State v. Williams

• Decision Date: 10 February 2020
• Docket Number: S19G0005
• Citation: 838 S.E.2d 764,308 Ga. 228
• Court: Georgia Supreme Court
• Parties: The STATE v. WILLIAMS.

308 Ga. 228

838 S.E.2d 764

The STATE

v.WILLIAMS.

S19G0005

Supreme Court of Georgia.

Decided: February 10, 2020

Shannon Glover Wallace, District Attorney, Zachary Holman Smith, Cliff Head, A.D.A., Cherokee County District Attorney's Office, 90 North Street, Suite 390, Canton, Georgia 30114, for Appellant.

Layla Hinton Zon, District Attorney, Alcovy Judicial Circuit District Attorney's Office, 1132 Usher Street, N.W., Suite 313, Covington, Georgia 30014, Robert Wright Smith, Jr., Prosecuting Attorneys' Council of Georgia 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260, Samuel Richard d'Entremont, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Amicus Appellant.

Bernard Stephen Brody, Brody Law Firm, 1180 West Peachtree Street, Ste 2075, Atlanta, Georgia 30309, for Appellee.

Benham, Justice.

We granted a writ of certiorari to determine whether the Court of Appeals correctly reversed Kenneth Howard Williams’ conviction for aggravated sexual battery ( OCGA § 16-6-22.2¹ ) based on its conclusion that the trial court gave an erroneous charge to the jury concerning an underage victim's capacity to consent. The parties addressed the following questions in their briefing and at oral argument:

(1) Is the State required under OCGA § 16-6-22.2 to show lack of consent in order to prove an aggravated sexual battery against an alleged victim under the age of 16?

(2) If so, did the Court of Appeals err in applying the "pipeline rule" to reverse Williams's conviction for aggravated sexual battery?

Now having considered the parties’ briefs and arguments, we reverse the judgment of the Court of Appeals in part² for the reasons set forth below.

The record shows that in September 2015, Williams was convicted of aggravated sexual battery, among other charges,³ for molesting his four-year-old step-granddaughter. See Williams v. State , 347 Ga. App. 6, 815 S.E.2d 590 (2018). The Court of Appeals set forth the underlying facts of the case as follows:

The evidence adduced at trial showed that in 2013, E. H., who was four years old at the time and staying at her grandmother and Williams’ house, contacted her mother via FaceTime, crying and asking to come home. Williams was E. H.’s step-grandfather. In the car on the way home, E. H. told her mother that she had a "secret" with Williams, whom she called "Poppy." E. H. said that Williams had been touching her privates. At trial, E. H. responded affirmatively when asked if Williams touched her "in" her privates, but also testified that he only touched her on the outside of her privates and that her panties were "up" when he touched her. Specifically, E. H. told her mother, "Poppy touches my hoo-hoo and I touch his wee-wee." These were words that E. H.’s family used, respectively, to refer to the vagina and the penis. E. H. later made a consistent report about the touching to her father, and was upset and crying when she did so. E. H.’s behavior was matter-of-fact and normal when she relayed this information to her mother. The mother said E. H. was "adamant" that the touching had happened. At some point in 2013, E. H. told her mother that Williams "had put his finger inside her vagina."

After E. H. made the outcry to her mother, Williams told his wife, E. H.’s grandmother, about a number of incidents occurring between September 2012 and July 2013 in which E. H. approached him, squeezed his penis or testicles, sometimes punched his testicles, and took his finger to touch her vagina. The grandmother testified that Williams demonstrated for her how he touched E. H. at the top of her vagina, on the outside, and agreed that it was "undisputed" that this had happened. The grandmother testified that Williams never said specifically that he did not put his finger inside E. H.’s vagina. The grandmother took notes on these incidents in an e-mail that she eventually sent to E. H.’s mother and from which she was questioned at trial. When asked if E. H. "would touch his penis and he would touch her vagina," the grandmother said Williams had told her that it did not happen on each visit, but "[i]f it happened, it only happened once" each time E. H. visited.

Jill Hesterlee, a registered nurse and forensic interviewer, interviewed E. H. in August 2013 at the Carroll County Child Advocacy Center. It was a recorded video interview, which was tendered into evidence and played for the jury. During the interview, Hesterlee showed E. H. drawings of male and female subjects, and had her identify various body parts. E. H., pointing at the genitals on the drawings, said that "Poppy" (Williams) touched her and she touched him, more than once, in places that were not okay, but that "he said it was okay" and "we don't want grammy to see because it was just our secret." E. H. also told Hesterlee that she and Williams pulled their pants and underwear down, and that he touched her vagina "with his fingers." When Hesterlee asked E. H. whether Williams touched her "hoo-hoo" (vagina) on the outside or the inside, E. H. responded, "both" and "both, sometimes." Asked what this felt like, E. H. responded, "It tickles a little bit and it feels so good ... it feels good in and out." E. H. said she did not want Williams to stop. Hesterlee then asked, "So he does his finger in and out?" E. H. nodded affirmatively.

