Winston Watkins v. State , 336 Ga. App. 145 ( 2016 )

SECOND DIVISION
ANDREWS, P. J.,
BRANCH and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 10, 2016
In the Court of Appeals of Georgia
A15A2411. WATKINS v. THE STATE.
ANDREWS, Presiding Judge.
Following a jury trial, the Superior Court of Bibb County entered judgments
of conviction against Winston Watkins for one count of aggravated child molestation
(OCGA § 16-6-4 (c)) and three counts of child molestation (OCGA § 16-6-4 (a) (1)).
The trial court denied Watkins’ motion for new trial as amended. Watkins appeals,
raising a multitude of errors. For the reasons that follow, we affirm in part, vacate in
part, and remand for resentencing on Watkins’ convictions for child molestation.
1. First, Watkins argues that the State failed to prove his guilt beyond a
reasonable doubt.1 We do not agree.
1
In his enumeration, Watkins specifically asserts that the State did not “prove
[Watkins] guilty of any crime beyond a reasonable doubt.” However, the argument
in support of the enumeration purports to allege the “general grounds” as well. See
On appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to the verdict, and the appellant no longer
enjoys the presumption of innocence; moreover, an appellate court does
not weigh the evidence or determine witness credibility but only
determines whether the evidence is sufficient under the standard of
Jackson v. Virginia, [443 U.S. 307 (99 SCt 2781, 61 LE2d 560)
(1979)]. As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the State’s case,
the jury’s verdict will be upheld.
Bradford v. State, 327 Ga. App. 621 (760 SE2d 630) (2014). Relevant to this case,
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.” OCGA § 16-6-4 (c). See also OCGA § 16-6-2 (a) (1). In addition, child
molestation occurs when a person “[d]oes any immoral or indecent act to or in the
OCGA §§ 5-5-20, 5-5-21. These are separate legal arguments with different standards
for consideration. See Copeland v. State, 327 Ga. App. 520, 524, 525 (2) (759 SE2d
593) (2014). Furthermore, “[t]he decision to grant a new trial on grounds that the
verdict is strongly against the evidence is one that is solely in the discretion of the
trial court.” (Citations and punctuation omitted). Batten v. State, 295 Ga. 442, 444 (1)
(761 SE2d 70) (2014) (citing Willis v. State, 263 Ga. 597 (1) (436 SE2d 204) (1993)).
Accordingly, we will only “review the case under the standard espoused in Jackson
v. Virginia, 443 U.S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979) to determine if the
evidence, when viewed in the light most favorable to the prosecution, supports the
verdict.” Id.
2
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.” OCGA § 16-6-4 (a) (1).
So viewed, evidence revealed that the ten-year-old female victim first met
Watkins when he moved into her neighborhood on or about June 29, 2011. The two
spoke when they saw each other, and the victim would visit Watkins at his residence.
A neighbor also reported seeing Watkins kissing the victim on his front porch. In
addition, Watkins’ roommate claimed that the victim was at Watkins’ residence
“more than what she supposed to be” and that her constant presence “don’t look too
good.”
At first, Watkins would hug the victim when the two met. However, Watkins
began to touch the victim’s breasts after hugging. He also began to touch her “private
part area” both over and under her clothing. In addition, Watkins kissed the victim’s
“private area” as she lay naked on Watkins’ bed and showed the victim his penis.
Watkins also asked the victim to engage in sexual intercourse, but the victim
declined. The touching happened on more than one occasion and occurred in
Watkins’ bedroom, which the victim was later able to describe to investigators.
The victim was scared to tell her mother about the abuse because Watkins told
the victim “he’s gonna tell my mom I let him do it.” Ultimately, the victim asked her
3
mother to call police on January 1, 2012, and the victim disclosed the abuse when her
mother asked her why she wanted to talk to police. For his part, Watkins denied that
the victim had ever been inside his residence and that he had ever touched the victim
inappropriately.
In sum, we conclude that the evidence adduced at trial was sufficient for a
rational trier of fact to find Watkins guilty beyond a reasonable doubt of the crimes
for which he was convicted, including aggravated child molestation (for placing his
mouth on the victim’s vagina (Count 1)) and child molestation (for touching the
victim’s vagina (Count 2) and breasts (Count 3) and exposing himself to the victim
(Count 4)). Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979);
Bradford, 327 Ga. App. at 621; Malone v. State, 277 Ga. App. 694, 696 (1) (627
SE2d 378) (2006) (testimony of a child molestation victim alone sufficient to
authorize jury to find defendant guilty).
