Ary v. State

359 Ga.App. 563

859 S.E.2d 535

ARY

v.The STATE.

A21A0165

Court of Appeals of Georgia.

May 25, 2021

Jonathan Pratt Lockwood, for Appellant.

Jacquelyn Lee Johnson, District Attorney, Thomas Edward Buscemi, Assistant District Attorney, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Thomas Franklin Ary guilty of three counts of child molestation. Following the denial of his motion for new trial, Ary appeals, contending that the evidence was insufficient to support his convictions, the trial court erred in admitting other acts evidence and in its charge to the jury on other acts evidence, his trial counsel was ineffective in several respects, and cumulative error prevented him from receiving a fair trial. For the following reasons, we affirm Ary's convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, with the defendant no longer enjoying a presumption of innocence. See Carolina v. State , 276 Ga. App. 298, 300 (1), 623 S.E.2d 151 (2005). We neither weigh the evidence nor determine witness credibility, which are tasks that fall within the exclusive province of the jury, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id. ; see also Whorton v. State , 318 Ga. App. 885, 885, 735 S.E.2d 7 (2012).

So viewed, the evidence shows that the victim, J. H., began attending after-school and summer camp programs at Pak's Karate when she was six years old. Ary was one of J. H.’s karate teachers at Pak's. J. H., who was eleven years old at the time of trial, testified that when she was seven years old, Ary "touched" her. She was sitting on Ary's lap in the back of the movie room at Pak's, which was dark, when he "touched [her] on [her] privates" with his hand inside her pants but on top of her underwear and squeezed. J. H. testified that after they moved the movie room from the homework building to the main building, the same thing happened again. Another time, J. H. volunteered to help Ary fix something in the bathroom at Pak's, and when she was in the bathroom with Ary, he closed the door, picked her up, and touched her private part to his. Then, he "kind of would go forward and back."

J. H. testified that she told her friend M. K., who was another student at Pak's, that Ary had touched her. This happened after M. K. first told J. H. about Ary touching M. K. J. H. did not tell her mother about Ary's actions until sometime later, when a registered sex offender moved in across the street from their house and her mother had a talk with J. H. about inappropriate touching. J. H.’s mother asked her if anyone had ever touched her in her private places, and J. H. started crying and said Ary had touched her. J. H. was eight or nine when she told her mother. When asked why she waited so long to tell her mother, J. H. testified that she was scared because Ary had shown her his gun one day in his car.

J. H. was taken to a child advocacy center and interviewed by an expert in forensic interviewing. The expert testified that she had conducted 98 forensic interviews of children. According to the expert, it is common for a child not to disclose abuse immediately. A recording of the forensic interview was played for the jury, and J. H. identified Ary at trial as the man who "touched" her at Pak's.

M. K.’s mother testified that she took M. K. in for a forensic interview after she was notified by the District Attorney's office that M. K.’s name had come up during a proceeding. At that point, M. K. had not disclosed anything to her mother. M. K.’s mother testified that, to the best of her knowledge, M. K. did not disclose anything in that interview. Later, after M. K. was subpoenaed by Ary, M. K.’s mother told her that something had happened to J. H. M. K. then told her mother that J. H. had told her something had happened. However, M. K. still did not tell her mother that anything had happened to her.

A school counselor testified that she conducted a "good touch/bad touch" body safety and personal safety program at M. K.’s elementary school in May 2015. After the counselor conducted the program with M. K.’s fifth grade class, M. K. asked to speak to her. M. K. told the counselor that what she had been talking about in the good touch/bad touch program had happened to her. Although M. K. did not give the name of the person who had done something like that to her, she indicated it was the "karate man." M. K. told the school counselor that she had been interviewed in the past about whether someone had ever touched her, but she had not felt comfortable telling anyone and had said that it did not happen. M. K. indicated she had been afraid to tell anyone. After she talked to the school counselor, M. K. told her mother that she had lied before and that Ary had touched her between her legs.

