Schwindler v. State, A01A2365.

• Decision Date: 14 March 2002
• Docket Number: No. A01A2365.,A01A2365.
• Citation: 254 Ga. App. 579,563 S.E.2d 154
• Parties: SCHWINDLER v. The STATE.
• Court: Georgia Court of Appeals

563 S.E.2d 154

254 Ga. App. 579

SCHWINDLER v. The STATE.

No. A01A2365.

Court of Appeals of Georgia.

March 14, 2002.

Reconsideration Denied March 29, 2002.

Zipperer & Lorberbaum, Steven L. Beauvais, Eric R. Gotwalt, Savannah, for appellant.

Frank J. Schwindler, pro se.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee. MILLER, Judge.

Frank Schwindler was convicted of various counts of child molestation and one count of failing to report school attendance, all of which arose out of his operation of a boarding school that trained youth on the operation of a tall sailing ship. He raises 28 enumerations of error on appeal, none of which have merit. We therefore affirm. We also affirm the dismissal of his criminal complaint filed against the prosecuting attorney.

Construed in favor of the verdict, the evidence shows that in the mid-1990s, Schwindler organized a program/boarding school to train adolescents how to operate a tall sailing ship moored on a river in Chatham County. The students would often stay overnight on the ship. T. B., a 12-year-old male resident of Chatham County, became a member of the program in 1997. In November 1997, Schwindler brought T. B. into his onboard cabin and, touching T. B.'s penis, propositioned him. T. B. eventually consented, and Schwindler removed T. B.'s pants and underwear and performed oral sex on him. Thereafter, Schwindler invited T. B. to spend the night on the ship numerous times, where he would repeatedly perform oral sex on the boy and also (using Vaseline) masturbate himself while doing so. These sexual episodes onboard the ship occurred hundreds of times. As a reward, Schwindler purchased expensive gifts for the boy, including rollerblades, food, clothing, and a surfboard.

Similar episodes occurred in Schwindler's nearby apartment in Chatham County, where Schwindler often invited the students to sleep. Schwindler invited T. B. to sleep in Schwindler's bedroom, where Schwindler then fondled T. B.'s penis, performed oral sex on him, and using Vaseline, masturbated in the boy's presence. These sexual episodes in the apartment also occurred hundreds of times. One time Schwindler forced the boy to perform oral sex on Schwindler, and another time he arranged to have the boy and him watch a pornographic video together, which depicted young males engaging in oral and anal sex.

A Chatham County grand jury indicted Schwindler on three counts of child molestation (Count 1—touching the boy's penis, Count 2—masturbating in the boy's presence, and Count 3—showing the boy the homosexual video), two counts of aggravated child molestation (Count 4—performing oral sodomy on the boy, and Count 5—the boy performing oral sodomy on him), two counts of enticing a child for indecent purposes (Count 6—enticing the boy to the apartment, and Count 7—enticing the boy to the ship), one count of sexual exploitation (Count 8— possessing a photograph of a young boy exposing his sex organ), and one count of violating the school reporting requirements of OCGA § 20-2-690 (Count 9). The court entered a directed verdict of acquittal on the exploitation count, and a jury found Schwindler guilty on the remaining counts. Schwindler moved for a new trial and also filed a criminal complaint against the prosecuting attorney, accusing him of misconduct during the trial. After holding a joint hearing on both matters, the court in one order denied the motion for new trial and in another dismissed the criminal complaint due to a lack of probable cause. Schwindler appeals both orders. We will first address Schwindler's conviction and then the criminal complaint against the prosecutor.

1. Enumeration No. 1. Schwindler first complains that the court erred in admitting evidence obtained through two searches of his apartment conducted pursuant to search warrants. He argues that the affidavit supporting the first warrant was insufficient to provide probable cause and that the officers seized material not covered by the search warrant. After a hearing, the trial court denied Schwindler's motion to suppress.

