Newton v. State, A08A2256.

• Decision Date: 27 February 2009
• Docket Number: No. A08A2256.,A08A2256.
• Citation: 296 Ga. App. 332,674 S.E.2d 379
• Parties: NEWTON v. The STATE.
• Court: Georgia Court of Appeals

674 S.E.2d 379

296 Ga. App. 332

NEWTON v. The STATE.

No. A08A2256.

Court of Appeals of Georgia.

February 27, 2009.

Lance John Hamilton, Vidalia, for appellant.

William Steven Askew, Dist. Atty., Mary Kathryn McKinnon, Asst. Dist. Atty., for appellee.

MILLER, Chief Judge.

Following a jury trial, Perry Anthony Newton was convicted of one count of rape (OCGA § 16-6-1), four counts of child molestation (OCGA § 16-6-4(a)), and one count of aggravated child molestation (OCGA § 16-6-4(c)). He now appeals from the trial court's denial of his new trial motion, claiming that the evidence was insufficient to support his convictions. Newton further asserts that the trial court erred in admitting: (1) a taped, forensic interview of the victim, conducted at the request of police; (2) three pornographic magazines Newton admitted to having in his possession at the time of one of the alleged incidents; and (3) certain testimony offered by the State as part of its rebuttal case. Discerning no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations and punctuation omitted.) Drammeh v. State, 285 Ga.App. 545, 546(1), 646 S.E.2d 742 (2007).

So viewed, the evidence shows that in March 2004, the then nine-year-old victim, T.W., told one of her teachers that she had been sexually abused. The school contacted the City of Swainsboro Police Department, and Detective Joe N. Cephus was assigned to investigate the allegations. Detective Cephus arranged for the victim to be interviewed by trained personnel at the Sunshine House Child Advocacy Center in Swainsboro. That interview, which was videotaped, was conducted by Tonya Harris, a licensed counselor trained to conduct forensic interviews of children who have reported abuse. The taped interview was admitted at trial, over the objection of defense counsel, and played for the jury.

During that interview, T.W. drew pictures in which she indicated that she had been touched inappropriately on the breasts, genitals, and buttocks. She then wrote the name "Perry" at the top of one of the pictures and circled the name. When Ms. Harris questioned the victim about the pictures, the victim stated that on one occasion she had been watching television while sitting on the floor of her mother's bedroom and that Newton began a conversation with the victim, telling her "you are my baby, you are the only one." Newton asked the victim if she "had ever had sex with a boy," stating "well you are about to have sex with a man." Newton then twice fondled T.W.'s breasts, buttocks, and genitals, and penetrated her vagina and her anus with his penis. The victim further stated that Newton had also had vaginal and anal sex with her at his house on another occasion.

The victim's mother testified that on the day of the incident at her house, Newton brought his wife and children over to visit, but she thought Newton then left. At the time, the mother was in the back yard, and when she tried to re-enter the house through the back door she found it locked, even though she generally left it unlocked. When the mother could not get T.W. to respond to her knocks at the back door, she went to the front of the house. There, the mother saw Newton exiting the house through the front door, holding up his pants, which were unbuttoned and unzipped.

Detective Cephus testified that when questioned by police Newton admitted to being in the same room with T.W. at the time of the alleged incident at the mother's house. Newton further stated that he was sitting on the bed, reading sexually explicit magazines. Cephus recovered these magazines from Newton's house and, over the objection of defense counsel, they were admitted as evidence at trial. The magazine covers contained subtitles that included "We're Young & Dirty," "Tight and Tiny Teens—Not Too Small To Take It All," "Teen Cherries Ready to Pop," and "A-Cup Cuties Special."

During its case, the defense presented the testimony of Sonya Shipman, Newton's ex-wife, who stated that Newton had never been alone with either the victim or other children and that she had never heard of Newton acting inappropriately with either the victim or other children. In rebuttal, the State called Valerie Rucker. Ms. Rucker testified that she knew of occasions on which Newton was alone with the victim and other young girls, and that she had witnessed Newton kissing one of his stepdaughters on the mouth.

Following his conviction, Newton filed a motion for a new trial. The trial court denied that motion, and this appeal followed.