M. K., who was 11 years old at the time of trial, testified that the first time her mother asked her if something had happened to her at Pak's Karate, she told her, "No." M. K. testified that she decided to tell her school counselor after the good touch/bad touch program. At trial, she identified Ary as the person who inappropriately touched her. She testified that she was sitting on Ary's lap watching a movie when he touched her between her legs, over her clothes, and "kind of moved his fingers." When asked how she knew it was not an accident, she said that she thought it was an accident at first, but when he tried to do it again, she realized it was not. The next day, M. K. and J. H. told each other what Ary had done to them.

Ary was indicted for five counts of child molestation. Three of the counts accused Ary of molesting J. H., and two of the counts accused him of molesting another child, R. W. When the case was initially tried before a jury in June 2014, the jury found Ary not guilty on the two counts accusing him of molesting R. W., but was deadlocked on the counts accusing him of molesting J. H. M. K. did not testify at the June 2014 trial. The case was retried before a jury in 2015 as to the counts accusing Ary of molesting J. H. During this trial, testimony regarding M. K.’s molestation by Ary was admitted, and the jury found Ary guilty of all three counts. This appeal followed the denial of Ary's motion for new trial.

1. Ary contends that the evidence was insufficient to support his convictions.¹ We disagree.

Child molestation is committed when a person "[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[.]" OCGA § 16-6-4 (a) (1). Here, Ary was charged with child molestation for "plac[ing] his hand upon the clothed vaginal area of [J. H.] while she was sitting in his lap" on two separate occasions and "rub[bing] his clothed penis area against the clothed vaginal area of [J. H.] in a bathroom" all "with the intent to arouse and satisfy the sexual desires of the accused[.]"

Other than the general standard applicable to a review of the sufficiency of the evidence, Ary cites no legal authority and nothing in the record in support of his contention that the evidence was insufficient to support his convictions. It is well settled that "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8. Here, the victim, J. H., testified in detail about all of the occurrences alleged in the indictment. Her testimony alone was sufficient to support Ary's convictions. See Hogg v. State , 356 Ga. App. 11, 13 (1), 846 S.E.2d 183 (2020) (victim's testimony alone was legally sufficient to support convictions for child molestation). Moreover, although not required, the victim's testimony was corroborated in this case. J. H.’s mother testified regarding J. H.’s outcry to her. See Reinhard v. State , 331 Ga. App. 235, 238 (1) (c), 770 S.E.2d 314 (2015) (victims’ testimony corroborated by testimony of witnesses to the victims’ outcries). The jury also viewed a videotaped forensic interview of J. H., in which she reiterated her allegations regarding Ary. See Bufford v. State , 320 Ga. App. 123, 123 (1), 739 S.E.2d 421 (2013) (forensic interviews corroborated the children's trial testimony).

Furthermore,

[i]t is well settled that it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of the witnesses. Ultimately, 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.

Whorton , 318 Ga. App. at 888 (1) (b), 735 S.E.2d 7 (citation and punctuation omitted); see also Clark v. State, 282 Ga. App. 248, 250 (1) (b), 638 S.E.2d 397 (2006) ("We defer to the jury's decision on the proper weight and credibility to be given the evidence, because it is the jury's role to choose what evidence to believe and what to reject.") (citation and punctuation omitted). In this case, the jury obviously resolved any credibility or inconsistency issues against Ary and chose to believe, as they were authorized to do, the victim's testimony. Accordingly, Ary's challenge to the sufficiency of the evidence supporting his convictions for child molestation lacks merit.

2. Ary contends that the trial court erred in admitting other acts evidence. We disagree.

Prior to trial, the State filed a notice of intent to present evidence that Ary had molested M. K. At a motions hearing prior to trial, Ary's trial counsel objected to the admission of the other acts evidence on the ground that the evidentiary value was substantially outweighed by the prejudicial effect. At trial, trial counsel renewed his objection to the admission of the...