Moore v. State

• Decision Date: 15 February 2013
• Docket Number: A12A2236.,Nos. A12A1811,s. A12A1811
• Citation: 738 S.E.2d 348,319 Ga.App. 766
• Parties: MOORE v. The STATE. Phillips v. The State.
• Court: Georgia Court of Appeals

319 Ga.App. 766

738 S.E.2d 348

MOORE

v.The STATE.

Phillips

v.The State.

Nos. A12A1811, A12A2236.

Court of Appeals of Georgia.

Feb. 15, 2013.

Benjamin David Goldberg, for Appellant.

Patrick H. Head, Allen Rust Knox, Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee.

BOGGS, Judge.

These cases were consolidated for purposes of appeal. Justin Moore and his wife Jessica Phillips were jointly tried for crimes against Phillips' daughter (Moore's stepdaughter). Following the denial of their separate amended motions for new trial, Moore and Phillips each appeal, enumerating several errors. Having reviewed the record, we find their claims to be without merit and affirm in both cases.

Construed in the light most favorable to the verdict, the evidence showed that at around noon, the victim, K.M., then nearly six years old, appeared at a neighbor's home, about a block away from her home, wearing only panties and sandals. The neighbor, who spoke Spanish and only a little English, brought K.M. into her home and immediately called her daughter so that K.M. could speak with her. K.M. told the neighbor's daughter that “her father was going to kill her. And she said that she wanted to stay with my mom, and that she will learn Spanish.” After talking to K.M. on the phone, the neighbor's daughter called police. The neighbor explained that she went to open the door to see if someone was outside looking for K.M., but K.M. “did not want me to open that door. She didn't want me to. She was frightened.”

When the police arrived, K.M. told an officer that “she had ran to where we were at the time, because she had peed her bed, and that her parents were going to beat her and kill her because she had peed the bed.”

A second officer testified that K.M. told her “she had peed the bed, and she knew she was going to get a whipping, so she ran out of the house when she had the opportunity. She said she crossed the street, went behind a set of duplexes and started knocking on back doors.” K.M. told this second officer that her “mom and dad” beat her with coat hangers, extension cords, and a belt. The officer looked under K.M.'s clothing and observed “linear marks, or looping marks” on K.M.'s chest, right side, lower back, buttocks, legs, and groin area. The officer explained that K.M. identified Phillips and Moore as her “mom and dad,” and that “[s]he used their first and last names.” K.M. was then taken into protective custody.

A child protective services investigator testified that she spoke with K.M. at her home on the same day and that K.M. showed her an extension cord and said “this is the extension cord that my daddy beat me with.” The investigator noticed scarring on K.M.'s “legs, back, abdomen, and vagina area. The scars were in—it looked sort of like a loop. And they were found all over her body. Some of them were lighter in coloration, and some of them were darker in coloration.” Pictures of K.M.'s injuries were introduced into evidence.

In a second interview, K.M. told the investigator that “her daddy ... beat her with an extension cord, a belt, a hanger and a hand. And she also mentioned that her mother Jessica Phillips, beat her with a belt and her hand.... She said that she thought her daddy was about to beat her raw.” K.M. told the investigator that Moore “beat her so hard with two hangers that she pooped her panties,” and that she also “got whipped” for falling asleep in the corner and wetting the bed.

A pediatric nurse practitioner testified that she performed a physical examination of K.M. five days after she was taken into protective custody. She explained that K.M. had both linear and curvilinear marks on her chest and abdomen, a large bruise on her lower back, a mark on her buttocks, and extensive marks on her thighs “too numerous to count.” The nurse practitioner stated further that the scars “showed different degrees of healing,” were not made at the same time, and were made with different objects under different amounts of force. She explained that the marks she observed on K.M. were typically made by cords and belts. When asked if K.M.'s scars could have been made more than a year earlier, the nurse practitioner stated: “It's possible, but I don't—think it's probable.”

The second officer at the scene of the neighbor's home interviewed K.M. over a month later. In the interview, played for the jury at trial, K.M. explained that Moore “whipped [her] with an extension cord, belt, hangers, and that's all,” but that her mother, Phillips, would “whip [her] with a belt.” K.M. also told her that Moore “would take dog leashes and tie her arms behind her back, and her ankles or around her legs, and hang her [upside down] from the bedroom door” and whip her. K.M. pointed to her bruises during the interview and explained that in one location “my skin was off. It was all teared off right here. Then it healed up.”