1. Newton challenges the sufficiency of the evidence, arguing (i) that he has been convicted of four counts of child molestation based on evidence of "six touchings" on two occasions, and (ii) that his convictions of rape and aggravated child molestation were not supported by evidence of vaginal and anal penetration. We disagree.

(a) Child Molestation.

"A person commits the offense of child molestation when he ... does any immoral or indecent act ... 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 ... the person." OCGA § 16-6-4(a).

Newton was indicted upon four counts of child molestation. Specifically, Counts 2 through 4 of the indictment charged him with child molestation by fondling the breasts, the private area, and the buttocks of the victim. Count 5 of the indictment charged him with indecently exposing himself to the victim. Newton generally challenges the sufficiency of the evidence in light of evidence showing inconsistencies in T.W.'s videotaped statement, the victim's inability to reiterate her allegations against Newton or identify him at trial, the victim's psychological problems, and the prejudicial admission of pornographic magazines.

At trial, T.W. testified that one of the sexual incidents occurred in her mother's bedroom when she was watching television on the floor and Newton was on the bed. When asked by the prosecutor what Newton was doing on the bed, T.W. testified that she could not remember and then could not describe the incident that occurred in the bedroom. With respect to the same incident, T.W. could not recall the two questions Newton asked her because she was scared. The jury was allowed to consider the victim's out-of-court statements as substantive evidence under the Child Hearsay Statute.¹ In the videotaped interview, T.W. described the incident at her mother's house where Newton asked her if she "had ever had sex with a boy," stating "well you are about to have sex with a man." T.W. told Ms. Harris that Newton twice touched her breasts, buttocks, and genitals and penetrated her vagina and her anus with his penis. The victim also used pictures to show where Newton touched her inappropriately and stated that Newton had vaginal and anal sex with her at his house on another occasion.

Conflicts between the victim's testimony at trial and the victim's out-of-court statements were for the jury to resolve. Amerson v. State, 268 Ga.App. 855(1), 602 S.E.2d 857 (2004). Even if the child is "incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child's credibility...." (Citation and punctuation omitted.) Jones v. State, 200 Ga.App. 103(1), 407 S.E.2d 85 (1991). Where, as here, the victim could not reiterate the molestation incidents at trial, the jury apparently chose to credit T.W.'s taped interview. Further, any discrepancies in the evidence presented issues for the jury, not this Court, to resolve. Berman v. State, 279 Ga.App. 867, 867-868(1), 632 S.E.2d 757 (2006).

While the victim's testimony alone was sufficient to authorize a conviction for child molestation (see OCGA § 24-4-8), the witnesses to the outcry, Ms. Harris and the school counselor, corroborated the victim's account of Newton's sexual acts. Ferrell v. State, 256 Ga.App. 692, 694(1), 569 S.E.2d 899 (2002). The evidence showed that Newton touched T.W. in a sexual manner at least twice on her breasts, buttocks and genital area and that he appeared before T.W. with his pants down. Such evidence sufficed to sustain his convictions for four counts of child molestation. See OCGA § 16-6-4(a).

(b) Rape and Aggravated Child Molestation.

To prove that Newton was guilty of rape, the State was required to show that Newton had "carnal knowledge of [a] female who is less than ten years of age." OCGA § 16-6-1(a)(2). To prove that Newton was guilty of aggravated child molestation, the State was required to establish that Newton committed "an offense of child molestation which ... involves an act of sodomy." OCGA § 16-6-4(c).

Newton argues that the evidence was insufficient to support the rape and aggravated child molestation convictions because the State failed to produce any scientific evidence such as a physical examination, rape kit, or DNA results, and the record was devoid of evidence of any vaginal or rectal injury. For a rape conviction, corroboration, scientific or otherwise, is no longer necessary to support the victim's testimony. See Warren v. State, 265 Ga.App. 109, 592 S.E.2d 879 (2004) (Warren's contention that his conviction must be reversed "because the State failed to provide corroborating scientific evidence such as DNA evidence or a rape test [was] ... patently erroneous"). The victim's testimony that Newton's private part "went on the inside" of her private part sufficed to sustain Newton's conviction for rape. See OCGA § 16-6-1(a)(2).

Similarly, the victim's testimony alone is sufficient to sustain a conviction for aggravated child molestation. OCGA...