Stone v. State

• Decision Date: 11 January 2021
• Docket Number: A20A2111
• Citation: 853 S.E.2d 682,358 Ga.App. 98
• Parties: STONE v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 98

853 S.E.2d 682

STONE

v.The STATE.

A20A2111

Court of Appeals of Georgia.

January 11, 2021

Debra Kay Jefferson, Lawrenceville, for Appellant.

Patsy A. Austin-Gatson, Daniel J. Porter, Lawrenceville, Samuel Richard d'Entremont, for Appellee.

Brown, Judge.

Following a bench trial, Ronnie Antwan Stone was convicted of rape, aggravated child molestation, statutory rape, enticing a child for indecent purposes, and contributing to delinquency of a minor.¹ He appeals his convictions and the denial of his amended motion for new trial, contending that insufficient evidence supports his convictions for enticing a child for indecent purposes and aggravated child molestation. He further contends that the trial court failed to exercise its discretion to act as the "thirteenth juror" in ruling upon his amended motion for new trial and that his convictions for rape and aggravated child molestation should have merged for sentencing purposes. We affirm.²

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court's judgment of conviction, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

(Citation and punctuation omitted.) Mays v. State , 306 Ga. App. 507, 703 S.E.2d 21 (2010). So viewed, the evidence presented at Stone's trial reflects that Stone was dating the older sister of 15-year-old N. T., and had come to her family's Christmas dinner in 2016. On the night of December 26, 2016, Stone messaged N. T. on Facebook, and the two struck up a conversation. At some point, Stone called N. T., and it was decided that she and her cousin, T. M., who was visiting for the holiday, would go to Stone's house. Stone sent an Uber to pick up the two girls, who then snuck out of N. T.’s house.

At Stone's house, they watched a movie in his room, and N. T. smoked marijuana with Stone. T. M. then witnessed Stone and N. T. have sex before N. T. fell asleep.³ After T. M. tried waking N. T., Stone forced T. M. into another room with a bed. T. M. testified that Stone left, and she sat on the bed, but he returned, laid her down, removed her panties, and spread her legs while she tried to push him away. While Stone raped her, she told him to stop, hit him, and yelled for help. Stone then made T. M. shower, she dressed, and the two drove to the store so Stone could get money for the girls’ ride home. When they returned, N. T. told them her mom was on the way, and Stone left.

When N. T.’s mother realized the next morning that the two girls were not home, she called N. T., who was unsure where she was. Eventually, she learned that N. T. was at Stone's house, and N. T.’s sister took them to the location. N. T.’s mother called the police, who arrived at Stone's house and sent both N. T. and T. M. for sexual assault examinations.

During N. T.’s sexual assault examination, she told the nurse that she had taken an Uber sent by Stone to his home where she smoked marijuana. She did not report any sexual activity with Stone and told the nurse that she may have fallen asleep. The nurse found no physical injuries, but observed redness during the vaginal exam leading her to conclude that it had some kind of recent irritation. The nurse took buccal, vaginal, and anal swabs from N. T.

During T. M.’s examination, she also told the nurse that they had taken an Uber to Stone's house where they went into his bedroom. At some point she was told to leave the room, but refused because she was afraid of the dogs in the house. She remained in the room, wearing headphones and playing on a tablet, but saw N. T. engaging in sexual activity with Stone. T. M. told the nurse that after N. T. fell asleep, Stone forced her into another room, pushed her onto a bed, pinned her arms over her head with one hand while he pulled down her pants with the other hand, and raped her. When T. M. began vaginally bleeding, Stone stopped, but then raped her a second time on the bed and inserted his fingers into her vagina. T. M. reported to the nurse that she had not had intercourse prior to this and was in pain. The nurse testified that she was "very tender during the external exam" and was in so much discomfort that she could not insert a speculum to complete an internal exam of the vagina. The nurse took buccal and vaginal swabs from T. M. A GBI forensic biologist testified that an examination of the vaginal swabs from both victims revealed the presence of a partial YSTR DNA haplotype consistent with Stone.⁴

Stone was charged with rape (Count 1), aggravated sexual battery (Count 2), aggravated child molestation (Count 3), and enticing a child for indecent purposes (Count 4) in connection with T. M. He was charged with statutory rape (Count 5), enticing a child for indecent purposes (Count 6), and contributing to the delinquency of a minor (Count 7) in connection with N. T. During the bench trial, Stone testified in his defense and admitted having sex with both N. T. and T. M., but claimed it was consensual. He also testified that he had consensual sex with N. T. on the previous occasion she came to his house.

