Moore v. State

• Decision Date: 05 February 2013
• Docket Number: No. A12A2419.,A12A2419.
• Citation: Moore v. State, 319 Ga. App. 696, 738 S.E.2d 140 (Ga. App. 2013)
• Parties: MOORE v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 696

738 S.E.2d 140

MOORE

v.The STATE.

No. A12A2419.

Court of Appeals of Georgia.

Feb. 5, 2013.

Benjamin David Goldberg, for Appellant.

Tracy Graham Lawson, Elizabeth A. Baker, for Appellee.

BARNES, Presiding Judge.

Following a bench trial, the trial court found Robert Lee Moore guilty of enticing a child for indecent purposes, sexual battery against a child under the age of 16, and child molestation. On appeal from the denial of his motion for new trial, Moore challenges the sufficiency of the evidence supporting his conviction for enticing a child for indecent purposes and contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[.]” Vadde v. State, 296 Ga.App. 405, 674 S.E.2d 323 (2009). So viewed, the evidence showed that in 2007, the 14–year–old female victim began living with Moore, her biological father, at his apartment in Clayton County, Georgia. The victim often would sleep in the living room of the residence, while other family members slept in the bedrooms. When the victim was asleep, Moore would lie down behind her and touch her breasts and vagina with his hands and rub his penis against her vagina. If she resisted, Moore would engage in “fist fighting” with her or would discipline her.

According to the victim, the sexual abuse occurred about “[e]very other week” at the apartment until Moore moved to Lorain, Ohio in 2008. The victim never told anyone in Georgia about the abuse because Moore had threatened to kill himself and the victim if she ever reported it.

In March 2009, the victim moved to Ohio to live with Moore. Two days after moving in with Moore, the victim, barefoot and coatless, fled to her grandmother's house located nearby and disclosed to her that Moore had sexually abused her in Georgia. She was scared that Moore would begin sexually abusing her again. The grandmother called the police after the victim disclosed the abuse to her.

A detective from the City of Loraine Police Department interviewed the victim on two separate occasions about the sexual abuse. The detective also interviewed Moore after advising him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Moore told the detective that he thought there was “something wrong with him” and admitted that he had engaged in “inappropriate acts” with the victim. He also stated that he had paid the victim for “sexual favors” to keep her from “selling herself sexually on the streets.” Moore indicated that these incidents had occurred in Georgia.

During the interview, Moore asked the detective to deliver a letter to the victim in which he wrote, “I have a mental problem” and “I loved you too much 2 where it got outta hand.” He further wrote that he had wanted the victim to stop “messing up” in school and “in the streets” and that he “did everything that [he] could to stop [her] from messing up.” Moore also stated in the letter, “People in jail don't like the fact that a father had sex with his daughter & I may not make it out [of] jail.”

The Ohio police detective provided the information he had gathered from his investigation to the Clayton County Police Department. A Clayton County grand jury subsequently returned an indictment charging Moore with enticing a child for indecent purposes, sexual battery against a child under the age of 16, and child molestation. He waived his right to a jury trial. At the ensuing bench trial, the victim, the victim's grandmother, the Ohio police detective, and the Clayton County police detective assigned to the case testified on behalf of the State.

Moore chose to testify, admitting that “some of the things [the victim] did say were true” and that there were times when he would make a “pass” at her. He further testified that while the victim lived with him in Georgia, she was a chronic runaway. According to Moore, “[s]he would run away and wouldn't come back for weeks, sometimes days” and would not always “come home from school,” and he tried to “break her” of her “unruly” behavior and “adult attitude.” He testified that he “did everything [he] could” to change her behavior, and he admitted that sometimes he would “whoop” the victim when she ran away. Additionally, Moore testified, “That is my daughter, [and] no one can tell me what I can do with my daughter,” “I am [the] law, myself,” and “I am allowed to love my daughter and support my daughter however I want to.”

The trial court found Moore guilty of the charged offenses.¹ Moore filed a motion for new trial, contending that he received ineffective assistance from his trial counsel. Following an evidentiary hearing, the trial court denied the motion for new trial, resulting in this appeal.²

1. Moore contends that there was insufficient evidence to support his conviction for enticing a child for indecent purposes, arguing that the State failed to prove the essential element of asportation. We disagree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citations, punctuation, and emphasis omitted.) Staib v. State, 309 Ga.App. 785, 789–790(2), 711 S.E.2d 362 (2011). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16–6–5. Because asportation is an essential element of the offense, a conviction for enticing a child cannot be sustained without evidence of movement of the victim. See Rollins v. State, 318 Ga.App. 311, 733 S.E.2d 841 (2012); Heard v. State, 317 Ga.App. 663, 665, 731 S.E.2d 124 (2012). However, asportation does not require “abduction” of the victim; while movement of the victim can be the result of physical force, it also can be the result of mere persuasion, enticement, or temptation. Cimildoro v. State, 259 Ga. 788, 789(1), 387 S.E.2d 335 (1990). Moreover, any evidence, no matter how slight, is sufficient to establish asportation. Hicks v. State, 254 Ga.App. 814, 816(3), 563 S.E.2d 897 (2002).

The indictment alleged that Moore enticed the victim to his Clayton County residence for the purpose of child molestation by “giv[ing] her money and not punish[ing] her for poor behavior.” “Where conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged.” Straker v. State, 259 Ga.App. 904, 905–906(a), 578 S.E.2d 568 (2003). Thus, the State could establish asportation through evidence that Moore enticed the victim to his Clayton County residence for the purpose of child molestation either (1) by giving her money or (2) not punishing her for bad behavior.

When viewed in the light most favorable to the verdict, the trial testimony and all reasonable inferences drawn from it were sufficient to support a finding that Moore enticed the victim to his residence for purposes of child molestation by giving her money. The victim's testimony clearly established that Moore molested her at his Clayton County residence; Moore testified that the victim ran away from the residence on repeated occasions and that he “did everything [he] could” to change her behavior; and the Ohio police detective testified that Moore told him that he paid the victim for sexual favors to keep her from living on the streets as a prostitute. This combined testimony, when construed in favor of the verdict, would support a finding that Moore enticed the victim to return to his residence by offering her money for sexual favors when she would run away and was having to support herself on the streets. Consequently, the essential element of asportation, as alleged in the indictment, was satisfied.³ See Kelley v. State, 301 Ga.App. 43, 45–46(1), 686 S.E.2d 810 (2009) (asportation established through evidence that defendant offered money to the victim for sexual intercourse and arranged for her to come to his house to have sex with him).

2. Moore also contends that the trial court erred in denying his motion for a new trial because his trial counsel was ineffective for failing to object and move for a mistrial in response to...