K.M., eight years old at the time of trial, testified that she ran to the “Spanish lady's house for help” because Moore was hitting her with hangers, belts, and leashes. She stated further that Phillips hit her with belts and that on one occasion Moore tied her up with leashes, tied her to a door, and “whipped” her with hangers, belts and extension cords.

Moore and Phillips were charged with cruelty to children in the first degree for causing K.M. “cruel and excessive physical pain by beating” her. Moore was also charged with two counts of child molestation and one count of aggravated child molestation.¹ The jury found both Moore and Phillips guilty of cruelty to children, but acquitted Moore on the three molestation counts.

Case No. A12A1811

1. Moore contends that the circumstantial evidence failed to exclude the reasonable hypothesis that K.M.'s biological father “perpetrated the physical abuse.” ² While Phillips told officers that the marks on K.M. were inflicted by K.M.'s biological father, K.M. told officers and an investigator, and testified at trial, that Moore hit her with hangers, belts, and leashes, and that he tied her to a door and beat her. She testified further that Moore beat her the day she ran to the neighbor's home. This was direct evidence sufficient to sustain Moore's conviction for cruelty to children in the first degree. See Chambers v. State, 313 Ga.App. 39, 40(1), 720 S.E.2d 358 (2011); see also OCGA § 16–5–70(b).

2. Moore argues that the State failed to prove venue beyond a reasonable doubt. In general, criminal actions should be tried in the county where the crime occurred. OCGA § 17–2–2(a). “We have held that venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime. The State may use both direct and circumstantial evidence to prove venue.” (Citations omitted.) Lanham v. State, 291 Ga. 625, 626(2), 732 S.E.2d 72 (2012).

The evidence showed that K.M. lived with Phillips and Moore at the family's residence which was located in Cobb County. There was evidence that Moore tied K.M. up, tied her to her bedroom door at the home and “whipped” her. K.M. also testified that Moore had hit her at the family's home on the day she ran to her neighbor's home. Viewing the evidence as a whole, we conclude that the State met its burden of proving beyond a reasonable doubt that venue was properly in Cobb County. See Sherrell v. State, 317 Ga.App. 571, 574(1), 731 S.E.2d 790 (2012); Glover v. State, 292 Ga.App. 22, 25(2), 663 S.E.2d 772 (2008) (venue established where evidence showed that victim lived with defendant in Cobb County and that defendant gave victim whippings on a daily basis).

3. Moore complains that the trial judge violated OCGA § 17–8–57 by intimating his opinion about the credibility of K.M. and Moore's guilt when he called K.M. “honey” in front of the jury. He argues that this act “could have no other effect than [to] engender[ ] sympathy for [K.M.] and making her appear, in the eyes of the trial court, to be a victim of Mr. Moore.”

OCGA § 17–8–57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” During her testimony, the trial court instructed K.M.: “Hey, Honey, will you put the microphone—or just talk a little closer to the microphone, okay? We just need to make sure we can hear you.” Defense counsel did not object or move for a mistrial. “Consequently, a new trial would be warranted ‘only if the trial court's comments seriously affected the fairness, integrity, and public reputation of these judicial proceedings.’ ” (Citations omitted.) Kohler v. State, 300 Ga.App. 692, 698(4), 686 S.E.2d 328 (2009).

Moore cites Craft v. State, 274 Ga.App. 410, 618 S.E.2d 104 (2005) (physical precedent only) and Callaham v. State, 305 Ga.App. 626, 700 S.E.2d 624 (2010) to support his argument here, but these cases are distinguishable. In Craft, the trial court posed specific questions to a witness concerning the character and grade point average of the victims. Supra, 274 Ga.App. at 411–412(1), 618 S.E.2d 104. And in Callaham, a neighbor identified the defendant as the person who shot the victim. Supra, 305 Ga.App. at 627(1), 700 S.E.2d 624. While the defendant was on the stand to testify in his own defense, the trial court asked the defendant: “do you know why the neighbor that lives across the street would come in here and say you're the one that shot? He's not related to anybody.” Id. We held that the trial court's question and comment intimated that the neighbor's testimony was believable because he was an independent witness unrelated to any of the parties. Id. at 628(1), 700 S.E.2d 624.

Here, the trial court's use of the word “honey” to address eight-year-old K.M. was not an opinion of her credibility like in Craft and Callaham. The comment did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, and was...