Wilson v. State

• Decision Date: 30 November 1999
• Docket Number: No. A99A2108.,A99A2108.
• Citation: 241 Ga. App. 426,526 S.E.2d 381
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

526 S.E.2d 381

241 Ga. App. 426

WILSON v. The STATE.

No. A99A2108.

Court of Appeals of Georgia.

November 30, 1999.

Reconsideration Denied December 14, 1999.

Certiorari Denied May 5, 2000.

Patricia F. Angeli, Jonesboro, for appellant.

Ricky T. Wilson, pro se. Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Appellant Ricky Trenell Wilson appeals from his conviction for child molestation, aggravated sexual battery, aggravated child molestation, and statutory rape. We affirm.

The facts, viewed in the light most favorable to the verdict,¹ are as follows: On February 11, 1998, a 13-year-old girl, K.B., and her 14-year-old friend, J.J., went to a grocery store near their Clayton County home. Wilson, whose nickname is "Pony," approached the girls and offered them a ride in his car. The girls rode with Wilson to an apartment complex, where Wilson parked the car. Wilson was in the front seat with K.B., and J.J. was seated in the back. Wilson reached over the seat and fondled J.J.'s genitalia. He attempted to do the same with K.B., but she resisted.² Soon thereafter, Wilson took the girls back to the shopping center. School admission records for both girls showed that they were absent that day.

On the morning of March 3, 1998, Wilson called K.B. and picked her up at home; K.B. was serving a school suspension. Wilson took K.B. to his apartment. K.B. sat in Wilson's bedroom and played with his dog while Wilson took a shower. Wilson emerged naked from the bathroom and began masturbating in front of K.B. A few minutes later, after he put on his clothes, Wilson sat on the bed next to K.B. and began fondling her breasts under her bra. When K.B. told him to stop, Wilson called her a "bitch" and took her to the same shopping center as in the February incident.

Two days later, J.J. missed the bus to school and called Wilson for a ride. Wilson picked her up and took her to his apartment. J.J. testified that she sat in Wilson's bedroom and played with his dog while he took a shower. While Wilson was still naked after the shower, he approached J.J. and made her perform oral sex on him. He then had sexual intercourse with her. When he was finished, Wilson got dressed and took J.J. to school. J.J.'s school attendance record showed that she was tardy that day.

A few days later, J.J.'s sister called her from college and noticed that J.J. sounded "uneasy." After her sister kept "prying" for information, J.J. told her that she had had sex with an older man. The sister told J.J.'s mother, who then confronted J.J., who then admitted having oral sex and intercourse with Wilson. At trial, J.J.'s mother testified that she had noticed that J.J. had been very withdrawn during the days just prior to her sister's phone call, and that J.J. seemed "relieved" when her family found out about the sexual assault.

J.J.'s parents told K.B.'s mother, who questioned K.B. about Wilson. K.B. told her mother that Wilson had fondled her in February and again in March. K.B.'s mother testified that she had noticed in February that K.B.'s attitude had changed and that her grades had dropped severely.

The parents of J.J. and K.B. contacted the police, who interviewed the girls. Both girls gave similar descriptions of Wilson's apartment and bedroom, and the descriptions matched evidence obtained during a subsequent search of Wilson's apartment and admitted as evidence at trial. K.B. described Wilson as being "dark skinned," with braids, tattoos on his chest, and scratches on his side. J.J. indicated that Wilson had two tattoos on his chest and one on his arm. Detective Lilliana Stevens investigated the case, testified at trial, and took photographs of Wilson's chest and arm, which were admitted into evidence at trial. The photographs showed two tattoos on Wilson's chest and one on his right arm. Detective Stevens did not recall seeing any other tattoos.

Wilson was arrested after he was found hiding in the attic of his apartment while police were executing a search warrant. A jury trial was conducted from November 30 through December 2, 1998. Wilson moved for a directed verdict at the end of the State's evidence; the motion was denied. Wilson chose not to testify. Following his conviction, Wilson filed a motion for new trial, which was denied. He appeals. Held:

1. In his first enumeration, Wilson contends that the trial court erred in refusing to allow Wilson to display his torso to the jury. In making such request, Wilson was attempting to impeach the girls' testimony by demonstrating that he had a large tattoo on his abdomen which neither girl described during the investigation or at trial. Wilson also noted in argument that the police investigator's photograph showed only his upper chest and, therefore, did not show the abdominal tattoo. Defense counsel never made a proffer of proof for the record that an abdominal tattoo existed, when Wilson obtained such tattoo as a foundational fact, or how such evidence would be beneficial to him.

