Nguyen v. State, A19A0872

• Decision Date: 16 July 2019
• Docket Number: A19A0872
• Parties: NGUYEN v. The STATE.
• Court: Georgia Court of Appeals

831 S.E.2d 213

NGUYEN
v.
The STATE.

A19A0872

Court of Appeals of Georgia.

July 16, 2019

831 S.E.2d 216

Danielle Frances Snook, for Appellant.

Jacquelyn Lee Johnson, Thomas Edward Buscemi, for Appellee.

Mercier, Judge.

Following a jury trial, Holden Nguyen was convicted of rape, statutory rape, two counts of child molestation, false imprisonment, and tampering with evidence. The trial court denied Nguyen’s motion for new trial, and he appeals, challenging the sufficiency of the evidence. He also argues that the trial court made several evidentiary errors, that it erred in refusing to strike a juror for cause, and that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.

1. On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. See Cuzzort v. State , 307 Ga. App. 52, 53 (1), 703 S.E.2d 713 (2010). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient for the jury to find the defendant guilty beyond a reasonable doubt. See id.

So viewed, the evidence shows that 12-year-old B. L. M. was walking home from a neighborhood store on September 4, 2012, when Nguyen drove by in a car. He waved at her, then asked whether she wanted a ride. B. L. M. accepted his offer, believing he would take her home, but he stated that he wanted to "run by his house ... to drop something off and show [her] his cat." B. L. M. went inside the house with Nguyen, who told her to come to his bedroom so that he could photograph her. B. L. M. complied, and Nguyen took several pictures of her, remarking on her beauty.

When B. L. M. attempted to leave the room, Nguyen shoved her onto the bed. B. L. M. explained that she needed to go home, but Nguyen told her to "shut up" and began hitting her. He tied her hands, pulled down her pants, raised her shirt, and kissed her chest. Although she told him to stop, he hit her again and rubbed between her legs with his hand, touching her vagina. He then raped her.

Following the assault, Nguyen apologized, instructed her not to tell anyone, and took her home. B. L. M. texted a friend whose father was a police officer, indicating that she "was almost raped by a guy" and needed to speak with the friend’s father. The father counseled B. L. M. to report the incident to

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her mother. She told her mother generally about the incident and stated that Nguyen attempted to rape her, but did not disclose the actual rape because she was afraid. B. L. M.’s mother called the police, and B. L. M. told an officer that Nguyen had touched her sexually. She also described in detail the events leading up to the touching. Again, however, she did not report the rape.

Police searched Nguyen’s home, discovering that B. L. M.’s description of the house and its contents was accurate. The officers did not find the camera referenced by B. L. M., but they located a tri-pod and a camera bag in the living room. The evidence shows that Nguyen had hidden the camera in his dishwasher, and he later asked a friend to remove it from his house. The police eventually located the camera in the friend’s home. Forensic analysis of the camera and Nguyen’s computer revealed that several photographs of B. L. M. had been taken with the camera, uploaded onto the computer, and subsequently deleted. During a recorded interview with police, Nguyen denied sexually assaulting B. L. M., but admitted that he picked her up in his car, drove her to his house, and took pictures of her in his bedroom.

After the incident, B. L. M. attempted suicide and was admitted to a mental health treatment facility. During a therapy session at the facility, she disclosed the rape to her therapist, and the new allegation was reported to police. A detective conducted a forensic interview of B. L. M., who confirmed the allegation. Although B. L. M.’s mother took her for a medical examination following the rape outcry, B. L. M. refused to take part in the exam because she was frightened. The doctor who tried to examine B. L. M. testified that she was withdrawn, appeared "very disturbed," and "was sitting almost in a fetal position[.]"

The State offered similar transaction evidence from B. W., a woman who testified that, in July or August 2012, she befriended Nguyen while waiting in line at a store. Nguyen began visiting her at her home, and on several occasions, he pinned her down and forced her to perform oral sex on him. According to B. W., she told Nguyen numerous times not to return to her house, but "[h]e would not listen to me."