2. Next, Watkins contends the trial court erred in denying his plea in abatement
because the indictment did not allege the date of Watkins’ crimes with “sufficient
certainty.” Specifically, Watkins appears to argue that the State could have alleged
the dates of Watkins’ crimes more specifically than the June 30, 2011 to January 1,
2012 time frame contained in the indictment. We are not persuaded.
4
OCGA § 17-7-54 provides that an indictment must state with “sufficient
certainty” the date of the alleged offense. See also State v. Layman, 279 Ga. 340, 341
(613 SE2d 639) (2005).
Generally, an indictment which fails to allege a specific date on which
the crime was committed is not perfect in form and is subject to a timely
special demurrer. However, where the State can show that the evidence
does not permit it to allege a specific date on which the offense
occurred, the State is permitted to allege that the crime occurred between
two particular dates.
O’Rourke v. State, 327 Ga. App. 628, 631-632 (2) (760 SE2d 636) (2014) (citing
Layman, 279 Ga. at 340-341); Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d
431) (2013) (same). To that end, “[i]n meeting its burden of showing that it is unable
either to identify a specific date on which an offense occurred or to narrow the range
of possible dates, the State is required to present some evidence and may not rely
solely upon argument by counsel or mere speculation.” Blanton, 324 Ga. App. at 615
(2).
Here, the State satisfied its burden. In each count of the indictment, the State
alleged that Watkins committed the crimes charged “between the 30th day of June,
2011, and the 1st day of January, 2012, the exact date of the offense being unknown
5
to members of the Grand Jury. . . .” In response, Watkins filed a plea in abatement
arguing that “the indictment does not allege the dates of the alleged crimes with
enough specificity and does not list the dates of the alleged crimes with sufficient
particularity.” The trial court conducted an evidentiary hearing, during which the
State presented testimony that Watkins moved into a residence in the victim’s
neighborhood on June 30, 2011; that the victim disclosed to her mother, on January
1, 2012, that Watkins had been molesting her; that the molestation began after
Watkins moved to the neighborhood; and that the victim had been unable to articulate
a more specific time frame for the molestation. In addition, the trial court reviewed
a recording of the victim’s forensic interview. At the conclusion of the hearing, the
trial court observed that “[t]here is nothing that I have seen in the interview or heard
from the witnesses that leads me to believe [the State] could have done anything other
than what they’ve done.” As a result, the trial court denied Watkins’ plea in
abatement.
The evidence produced during the hearing, particularly the details concerning
the date of Watkins’ arrival in the victim’s neighborhood, that the molestation began
thereafter, and the date upon which the victim disclosed the molestation, confirmed
that the State was “unable either to identify a specific date on which an offense
6
occurred or to narrow the range of possible dates.” See Blanton, 324 Ga. App. at 615-
617 (2) (a). See also O’Rourke, 327 Ga. App. at 632 (2). Accordingly, we conclude
that the trial court did not err in denying Watkins’ plea in abatement.
3. In several enumerations, Watkins argues that the trial court erroneously
declined to give several proposed jury instructions on a variety of issues, including
accidental touching and certain lesser included offenses. Again, we find no error.
It is axiomatic that “[a] requested charge must be legal, apt, and precisely
adjusted to some principle involved in the case and be authorized by the evidence. If
any portion of the request to charge fails in these requirements, denial of the request
is proper.” McLean v. State, 291 Ga. 873, 877 (5) (a) (738 SE2d 267) (2012) (citing
Stokes v. State, 281 Ga. 875, 877 (3) (644 SE2d 116) (2007)). We examine each
proposed instruction in turn.
(a) Jury Charge No. 15. First, Watkins requested a jury instruction on
accidental touching. However, to support an instruction on accident, “the defendant
must admit to having committed an act that would constitute the crime charged.”
Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006). Therefore,”[t]he
essence of the defense of accident is that the defendant’s act is not intentional.” Id.
at 82-83 (2) (b); Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993). In
7
this case, Watkins denied any touching occurred, accidental or otherwise.
Accordingly, “[t]he theory of the case as submitted to the jury was that the
molestation either happened or it did not — not that it happened by accident.”
Haynes, 281 Ga. App. at 83 (2) (b). Because Watkins’ requested charge on accident
“was not adjusted to the evidence, the trial court did not err in failing to give the
requested charge.” Id. Compare Metts, 210 Ga. App. at 198 (2) (accident charge
required where defendant claimed he may have touched victim inadvertently when
sleeping in the same bed with victim).
(b) Jury Charge Nos. 16, 18, and 22-25. In a series of proposed charges,
Watkins asked the trial court to instruct the jury concerning the victim’s delay in
reporting the molestation, the victim’s motive for testifying, and various factors the
jury should consider in evaluating the victim’s testimony. Watkins’ arguments that
the trial court erred in declining to give these proposed charges are unavailing.
