Smith v. State

Decision Date14 October 2021
Docket NumberA21A0879
Parties SMITH v. The STATE.
CourtGeorgia Court of Appeals

John R. Monroe, for Appellant.

Fani T. Willis, Kevin Christopher Armstrong, Atlanta, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Deanta Marcell Smith was convicted of numerous sexual offenses against 15-year-old C. M.: rape, aggravated sexual battery, and several counts of child molestation and sexual battery. On appeal, he challenges the sufficiency of the evidence as to some of those counts, but the evidence authorized his convictions. He also argues that the trial court erroneously instructed the jury on the crime of aggravated sexual battery, but he did not object to the jury charge on that ground and has not shown plain error. Finally, he argues that his trial counsel was ineffective, but he has not shown both deficient performance and prejudice. So we affirm.

1. Sufficiency of the evidence.

Smith challenges the sufficiency of the evidence on six of the eleven counts on which he was convicted: Count 1 (rape); Count 2 (child molestation); Count 3 (child molestation); Count 7 (aggravated sexual battery); Count 8 (child molestation); and Count 11 (sexual battery). When evaluating the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted). "On appeal, this [c]ourt does not reweigh the evidence or resolve conflicting testimony." Gobert v. State , 311 Ga. 305, 308 (1), 857 S.E.2d 647 (2021) (citation and punctuation omitted). "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the jury's verdict will be upheld." Atkins v. State , 342 Ga. App. 849, 851 (1), 805 S.E.2d 612 (2017) (citation and punctuation omitted).

The trial evidence, viewed in the light most favorably to the jury's verdict, showed that in August 2016, Smith was the boyfriend of C. M.’s mother and he lived near them and sometimes spent the night at their house. On August 3, 2016, 15-year-old C. M. was babysitting some younger family members at the house when Smith arrived. No other adults were in the house at the time and C. M. was alone in one of the bedrooms. Smith entered that room and asked C. M. if she would "jack him off," which she understood to mean putting her hand on his penis. C. M. felt the question was inappropriate and she left the room without replying, locked herself in the bathroom, and took a shower. When she emerged from the shower she thought Smith was asleep.

Later that evening, Smith entered a bedroom where C. M. was sleeping. He began touching C. M.’s "private area" beneath her clothing and sucking on her breasts. Smith then picked up C. M. and took her to another bedroom, where he pulled down both his and her pants. In a forensic interview, C. M. stated that Smith "was sticking his private part in [her] private area." At trial, she testified that, as she lay on her back, Smith rubbed his penis "on" and around her vagina. Smith's actions hurt C. M. and made her feel "nasty" and "dirty." Smith then got up, thanked C. M., and pulled up his pants. C. M. fled the bedroom and went into the bathroom, crying. At that time she was too scared to tell anyone what had happened.

On a subsequent evening, C. M. was asleep on a couch in the living room of the house and all of the other people in the house were also asleep when Smith entered the room and laid behind C. M. on the couch. Smith touched C. M.’s "butt" and put his finger in her vagina, hurting her. He also sucked her breasts again. He then gave C. M. five dollars and left. C. M. did not like what had happened, but at the time she did not tell anyone about it.

In late September 2016, C. M. made an outcry about these events to two of her cousins, and one of them immediately reported the conversation to C. M.’s aunts. This led to a conversation between C. M., her aunts, and her mother about what had happened. Afterward, C. M. spoke with the police, gave a forensic interview, and had a medical examination. Due to the passage of time, the medical examination resulted in no physical evidence.

(a) Rape (Count 1).

Smith challenges the sufficiency of the evidence authorizing his conviction for rape, arguing that there was no evidence of penetration. "[P]enetration of the female sex organ by the male sex organ" is a required element of the offense of rape. OCGA § 16-6-1 (a). But the necessary penetration "need be only slight; it is not necessary that the vagina shall be entered, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient."

Loyd v. State , 288 Ga. 481, 491 (4) (c), 705 S.E.2d 616 (2011) (citations and punctuation omitted).