In reviewing this enumeration, we construe the evidence in favor of the court's ruling and uphold its findings if there is any evidence to support them. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994); see Bragg v. State, 249 Ga.App. 430(1), 548 S.E.2d 121 (2001). The question is whether the testimony given in favor of the warrant provided the issuing judge a substantial basis for concluding that probable cause existed to issue the warrant. DeYoung v. State, 268 Ga. 780, 787(7), 493 S.E.2d 157 (1997); see Bragg, supra, 249 Ga.App. at 431(2), 548 S.E.2d 121. The lower court's task is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Citation and punctuation omitted.) DeYoung, supra, 268 Ga. at 787(7), 493 S.E.2d 157. The Fourth Amendment's strong preference for searches conducted pursuant to a warrant means that we accord substantial deference to the lower court's finding of probable cause and that we decide doubtful or marginal cases largely in favor of finding the warrant valid. Bragg, supra, 249 Ga. App. at 431(2), 548 S.E.2d 121.

Here the ten-page detailed affidavit underlying the first warrant reflected that the testifying officer met with numerous people about possible allegations of molestation by Schwindler. The officer met with Cody Cahoon, a student in the sailing program who described the multiple "sleep overs" on the ship and in Schwindler's apartment. Cody related that Schwindler had T. B. sleep in Schwindler's bedroom, that Schwindler maintained file cabinets and computers at the apartment, that Schwindler had various pictures of T. B. in his apartment, that a fellow student had found a dildo and a jar of Vaseline under Schwindler's mattress, that the fellow student had also discovered at the apartment a pornographic video depicting homosexual acts, and that after the training school moved to South Carolina, Vaseline was found under Schwindler's mattress in the isolated tent he shared with T. B.

The officer met with Megan Littlejohn, another student in the program. She confirmed in an audiotaped interview that she had heard sexual noises coming from the tent in which Schwindler and T. B. were sleeping in South Carolina. After she confronted T. B. about the matter, he admitted that he and Schwindler were engaging in sexual acts. Megan also discovered the pornographic video in the apartment, which she briefly watched to determine its contents. When changing Schwindler's bed linens at the apartment, she found a dildo, a book depicting male homosexual acts, and Vaseline under his bed. Her parents told the officer that they had observed Schwindler kissing and hugging T. B., something that he did not do with other students.

The officer met with Tom Anderson, a corporate pilot who served as a volunteer assistant at the sail training school. He confirmed that T. B. slept in Schwindler's apartment bedroom and in Schwindler's South Carolina tent. He related conversations with students such as Cody and Megan confirming that Vaseline had been found under Schwindler's bed in his apartment and tent. He further related that Schwindler refused to address his sleeping arrangements with T. B., leading to Anderson's resignation from the school board of directors. He stated that the training school's business records and computers were kept in the Chatham County apartment and that the school itself had many irregularities in its operation and reporting.

The officer personally drove to the South Carolina and apartment sites to confirm their locations. She ran a criminal computer check on Schwindler and learned he had previously been convicted of child molestation and arrested for producing child pornography and for molesting another child. Based on this affidavit, the court found probable cause that tangible evidence of the crimes of child molestation and violating the compulsory school attendance laws would be found at the apartment, including the person of T. B., pictures of T. B., VCR tapes depicting sexual acts, a book depicting homosexual acts, a container of Vaseline petroleum jelly, a dildo, computers, and school business records.

In executing the warrant, police did not find T. B. but did find and seize pictures of him, the VCR tape, the book, the petroleum jelly, a dildo, the computers, school business records as well as marijuana and miscellaneous papers and files. Police eventually located T. B., who recounted the molestation and included details such as the purchasing of surfboards for him, which led to a second warrant to search for those surfboards. The second warrant also sought further computer records pertaining to sexual acts. The second search resulted in the seizure of three surfboards and computer material.

We hold that the underlying affidavits provided the lower court with ample, reliable evidence to find probable cause for the searches. Much of the information was firsthand, the informants were identified and shown to be reliable, their statements were corroborated by others and by police observations, and the items were described with sufficient particularity. Cf. Bragg, supra, 249 Ga.App. at 432(2), 548 S.E.2d 121; Whitten v. State, 174 Ga.App. 867(1), 331 S.E.2d 912 (1985). The additional seized correspondence, though not specifically listed in the warrant, was sexual in nature and therefore relevant to the suspected crimes; thus, it was properly seized. See Walsh v. State, 236 Ga.App. 558, 560(1), 512 S.E.2d 408 (b), (c) (236 Ga.App. 558, 512 S.E.2d 408) (1999). 2. Enumeration No. 2. Schwindler argues that his indictment...