Tommy R. Picklesimer v. State ( 2020 )

THIRD DIVISION
DILLARD, P. J.,
GOBEIL and HODGES, 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
February 18, 2020
In the Court of Appeals of Georgia
A19A2407. PICKLESIMER v. THE STATE.
HODGES, Judge.
Tommy R. Picklesimer was convicted by a jury of aggravated sexual battery
of his granddaughter, S. P., three counts of child molestation of S. P., and one count
of child molestation of a second granddaughter, M. P. Picklesimer was acquitted of
raping S. P. and one count of child molestation of S. P. Picklesimer now appeals,
contending that (1) the trial court erred in denying his special demurrer to quash the
indictment due to insufficient specificity as to the dates and places of the offenses;
(2) the conviction on one of the counts of molestation of S. P. is barred by the
acquittal on the charge of raping S. P.; (3) the trial court erred in restricting his cross-
examination of a detective as to the dates of the offenses; (4) the evidence is
insufficient to establish that the offenses occurred within the dates listed in the
indictment; (5) the trial court erred in charging the jury; (6) his statement to police
should have been suppressed because of the clergy privilege; (7) the trial court erred
in not granting a continuance to permit investigation of a subsequent allegation made
by S. P. against another individual; and (8) the evidence is insufficient as to one of
the counts to find the necessary intent to molest M. P. For the reasons that follow, we
find no error and affirm.
“On appeal from a criminal conviction, a defendant no longer enjoys the
presumption of innocence, and the evidence is viewed in the light most favorable to
the guilty verdict.” (Citation omitted.) Walker v. State, 349 Ga. App. 188 (825 SE2d
578) (2019).
So viewed, the evidence shows that Picklesimer is the grandfather of S. P. and
M. P., who both turned 9 years old in late 2004. The girls are cousins, and both of
their fathers resided with Picklesimer and his wife at that time. Both of the girls
would visit their fathers and stay overnight at Picklesimer’s home.
Before S. P.’s ninth birthday in October 2004, Picklesimer began to touch S. P.
inappropriately on her vagina, breasts, and buttocks. Picklesimer touched S. P.’s
vagina with his hand and with his penis multiple times. Picklesimer also inserted his
finger inside S. P.’s vagina, and attempted to stick two fingers in her vagina, but they
2
would not fit. Additionally, he took S. P.’s hand and made her rub his penis,
sometimes to ejaculation. On one occasion, Picklesimer woke up S. P., took off her
underwear, and told her to get on top of him. He then tried to stick his penis in her
vagina, but it would not fit, and “wet stuff came from his private.” These encounters
made S. P.’s “tummy feel sick” and made her want to cry. Picklesimer told S. P. not
to tell anyone. The abuse ended the last time S. P. visited Picklesimer’s home, which
she believes was in February 2005.
Picklesimer also touched his grandaughter M. P. inappropriately. Specifically,
he took M. P.’s hand and made her touch his penis. During her forensic interview, M.
P. stated that she believed Picklesimer did not mean to make her do this because he
appeared to be asleep when it happened. She later testified, however, that she was not
sure if Picklesimer was asleep. S. P. and M. P. would sometimes sleep together on the
couch at Picklesimer’s house because they were afraid of sleeping in a room where
he could lock the door. According to M. P., her abuse occurred in the summer of
2004.
Following S. P.’s disclosure, police asked Picklesimer to come in to discuss her
allegations. Although he was not under arrest at the time, the detective read
Picklesimer his Miranda rights and he signed a waiver. During this interview,
3
Picklesimer admitted to sexual contact with S. P. He stated that one time he woke up
with an erection and S. P. was on top of him with her panties off. He also admitted
he placed S. P.’s hand on his penis to have her rub it on multiple occasions,
sometimes to ejaculation. He claimed that he did this so he could show S. P. what
happens when a penis is fondled. He also admitted that he rubbed S. P.’s vagina with
his hand inside her panties on multiple occasions, but denied digitally penetrating her.
Picklesimer claimed that the child came on to him.
Picklesimer also admitted to sexual contact with M. P. Specifically,
Picklesimer stated that M. P. entered the bathroom while he was urinating, that she
touched his penis, and that he then moved her hand back and forth to rub his penis
because it “just blowed [him] up when [he] felt her hand.” M. P. denies that this
specific incident occurred.
