Tudor v. State

• Decision Date: 19 March 2013
• Docket Number: No. A12A1676.,A12A1676.
• Citation: 320 Ga.App. 487,740 S.E.2d 231
• Parties: TUDOR v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 487

740 S.E.2d 231

TUDOR

v.The STATE.

No. A12A1676.

Court of Appeals of Georgia.

March 19, 2013.

Lora Michelle Alsher, Christopher Gordon Paul, Cartersville, for Appellant.

Herbert McIntosh Poston, Jr., Dist. Atty., Susan Franklin, Asst. Dist. Atty., for Appellee.

BRANCH, Judge.

James Melvin Tudor was tried by a Whitfield County jury and convicted of two counts of aggravated sexual battery,¹ four counts of child molestation,² and one count of enticing a child for indecent purposes.³ He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to sustain his convictions. Finding that the evidence supports the jury's verdict, we affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514, 702 S.E.2d 747 (2010). So viewed, the record shows that this case involved three victims: B.C., her younger sister H.C., and R.H. At the time of the incidents in question, B.C. was seven years old and H.C. and R.H. were each four years old. Tudor's wife, Donnelle, babysat all of the victims in the couple's home. On April 7, 2009, Donnelle left B.C. and H.C. in the care of her husband while she went to pick up her grandchildren from school. That evening, B.C. reported to her mother that when Donnelle left the home, she and H.C. were sitting on the sofa in the living room watching cartoons. After Donnelle departed, Tudor called her into the kitchen area of the home, told B.C. to lean across the kitchen table, and stuck his hand down her pants. B.C. also told her mother that H.C. was present when Tudor molested her. When questioned by her mother, H.C. confirmed that she saw B.C. bent over the kitchen table and Tudor sticking his hand down her pants.

The mother reported this incident to the Whitfield County Sheriff's Department, which arranged for her to take B.C. to a local hospital. Once at the hospital, B.C. was interviewed by both the detective assigned to investigate her claims as well as the nurse who examined her for signs of possible sexual molestation. B.C. gave substantially similar accounts to both the detective and the nurse of what Tudor had done. Specifically, B.C. told both of them that after Donnelle left the house that day, Tudor called B.C. into the kitchen and told her to lie across the kitchen table. He then placed his hands inside B.C.'s pants, beneath her underwear, and fondled her vaginal area and digitally penetrated her anus. Despite B.C.'s protests, Tudor did not stop until Donnelle returned to the residence. Tudor gave B.C. a piece of candy, and told her several times not to tell anyone what had happened, warning her that if she did, she would not get any more candy.

B.C. also told the detective that her younger sister, H.C., was present in the kitchen when Tudor molested her. Additionally, B.C. repeated her account of what had occurred during an interview conducted by a certified forensic interviewer. This interview was recorded and that recording was introduced into evidence at trial and played for the jury. The forensic interviewer also conducted an interview of H.C., and a recording of that interview was introduced into evidence and played for the jury. During that interview, H.C. confirmed that she had been present in the kitchen when Tudor molested her sister, and that afterward Tudor had given them candy.

The nurse who examined B.C. at the hospital is certified as an advanced sexual assault nurse examiner, and she was qualified as an expert at trial. During the physical exam of B.C., the nurse observed symptoms in B.C.'s genital and anal areas that were consistent with someone fingering, rubbing, or digitally penetrating those areas. The nurse made clear that she could not state definitively whether digital penetration, other trauma, or fondling had occurred; she could only say that the physical symptoms she observed were consistent with that type of trauma.

As a result of the interviews and the physical exam of B.C. at the hospital, Tudor was arrested. Donnelle Tudor then contacted the father of R.H., another young girl whom she babysat. The father subsequently asked R.H. if Tudor had ever “played” with her. The child declined to answer the question at the time. Later that day, however, R.H. volunteered to her father that on at least one occasion she had been napping at the Tudor home and woke to find Tudor with his hand down her pants, fondling her buttocks. The father contacted the detective investigating the allegations of molestation relating to B.C., and the detective arranged for a forensic interview of R.H. During that interview, R.H. repeated her account of how Tudor had molested her. A recording of that interview was introduced into evidence at trial and played for the jury.