E. H. told a counselor, whom she was seeing at the time of trial, that she felt bad for not telling Williams "no" when he touched her, that she wanted the touching to stop, and that she did not feel comfortable.

Id. at 7-8, 815 S.E.2d 590.

After the close of evidence at trial, the trial court instructed the jury as follows:

A person commits the offense of aggravate[d] sexual battery when one intentionally penetrates with a foreign object the sexual organ of another person without the consent of that person. ... As I previously charged, a child under the age of 16 cannot legally consent to any sexual act.

Id. at 9, 815 S.E.2d 590. The jury subsequently returned a verdict of guilty on the charge of aggravated sexual battery. Williams appealed his conviction for that charge.

In 2018, the Court of Appeals reversed Williams’ conviction. In support of its decision, the Court of Appeals relied on this Court's decision in Watson v. State , 297 Ga. 718, 777 S.E.2d 677 (2015), in which we held that to sustain a charge of sexual battery ( OCGA § 16-6-22.1⁴ ), the State is obligated to provide "actual proof of the victim's lack of consent regardless of the victim's age." In addition, the Court of Appeals relied on its own precedent in Duncan v. State , 342 Ga. App. 530, 804 S.E.2d 156 (2017), which in turn relied on Laster v. State , 340 Ga. App. 96, 796 S.E.2d 484 (2017). In those cases, the Court of Appeals extended our reasoning in Watson beyond the sexual battery statute and applied it to the aggravated sexual battery statute. Id.⁵ Therefore, the Court of Appeals concluded that the above jury instruction was improper to the extent it relieved the State of its obligation to present "actual proof" of the underage victim's lack of consent. See Williams , 347 Ga. App. at 10-11, 815 S.E.2d 590. While it was not improper for the Court of Appeals to rely on the reasoning in Watson , we nevertheless conclude that Williams’ conviction for aggravated sexual battery may stand.

1. Because Watson , Duncan , and Laster were decided after Williams’ trial but before his appeal was complete, the Court of Appeals used the "pipeline rule" to reach the merits of his claim. This was error. The trial record shows Williams did not object to the trial court's jury instruction about the age of consent as it related to aggravated sexual battery. Inasmuch as Williams did not object to the trial court's jury instruction at trial, the matter may only be reviewed for plain error.⁶ See OCGA § 17-8-58 (b) ; State v. Herrera-Bustamante , 304 Ga. 259 (2) (a)-(b), 818 S.E.2d 552 (2018). See also Givens v. State , 294 Ga. 264 (2), 751 S.E.2d 778 (2013).

2. This Court has explained plain error analysis as follows:

To show plain error, [Williams] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Punctuation omitted.) Lupoe v. State , 300 Ga. 233 (4), 794 S.E.2d 67 (2016).

Thus, the first and second prongs of the plain error test require a showing of an un-waived error that is clear and not reasonably disputed. Id. Additionally, when applying the second prong of the plain error test, we look to the law existing at the time of appeal. See Lyman v. State , 301 Ga. 312 (2), 800 S.E.2d 333 (2017). In light of our decision in Watson , as well as the Court of Appeals’ subsequent decisions in Duncan and Laster , we agree with the Court of Appeals that the trial court's instruction on underage consent was clearly erroneous when coupled with the charge on aggravated sexual battery. In Watson , we recognized that lack of consent was a textual element of the crime of sexual battery. 297 Ga. at 719, 777 S.E.2d 677. We also determined that the crime of sexual battery does not actually require sexual contact and, if broadly construed, could include a wide range of benign conduct. Id. at 720, 777 S.E.2d 677. Thus, we held that the statute is most reasonably construed to require proof of lack of consent even when the victim is under the age of sixteen. Id. Finally, we concluded that the instruction that a person under sixteen cannot consent to sexual conduct, while a correct statement of the law as to some offenses (e.g., child molestation), could not be applied to the crime of sexual battery. Id. at 721, 777 S.E.2d 677.

As with the sexual battery statute, the offense of aggravated sexual battery, which also lists lack of consent as a textual element of the crime, does not require that the...