The victim identified Miller in court. One of Miller's friends testified at trial that Miller was 26 or 27 years old. The charges here involved five separate incidents against the same victim.

Counts 1-5 (simple battery, enticing a child for indecent purposes, sexual battery against a child under the age of 16, child molestation, and false imprisonment) occurred at a lake where the victim swam. The victim testified that in the summer of 2017, when she was between seventh and eighth grade, she went to the lake with some friends. While she was in the lake, Miller swam behind her, grabbed her butt, pushed her bathing suit bottom section to the side, and placed his penis on her vagina. The victim tried to get away from Miller, but he would not let her leave. When people started looking over at them, Miller stopped, and the victim was able to swim away.

Counts 6-9 (false imprisonment, sexual battery against a child under the age of 16, child molestation, and simple battery) occurred in August 2017 at "Granny's house" in the bathroom. According to the victim, the kids were playing hide and seek, and she went to hide in the bathroom. Miller followed her to the bathroom, told her to turn around, and pushed her over a pile of clothes. He then pulled down her shorts and her underwear, and he put his penis on her vagina. The victim was crying and kept trying to turn around, but Miller kept pushing her down. Miller stopped when the individual who was the "seeker" came into the bathroom.

Counts 10-15 (enticing a child for indecent purposes, simple battery, sexual battery against a child under the age of 16, two counts of child molestation, and rape) occurred at "Granny's house" in the living room and kitchen. The victim testified that when she was in the eighth grade she spent the night on the living room floor at ‘‘Granny's house.’’ When she got up to go to the bathroom, Miller followed her from the bathroom. Miller put her on a table in the kitchen, got between her legs, and began kissing her. Miller then pulled the victim's shorts and underwear to the side, and he put his penis on her vagina. The victim told Miller "no" and tried to get off the table, but Miller would not let her off. Eventually, he let her off the table and the victim went back to the living room.

Miller, however, followed the victim to the living room and told the victim that when she was 18 he was "going to have [her]," that someone would get hurt if she told anyone, and that he always got what he wanted. Miller then left, but he later came back, got on top of the victim, pulled her shorts and underwear to the side, and put his penis in her vagina. When he was finished, Miller pulled his shorts back up and the victim noticed that white "sperm was coming through his shorts." Miller then left to go change at his father's house. The victim went to the bathroom and cleaned herself off because she didn't want Miller's sperm to make her pregnant. Then she cried herself to sleep.

A few days later, the victim told Miller that she was worried about getting pregnant and she was going to tell her father what Miller had done, but Miller convinced her to pee in a cup and let him take it to be tested. Miller then sent the victim a picture of a negative pregnancy test. The victim told one of her friends who lived at ‘‘Granny's house’’ that Miller was touching her, but asked her not to tell anyone else.

Count 16 (false imprisonment) occurred at Miller's father's house. The victim testified that she went with Miller to his father's house to get a cat feeder. Miller told her his father was home, so the victim did not think anything would happen. However, when they arrived at the house, Miller's father was not home. At some point, Miller asked the victim for a hug and then asked her what color underwear she was wearing. The victim told Miller she wanted to leave and tried to leave the house, but Miller turned her around and pulled down her leggings so he could see the color of her underwear. The two then left the house.

Counts 17-20 (kidnapping, enticing a child for indecent purposes, sexual battery against a child under the age of 16, and child molestation) occurred in the woods. The victim testified that while a group of kids was gathering firewood, Miller told them he was taking the victim back to the house, but instead he pulled her into the woods and told her to get on the ground. The victim was scared that Miller would hurt her, so she got on the ground. She was on her back, and Miller got on top of her, pulled her shorts and underwear to the side, and placed his penis on her vagina. Miller also put his hand under the victim's shirt and grabbed her breast. Miller stopped when he heard the other kids coming toward them. He ran a different direction, caught up with the other kids, and then, when they reached the victim, he asked her what she was doing in the woods. This happened when the victim was in the eighth grade.

A number of witnesses testified that they did not observe anything suspicious between Miller and the victim. In fact, one witness testified that he never saw Miller and the victim alone when swimming. However, one of the victim's friends testified that the victim told her that "whenever she would be laying down, that [Miller] would touch on her, and she would tell him to stop but he wouldn't." Another friend testified that the victim told her that Miller "did stuff to [her]." Specifically, the victim told her that Miller raped her on more than one occasion. In addition, the father of one of the victim's friends testified that he heard rumors of something going on between the victim and Miller, and he asked the victim if someone did "something creepy" to her. The victim responded, "yes, sir." At that point, the friend's father contacted the victim's father and the sheriff's department. The victim's father testified that the victim told him that Miller had "touched her and ... done a lot more things to her."

The sheriff's corporal who responded to "a possible sexual battery or a child molestation" call testified that he only asked the victim two questions: whether an incident took place between her and Miller and whether it was sexual in nature. When the victim responded yes to both questions, he stopped questioning the victim because he did not want to taint her interview with individuals who specialized in child victim interviews.

The victim was taken to a child advocacy center and interviewed by an expert in child forensic interviewing. The expert testified that she had conducted 428 forensic interviews of children. According to the expert, delayed disclosure by a sexually abused victim is not unusual, nor is it unusual for a child to return to a location where an alleged perpetrator is located. The victim's recorded interview was played for the jury.

At the conclusion of the trial, the jury found Miller guilty of all counts, and this appeal followed.

Miller asserts that the evidence was insufficient to find him guilty of the charged offenses because it was "largely circumstantial." According to Miller, "while there was direct testimony from the alleged victim, it was, at best, contradictory." Miller also argues that not a single witness observed anything inappropriate between Miller and the victim. Essentially, he challenges the victim's credibility as a witness and the lack of evidence to corroborate her testimony. We find that the evidence was sufficient to support Miller's convictions.

First and foremost, it is well settled that "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8. Here, the victim testified in detail about all of the occurrences alleged in the indictment. Her testimony, alone, was sufficient to support Miller's convictions. See ...