As a result of his conduct, Picklesimer was indicted for several crimes: rape of
S. P.; aggravated sexual battery of S. P. for “penetrat[ing] the sexual organ of [S. P.]
with a foreign object, to wit: the finger of the accused”; child molestation of S. P. for
“placing his hand on and about the vagina” of S. P.; child molestation of S. P. for
“placing his hand on and about the buttocks” of S. P.; child molestation of S. P. for
placing S. P.’s hand on his penis; child molestation of S. P. for “placing his penis on
4
and about the vagina” of S. P.; and child molestation of M. P. for placing M. P.’s
hand on his penis. The indictment alleged all of these crimes occurred in Forsyth
County “between the 1st day of September, 2004 and the 28th day of February, 2005,
the exact date being unknown[.]”
Picklesimer filed a special demurrer to quash the indictment on the basis that
the allegations in the indictment were not made with the greatest particularity
available to the State due to the use of a range of dates and due to the failure to more
specifically allege the location of the offenses. The trial court conducted a hearing on
Picklesimer’s motion during which the investigating detective and S. P.’s mother
testified. The trial court denied Picklesimer’s motion to quash, finding that the State
proved that the dates in the indictment were made with the greatest particularity
available and that the allegations in the indictment as to the place of the offenses was
sufficient.
Picklesimer was tried by a jury. He was convicted of aggravated sexual battery
of S. P., three counts of child molestation of S. P., and one count of child molestation
of M. P. Picklesimer was acquitted of raping S. P. and the count of child molestation
5
concerning placing his hands on or about the buttocks of S. P. Following the denial
of his motion for new trial, Picklesimer appeals.1
1. In two related enumerations of error, Picklesimer contends that the trial court
erred in denying his special demurrer as to the dates and place of the offenses
contained in the indictment. We disagree.
The general rule in Georgia is that
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
1
We take this opportunity to note that this trial was conducted in February
2008, and Picklesimer’s motion for new trial was denied in October 2009. The appeal
in this case, however, was not forwarded to this Court for docketing until 2019. At
this point, the children discussed in this opinion are several years into adulthood.
Although Picklesimer raises no claim of prejudice as a result, our Supreme Court has
strongly rebuked delay in the resolution of post-conviction matters. See, e. g., Owens
v. State, 303 Ga. 254, 259-260 (4) (811 SE2d 420) (2018). While much of the
discussion has focused on delays in deciding motions for new trial, long delays in
perfection of the record for appeal, as happened here, are no less egregious. As our
Supreme Court explained, “even if long-delayed appeals rarely result in outright
reversals of convictions or only retrials or resentencings, these extended and
unjustified delays in resolving criminal cases make our State’s criminal justice system
appear unfair and grossly inefficient. . . . [w]e must all work to prevent delays,
particularly in the most serious of our criminal cases, that cannot be explained or
justified to the parties in those cases, the victims of crimes, and the public we serve.”
Id.6
State is permitted to allege that the crime occurred between two
particular dates.
(Citations omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005).
We review a trial court’s denial of a special demurrer de novo; however,
[w]e apply different standards when we review rulings on special
demurrers pretrial and post-trial. When reviewing a ruling before trial,
we consider whether the indictment is perfect in form and substance, but
when reviewing it after trial, we consider whether the defendant suffered
actual prejudice from alleged deficiencies in the indictment.
(Citations and punctuation omitted.) Herring v. State, 334 Ga. App. 50, 52 (778 SE2d
57) (2015). Here, we are reviewing the indictment post-trial, so we focus our analysis
on actual prejudice.
As stated above, the indictment in this case alleged that all of the offenses
occurred in Forsyth County between the dates of September 1, 2004 and February 28,
2005. The dates used in the indictment were taken from the forensic interview of S.
P. Picklesimer makes no contention that prior to trial the State failed to provide trial
with copies of the forensic interviews upon which the indictment relied. Moreover,
the abuse occurred during S. P.’s visitation with her father at Picklesimer’s home, and
at the hearing held on Picklesimer’s special demurrer, S. P.’s mother testified that she
7
was unable to further specify the dates of visitation because there was no set
visitation schedule.
Even assuming the State could have further specified the dates or place of the
offenses in the indictment, we find that Picklesimer was not actually prejudiced by
any alleged deficiencies. The only evidence before the jury of the dates of the
offenses came from either the forensic interviews of the victims – which were
available to Picklesimer before trial – or the statements given by Picklesimer himself
to police. Moreover, the only evidence of the location of the offenses, both from the
victims and Picklesimer, is that the abuse occurred in Picklesimer’s home.