Each of Watkins’ proposed charges address the jury’s assessment of the
victim’s credibility. “There is no error in refusing to give a requested charge where
the applicable principles are fairly given to the jury in the general charge of the
court.” Madison v. State, 329 Ga. App. 856, 869 (6) (766 SE2d 206) (2014). See also
Gamble v. State, 291 Ga. 581, 582 (2) (731 SE2d 758) (2012) (“A trial court does not
8
abuse its discretion in refusing to give a jury charge in the exact language requested
when the charge given substantially covers the correct principles of law.”). Here, the
trial court instructed the jury that
[t]he jury must determine the credibility of the witnesses. In deciding
this you may consider all of the facts and circumstances of the case,
including the witnesses’ manner of testifying, their means and
opportunity of knowing the facts about which they testify, the nature of
the facts about which they testify, the probability or improbability of
their testimony, their interest or lack of interest in the outcome of the
case, and their personal credibility as you observe it.
Moreover, the trial court instructed the jury on impeachment of a witness and the
manner in which impeachment may be shown. Viewing the trial court’s jury charge
as a whole, we conclude that the trial court properly instructed the jury on the factors
it may consider in evaluating a witness’ credibility. See Gamble, 291 Ga. at 582 (2).
Accordingly, because the trial court’s instructions substantially covered the correct
principles of law, the trial court did not err in declining to give Watkins’ proposed
charges on witness credibility. See Id.; Madison, 329 Ga. App. at 869 (6).
(c) Jury Charge Nos. 19 and 20. Watkins also requested charges on the lesser
included offenses of simple assault, simple battery, and sexual battery. “[W]here the
state’s evidence establishes all of the elements of an offense and there is no evidence
9
raising the lesser offense, there is no error in failing to give a charge on the lesser
offense.” Madison, 329 Ga. App. at 869 (6). Pretermitting whether simple assault,
simple battery, and sexual battery can ever be lesser included offenses of child
molestation, see State v. Stonaker, 236 Ga. 1, 3 (222 SE2d 354) (1976), Madison, 329
Ga. App. at 869-870 (6) (a) and Rash v. State, 207 Ga. App. 585, 588 (6) (428 SE2d
799) (1993), Watkins’ proposed instructions were not tailored to the evidence in this
case. At trial, Watkins denied any improper touching of the victim while the victim
offered explicit testimony concerning Watkins’ actions. “Under this testimony,
[Watkins] either committed an act of child molestation or he did not.” Ney v. State,
227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997). As a result, “[t]he evidence in
this case offered the jury a choice between a completed crime or no crime.” Madison,
329 Ga. App. at 870 (6) (a). It follows that there was no error in declining to give the
proposed instructions on certain lesser included offenses. See Haynes, 281 Ga. App.
at 83 (2) (b).
(d) Jury Charge No. 26. Related to the charge of aggravated child molestation,
Watkins also requested an instruction on the lesser included offense of child
molestation. As noted in Divisions 3 (a) and (c), supra, Watkins alleged that no
contact occurred between the victim and himself. Accordingly, Watkins’ requested
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charge was not adjusted to the evidence and the trial court correctly declined to give
the proposed instruction. See Madison, 329 Ga. App. at 869-870 (6) (a); Haynes, 281
Ga. App. at 83 (2) (b); Ney, 227 Ga. App. at 503 (4) (g).
4. Next, Watkins asserts that his conviction for child molestation (Count 2)
should have merged into his aggravated child molestation conviction because the
“conduct set out in both counts constitutes only one single act.” We are not
persuaded.
Watkins’ argument necessarily “ignores the language of the indictment, which
based each count on different conduct.” Carver v. State, 331 Ga. App. 120, 122 (4)
(769 SE2d 722) (2015). Count 1 charged Watkins with aggravated child molestation
“by placing his mouth on the vagina of [the victim].” Count 2 alleged Watkins
committed child molestation “by touching the vagina of [the victim].” The victim
revealed that on one occasion Watkins kissed her vagina as she lay naked on
Watkins’ bed. See OCGA §§ 16-6-2 (a) (1), 16-6-4 (c). Additional trial testimony by
the victim revealed that, on separate occasions, Watkins touched the victim’s vagina
over and under her clothing. See OCGA § 16-6-4 (a) (1). Because each count of the
indictment charged Watkins with a separate and distinct crime, his convictions for
those crimes did not merge for purposes of sentencing. See Carver, 331 Ga. App. at
11
122 (4); Young v. State, 327 Ga. App. 852, 861 (6) (a) (761 SE2d 801) (2014); Cody
v. State, 324 Ga. App. 815, 827 (5) (b) (752 SE2d 36) (2013); Smith v. State, 320 Ga.
