Anderson v. State
Anderson v. State
Opinion of the Court
Based on acts of sodomy committed against J. A., his adopted daughter, James Karl Anderson was found guilty by a jury of three counts of aggravated child molestation
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient under Jackson v. Virginia.2 We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.3
Properly viewed, the evidence adduced at trial showed the following. Anderson had married the mother of the victim and had adopted the victim, J. A., when she was small. J. A.’s mother testified that “[s]o far as [J. A.] was concerned, he’s pretty well been her father.” At some point, Anderson moved out of his wife’s bedroom and into the bonus room in the family home; later, in May 2007, the month J. A. turned nine years old, Anderson moved out of the family home
J. A. was eleven years old and in sixth grade at the time of the August 2009 trial. She testified that the last time she stayed overnight at her father’s apartment, he woke her up as she was sleeping on the couch. He was naked and he told her to take her clothes off. When she refused, he got mad, pulled her clothes off, and told her to suck his penis. When she resisted, he pushed her head toward his penis and forced her to comply. He then “put his penis in [her] butt,” while moving “back and forth.” She testified that “it hurt really bad”; that she told him to stop; and that she was crying. He “kept switching back and forth” between forcing her to engage in oral sex and forcing her to engage in anal sex. He pulled a packet with writing on it from under the couch, and she felt “some stuff, something greasy” on her behind. This episode occurred when J. A. was ten years old, two or three weeks before J. A.’s recorded interview with a police investigator on October 17, 2008.
J. A. further testified that Anderson had forced her to engage in oral and anal sex on earlier occasions, although she could not remember how many times; and that the abuse began when she was in the third grade. The abuse took place first at her home and, later, at Anderson’s apartment.
On October 16, 2008, J. A., who was “sick and tired” of the abuse, made outcry to her mother. J. A. told her mother that she did not want to spend the night at her dad’s apartment. When her mother asked why, J. A. told her that her father sometimes put his penis “in her mouth and also in her butt”; and that the abuse had occurred both at her home and at Anderson’s apartment.
The next morning, October 17,2008, her mother called the police and took J. A. to the Rockdale County Sheriffs Office, where J. A. was interviewed by Jennifer Perry, a P. O. S. T.-certified investigator with the Criminal Investigation Division of the Rockdale County Sheriff’s Office. Perry testified for the state at trial. The recording of the interview was admitted into evidence without objection and was played for the jury.
In this interview, J. A. graphically described the abuse she had suffered for the two years prior to October 2008, in a manner consistent with her later testimony at trial. J. A. explained that, when the abuse began, Anderson would make J. A. put her mouth on his penis. On occasion, including the last time J. A. stayed at Anderson’s apartment overnight two weeks earlier, Anderson made J. A. suck his penis while he was licking her vagina. J. A. called this “disgusting.”
In February 2007, more than a year before her October 2008 interview with Perry, J. A., then eight years old, had made her first outcry of sexual abuse against her father. The outcry was reported to authorities, and two separate investigations were begun. The investigations were closed, however, when J. A. recanted in March 2007. Later, at the August 2009 .trial, J. A. explained that her 2007 accusation against her father “was the truth, but [she] said it was a lie to keep the family together”; and that she recanted the accusation “[b]ecause I felt like I wanted to keep my relationship with my father and I didn’t want to break the family apart.” This testimony was consistent with her statements to Perry in the October 2008 recorded interview. At that time, J. A. told Perry that she had recanted her 2007 accusation because Anderson “played the guilt trip on [her] and he was mad”; and she “did not want to be the bad guy.”
Anderson testified at trial and denied the charges against him. He called several witnesses, including investigators of J. A.’s 2007 outcry, as well as a childhood friend who testified as a character witness. At the conclusion of the trial, the jury found Anderson guilty of three counts of aggravated child molestation. His amended motion for new trial was denied, and this appeal followed.
1. In his first enumeration of error, Anderson contends that the evidence was insufficient to support his convictions for aggravated child molestation. We disagree.
A person commits child molestation when he “[d]oes 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.”
Anderson argues that the evidence was insufficient because there was no physical evidence of abuse. However, the victim’s testimony, alone, supports his convictions, despite the absence of any physical evidence, because “Georgia law does not require corroboration of a child molestation victim’s testimony.”
2. Anderson asserts that the recording of the October 2008 interview of J. A. should have been excluded from evidence, because it lacked sufficient indicia of reliability. Under the Child Hearsay Statute, OCGA § 24-3-16, the victim’s out-of-court statements are “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.” In this case, following a pre-trial hearing, the trial court ruled that this recording showed “sufficient indicia of reliability” and was admissible under OCGA § 24-3-16. “The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on
When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation:
(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and[ ] the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.14
These factors, however, “are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness.”
Here, Perry testified that the interview took place in a “children friendly” room at the sheriff’s office, outside the presence of J. A.’s mother, thus avoiding any undue influence.
J. A. admitted in the interview that she had lied in recanting her 2007 accusations, and she explained why she had done so. Any inconsistencies in her statements to her schoolmates, her 2007 outcry, her interview statements, and her testimony at trial had chiefly to do with the amount of detail she provided. These minor inconsistencies were issues going to the weight and credibility of the evidence, not its admissibility.
Further, J. A. testified as a witness at trial and was subject to cross-examination, “thus allowing [Anderson] every opportunity to cross-examine her before the jury regarding the circumstances surrounding the videotaped interview, and giving the jury the opportunity to judge her demeanor and credibility during that examination.”
We conclude that the trial court did not abuse its discretion in admitting the recording of the victim’s October 2008 interview.