At trial, C. M. testified that Smith did not put his penis inside her vagina. But she testified that he "rubb[ed] his penis around [her] vagina," and she answered affirmatively when the prosecutor asked her if Smith put his penis "on [her] vagina." C. M. also stated in her forensic interview (which was played for the jury at trial) that Smith "laid [her] on the bed" and "was sticking his private part in [her] private area," hurting her. (Emphasis supplied.)

From this evidence, the jury could infer that Smith's penis had entered the anterior of C. M.’s sex organ, which was sufficient to authorize a finding of the penetration necessary for Smith to be convicted of rape. See Martin v. State , 298 Ga. 259, 265 (1) (b), 779 S.E.2d 342 (2015) (victim's testimony that defendant had "started to have sex" with her but was unable to "keep an erection" was sufficient to show penetration), disapproved in part on other grounds by Willis v. State , 304 Ga. 686, 706 (11) (a) n. 3, 820 S.E.2d 640 (2018) ; Skillern v. State , 240 Ga. App. 34, 35 (1), 521 S.E.2d 844 (1999) ("[t]he victim's testimony that defendant tried to force himself into her and that this hurt her private authorizes the rational inference that defendant penetrated the victim's vulva or labia with his sex organ, hurting the sensitive hymenal ring, without entering the vagina[,]" which was sufficient to authorize the jury to find the defendant guilty of rape).

(b) Aggravated sexual battery (Count 7).

Smith challenges the sufficiency of the evidence authorizing his conviction for aggravated sexual battery. A person commits that offense by "intentionally penetrat[ing] with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2 (b).

The state accused Smith of committing aggravated sexual battery by intentionally penetrating C. M.’s sexual organ with his finger. Smith argues on appeal that the evidence did not support a finding that he used his finger to penetrate her. He points to C. M.’s trial testimony that Smith inserted "something" in her vagina but that she did not know what that object was. In her forensic interview, however, C. M. stated that the object was Smith's finger and the jury was permitted to credit C. M.’s statement in the forensic interview over her trial testimony. See Atkins , 342 Ga. App. at 851 (1), 805 S.E.2d 612.

Smith also argues that it was not clear from the evidence whether he inserted the object into C. M.’s vagina or into her anus. But "[i]t is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict." Baker v. State , 273 Ga. App. 297, 299 (1), 614 S.E.2d 904 (2005) (citation omitted). The evidence authorized the jury to find that Smith inserted his finger in C. M.’s vagina, as alleged in the indictment.

Smith also argues, summarily, that there was no evidence that C. M. did not consent to Smith's act. "[T]he [s]tate is not exempt from proving lack of consent at trial merely because the victim is under the age of sixteen when establishing a violation of the aggravated sexual battery statute." State v. Williams , 308 Ga. 228, 232 (2), 838 S.E.2d 764 (2020). But this does not mean that C. M. was required to testify that she did not consent. Rather, the jury could infer that fact from other evidence. See Nembhard v. State , 360 Ga. App. 568, 571 (1), 859 S.E.2d 118 (2021) (where a rational juror could find from the evidence that the victim did not consent, the evidence was sufficient to show the lack of consent required for sexual battery even though the victim did not testify that she was scared or told the defendant to stop). C. M.’s depiction of the event in this case — Smith approaching her as she was asleep on the couch, removing the covers from her, and inserting his finger in her vagina, hurting her — was sufficient to show the necessary lack of consent.

(c) Child molestation (Counts 2, 3, and 8).

Smith challenges the sufficiency of the evidence authorizing three of his convictions for child molestation. A person commits that offense, among other ways, when he or she "[d]oes any immoral or indecent act to or 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 either the child or the person[.]" OCGA § 16-6-4 (a) (1). In Count 2, the state charged Smith with committing child molestation "by touching [C. M.’s] vagina [on August 3, 2016], with the intent to arouse and satisfy [his] sexual desires[.]" In Count 3, the state charged him with committing that offense "by asking [C. M. on August 3, 2016] to place her hands on his penis, with the intent to arouse and satisfy his sexual desires[.]" And in Count 8, the state charged him with committing that offense "by touching [C. M.’s] vagina [on a later date], with the intent to arouse and satisfy [his] sexual desires[.]"

As to Counts...

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