Stepho v. State

• Decision Date: 10 November 2011
• Docket Number: No. A11A1334.,A11A1334.
• Citation: 11 FCDR 3561,312 Ga.App. 495,718 S.E.2d 852
• Parties: STEPHO v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3561

312 Ga.App. 495

718 S.E.2d 852

STEPHO

v.The STATE.

No. A11A1334.

Court of Appeals of Georgia.

Nov. 10, 2011.

Louis M. Turchiarelli, Marietta, for appellant.

Garry Thomas Moss, Dist. Atty., Wallace W. Rogers, Jr., Cliff Head, Asst. Dist. Attys. for appellee.

MILLER, Presiding Judge.

Following a jury trial, Nashwan Stepho was convicted of two counts of child molestation (OCGA § 16–6–4(a)) and two counts of aggravated child molestation (OCGA § 16–6–4(c)). Stepho filed a motion for a new trial, which the trial court denied. Stepho appeals, contending that the evidence was insufficient to sustain his conviction. He further contends that the trial court erred in admitting his prior conviction for sexual battery as similar transaction evidence at trial and in denying his motion to sever offenses. For the reasons that follow, we discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation omitted.) Mullis v. State, 292 Ga.App. 218, 664 S.E.2d 271 (2008).

So viewed, the trial evidence shows that on an occasion during the summer of 2006, the 12–year–old female victim, A.P., accompanied by her friend, B.C., visited the 13–year–old male victim, R.S., at his grandmother's residence. Following the visit, Stepho, who was R.S.'s paternal uncle, agreed to drive the girls home. A.P. sat next to Stepho in the front passenger seat of the vehicle, while B.C. sat in the back seat. As he was driving, Stepho reached out to A.P., put his hand down her shirt, and touched A.P.'s breast. B.C. observed Stepho's molestation act. A.P. pushed Stepho's hand away and said, “Please stop.”

Following the incident, A.P. and B.C. convinced Stepho to stop at a nearby store. Upon entering the store, A.P. went into the restroom, used a cell phone to call R.S., and informed R.S. of the molestation incident. A.P. then left the restroom, took the cell phone to Stepho, and allowed R.S. to speak to Stepho regarding the incident. After being reprimanded by R.S., Stepho apologized to A.P. Upon re-entering Stepho's vehicle, A.P. sat with B.C. in the back seat. R.S. stayed on the phone with A.P. until she arrived at her residence and the girls exited Stepho's vehicle.

Later that evening, A.P. told her best friend about the molestation incident. Eventually, A.P. also disclosed the molestation to her cousin. In turn, A.P.'s aunt was informed of A.P.'s disclosure, and the matter was reported to law enforcement authorities.

While investigating the incident involving A.P., the detective spoke to R.S. After R.S. spoke with the detective regarding A.P.'s molestation incident, R.S. disclosed to his school counselor that he also had been sexually molested by Stepho. R.S. reported that Stepho had been molesting him since he was nine years old. R.S. described that on one occasion, Stepho laid on top of R.S. and placed his penis on R.S.'s anus. R.S. also described an incident in which Stepho forced R.S. to rub his penis. R.S. stated that on other occasions, Stepho placed his penis inside R.S.'s mouth.

Both A.P. and R.S. were interviewed by an expert child forensic interviewer. During their respective forensic interviews, A.P. and R.S. disclosed details regarding the molestation incidents perpetrated upon them by Stepho. The forensic interviews were recorded on videos, which were admitted into evidence and played for the jury at trial.

The State also presented evidence of a similar incident that occurred in May 2006, in which Stepho committed a sexual battery of a female victim by touching her breast.¹ Stepho was charged and entered a guilty plea to the sexual battery offense.

Following the presentation of the evidence, the jury found Stepho guilty of each child molestation and aggravated child molestation offense, as charged.

1. The evidence set forth above was sufficient to sustain Stepho's conviction. See OCGA § 16–6–4(a), (c) (defining child molestation and aggravated child molestation). Although Stepho argues that there was no evidence corroborating R.S.'s molestation claim, his argument is unavailing. The uncorroborated testimony of a child victim is sufficient to support a conviction for child molestation and aggravated child molestation. See Daniel v. State, 296 Ga.App. 513, 515–516(1), 675 S.E.2d 472 (2009); Sewell v. State, 244 Ga.App. 449, 451(1)(c), 536 S.E.2d 173 (2000). Although R.S. recanted his prior statements concerning Stepho's acts of sodomy, his recantation did not preclude a conviction on the aggravated child molestation offenses. See Lewis v. State, 278 Ga.App. 160, 161–162(1)-(2), 628 S.E.2d 239 (2006) (ruling that the victim's recantation did not render the evidence against the defendant insufficient since the victim's prior inconsistent statements describing the sexual activity were substantive evidence establishing the defendant's guilt). R.S.'s prior inconsistent statements concerning Stepho's acts of sodomy were allowed to serve as substantive evidence of Stepho's guilt. Id.

Stepho's challenges to the credibility of the victims' molestation reports likewise afford no basis for reversal. “[R]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (Punctuation and footnote omitted.) Hernandez v. State, 304 Ga.App. 435, 436(1), 696 S.E.2d 155 (2010). We will not disturb the jury's credibility findings on appeal. Id.

In addition, Stepho's contention that the verdict was against the weight of the evidence affords no basis for reversal.

[A]lthough the trial court was empowered with the authority to grant a new trial after weighing the evidence in accordance with OCGA § 5–5–21, [ ²] the trial court's refusal to grant the requested relief affords no basis for reversal. The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. A trial judge's denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.

(Citations, punctuation and footnote omitted.) Souder v. State, 301 Ga.App. 348, 352(3), 687 S.E.2d 594 (2009). As stated above, the evidence established Stepho's commission of the crimes and supports the verdict. The trial court's decision denying Stepho's claim therefore will not be disturbed. Id.

2. Stepho further contends that the trial court erred in admitting the similar transaction evidence of his prior sexual battery conviction. We disagree.

Generally, evidence of prior crimes committed by a defendant is inadmissible, but exceptions to this rule have developed allowing the admission of such evidence for limited purposes, such as to show identity, plan, scheme, bent of mind, or course of conduct. The exception to the general rule has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim's testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

In order to establish the admissibility of similar transaction evidence, the state is required to make the three affirmative showings outlined in Williams v. State, [261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991) ]. First, the state must identify a proper purpose for admitting the transaction; second, the state must show that the accused committed the separate offense; and third, the state must show a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

(Punctuation and footnotes omitted.) Copeland v. State, 276 Ga.App. 834, 836–837(1), 625 S.E.2d 100 (2005).

Here, the trial court conducted a hearing pursuant to Williams, supra, and determined that Stepho's 2007 sexual battery conviction was admissible as similar transaction evidence. At the hearing, the State indicated that its purpose for introducing the 2007 sexual battery conviction was to show Stepho's course of conduct, bent of mind, and lustful disposition. These limited purposes are appropriate for the introduction of the evidence. See Copeland, supra, 276 Ga.App. at 837(1), 625 S.E.2d 100. The State's evidence showed that Stepho had pled guilty to the sexual battery, establishing that Stepho had committed the separate offense. The evidence also showed that both the prior sexual battery and the molestation of A.P. involved...