3. Anderson asserts that, because the recording of the October 2008 interview lacked sufficient indicia of reliability, the trial court erred in permitting the recording to be replayed in court at the jury’s request during its deliberations. This enumeration fails. We determined in Division 2 above that J. A.’s interview provided sufficient indicia of reliability and was therefore admissible under OCGA § 24-3-16. Further, because the replay of the interview occurred under essentially the same circumstances and with essentially the same cautionary jury charge as that found appropriate in Lopez,
5. Anderson contends that the trial court erred in admitting into evidence certain items found during the execution of a search warrant at his apartment. We find no error.
On October 16, 2008, when J. A. told her mother of Anderson’s abuse, the mother, shocked and angry, immediately went over to Anderson’s apartment to confront him. She testified that, when she told him that J. A. had disclosed his abuse, he “blew up.” The next day, after interviewing J. A., Perry and deputies from the Rockdale County Sheriff’s Office executed a search warrant on Anderson’s apartment. There, they found Anderson on the floor of a bathroom closet, unresponsive and lying face down in his own bodily fluids. An ambulance was called for him. On the floor of the closet, deputies found an almost-empty bottle of vodka near Anderson’s head and a fully-loaded 9 millimeter handgun between his knee and foot. This weapon and its ammunition were admitted into evidence at trial without objection.
The deputies also found, on Anderson’s kitchen table, an envelope containing ten Falcons tickets and a white index card on which was written, in Anderson’s handwriting, “ED U HAVE BEEN A TRUE FRIEND......ALL MY FALCONS STUFF IS YOURS
Anderson asserts that the probative value of this evidence was outweighed by its prejudicial effect. However, it was for the trial court to exercise its discretion in determining the admissibility of evidence as showing consciousness of guilt.
In general, any statement or conduct of the accused tending to show consciousness of guilt is admissible in Georgia.
Judgment affirmed.
The indictment charged Anderson with committing aggravated child molestation between January 1, 2007, and October 9, 2008, by commanding the victim to place her mouth on his penis; by placing his mouth on the victim’s vaginal area; and by placing his penis in and on the victim’s anus.
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
(Footnote omitted.) Whitaker v. State, 293 Ga. App. 427 (667 SE2d 202) (2008). Accord Harvey v. State, 295 Ga. App. 458 (671 SE2d 924) (2009).
OCGA§ 16-6-4 (a) (1).
OCGA § 16-6-4 (c). OCGA § 16-6-2 (a) (1) provides that “[a] person commits the offense of sodomy when he or she performs . .. any sexual act involving the sex organs of one person and the mouth or anus of another.”
See OCGA § 24-4-8; Cobb v. State, 309 Ga. App. 70, 73 (1) (709 SE2d 9) (2011) (victim’s testimony, standing alone, was sufficient to support conviction for child molestation).
See Manders v. State, 281 Ga. App. 786, 788 (1) (637 SE2d 460) (2006). Accord Lamb v. State, 293 Ga. App. 65, 66 (666 SE2d 462) (2008).
See Jackson, supra. See OCGA§ 16-6-4 (c); Woods v. State, 304 Ga. App. 403, 405 (1) (696 SE2d 411) (2010).
(Punctuation and footnote omitted.) Barnes v. State, 299 Ga. App. 253, 254 (1) (682 SE2d 359) (2009).
(Citation and punctuation omitted.) Lopez v. State, 291 Ga. App. 210, 212 (1) (661 SE2d 618) (2008).
(Punctuation and footnote omitted.) Foster v. State, 286 Ga. App. 250, 252 (1) (649 SE2d 322) (2007).
(Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 683, 684 (1) (a) (644 SE2d 535) (2007).
(Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 224, 227 (1) (b) (644 SE2d 153) (2007). Accord Barclay v. State, 306 Ga. App. 766, 767 (1) (702 SE2d 907) (2010).
Brown v. State, 300 Ga. App. 359, 361 (2) (685 SE2d 377) (2009), citing Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).
(Citation and punctuation omitted.) Brown, supra.
Woolums v. State, 247 Ga. App. 306, 307 (1) (540 SE2d 655) (2000). Accord Krirat v. State, 286 Ga. App. 650, 656 (2) (649 SE2d 786) (2007).
See Phillips, supra, 284 Ga. App. at 228 (1) (b). See also Krirat, supra (parents’ presence during victims’ statements was not reversible error, although court notes that better practice would be to conduct victim interviews outside parents’ presence).
See Kight v. State, 242 Ga. App. 13, 16 (1) (528 SE2d 542) (2000). Accord Nelson v. State, 279 Ga. App. 859, 862 (1) (a) (632 SE2d 749) (2006).
(Citation omitted.) Phillips, supra, 284 Ga. App. at 228 (1) (b). Accord Hughes v. State, 297 Ga. App. 581, 584 (2) (677 SE2d 674) (2009).
(Punctuation omitted.) Hughes, supra, citing Phillips, supra, 284 Ga. App. at 228 (1) (b).
Supra at 213-214 (3).
(Footnote omitted.) Romani v. State, 303 Ga. App. 829, 830 (1) (695 SE2d 303) (2010).
Nguyen v. State, 273 Ga. 389, 398 (3) (543 SE2d 5) (2001) (trial court did not abuse discretion in admitting evidence of defendant’s attempt to influence witness’s testimony as showing consciousness of guilt).
Aldridge v. State, 229 Ga. App. 544 (1) (494 SE2d 368) (1997), citing Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471) (1980).
Supra.
Id. at 544-545 (1).
(Citations and punctuation omitted.) Id. at 545 (1).
See id.
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