Based on the evidence presented, the jury found Nguyen guilty of rape, statutory rape, two counts of child molestation, false imprisonment, and tampering with evidence. Nguyen challenges his convictions, arguing that the State offered insufficient evidence to support the jury’s verdict. We disagree.

(a) Rape . Pursuant to OCGA § 16-6-1 (a) (1), "[a] person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will[.]" The statute defines the term "carnal knowledge" as "any penetration of the female sex organ by the male sex organ." OCGA § 16-6-1 (a). On appeal, Nguyen argues that the evidence does not establish that he had carnal knowledge of B. L. M. She testified, however, that Nguyen pulled down her pants and "raped" her as she screamed and tried to resist. Asked to explain what she meant by the word "rape," B. L. M. stated: "He forced his self [sic] on to me and, yeah. I don’t really know how to describe it. I don’t want to sound nasty or anything. But he put his self [sic] inside of me." B. L. M. responded "I believe so" when asked on cross-examination whether Nguyen "had an orgasm inside [her]." She also reported to police that Nguyen "had intercourse with her."

Although B. L. M. did not define rape in the same technical terms as the statute, "witnesses are not required to describe the acts constituting the commission of crimes in statutory or technical language in order to prove the commission of such acts." Smith v. State , 320 Ga. App. 408, 410-411 (1) (a), 740 S.E.2d 174 (2013) (punctuation omitted). The language "used by witnesses to describe criminal acts may be considered in context to provide meaning, and jurors can be presumed to have some knowledge of slang expressions in common parlance in the vernacular." Id. (citation omitted). Given the testimony presented, the jury was authorized to conclude that Nguyen had carnal knowledge of B. L. M. forcibly and against her will, in violation of OCGA § 16-6-1 (a) (1). See Richie v. State , 183 Ga. App. 248, 250 (1), 358 S.E.2d 648 (1987) ("[T]he jury could reasonably

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infer that the ‘something’ defendant assaulted the victim with was his sexual organ and that the evidence was sufficient for a rational factfinder to find the appellant guilty beyond a reasonable doubt of rape.").

(b) Statutory Rape. A person is guilty of statutory rape when he "engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim." OCGA § 16-6-3 (a). The evidence described in Division 1 (a) supports the jury’s determination that Nguyen engaged in sexual intercourse with 12-year-old B. L. M. See Smith , supra ; Richie , supra. And despite Nguyen’s claim to the contrary, sufficient evidence corroborated B. L. M.’s testimony regarding the rape, including evidence that she tried to commit suicide after the attack; she reported the rape to her therapist and mother following the suicide attempt; she was withdrawn and disturbed when medical providers tried to examine her after the rape outcry; she accurately described the inside of Nguyen’s home; she appeared in several pictures taken with – but deleted from – a camera hidden by Nguyen; and Nguyen had previously forced another individual to perform oral sex on him. See Garner v. State , 346 Ga. App. 351, 355 (1), 816 S.E.2d 368 (2018) ("[T]he quantum of corroboration needed in a statutory-rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged.") (citations and punctuation omitted); Williamson v. State , 315 Ga. App. 421, 424 (1) (b), 727 S.E.2d 211 (2012) ("Slight circumstances may be sufficient corroboration [in a statutory rape case], and ultimately the question of corroboration is one for the jury.") (citation omitted).

(c) Child molestation . In two counts, the indictment charged Nguyen with child molestation by placing his hand on B. L. M.’s vagina (Count 3) and placing his mouth upon her breast (Count 4) with the intent to arouse and satisfy his sexual desires. B. L. M. testified that prior to the rape, Nguyen pulled down her pants, raised her shirt, kissed her "chest area," and touched her vagina with his hand. Based on this evidence, the jury was authorized to find Nguyen guilty of both counts of child molestation. See OCGA § 16-6-4 (a) (1) (a person commits child molestation when he or she "[d]oes any immoral or indecent...