The State also introduced similar transaction evidence which showed that approximately ten years earlier Tudor had been accused of and investigated for sexually molesting his great-niece, C.K.⁴ Specifically, the evidence showed that Donnelle Tudor babysat C.K. five days a week, in the Tudor home, for a period of approximately four to six months. On the day in question, Donnelle went to the store and left C.K., who was then seven years old, in the care of Tudor. Tudor told C.K. to stand in front of him and when she did so, he unzipped her pants, placed his hands beneath her underwear, and fondled her vaginal area and her buttocks. Tudor then told C.K. not to tell anyone what had happened.

Tudor testified in his own defense at trial and denied all of the allegations against him.

Based on this evidence, the jury found Tudor guilty. On appeal, he contends that the evidence does not support the jury's verdict.

1. Tudor contends that the evidence is insufficient to support his convictions for aggravated sexual battery and child molestation, because the physical evidence presented by the State to support these allegations was “inconclusive.” This argument is devoid of merit.

Physical evidence of a sexual battery or molestation of a child is not necessary to obtain a conviction for either of those crimes. See, e.g., Lee v. State, 306 Ga.App. 144, 145(1), 701 S.E.2d 582 (2010) (to sustain a conviction for aggravated sexual battery, “penetration of the victim's sexual organ need only be slight and a physical injury need not be shown”) (citation omitted); Dew v. State, 292 Ga.App. 631, 633(1)(b), 665 S.E.2d 715 (2008) ( “a conviction for child molestation does not require a showing that the victim was touched beneath her clothing”) (citation, punctuation and footnote omitted). Moreover, in determining whether the evidence suffices to sustain a conviction, our review is not limited to the physical evidence presented. Rather, “we ask whether, after viewing [all of] 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.” (Citation and punctuation omitted.) Louisyr v. State, 307 Ga.App. 724, 727–728(1), 706 S.E.2d 114 (2011).

Here, the evidence presented included physical evidence of trauma to B.C. that was consistent with both aggravated sexual battery and molestation. That physical evidence, together with the consistency of the victims' statements to the outcry witnesses, law enforcement, and the forensic interviewer, the similar transaction testimony, and the evidence showing opportunity, sufficed to establish each element of the charges of aggravated sexual battery ⁵ and child molestation.⁶ See Inman v. State, 295 Ga.App. 461, 464–465(2), 671 S.E.2d 921 (2009) (“[e]vidence that appellant's finger penetrated the sexual organ of the victim was sufficient for the jury to find beyond a reasonable doubt that appellantcommitted an act of aggravated sexual battery”) (citation and punctuation omitted); Howard v. State, 268 Ga.App. 558, 559, 602 S.E.2d 295 (2004) (evidence, which included victim's consistent statements to multiple persons about the defendant's molestation of her and injuries consistent with molestation sufficed to find defendant guilty of child molestation and aggravated child molestation). And although Tudor testified that he did not commit the charged offenses, the jury was not required to believe his testimony. “As we have explained before, it is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation and punctuation omitted) Heidt v. State, 292 Ga. 343, 345(1), 736 S.E.2d 384 (2013).

2. Attempting to expand the application of the Georgia Supreme Court's decision in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008),⁷ regarding kidnapping offenses, Tudor argues that the evidence against him failed to satisfy the asportation element required for enticing a child for indecent purposes. We disagree, noting that enticing a child for indecent purposes is a markedly different crime from kidnapping.

Under Georgia law, “[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). Both this Court and the Georgia Supreme Court have held that the element of “soliciting, enticing, or taking” of a child requires asportation—i.e., to satisfy this element of the crime, the evidence must show some movement of or by the child. See Cimildoro v. State, 259 Ga. 788, 789(1), 387 S.E.2d 335 (1990); Heard v. State, 317 Ga.App. 663, 665, 731 S.E.2d 124 (2012). As Tudor concedes in his brief, evidence showing even slight movement of the victim will satisfy the asportation element of enticing a child for indecent...