Spires v. State

• Decision Date: 28 October 2020
• Docket Number: A20A1079
• Citation: 850 S.E.2d 854,357 Ga.App. 440
• Parties: SPIRES v. The STATE.
• Court: Georgia Court of Appeals

357 Ga.App. 440

850 S.E.2d 854

SPIRES

v.The STATE.

A20A1079

Court of Appeals of Georgia.

October 28, 2020

W. Allen Adams, for appellant.

Marie G. Broder, District Attorney, Elizabeth A. Baker, B. Ashton Fallin, Assistant District Attorneys, for appellee.

Pipkin, Judge.

Appellant Steven Spires was convicted of aggravated child molestation, incest, sexual exploitation of children, and three counts of child molestation. On appeal, Spires contends that the evidence was insufficient to sustain his convictions, that the courtroom was improperly closed during two portions of his trial, that the trial court erred in permitting the State to adduce certain testimony, and that there are merger errors. Finding no reversible error, we affirm.

The victim, B. S., is Spires’ biological daughter. B. S. moved in with Spires and his wife when she was approximately eight years old. B. S. testified that her father began having sexual intercourse with her when she was ten years old and that it occurred approximately every day until she moved back in with her mother when she was approximately twelve years old; she also testified that she performed oral sex on Spires, though she did not know how many times. B. S. testified that, while she was living with him, Spires bought her lingerie; she also testified that he bought her a smart cellular telephone and that he used this device to record the pair engaging in sexual acts. Although B. S. tried to delete the videos when she moved back in with her mother, the videos were recovered from the device by a concerned family member and then by law enforcement. The videos depict B. S. performing oral sex on and engaging in vaginal intercourse with an adult male. While the man's face cannot be seen, B. S. identified the man in the video as her father. Further, various features in the video match the master bedroom of Spires’ residence in Spalding County, Georgia; a search of Spires’ bedroom revealed underwear and lingerie matching that which is worn in the video by B. S. and the faceless man. Additionally, certain markings on Spires’ hand match those seen on the male depicted in the video.

Following the discovery of their sexual relationship, Spires took B. S. from her mother's residence and "ran away" with her. An Amber Alert was issued for B. S., and Spires had B. S. call a local news station to report that she had run away on her own and that her father had not hurt her. B. S. testified that, during this time, Spires continued to have sex with her. The jury also heard from Spires’ former girlfriend who stayed with Spires and B. S. in a hotel room while they were on the run. She testified that Spires advised her that he would be sharing a bed with B. S. and that B. S. usually slept in only a bra and underwear; she further testified that Spires and B. S. shared a bed in the hotel room. Spires and B. S. were eventually discovered in a hotel room in Henry County, Georgia. Spires was taken into custody, but was released on bond on the condition that he have no contact with B. S. Shortly after his release, however, Spires took B. S. from a group home in metro Atlanta. Spires had B. S. alter her appearance and change her name, but the pair were found approximately ten days later.

The State also presented witnesses concerning Spires’ two prior convictions for misdemeanor statutory rape. The jury first heard from K. C. who testified that she encountered Spires in an AOL chat room in 2000 when she was 13 years old and he was 16-17 years old; the pair eventually met in person. K. C. testified that, at Spires’ request, she made a video recording of herself masturbating and gave it to him; she told the jury that, at some point, he also made a video recording of her masturbating. According to K. C., her father discovered one of the recordings and forbade her from seeing Spires; however, the two continued to communicate, and Spires convinced her to "run away" with him. K. C. testified that Spires kept her secluded in a tent in the woods near his family's house where the pair engaged in sexual activity and that Spires pressured her for oral sex. K. C. explained that she wanted to leave but was afraid of Spires, who could become violent. Eventually, K. C. was returned home after law enforcement became involved. Spires subsequently pled guilty to misdemeanor statutory rape involving K. C., and the State tendered a certified copy of that September 2008 conviction.

B. K. testified that she encountered Spires in a Walmart parking lot while out with a friend in January 2003; she was 15 years old at the time, and Spires was 18 years old. On her second date with Spires, he persuaded her to have sexual intercourse in the back of an SUV; at a later date, the pair engaged in sexual intercourse in a camper. B. K. also testified that Spires tried to convince her to make a video recording of their sexual activity, but she refused. Spires subsequently pled guilty to misdemeanor statutory rape involving B. K., and the State tendered a certified copy of that August 2008 conviction.

