Buwee v. State

359 Ga.App. 321

857 S.E.2d 498

BUWEE

v.The STATE.

A21A0227

Court of Appeals of Georgia.

April 8, 2021

Angela Brown Dillon, for Appellant.

Daniel J. Porter, District Attorney, Daniel P. Sanmiguel, Assistant District Attorney, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Ebenezer Buwee guilty of aggravated child molestation and child molestation, and the trial court denied his motion and amended motions for new trial. Buwee failed to timely file a notice of appeal from the trial court's order, and he moved for an out-of-time appeal, which the trial court granted. On appeal, Buwee argues that the evidence was insufficient to support his convictions and that the trial court erred by striking a juror over his objection. For the following reasons, we affirm Buwee's convictions.

When we consider the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and inquire only whether any rational trier of fact might find beyond a reasonable doubt that the defendant is guilty of the crimes of which he was convicted. Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.

Jones v. State , 354 Ga. App. 568, 571 (1), 841 S.E.2d 112 (2020) (citations and punctuation omitted). Thus, the jury's verdict will be upheld as long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case." Westbrooks v. State , 309 Ga. App. 398, 399-400 (1), 710 S.E.2d 594 (2011) (citation and punctuation omitted).

So viewed, the evidence shows that when A. D. was 15 years old, she lived with her grandmother, aunt, uncle, brother, and Buwee, who was dating her aunt. She had recently gotten her own room after another aunt and a cousin moved out, but Buwee kept suits and shoes in the closet of that bedroom. In May 2017, A. D. awoke around 2:00 a.m. when Buwee entered her bedroom. According to A. D., Buwee

came in the room, and he went to the closet, and I believe he was putting his stuff up and then he stood over me and then -- he stood over me and then after a while, he started touching me like feeling on my body and then -- and then he slid his hand down my pants and inserted his fingers in my vagina.

A. D. testified that Buwee first touched her buttocks with his hand, and she froze. Buwee then moved his hand around to her front, put them inside her panties, and inserted his fingers into her vagina, which caused pain and discomfort. At this point, A. D. "shot up and started running downstairs."

A. D. was panicking, crying, and trying to tell her grandmother and aunt what had happened. She eventually calmed enough to tell them, and then called her cousin and told her cousin and aunt what had happened. Her brother told her to call the police, but her grandmother and aunt said they could resolve the problem. A. D., in fact, did call the police, but A. D. was upstairs when the police came, and her grandmother and aunt would not let A. D. talk to the police. The police left, and Buwee remained at the house, so A. D. locked her bedroom door and did not sleep because she was so scared. She spent the next week sleeping at another aunt's house until Buwee left her grandmother's house.

The day after the incident occurred, A. D. spoke with her counselor at school and told her what had happened. School officials called the police, who came to the school, spoke with A. D., and took her for a forensic medical exam. The sexual assault nurse testified that she examined A. D. within 12 hours of the assault. A. D. recounted the same version of events during her exam and told the nurse that she experienced pain. In addition, the nurse found a laceration in A. D.’s genitals consistent with the abuse described by A. D., and pictures of the laceration were presented to the jury. A detective conducted a video-recorded interview of A. D. at the Gwinnett Sexual Assault Center, and it was played for the jury.

Buwee testified in his own defense and explained that he had gone into A. D.’s bedroom to get some clothes from the closet, and on the way he stumbled and fell. After he fell, he jumped up, and he saw someone run out of the room. He denied touching A. D. or any other child in a sexual manner.

1. Buwee first asserts that the evidence was insufficient to support his convictions. Specifically, he argues that reasonable doubt existed regarding the molestation because a number of adults were present in the house when the molestation occurred, there was a lack of physical evidence, and the family was not alarmed enough to speak with police. We disagree.

"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[.]" OCGA § 16-6-4 (a) (1). "A person commits the offense of 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). "Significantly, a child's testimony that the molestation was painful is sufficient to prove the element of physical injury." Moon v. State , 335 Ga. App. 642, 646 (1) (b), 782 S.E.2d 699 (2016).

Here, the evidence was sufficient for the jury to find Buwee guilty beyond a reasonable doubt of child molestation for touching A. D.’s buttocks and aggravated child molestation for inserting his fingers into her vagina and hurting her, as alleged in the indictment. First of all, "the evidence of the victim alone is sufficient to authorize the jury to find a defendant guilty of child molestation. No requirement exists that this testimony be corroborated." Reyes v. State , 356 Ga. App. 346, 347 (1), 847 S.E.2d 25 (2020) (citation and punctuation omitted); see also OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact."). Accordingly, A. D.’s testimony that Buwee touched her buttocks and hurt her when he inserted his fingers into her vagina alone was sufficient evidence for a rational trier of fact to find Buwee guilty of child molestation and aggravated child molestation. Reyes , 356 Ga. App. at 347-348 (1), 847 S.E.2d 25 ; Moon , 335 Ga. App. at 646 (1) (b), 782 S.E.2d 699. In addition, the State presented additional evidence to support the charges, including evidence regarding A. D.’s description of the incident to others, testimony of the sexual assault nurse that she discovered a laceration in A. D.’s vagina consistent with A. D.’s account of the events, photographs of the laceration, and the detective's video interview of A. D.

Despite Buwee's assertions that he simply stumbled and did not commit the charged offenses, it was the sole province of the jury to judge the credibility of the witnesses, resolve any conflicts in the evidence, and determine whether Buwee committed the charged act with the requisite intent. See Reyes , 356 Ga. App. at 347 (1), 847 S.E.2d 25 ; Burke v. State , 316 Ga. App. 386, 390 (2), 729 S.E.2d 531 (2012) (whether the requisite intent for child molestation exists is a question of fact, which may be proved inferentially and is to be determined by the factfinder in light of the totality of the circumstances). The trial court did not err in denying Buwee's motion for new trial on this...