Ogletree v. State
| Citation | 322 Ga.App. 103,744 S.E.2d 96 |
| Decision Date | 07 October 2013 |
| Docket Number | No. A13A0373.,A13A0373. |
| Parties | OGLETREE v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Jennifer Adair Trieshmann, for appellant.
Peter J. Skandalakis, Dist. Atty., Carter Jephson Bendinger, Asst. Dist. Atty., for appellee.
Randall Floyd Ogletree was indicted for committing six sexual offenses against his seven-year-old granddaughter, K.O.; a six-year-old girl, C.B., whose father lived next door to him; and a mentally disabled seventeen-year-old female, D.C., who also lived next door to him. Specifically, the indictment alleged that Ogletree had committed against K.O.: (i) child molestation, by placing his hand on the child's vaginal area; (ii) child molestation, by showing the child photographs depicting nude persons and persons performing sexual acts; and (iii) enticing a child for indecent purposes, by soliciting and taking the child to a building for the purpose of child molestation and indecent acts. The indictment alleged that Ogletree had committed against C.B.: (iv) child molestation, by showing her photographs depicting nude persons and persons performing sexual acts; and (v) enticing a child for indecent purposes, by soliciting and taking her to a wooded area for the purpose of child molestation and indecent acts. The sixth count of the indictment charged Ogletree with committing sexual battery against D.C., by making physical contact with her breasts. Ogletree was convicted as charged. On appeal, he contends that the trial court erred by denying his motion for a directed verdict of acquittal on the sexual battery count, by failing to instruct the jury on the defense of accident, and by denying his motion for mistrial. We affirm.
The state's evidence showed the following. At the time in question, Ogletree and his wife lived next door to his son and his son's family, which included seven-year-old K.O. K.O.'s mother testified that, on April 11, 2011, K.O. told her that her grandfather (Ogletree) had been showing her books with pictures of naked people and that he kept the books in the “barn” in his back yard. The child also told her mother that, on one occasion when her grandfather had taken her riding on a four-wheeler to what the child called a “tree house,” Ogletree unzipped his pants and told her to look at him. The child told her mother further that her grandfather had told her not to tell anyone about those instances because, if she did, he would be in trouble.
The mother related K.O.'s allegations to her husband. When K.O.'s father talked to K.O., she told him that Ogletree had touched her private area, as she made a gesture with her hand. And she told him that Ogletree had taken her on four-wheeler rides to a tree house, which she described was through the woods and past a gate, and surrounded by flowers. K.O.'s father went to Ogletree's house, but only his wife was at home. Ogletree's wife followed K.O.'s father back to his own residence and confronted her husband's grandchild: She yelled at the child, and repeatedly told her, “You're lying, you need to stop lying right now.”
K.O.'s father contacted the police. That same day, April 11, a law enforcement officer went to Ogletree's residence. The officer testified that Ogletree retrieved pornographic magazines from a storage building behind his house and handed them to him.
A couple who lived in the residence on the other side of the Ogletrees' residence was visiting the Ogletrees when Ogletree led the law enforcement officer to the small building in his back yard, retrieved therefrom pornographic magazines, and handed them to the officer. The man testified that, based on the events that occurred and statements made to him at that time, he became concerned about whether Ogletree had engaged in inappropriate conduct either with his young daughter, then six-year-old C.B., or with his seventeen-year-old sister-in-law D.C., who functioned mentally as a seven- or eight-year-old child and who lived in his home.
As a result of the foregoing, K.O., C.B., and D.C. were interviewed by a forensic interviewer. K.O. said the following during her interview, which was conducted on April 12, 2011. Ogletree had led her to the small building behind his house, picked her up, then touched her vaginal area with his finger. Even though she had her clothes on, she said, “you could feel through my clothes” what he was doing—the child motioned with her finger. Ogletree had asked her whether she liked it when he “tickled her button”; when she said no, he put her down, and she ran inside the house where her grandmother was. K.O. told the interviewer that Ogletree had touched her that way before and called it “tickling her button.” On another occasion, about two months before the interview, as K.O. recalled, Ogletree drove her on his four-wheeler to a tree house, where he picked up a magazine, pointed to pictures, and told her to look. The pictures depicted naked adults; there were “boys peeing in girls' mouths” and something of a whitish color was coming out of the girls' mouths. K.O. also said during her interview that Ogletree had made her swear not to tell anyone about his showing her those pictures. An audiovisual recordingof this child's forensic interview was played for the jury.
