Galvan v. State

330 Ga.App. 589

768 S.E.2d 773

GALVAN

v.The STATE.

No. A14A1758.

Court of Appeals of Georgia.

Feb. 4, 2015.

Troy Edward Golden, for Appellant.

Gregory W. Edwards, Dist. Atty., Heather Hendricks Lanier, Asst. Dist. Atty., for Appellee.

Opinion

BARNES, Presiding Judge.

Based on allegations that he sexually abused his stepdaughter, a jury convicted Luis Galvan of two counts of aggravated child molestation and four counts of child molestation. Galvan filed a motion for a new trial, which the trial court denied. On appeal, Galvan contends that the evidence was insufficient to support his convictions because his stepdaughter recanted her allegations; that the trial court erred in allowing a rebuttal witness called by the State to testify to matters that went beyond rebuttal; and that the trial court erred in overruling his objections to allegedly improper comments made by the prosecutor during closing argument. Upon our review, we affirm.¹

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that on the morning of April 23, 2009, Galvan dropped off the 11–year–old victim, his stepdaughter, at her elementary school. As the victim got out of the car, Galvan tried to kiss her, but she refused to let him do so. Upset over the attempted kiss and because she did not want Galvan to pick her up from school that afternoon, the victim began to cry and approached a teacher she knew. The victim told the teacher that she was afraid and needed to speak with the school counselor. When asked why she was afraid, the victim disclosed for the first time that Galvan had been touching her inappropriately at her home. Following school procedure, the teacher did not ask for further details and instead took the victim to see the school counselor. The school counselor spoke with the victim and then with the school principal, who called the police.

Later that same day, the victim was taken to a child advocacy center where a recorded forensic interview was conducted. The victim disclosed to the forensic interviewer that Galvan had sexually abused her on several occasions beginning when she was eight or nine years old and continuing until shortly before her disclosure of the abuse at school that morning. The victim stated that the sexual abuse included instances where Galvan kissed her on the mouth and neck, touched her inappropriately, placed his mouth on her genitals, placed her hand on his penis, digitally penetrated her vagina with his finger, and had vaginal and anal intercourse with her. According to the victim, her mother had inadvertently walked into the room and witnessed two incidents in which Galvan had been touching her in a sexual manner. However, the mother did not report the sexual abuse to the police, the abuse continued, and the victim did not tell anyone else about it until her disclosure at school.

After the forensic interview, a nurse at the child advocacy center performed a physical examination of the victim and photographed the injuries that she observed. The victim told the nurse that she was at the child advocacy center because her stepfather had vaginally and anally raped her on several occasions and had touched her genitals, chest, and neck. During the vaginal examination, the nurse noted that the victim reported extreme discomfort when touched in her vagina with a Q-tip, which prevented the nurse from completing her evaluation of the hymen area for injuries. But the nurse did note that the victim had a wound that was healing in another area of her vagina consistent with vaginal penetration. Additionally, during her rectal examination of the victim, the nurse observed anal dilation, or anal laxity, which was consistent with repeated anal penetration, given that the victim did not have a medical history of any bowel problems.

After the nurse completed the physical examination, a police investigator conducted a recorded interview with the victim. The victim repeated to the police investigator the allegations of sexual abuse that she had made to the forensic interviewer earlier that day. The investigator also confirmed that the abuse had occurred in several residences where the victim had lived with her family in Dougherty County. Additionally, the investigator spoke with the victim's mother, who admitted to him that she installed a lock on her children's bedroom door in an effort to keep Galvan out of the room so that the victim and her sisters could sleep at night.

Galvan was arrested and indicted on two counts of aggravated child molestation and four counts of child molestation for sexually abusing the victim. At the ensuing jury trial, the State introduced and showed to the jury a video recording of the victim's forensic interview, an audio recording of the victim's interview with the police investigator, and pictures taken during the nurse's physical examination of the victim. Additionally, the elementary school teacher, the forensic interviewer, and the police investigator testified about the victim's disclosures to them about how Galvan sexually abused her, and the nurse testified about her physical examination of the victim.

However, the victim took the stand and recanted her allegations of sexual abuse. The victim testified that she had fabricated the allegations of abuse because she was mad that Galvan drove her to school and would not let her walk to school with her friends. According to the victim, she came up with the details of the sexual abuse based on what she had seen on a television show that she watched on the weekends. The prosecutor did elicit from the victim that she continued to live with her mother, who still was married to Galvan, and that her mother told her that she wanted the case to be “over” because the family had too many other problems in their lives.

The victim's mother and one of her sisters also took the stand and denied ever having seen any instances of sexual abuse. The mother and sister further testified that shortly after her initial disclosure of abuse, the victim told them that she had lied. According to the mother and sister, they and the victim had been ready to explain to the police that the allegations had been fabricated, but the police had not given them an opportunity to do so and at one point told them it was “too late” for a recantation.

After the defense rested, the State called a former assistant district attorney and a deputy sheriff as rebuttal witnesses. The former assistant district attorney testified that he was initially assigned the case and met with the victim in September 2009 to speak with her about the abuse allegations.² The victim's mother and sister came with her to the interview and sat outside in the lobby, where the attorney spoke with them apart from the victim. According to the attorney, the victim, her mother, and her sister never suggested to him that the victim had fabricated her sexual abuse allegations against Galvan. Rather, the victim repeated to the attorney the same essential allegations of sexual abuse that she had told the forensic interviewer and the police detective in April 2009. The victim noted to the detective, however, that her family wanted Galvan “to come home.”

The deputy sheriff testified that he had spoken with the victim's mother earlier in the week of trial when she had initially failed to show up at court. According to the sheriff, he discussed with the mother the facts surrounding the case, but she never suggested during the course of their discussion that the victim had lied about the sexual abuse.

After hearing the conflicting testimony, the jury found Galvan guilty of the charged offenses, and the trial court subsequently denied his motion for a new trial. This appeal followed.

1. Galvan contends that there was insufficient evidence to support his aggravated child molestation and child molestation convictions because the victim testified that her allegations of sexual abuse were a lie, and her mother and sister testified that the victim told them she had fabricated the allegations. We disagree in light of the other evidence presented at trial that supported Galvan's conviction for the charged offenses.

When a criminal defendant challenges the sufficiency of the evidence supporting his ... conviction, 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. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. 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.

(Citations and punctuation omitted.) Griffin v. State, 262 Ga.App. 87(1), 585 S.E.2d 145 (2003). See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A person commits the offense of child molestation when he “[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). The person commits the offense of aggravated child molestation when he commits an act of child molestation involving an act of sodomy. OCGA § 16–6–4(c). The allegations of aggravated child molestation and child molestation contained in the indictment in this case were predicated on the multiple acts of sexual abuse previously discussed.

It is true, as Galvan emphasizes on appeal, that the victim recanted her allegations of abuse at trial and her mother and sister testified that she told them her allegations were fabricated. But the State introduced the victim's prior inconsistent statements detailing...