Accordingly, there is no evidence that the form of the indictment impaired
Picklesimer’s ability to present his defense. See Berman v. State, 279 Ga. App. 867,
872 (6) (632 SE2d 757) (2006) (“Berman complains that the failure to specify dates
in the indictment forced him to defend against allegations that may have occurred at
any point during the seven-year statute of limitation. But he has not shown that this
requirement impaired his ability to present a defense.”) (citation omitted); see also
Harris v. State, 324 Ga. App. 411, 415 (3) (750 SE2d 721) (2013) (“Harris does not
show how his investigation or defense preparation was hindered by the indictment as
written; therefore, this enumeration presents no basis for reversal.”).
8
Picklesimer suggests in his brief that “[e]stablishing an alibi may under certain
circumstances be infinitely easier when both a reduced time period and a location are
specified.” (Emphasis in original.) This theoretical statement, however, is starkly
different from stating that Picklesimer actually had alibi evidence that he was unable
to rely upon due to the form of the indictment. See Hutton v. State, 192 Ga. App. 239,
241 (4) (384 SE2d 446) (1989) (“The defendant in this case offered no alibi evidence,
nor did he at any time request a continuance on the ground of surprise, nor did he
otherwise express a need for additional time to rebut any evidence presented by the
state. Consequently, it does not appear that the failure to allege the specific date of
the offense in the indictment materially affected his ability to present a defense.”)
(citation and punctuation omitted). In the absence of a demonstration of actual
prejudice resulting from the alleged deficiencies in the indictment, these
enumerations fail.2
2
Picklesimer’s reliance on State v. Layman, 279 Ga. 340 (613 SE2d 639)
(2005), to support his argument that the indictment should have been quashed is
misplaced. Not only was Layman in a different procedural posture than this case, as
the sufficiency of the indictment was being reviewed pre-trial, it also is factually
inapposite. There, the State clearly could have more specifically narrowed the range
of dates in the indictment. For instance, the indictment alleged the defendant
murdered the victim between the dates of June 30 and July 19 even though the
victim’s father spoke to the victim on July 4 and several other witnesses saw the
victim alive on that day. Id. at 340-341.
9
2. Picklesimer next contends that his child molestation conviction for “placing
his penis on and about the vagina” of S. P. is inconsistent with and barred by his
acquittal for raping S. P. We disagree.
Specifically, Picklesimer argues that because he was acquitted of rape, which
involves even slight penetration of S. P.’s vulva or labia – both of which are
anatomically positioned before the vagina on the female body – he could not be
convicted of child molestation for placing his penis on and about S. P.’s vagina. In
other words, he asserts he could not place his penis on and about S. P.’s vagina
without also penetrating her vulva and labia. Regardless of whether Picklesimer’s
argument is anatomically accurate, it is of no legal merit.
[A]n inconsistent verdict involves an alleged inconsistency between
guilty and not guilty verdicts against a defendant or defendants that
cannot be logically reconciled. However, because the inconsistent
verdict rule has been abolished, a defendant cannot attack as
inconsistent a jury verdict of guilty on one count and not guilty on a
different count as a legitimate means of having his or her conviction
reversed. This is the case because it is not generally within the court’s
power to make inquiries into the jury’s deliberations, or to speculate
about the reasons for any inconsistency between guilty and not guilty
verdicts. Appellate courts cannot know and should not speculate why a
jury acquitted on one offense and convicted on another offense. The
reason could be an error by the jury in its consideration or it could be
10
mistake, compromise, or lenity. Stated another way, it is imprudent and
unworkable to allow criminal defendants to challenge inconsistent
verdicts on the ground that in their case the verdict was not the product
of lenity, but of some error that worked against them. Such an
individualized assessment of the reason for the inconsistency would be
based either on pure speculation, or would require inquiries into the
jury’s deliberations that the courts generally will not undertake.
(Citations and punctuation omitted.) Carter v. State, 298 Ga. 867, 868-869 (785 SE2d
274) (2016). Accordingly, even assuming without deciding that Picklesimer’s
acquittal for rape is inconsistent with his conviction for child molestation for placing
his penis on and about S. P.’s vagina, this provides no basis for reversal of his child
molestation conviction.
3. Picklesimer also contends that the trial court erred in restricting his cross-
examination of the detective on the issue of the dates of the offenses. We find no
abuse of discretion.
