Butler v. State

352 Ga.App. 579

835 S.E.2d 389

BUTLER

v.The STATE.

A19A1056

Court of Appeals of Georgia.

October 28, 2019

Neil Matthew Monroe, Valdosta, for Appellant.

Joseph Kenneth Mulholland, Moruf Olalere Oseni, for Appellee.

Barnes, Presiding Judge.

Charged with multiple sexual offenses, Darryl Pernell Butler was found guilty of some counts, and not guilty of others. In this appeal, Butler contends that the evidence was insufficient to support a particular child molestation conviction. We agree, and reverse that conviction. The judgment of conviction is otherwise affirmed.

The underlying indictment charged Butler with committing against his minor stepdaughter, S. W., nine sexual offenses – one count each of incest, child molestation, and statutory rape, alleged to have occurred during three discrete time periods. In particular, Count Nos. 1 - 3 alleged that Butler committed the three offenses between February 15, 2015 and March 1, 2015. Count Nos. 4 - 6 accused Butler of committing the three offenses between April 15, 2015 and April 20, 2015. And Count Nos. 7 - 9 charged Butler with committing the three offenses between April 20, 2015 and April 21, 2015. During opening statements at the jury trial, the prosecutor explained the State’s prosecution of Butler: "Basically in a nutshell the State is alleging that he had sexual conduct with [S. W.] three different times. So it’s not nine times. It’s three." The jury returned not guilty verdicts on all counts, except Count Nos. 7 - 9 (incest, child molestation, and statutory rape, respectively), which were alleged to have occurred between April 20, 2015 and April 21, 2015.

This appeal concerns whether the evidence was sufficient as to the child molestation charged in Count No. 8. Where, as here, an appellant challenges the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed the following. Butler was born in 1968, and married S. W.’s mother in 2009. In 2015, the year in question, the three of them were living together in Mitchell County.

On April 21 of that year, S. W.’s mother found sexually graphic text messages on S. W.’s cell phone.¹ That same day, S. W.’s mother took then 14-year-old S. W. and her cell phone to the police department, and a police investigator interviewed S. W. Also, that same day, April 21, a nurse conducted a sexual assault examination upon S. W. As the investigation proceeded, the investigator interviewed S. W. two additional times; and a forensic biologist at the GBI crime lab ultimately determined that vaginal and cervical swabs from S. W.’s sexual assault examination contained Butler’s DNA (collected from buccal swabs, obtained upon execution of a search warrant of Butler’s bodily fluids). Trial evidence also showed that Butler had taken S. W. to Florida on April 20, 2015, and that S. W.’s mother did not go with them.

We turn to Butler’s specific challenge whether the evidence was sufficient to sustain his child molestation conviction. Pursuant to OCGA § 16-6-4 (a) (1), "[a] person commits the offense of child molestation when such 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." And the child molestation count at issue in this appeal, Count No. 8, pertinently alleged that Butler,

between the 20th day of April, 2015, and the 21st day of April 2015 , the exact date of the offense being unknown to the Grand Jury, in Mitchell County, Georgia, did commit an immoral and indecent act to [S. W.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself by using his hands to grab victim’s buttocks and by using his hands to rub said victim’s vagina and buttocks .²

Butler argues that the State failed to prove the "immoral and indecent act" as alleged (and as emphasized above). Butler asserts further that when S. W. was called to the stand, "[she] specifically indicated that her encounter with [him] on April 20, 2015, which apparently forms the basis of Count 8, did not involve use of [his] hands."³

S. W. was sixteen years old at Butler’s 2017 trial, and testified on direct examination about two sexual episodes with Butler.

Q: Did you back in April of 2015, did you have a relationship with [the man sending and receiving the graphic text messages] and also [Butler]?

A: Yes, sir.

Q: And was that a sexual relationship?

A: Yes, sir.

Q: How many times did you have sex with ... Butler?

A: Two.

S. W. recounted that the first episode with Butler occurred at their home "between February and March, like after Valentine’s Day kind of." S. W. recounted that the second episode had occurred in Butler’s car when the two of them traveled to Florida. S. W. was able to identify the date of the second episode, recalling at trial that on the day following that sexual incident, she underwent a sexual assault examination by a nurse. Focusing on that sexual episode with Butler, the prosecutor asked S. W.:

Q: Okay. What kind of relations did you have with ... Butler the day before [you underwent the sexual assault examination]?

A: Sexual relations.

Q: Did – was it with his hand or with his penis or what?

A: His penis.

The prosecutor went on to elicit these details:

Q: And when you and Darryl had sex, did he ejaculate?

A: Yes, sir.

...

Q: [S. W.], you said that he inserted his penis into you?

A: Yes, sir.

Q: Did he ever insert his fingers?

A: No, sir.

Q: I know this is kind of gross, too. Did he ever lick your vagina?

A: Yes, sir.

Q: When did he lick your vagina?

A: When --

Q: Was it that first time or the second time?

A: The first time.

Q: Did he lick your vagina the second time on the 20th?

A: No, sir.

Q: That was just penis sex?

A: Yes.

The record thus establishes merit in Butler’s claim that nothing in S. W.’s testimony authorized the jury to find him guilty of the child molestation as alleged in Count No. 8. The State urges that this Court nevertheless affirm that conviction, advancing two arguments. First, the State asserts that it proved that Butler used his hands to molest S. W. as alleged in Count No. 8 through testimony given by the police investigator. The portion of the transcript cited by the State, however, does not support that assertion. The State cites that toward the end of the investigator’s testimony, the prosecutor directed the investigator’s attention to the indictment and asked, "What are the allegations in each one of the counts and what are they related to as far as the dates?" The investigator responded: "Okay. Count 1 for incest." Thereupon, the prosecutor questioned the investigator, stepping through each of the nine counts seriatim . Accordingly, after questioning the investigator as to Count No. 1, the prosecutor moved on:

Q: Now, the child molestation is in Count 3 or 2?

A: Two.

Q: Count 2. What does that specifically allege that [S. W.] told you about?

A: The child molestation is because he was – she told me that he would grab her butt and he would fondle her genitals.

Q: And statutory rape is obviously sex?

A: Correct.

Q: Let’s talk about 4, 5, and 6. What were the dates on those particular offenses?

...

After examining the investigator about those counts, the prosecutor turned to the remaining counts:

Q: Now let’s look at 7, 8, and 9.

A: Yes, sir.

Q: What dates are alleged in those offenses?

A: The date there was between the 20th day of April, 2015, and the 21st day of April, 2015.

Q: And was that based on the DNA results, his testimony as to what happened in her and the ejaculation --

A: Correct.

Q: And her testimony also that they had sex?

A: Correct.

The prosecutor ended that line of inquiry at that point.

Hence, the transcript shows that the investigator’s testimony as to Butler’s use of his hands related to a separate count of child molestation, Count No. 2 – which count was alleged to have occurred between February 15, 2015 and March 1, 2015,⁴ and which count the jury found Butler not guilty. The transcript confirms that when the prosecutor turned to Count No. 8, he elicited no testimony from the investigator as to the evidentiary basis for that alleged child molestation count. Furthermore, while the transcript shows that the three police investigator’s interviews of S. W. were recorded, no such recording was presented to the jury. Notably, at one point during the presentment of evidence, the court specifically asked the lawyers whether any recording of S. W.’s interviews would be presented to the...