Mosby v. State
| Citation | 839 S.E.2d 237,353 Ga.App. 744 |
| Decision Date | 20 February 2020 |
| Docket Number | A19A1871,A19A2054 |
| Parties | MOSBY v. The STATE. Mosby v. The State. |
| Court | United States Court of Appeals (Georgia) |
Juwayn Nadim Haddad, Decatur, for Appellant.
Daniel J. Porter, Lawrenceville, Lee Franklin Tittsworth, Samuel Richard d'Entremont, for Appellee.
In Case No. A19A1871, Mosby appeals from his convictions on one count of child molestation and one count of sexual battery. Following the denial of his motion for a new trial, Mosby contends that (1) the trial court erred in overruling his special demurrer to the child molestation charge; (2) the trial court erred by denying his plea in abatement because the indictment was not returned in open court; and (3) the evidence was insufficient to support his conviction for sexual battery.
In Case No. A19A2054, Mosby appeals from his convictions on seven counts of child molestation and two counts of aggravated child molestation. Following the denial of his motion for a new trial, Mosby contends that the trial court erred by (1) overruling his general demurrer as to one of the aggravated child molestation counts; (2) overruling his special demurrer as to five counts in the indictment; and (3) denying his plea in bar as to one of the child molestation counts.
As explained more fully below, in Case No. A19A1871, we affirm the judgment of conviction and remand the case for resentencing. In Case No. A19A2054, we affirm in part and reverse in part and remand the case for resentencing.
In Mosby v. State , 319 Ga. App. 642, 738 S.E.2d 98 (2013) (" Mosby I "), we reversed the Superior Court of Gwinnett County’s order overruling Michael Mosby’s special demurrer to 14 counts of a 15-count indictment (the "2011 indictment") charging Mosby with committing multiple counts of sexual offenses against four of his daughters. Additionally, we reversed the trial court’s denial of Mosby’s motion to dismiss and plea in bar, concluding that several counts were barred by the applicable statutes of limitation. Id. at 646-647 (2) (b)-(d), 738 S.E.2d 98.
Following remand and in accordance with our opinion in Mosby I ,1 the State reindicted Mosby on several counts, and charged him with additional counts of sexual offenses in a separate indictment. The case proceeded to a stipulated bench trial on both indictments, Mosby was found guilty of numerous offenses, and he now appeals.
On appeal from a bench trial, we view the evidence in favor of the factfinder’s conclusion, giving due regard to the trial court’s opportunity to judge witness credibility. We no longer presume the defendant is innocent, but only determine if the evidence is sufficient to sustain the convictions.
Landine v. State , 295 Ga. App. 761, 761-762, 673 S.E.2d 124 (2009) (citation and punctuation omitted). See Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the evidence showed that Mosby repeatedly molested his four daughters, Be. T, A. S. M., A. T., and Br. T, in various ways over a period of several years, from approximately 2000 to 2009.
Indictment No. 13B-1649-6 (the "February 2013" indictment) charged Mosby with committing one count each of child molestation (Count 1) and sexual battery (Count 2) against Be. T. Indictment No. 13B-1968-6 (the "March 2013 indictment") charged Mosby as follows: as to A. S. M., three counts of child molestation (Counts 1, 2, and 5), six counts of aggravated child molestation (Counts 3, 6, 7, 8, 9, and 10), and one count of incest (Count 4); as to A. T., one count of child molestation (Count 11); as to Be. T., three counts of child molestation (Counts 12, 13, and 15); and, as to Br. T., one count each of aggravated child molestation (Count 14) and child molestation (Count 16).
Mosby challenged the form sufficiency of the indictments by filing numerous pretrial motions, including special and general demurrers, motions to dismiss, and pleas in abatement. In November 2013, the trial court conducted a three-day hearing on the motions (the "November motions hearing"), and dismissed several counts of the March 2013 indictment.2 The case proceeded to a bench trial on the remaining counts of the indictments. In accordance with the parties’ stipulation, the trial court conducted the bench trial using the transcript and evidence from the November motions hearing. The defense called a single witness, Mosby’s ex-wife and the mother of the four victims.