Picklesimer is correct that
[a] defendant has the right to a thorough and sifting cross-examination
of any witness called against him. However, the extent of
cross-examination can be curtailed if the inquiry is not relevant or
material, and such restriction lies within the discretion of the trial court
which will not be disturbed on appeal unless manifestly abused. Trial
11
judges retain wide latitude to impose reasonable limits on
cross-examination based on concerns about, among other things,
confusion of the issues, or interrogation that is repetitive or only
marginally relevant.
(Citations omitted.) Holloway v. State, 283 Ga. App. 823, 825 (643 SE2d 286)
(2007)3; see also Elrod v. State, 195 Ga. App. 571, 572 (4) (394 SE2d 548) (1990)
(“The admission of evidence is a matter which rests within the discretion of the trial
court. The right of cross-examination is not abridged where the examination is limited
by the trial court to relevant matters by proper questioning. The trial court has a wide
range of discretion in the control of cross-examination.”) (citations and punctuation
omitted). Indeed, “[g]enerally speaking, the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective
in whatever way and to whatever extent, the defense might wish.” (Citation omitted.)
Phyfer v. State, 259 Ga. App. 356, 358 (2) (577 SE2d 56) (2003).
3
We note that due to the excessively long delay in the preparation of the record
in this case, the trial occurred prior to the adoption of the New Evidence Code in
2013. See Boothe v. State, 293 Ga. 285, 286, n.2 (745 SE2d 594) (2013) (“Because
this case was tried before January 1, 2013, our new Evidence Code does not apply.”).
12
Here, we find that the trial court did not abuse its discretion in limiting cross-
examination about the dates of the offenses because such dates were immaterial.
It is a long-standing principle of Georgia law that a date or range of
dates alleged in an indictment, without more, is not a material allegation
of the indictment, and, consequently, unless the indictment specifically
states that the alleged dates are material, the State may prove that the
alleged crime was committed on any date within the statute of
limitations.
Thomas v. State, No. A19A1195, 2019 Ga. App. LEXIS 626, at *4 (1) (a) (Ga. Ct.
App. Oct. 29, 2019). It is undisputed that, here, the indictment did not allege that the
dates of the offenses were material.
Throughout his brief Picklesimer argues that his special demurrer made the
dates of the offenses material because the State took the position in response that the
indictment narrowed the dates to the greatest extent possible. We find this argument
unavailing.
[E]ven though it has been held that a definite date of an offense should
be alleged in an indictment, the state is not restricted to proof of the date
stated. It is sufficient if the evidence demonstrates that the offense was
committed at any time within the statute of limitations. Thus, except
where the exact date of the offense is alleged to be an essential element
thereof or where the accused raises an alibi defense, any variance
13
between the date listed in the indictment and the date on which the crime
is proven to have occurred is of no consequence.
(Citations omitted.) Reed v. State, 294 Ga. 877, 879 (3) (757 SE2d 84) (2014). As
mentioned, the dates were not alleged to be essential elements in the indictment and
Picklesimer never raised an alibi defense. Indeed, he admitted to much of the conduct
for which he was convicted. As discussed in Division 1, if a defendant is actually
prejudiced by a variance between the indictment and the evidence, the law provides
a remedy. The mere filing of a special demurrer, however, does not convert an
immaterial element of an indictment into a material one. Because the dates of the
offenses were not material, we find that the trial court did not abuse its discretion in
limiting cross-examination about such dates.
4. Picklesimer contends the evidence was insufficient for the jury to find that
the offenses occurred within the dates alleged in the indictment. We find no error.
For the reasons discussed in Division 3, the dates of the offenses were not
material and the State was not required to prove that the offenses took place within
the range of dates contained in the indictment. See Reed, 294 Ga. at 879 (3).
Accordingly, this enumeration fails.
14
5. Picklesimer argues that the trial court erred in charging the jury. We
disagree.
“In reviewing an allegedly erroneous jury instruction, we apply the plain legal
error standard of review. A jury charge must be considered as a whole and the parts
read in conjunction with each other.” (Citation omitted.) Daniels v. State, 310 Ga.
App. 562, 565 (2) (714 SE2d 91) (2011). To satisfy this standard,
[f]irst, there must be an error or defect – some sort of deviation from a
legal rule – that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
– discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
(Citation omitted.) Pye v. State, 322 Ga. App. 125, 128 (2) (742 SE2d 770) (2013).