C.B. said the following during her forensic interview, which was conducted on April 14, 2011. Ogletree had used his four-wheeler to take her and K.O. camping in a “tent” in the woods. There, he had shown the girls pictures of grownups wearing no clothes, grownups who were holding up their shirts, and grownups who were pulling down their pants. Ogletree had been teaching her and K.O. about certain male and female body parts, as she so designated: those parts that should not be touched. An audiovisual recording of this child's forensic interview was played for the jury.
Based on K.O.'s disclosures to her father, he and C.B.'s father searched for and found the “tree house” that she had described. Approximately 100 yards from K.O.'s residence, down a dirt path, through the woods, past a gate, and adjacent to a field of flowers, was a deer stand. It stood about five or six feet tall; it had four walls, a roof, and a window; about two or three people could fit inside it. And leading to the deer stand was a four-wheeler trail.
K.O. was eight years old when she testified at trial in November 2011. She stated that, when she was six or seven years old, Ogletree touched her private area and showed her “nasty” pictures that made her uncomfortable; one picture was of “a boy peeing in a girl's mouth,” and neither the boy nor the girl in the picture was wearing any clothes.
C.B. was six years old when she testified at trial. She stated that, when she was five years old, she and Ogletree rode a four-wheeler into the woods; while in the woods, Ogletree showed her magazines with “coupons or stuff” and pictures of boys and girls who were wearing clothes; and “then we came right back to his house for the other kids to ride.” When asked what she thought of Ogletree, she answered, Later during her testimony, C.B. stated that on the back of the magazines were pictures of boys and girls who were not wearing any clothes. Afterward, on re-direct, when the child was asked what her mother had told her to say, she answered, “Told me to say that I love [Ogletree] a lot and that he always give me candy but not really before dinner because it's not really good for you and he loves me and I love him.”
Seventeen-year-old D.C. testified that Ogletree was her neighbor, that he had touched her breast, and that she had not wanted him to do so. The touching, she said, had occurred when she was riding her bicycle at a neighbor's birthday party.
Ogletree called several witnesses who all testified that he had a good reputation in the community and that they would believe him under oath. Ogletree, 48 years old at his trial, Ogletree also took the stand and denied all charges. He admitted that he had given four-wheeler rides to K.O., as well as to his other grandchildren and to C.B. and D.C. But he denied ever taking either C.B. or D.C. out of his own yard, and denied ever showing C.B. any pornography or pictures depicting nudity.
Ogletree admitted, however, taking K.O. to the deer stand, which he described as with steps that “are pretty far apart.” To explain a possible, but inadvertent, touching of the girl's vaginal area, Ogletree testified that, once,
[K.O.] wanted to see the deer stand and see out of it. She had started up [the steps] and froze up and didn't want to move. I said well, just come back down and we'll go. She said, no, paw-paw. I want to see. I want to see. So I went up behind her and put my hand on her butt and pushed her on up the steps to make her go up. That's as far as it went. I did take my hand, and I might have touched her in the wrong direction. But it's never intentional. That's my baby.
Ogletree denied ever unzipping his pants while in the deer stand.
Ogletree claimed that the pornographic magazines that he had stored in the back yard building belonged to his brother. He denied showing them or any pornographic images to K.O. However, once, after opening the building to take out his four-wheeler, he testified, he discovered K.O. looking at one of the magazines, chastised her, and took it from her.
Ogletree denied ever inappropriately touching D.C., but acknowledged, “I would pick at her” when she sometimes rode her bike. Ogletree recalled that, at a birthday party,
I was picking at her, yes, juking her on her arms and on her sides. She...
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