(a) The trial court ruled that Wilson could not display his torso to the jury unless Wilson took the stand and was subject to cross-examination as to when he obtained the abdominal tattoo. Based upon previous rulings by this Court, the trial court did not abuse its discretion in refusing to allow Wilson to present nontestimonial evidence, i.e., his torso, to the jury without being subject to oath or cross-examination in order to lay a foundation as to when the tattoo had been made and that it was present on the date of the crimes. See Wesley v. State, 228 Ga.App. 342, 344(4), 491 S.E.2d 824 (1997); State v. Battaglia, 221 Ga.App. 283, 284(1), 470 S.E.2d 755 (1996).

(b) Further, in order to display this type of evidence to the jury, a proper foundation must be laid, i.e., the party seeking to admit the evidence must demonstrate that it truly and accurately depicted the condition of the nontestimonial evidence at the time of the event at issue. See Miller v. State, 158 Ga. 697, 699(5)(b), 124 S.E. 195 (1924); Johnson v. State, 158 Ga. 192, 198(2), 123 S.E. 120 (1924); Chambers v. State, 159 Ga.App. 669, 284 S.E.2d 682 (1981); Curtis v. State, 141 Ga.App. 36, 39, 232 S.E.2d 382 (1977). The trial court has discretion in making the determination of whether a party has laid a sufficient foundation for introduction of the evidence, and such determination will not be disturbed on appeal absent an abuse of discretion. Cornell v. State, 265 Ga. 904, 905(2), 463 S.E.2d 702 (1995); Miller v. State, supra at 698(2), 124 S.E. 195.

In this case, when ruling on Wilson's request to display his torso to the jury, the trial court specifically reasoned that such display would not establish "whether or not he added any [tattoos] after the events, whether he had them changed or removed or added." In its subsequent order denying Wilson's motion for new trial, the trial court stated that, "[t]he clear implication, if the defendant had been allowed to exhibit [the tattoo] to the jury, would have been that it was present during the incident in question without any testimony verifying that fact." (Emphasis supplied.) The record, therefore, clearly shows that the trial court did not deny Wilson's request because he would not waive his right against self-incrimination, but because Wilson failed to establish any foundation for the evidence.³ The trial court did not abuse its discretion in so ruling. See Mize v. State, 187 Ga.App. 418, 419(1), 370 S.E.2d 525 (1988); see also Brown v. United States, 356 F.2d 230, 233-234(7) (10th Cir. 1966).

Detective Stevens observed Wilson's naked chest and abdomen to take the photographs shortly after the arrest and did not observe such abdominal tattoo. Defense counsel never specifically asked Detective Stevens if there had been an abdominal tattoo. Thus, the evidence in the record did not show an abdominal tattoo at the time of the commission of the crimes, although one may have existed at the time of trial. Further, the trial court never precluded Wilson from presenting other foundation evidence that would have established that the tattoo was present prior to March 1998. This evidence could have included, inter alia, witness testimony, business records, or photographs. Wilson failed to present, or even proffer, such foundation evidence at trial.⁴ Therefore, he waived any complaints about the trial court's exclusion of evidence of the abdominal tattoo.⁵ See People v. Perez, 216 Cal.App.3d 1346, 265 Cal.Rptr. 400 (1989).

(c) Finally, Wilson sought to impeach K.B. and J.J. by disproving facts testified to by them regarding the tattoos seen. See OCGA § 24-9-82. What Wilson contended was that they did not see an "alleged" large tattoo on his abdomen; therefore, the girls did not see him nude. However, the failure to see the "alleged" tattoo would not necessarily impeach the testimony of the witnesses, because it does not contradict the witnesses' testimony but may only demonstrate the incompleteness of it. This properly was an issue of witness identification as to weight and credibility for the jury. See Pace v. State, 235 Ga.App. 872, 873, 510 S.E.2d 617 (1999); Chergi v. State, 234 Ga.App. 548, 549(2), 507 S.E.2d 795 (1998); see also Little v. State, 135 Ga.App. 772, 219 S.E.2d 19 (1975) (whether witness saw tattoos goes to weight and credibility).

2. Wilson also challenges the denial of his motion for a directed verdict of acquittal on the statutory rape conviction. When reviewing the denial of such motion on appeal, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Ogles v. State, 218 Ga.App. 92, 93(2), 460 S.E.2d 866 (1995). This Court does not weigh the evidence or determine witness credibility, but determines only whether the evidence was sufficient for a rational trier of fact to find that Wilson was guilty beyond a...