App. 408, 413 (2) (a) (740 SE2d 174) (2013); Metts v. State, 297 Ga. App. 330, 336
(5) (677 SE2d 377) (2009).
5. Finally, Watkins contends that the trial court erred in sentencing him on each
of his convictions for child molestation to a term of confinement rather than
exercising discretion and imposing split sentences.2 See OCGA § 17-10-6.2; Spargo
v. State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015). We agree.
Prior to trial, the State filed a notice of intent to produce Watkins’ prior
convictions in aggravation of sentencing. Watkins’ prior convictions included
possession of drugs by an inmate, aggravated assault, terroristic threats, entering an
automobile, and burglary.3 Based upon these convictions, the trial court sentenced
Watkins as a recidivist to life in prison on Count 1 (aggravated child molestation), 20
years in confinement on Count 2 (child molestation) consecutive to Count 1, and 20
2
We note that the State did not address this alleged error in its appellee’s brief.
3
Although Watkins objected to the admission of certified copies of the first
three convictions, the trial court admitted each over objection. Those rulings are not
assigned as error and, as a result, we need not review them. Watkins did not object
to the admission of the last two convictions.
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years in confinement on Counts 3 and 4 (child molestation) concurrent with Count
2. See OCGA § 17-10-7 (c).
Watkins asserts that OCGA § 17-10-6.2 required the trial court to sentence him
on the three child molestation convictions to a split sentence of confinement and
probation. Our analysis begins with OCGA § 16-6-4 (b) (1), which provides that “a
person convicted of a first offense of child molestation shall be punished by
imprisonment for not less than five nor more than 20 years and shall be subject to the
sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7.”
(Emphasis supplied). Next, OCGA § 17-10-7 (c) provides
any person who, after having been convicted under the laws of this state
for three felonies . . ., commits a felony within this state shall, upon
conviction for such fourth offense or for subsequent offenses, serve the
maximum time provided in the sentence of the judge based upon such
conviction and shall not be eligible for parole until the maximum
sentence has been served.
However, because Watkins had no prior conviction for child molestation, Watkins’
sentences were also governed by OCGA § 17-10-6.2 (b), which states, in part, that
“notwithstanding any other provisions of law to the contrary, any person convicted
of a sexual offense shall be sentenced to a split sentence which shall include the
13
minimum term of imprisonment specified in the Code section applicable to the
offense.”4 (Emphasis added). As a result, the General Assembly has mandated that in
cases in which a defendant is convicted of a “sexual offense,”5 the trial court must
include a term of probation in its sentence except in certain circumstances. See
OCGA § 17-10-6.2 (b), (c); Spargo, 332 Ga. App. at 411; Clark v. State, 328 Ga.
App. 268, 269, 270 (1) (761 SE2d 826) (2014); New v. State, 327 Ga. App. 87, 108
(5) (755 SE2d 568) (2014).
As we have noted recently, “[OCGA § 17-10-6.2] authorizes the trial court to
issue a split sentence that includes at least five years of imprisonment and at least one
year of probation, for a total of no more than twenty years.”6 Clark, 328 Ga. App. at
270 (1). Because the trial court failed to impose a split sentence, we vacate Watkins’
4
“Sexual offense,” by definition, includes child molestation. OCGA § 17-10-
6.2 (a) (5). The definition does not include aggravated child molestation.
5
See OCGA § 17-10-6.2 (a).
6
Indeed, a sentence totaling 20 years would be required under the sentencing
in this case. See OCGA § 17-10-7 (c). See also New, 327 Ga. App. at 109 (Ray, J.,
concurring); Jefferson v. State, 309 Ga. App. 861, 865 (2) (711 SE2d 412) (2011)
(“although OCGA § 17-10-7 (c) prohibits parole, it does not dispense with the trial
court’s discretion to probate or suspend part of a sentence”) (punctuation omitted),
overruled in part on other grounds, Maddox v. State, 322 Ga. App. 811 (746 SE2d
280) (2013).
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sentences for the three child molestation convictions7 and remand for resentencing.
See Spargo, 332 Ga. App. at 411; Clark, 328 Ga. App. at 270 (1).
Judgment affirmed in part and vacated in part, and case remanded for
resentencing. Branch and Peterson, JJ., concur.
7
Watkins’ life sentence for the crime of aggravated child molestation is
affirmed. See OCGA §§ 16-6-4 (c), (d) (1); 17-10-7 (c).
15