The ex-wife testified as to the family’s sleeping arrangements over the years. She explained that the family had lived in a number of residences, and due to financial constraints, each child did not have his or her own bedroom. She testified that the family’s sleeping arrangements varied depending on her work schedule and the children’s extracurricular activities. At times, Mosby slept in a bed with the couple’s two sons, but he also slept in a bed with their daughters. She further testified that A. S. M. often slept in a separate bedroom because she suffered from a chronic illness, thus allowing Mosby access to the child.
The facts relevant to Case No. A19A1871 show that, on February 20, 2013, a Gwinnett County grand jury returned an indictment charging Mosby with committing (1) child molestation against Be. T. between March 1, 2009 and June 30, 2009 "by touching her breasts and vagina with intent to arouse and satisfy the sexual desires of said child and said accused" (Count 1); and (2) sexual battery against Be. T. on January 1, 2009, by "unlawfully and intentionally mak[ing] physical contact with an intimate part of the body, to wit: the breasts and vagina, of another person, to wit: [Be. T.]" (Count 2).
1. Mosby contends that the trial court erred in overruling his special demurrer to Count 1 of the February 2013 indictment because the State should have provided a narrower date range. We find no reversible error.
"Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer." State v. Layman , 279 Ga. 340, 340-341, 613 S.E.2d 639 (2005) (citation and punctuation omitted). However, where the State presents evidence to the trial court to show that the State is unable to identify the specific date on which the offense occurred, as, for example, when the victim is a child who is incapable of adequately articulating exactly when the offense occurred, "the State is permitted to allege that the crime occurred between two particular dates." O’Rourke v. State , 327 Ga. App. 628, 631-632 (2), 760 S.E.2d 636 (2014). In a post-conviction appeal of a trial court’s pretrial ruling denying a special demurrer, we apply a harmless error standard of review. Id. at 633 (2), 760 S.E.2d 636. See also Andemical v. State , 336 Ga. App. 661, 665 (2), 786 S.E.2d 238 (2016) () (citation and punctuation omitted).
Here, the trial court conducted a hearing on Mosby’s special demurrer, at which the State presented the testimony of Be. T. With the exception of an incident that occurred on Christmas Day in 2006, Be. T., who was 19 years old at the time of the hearing, and approximately 15 years old at the time of the offenses, was unable to offer specific dates for the offenses committed against her as alleged in the February 2013 indictment. Instead, Be. T. approximated the dates of various offenses by considering factors such as her grade in school and the location where the family lived when certain offenses occurred. Regarding Count 1, Be. T. testified that she was unsure of the precise date of this incident, but she recalled that it occurred sometime near the end of the school year in 2009. She acknowledged that the school year ended in May, but was unsure of the exact date.
Based on this testimony, Mosby contends that the State should have narrowed the dates alleged in the indictment to eliminate the month of June 2009. As we noted in Mosby I , in support of his special demurrer to the 2011 indictment, Mosby "argu[ed] that he expected his defense to include evidence that he did not reside in the family home at the time of several of the alleged offenses and, therefore, that the State should be required to ‘vastly narrow the alleged date ranges so that he may better defend himself against the allegations.’ " 319 Ga. App. at 642, 738 S.E.2d 98 (punctuation omitted). However, at the bench trial, Mosby did not present such a defense to Count 1 of the February 2013 indictment. Instead, he offered only the testimony of his ex-wife to explain the family’s living arrangements during the relevant time periods, and he stipulated to the admission of the transcript of the November 2013 motions hearing, which included Be. T.’s testimony regarding the dates of the offenses. Because the specific evidence regarding the date of the offense charged in Count 1 was in evidence and considered by the trier of fact, Mosby has failed to show prejudice resulting from the range of dates included in the indictment. See O’Rourke , 327 Ga. App. at 633 (2), 760 S.E.2d 636 (). Accordingly, the trial court’s overruling of Mosby’s special demurrer is not reversible error.
2. Mosby filed a motion in abatement alleging that the February 2013 indictment was not returned in open court, and he supplemented this filing with a motion to inspect the grand jury minutes. Mosby then filed a renewed motion to inspect the grand jury minutes, plea in abatement, amended motion to dismiss for lack of subject matter jurisdiction, and second amended plea in bar and motion to dismiss. The trial court heard these motions at the...
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