The jury also heard from an inmate with whom Spires shared a cell during his pre-trial detention. According to the inmate, Spires discussed the charges against him at length, and identified the victim as his biological daughter. The inmate testified that Spires admitted to using his finger to penetrate B. S.’s vagina when he first started abusing her and that Spires also described a beach vacation during which the pair engaged in sexual activity. The State adduced photographs of Spires and B. S. at the beach; the photographs depict, among other things, B. S. wearing a two-piece bathing suit covered by a t-shirt, which Spires’ cellmate had described from his conversations with Spires.

Finally, the jury heard from witnesses called by the defense. Spires’ ex-wife, Julie, opined that the man in the video was not her former husband, but she acknowledged that facets of the relationship between B. S. and Spires were unusual. She testified that B. S. would call Spires by his first name and that, if there was any display of physical affection between herself and Spires, B. S. would get aggressive and jealous. Finally, Spires testified on his own behalf. He acknowledged having "run off" with B. S. and having discussed the case with his cellmate, but he denied having had any sexual contact with B. S. 1. Spires first argues that the evidence was insufficient to sustain his convictions for aggravated child mole station and two counts of child mole station. We disagree.

In addressing these claims, "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." (Emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court neither weighs the evidence nor resolves issues of witness credibility. Shepherd v. State , 353 Ga. App. 228, 228, 836 S.E.2d 221 (2019). With these principles in mind, we look to each of Spires’ claims.

(a) The first count of the indictment charges Spires with aggravated child molestation, see OCGA § 16-6-4 (c), alleging that Spires "did commit an indecent act to [B. S.], a child under the age of 16 years, involving the sexual organs of the accused and the mouth of said child, with the intent to arouse the sexual desires of himself by placing the child's mouth on ... his penis." Spires contends that the averment "placing the child's mouth on his penis" was an essential element of the charged offense but that there was no such corresponding evidence presented at trial. Instead, Spires says that the evidence tended to show that B. S. "did place her mouth on the penis of [the] accused," and, thus, that the State's evidence failed to prove the offense as alleged in Count 1 of the indictment. To be clear, Spires is not arguing that there was insufficient evidence of oral sodomy, but instead, he contends that the oral sodomy was not established as it was alleged in the indictment; Spires’ enumeration, then, is a fatal variance claim. See Brown v. State , 307 Ga. 24, 27 (1), 834 S.E.2d 40 (2019) (a fatal variance claim asserts that there is "a deviation between the allegations in the indictment and the evidence adduced at trial"). Because Spires did not raise a fatal variance claim before the trial court, this argument is waived on appeal. See Thompson v. State , 324 Ga. App. 20, 21, 749 S.E.2d 27 (2013) ("Thompson did not raise his fatal variance argument in the trial court and has therefore waived the issue for consideration on appeal.").

To the extent Spires challenges the sufficiency of the evidence, ample evidence authorized Spires’ conviction. B. S. testified that Spires would "have [her] perform ... oral sex with him," that she could not recall how many times she had performed oral sex on him, and the video depicting B. S. performing oral sex on Spires shows Spires touching his hand to B. S.’s head. Thus, the jury could have reasonably concluded that Spires placed B. S.’s mouth on his penis as alleged in Count 1 of the indictment.

(b) Spires next argues that the evidence was insufficient to sustain his convictions for two counts of child molestation, specifically, Counts 7 and 11. Count 7 charged that Spires "did commit an indecent act to [B. S.], a child under the age of 16 years, with the intent to arouse the sexual desires of himself by touching, grabbing, and squeezing [B. S.’s] buttocks during explicit conduct." Count 11 charged that Spires "did commit an indecent act to [B. S.], a child under the age of 16 years, with the intent to arouse the sexual desire of himself by touching the vagina of [B. S.]." According to Spires, B. S.’s testimony does not support either conviction and, he says, "the record is devoid of other evidence that supports the convictions for [these] acts." This argument focuses on B. S.’s testimony and ignores...