Westbrooks v. the State.

• Decision Date: 21 April 2011
• Docket Number: No. A11A0167.,A11A0167.
• Citation: 309 Ga.App. 398,710 S.E.2d 594
• Parties: WESTBROOKSv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 398
710 S.E.2d 594
11 FCDR 1361

WESTBROOKS
v.
The STATE.

No. A11A0167.

Court of Appeals of Georgia.

April 21, 2011.

[710 S.E.2d 595]

Kathleen Joan Anderson, for appellant.J. Bradley Smith, Dist. Atty., Robin Rowden Riggs, Asst. Dist. Atty., for appellee.DILLARD, Judge.

[309 Ga.App. 398] Following a jury trial, Donald Westbrooks was convicted on one count of aggravated child molestation and three counts of child molestation. Westbrooks appeals his convictions and the denial of his motion for new trial, arguing that the evidence is insufficient to support his convictions and that the trial court erred in allowing one of the State's witnesses to improperly bolster the victim's credibility. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,¹ the evidence shows that in March 2006, five-year-old S.W. came to live with her step-aunt and step-uncle after having previously lived with her father and Westbrooks, her uncle, at Westbrooks's home for several months. About one month later, S.W. was watching her step-uncle cook hotdogs when she told him—after being asked whether she liked hotdogs—that she liked hotdogs but did not like “Uncle Donald's hotdog.” When her step-uncle asked her to explain, S.W. told him that she was referring to Westbrooks's privates and that he had touched her with them and had made her put her mouth on them. Alarmed by her disclosure, S.W.'s step-aunt and step-uncle reported it to the police and took S.W. to a children's hospital to meet [309 Ga.App. 399] with a forensic interviewer at the hospital's child advocacy center.

Over the course of the next few months, S.W. met several times with a second forensic interviewer at a child advocacy center that was closer to her home. During those interviews, S.W. disclosed that while she and her father were living at Westbrooks's home, Westbrooks pulled her pants down and touched her privates with his privates, touched her privates with his hand on at least two occasions, and made her put her mouth on his privates. S.W. also told this same interviewer, as well as her step-uncle, that Westbrooks made her watch movies that depicted men and women having sexual intercourse and instructed her not to tell anyone.

Thereafter, Westbrooks was arrested and indicted on one count of aggravated child molestation and three counts of child molestation

[710 S.E.2d 596]

of S.W. ² During his trial, S.W. testified that she and her father lived at Westbrooks's home and that she had even slept in the same bed with Westbrooks while she lived there. She further testified that Westbrooks had touched her in a way that she did not like, but did not provide any details about the alleged sexual abuse. Nevertheless, S.W.'s step-uncle and the second forensic interviewer testified regarding S.W.'s detailed disclosures that Westbrooks sexually molested her. At the trial's conclusion, the jury found Westbrooks guilty on the four counts pertaining to S.W. Thereafter, Westbrooks filed a motion for new trial, which the trial court denied. This appeal follows.

1. Westbrooks contends that the evidence is insufficient to support his convictions of aggravated child molestation and child molestation, arguing generally that S.W.'s accounts of the abuse were inconsistent and lacked credibility. This contention is without merit.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.³ We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant[ ] guilty of the charged offenses beyond a reasonable doubt.” ⁴ Accordingly, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact [309 Ga.App. 400] necessary to make out the State's case.” ⁵

A person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” ⁶ A person commits aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” ⁷ Finally, a person commits the crime of sodomy “when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” ⁸

In this case, S.W. testified at trial that Westbrooks touched her in a way that she did not like, but she did not provide any details about those incidents. However, S.W.'s step-uncle and one of the forensic interviewers proffered evidence that Westbrooks sexually molested S.W., pursuant to the Child Hearsay Act, which provides that

[a] statement made by a child under the age of 14 years describing any act of sexual contact ... performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. ⁹

Specifically, both S.W.'s step-uncle and the forensic interviewer testified that S.W. disclosed that...