Here, Picklesimer requested that the jury be charged as follows: “I charge you
that in order to authorize a conviction on any of the alleged offenses you must find
beyond a reasonable doubt that the alleged offenses occurred within the dates set
15
forth by the Indictment, i.e., September 4, 2004 to February 28, 2005.” Instead, the
trial court charged the jury in line with the State’s request:
Members of the Jury, evidence of guilt of the Accused is not restricted
to the day he mentioned in the Indictment, but may be proved to have
taken place on any date prior to the return of the Indictment so long as
the date is within the applicable statute of limitations. The statute of
limitations for sexual offenses committed upon a child under the age of
16 is seven years.
As discussed in Division 3, the charge given is a correct statement of the law,
and the charge requested by Picklesimer is not a correct statement of the law. When
a jury charge is a correct statement of law, a defendant “cannot satisfy the first two
prongs of the plain error test – that a clear or obvious legal error occurred. Thus, we
find no error, much less any plain error[.]” (Citation omitted.) Pye, 322 Ga. App. at
129 (2).
6. Picklesimer contends that the trial court erred in admitting his statement to
police as such was protected by the clergy privilege. We find no error.
Prior to trial, Picklesimer moved to suppress his statement to police by
attempting to invoke the clergy privilege. At the time of Picklesimer’s trial in 2008,
OCGA § 24-9-22 governed the bounds of the clergy privilege. It provided:
16
Every communication made by any person professing religious faith,
seeking spiritual comfort, or seeking counseling to any Protestant
minister of the Gospel, any priest of the Roman Catholic faith, any priest
of the Greek Orthodox Catholic faith, any Jewish rabbi, or to any
Christian or Jewish minister, by whatever name called, shall be deemed
privileged. No such minister, priest, or rabbi shall disclose any
communications made to him by any such person professing religious
faith, seeking spiritual guidance, or seeking counseling, nor shall such
minister, priest, or rabbi be competent or compellable to testify with
reference to any such communication in any court.
Id. Consistent with the text of the statute, our law was clear that “if such
communications are not made to profess religious faith, or to seek spiritual comfort
or guidance . . . the ministerial privilege is not applicable.” (Citation omitted.) Morris
v. State, 275 Ga. 601, 602 (2) (571 SE2d 358) (2002).
During Picklesimer’s interview with police, the following exchanges took
place:
Detective: Yeah, [a mutual acquaintance] used to pastor a church I used
to go to for a while.
Picklesimer: Really?
Detective: I don’t know if you remember seeing me up at Christian Hill
in town and I’ve been up there a few times.
17
Picklesimer: And you belonged to it then?
Detective: I did. I did. Me and my wife moved to a different church.
Picklesimer: Oh, okay.
Detective: We moved to Freedom Tabernacle down south.
Picklesimer: Do you know the preacher at Christian Hill?
Detective: Yeah. Yeah.
Picklesimer: I pastor over here at Spirit.
Detective: Oh, do you actually pastor.
Picklesimer: Right.
...
Picklesimer: And you’re a preacher, too; right?
Detective: I have, yeah. I have. I haven’t for a long time. But I’ve got to,
(Inaudible)
Picklesimer: Now, your wife’s the one that played piano?
18
Detective: Uh-huh.
Picklesimer: That’s what I thought. Yeah.
Detective: Yeah. Do you have any idea why you’re here today?
Picklesimer: No.
Detective: I’m going to talk to you about what we did with [S. P.]. We
talked to [S. P.] She went into some detail about some of the things that
have happened while she had been over staying and visiting with you.
And that’s what we’re here to talk to you about. Do you know what I
mean?
Later in the interview, after Picklesimer had already admitted to various sexual
acts with S. P., a different detective said to Picklesimer “Now, if you had to get up in
front of a higher authority, then, that means that you have to admit what you’ve done;
right? It’s called allocution time, and that means that you got to lay out everything
that you’ve done.” Picklesimer contends that as a result of these exchanges with
detectives his admissions were protected by the clergy privilege and, thus,
inadmissible.
“Evidentiary rulings are reviewed under an abuse of discretion standard[.]”
Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014). We do not have the
19
benefit of the transcript of the hearing on the motion to suppress Picklesimer’s
statement, but we have the transcript of his statement in the record, and we do not
find that the trial court abused its discretion in denying Picklesimer’s motion. It
would strain credulity to consider the above exchange to be evidence of Picklesimer’s
attempt to profess religious faith or seek spiritual comfort or counseling. The
statements were made to a detective in a police station who informed Picklesimer that
he was investigating allegations of child sexual abuse. The mere fact that the
detective at some point in the past was a pastor to people other than Picklesimer does
not attach the clergy privilege to Picklesimer’s subsequent admissions of abusing
S. P. and M. P. See Morris, 275 Ga. at 602-603 (2) (clergy privilege did not attach to
statements made to family friend who had recently become a minister when those
statements were made as a result of a strong secular, not religious, bond); Parnell v.
State, 260 Ga. App. 213, 214 (1) (581 SE2d 263) (2003) (statements made by
defendant to his father, who was a minister, were not subject to exclusion under the
clergy privilege because the father was acting in the role of a parent, not a minister,
at the time the statements were made). Accordingly, the trial court did not abuse its
discretion in admitting Picklesimer’s statements.
20
7. Picklesimer next contends that the trial court erred in refusing to grant him
a continuance to allow the defense time to investigate a subsequent allegation by S. P.
against another individual. We find no error.
“A trial court’s decision to grant or to deny a continuance will not be disturbed
absent abuse of discretion, and the party seeking a continuance must show due
diligence. Further, to warrant a reversal on appeal, the appellant must also show that
harm resulted from the denial of the continuance.” (Citation omitted.) French v. State,
288 Ga. App. 775, 776 (2) (655 SE2d 224) (2007).
On the first day of trial, Picklesimer moved for a continuance to investigate a
subsequent allegation of improper touching made by S. P. against her mother’s live-in
boyfriend. Although the trial court denied the motion, and initially refused
Picklesimer’s request to question S. P. about the allegation, S. P. ultimately testified
about it. At trial, S. P. testified that she told her mother that her mother’s boyfriend
touched her inappropriately when he hugged her. S. P. subsequently discussed the
incident with the therapist she had been seeing since disclosing Picklesimer’s abuse,
and she and her therapist decided that nothing improper happened. S. P. and her
therapist determined that Picklesimer’s abuse caused S. P. to be distrustful of men,
and this colored S. P.’s interpretation of the hug.
21
Pretermitting whether the trial court should have granted a continuance to
allow for further investigation into the subsequent allegation, Picklesimer can show
no harm in light of S. P.’s testimony admitting the subsequent recanted allegation and
her explanation about it. In fact, Picklesimer has made no effort to demonstrate what
additional time to investigate would have produced beyond the testimony he elicited
from S. P. at trial. See French, 288 Ga. App. at 776 (2). Consequently, this
enumeration provides no ground for reversal.
8. Lastly, Picklesimer contends that the evidence was insufficient to support
his conviction for molesting M. P. by placing her hand on his penis because there was
no evidence that he acted intentionally. We disagree.
In her forensic interview, M. P. stated that she believed Picklesimer was
sleeping when he made her touch his penis. For this reason, Picklesimer contends that
the State failed to demonstrate the requisite intent to convict him.
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 LEd2d 560)
(1979)]. As long as there is some competent evidence, even though
22
contradicted, to support each fact necessary to make out the State’s case,
the jury’s verdict will be upheld. Relevant to this case, . . . child
molestation occurs when a person does 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. OCGA § 16-6-4 (a) (1).
(Citation and punctuation omitted.) Watkins v. State, 336 Ga. App. 145, 146 (1) (784
SE2d 11) (2016).
Here, the jury heard two different accounts of M. P. being molested. M. P.
stated that when she was sharing a bed with Picklesimer, he made her touch his penis.
During her forensic interview she stated that she believed Picklesimer was sleeping
at the time and did not mean to do this; however, at trial she later testified that she did
not know whether Picklesimer was asleep. Additionally, Picklesimer admitted in his
statement to police that he made M. P. rub his penis after she walked into the
bathroom while he was urinating. Pretermitting whether the jury could convict
Picklesimer on M. P.’s allegation given her equivocation as to whether he was
sleeping, the jury was authorized to believe Picklesimer’s statement wherein he
admitted intentional conduct which constituted child molestation. See Branesky v.
State, 262 Ga. App. 33, 34 (1) (584 SE2d 669) (2003) (evidence that defendant made
23
child touch his penis was sufficient to sustain conviction for child molestation).
Accordingly, the evidence was sufficient to sustain Picklesimer’s conviction for child
molestation of M. P.
Judgment affirmed. Dillard, P. J., and Gobeil, J., concur.
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