The trial court found Stone guilty of Counts 1, 3, 5, 6, and 7. The State consented to the trial court deviating from the mandatory minimum sentence applicable to Counts 1 and 3, see OCGA § 17-10-6.2 (c), and the court sentenced Stone to life with 20 years in confinement. Stone filed a motion for new trial, and the trial court denied Stone's motion as amended. This appeal followed.

1. Stone contends that the evidence was insufficient to support his convictions for aggravated child molestation (Count 3) and enticing a child for indecent purposes (Count 6). We disagree.

(a) Aggravated child molestation. Count 3 of the indictment alleged that Stone committed aggravated child molestation in that he "did commit an immoral and indecent act with [T. M.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of said accused and said child by inserting his finger and penis into said child's vagina, said act causing injury to said child...." Stone contends that the conjunctive language of the indictment required the State to prove that he inserted both his penis and his finger into T. M.’s vagina, and no evidence was presented showing he inserted his finger. This contention lacks merit.

Where conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged. If a crime may be committed in more than one way, it is sufficient for the [S]tate to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.

(Citations and punctuation omitted.) Riddick v. State , 320 Ga. App. 500, 501 (1), 740 S.E.2d 244 (2013). Here, even assuming the State did not present evidence that Stone inserted his finger into T. M.’s vagina, evidence that Stone inserted his penis into T. M.’s vagina was sufficient to support the crime as charged in the indictment. See id. at 501 (1), 740 S.E.2d 244 (even without evidence that defendant placed finger in child's vagina, evidence that defendant touched the child's vagina was sufficient where indictment charged defendant with child molestation by " ‘touching the child's vagina and placing his finger in her vagina’ "). See also Wilson v. State , 234 Ga. App. 375 (1), 506 S.E.2d 882 (1998).

(b) Enticing a child for indecent purposes. As to Count 6, the indictment pertinently alleged that Stone "did ... solicit, entice and take [N. T.], a child under sixteen (16) years of age, to a place ... for the purpose of indecent acts...." "A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." OCGA § 16-6-5 (a).

The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. Accordingly, neither the act of enticing a child without the requisite intent nor the intent to commit acts of indecency or child molestation without the requisite act would constitute a crime under OCGA § 16-6-5.

(Citation and punctuation omitted.) Clark v. State , 323 Ga. App. 706, 708, 747 S.E.2d 705 (2013). Stone contends that the State presented insufficient evidence that he had the requisite intent to commit indecent acts at the time he was messaging N. T. However, the subsequent act of statutory rape is sufficient evidence that Stone intended to engage in sexual activity with N. T. when he told her to come over and then paid for and sent an Uber to N. T.’s house to bring her to him. See Allison v. State , 356 Ga. App. 256, 263 (2) (b), 846 S.E.2d 222 (2020) (defendant's subsequent actions of molesting victim were sufficient to establish that he acted with requisite intent at the time he enticed victim into bedroom); Garza v. State , 347 Ga. App. 335, 337 (1) (a), 819 S.E.2d 497 (2018) (subsequent act of molestation is evidence that defendant intended to molest the victim when he told her to go to a motel with him). Moreover, N. T. testified that on the previous occasion she went to Stone's house, they kissed. Stone himself testified that the last time N. T. came over, they had sex. We find, therefore, that there was sufficient evidence for the jury to find Stone guilty of this charge beyond a reasonable doubt.

2. Stone next contends that the trial court erred by failing to consider his amended motion for new trial on...