Gonzalez v. State

359 Ga.App. 147

857 S.E.2d 88

GONZALEZ

v.The STATE.

A21A0130

Court of Appeals of Georgia.

March 23, 2021

David S. West, for appellant.

Rosemary M. Greene, District Attorney, Alex J. Oberkofler, Assistant District Attorney, for appellee.

Mercier, Judge.

Following a jury trial, Matthew Demetrius Gonzalez was convicted of two counts of child molestation and one count of criminal attempt to commit a felony (child molestation). Gonzalez appeals, challenging the trial court's denial of his motion for directed verdict. He also claims that he received ineffective assistance of counsel at trial. Finding no basis for reversal, we affirm.

1. Gonzalez argues that the evidence was insufficient to support a finding of guilt, entitling him to a directed verdict on all counts. In addressing this claim, we construe the evidence in the light most favorable to the verdict, and Gonzalez no longer enjoys a presumption of innocence. See Garner v. State , 346 Ga. App. 351, 353 (1), 816 S.E.2d 368 (2018). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient for the jury to find Gonzalez guilty beyond a reasonable doubt. See id. at 353-354 (1), 816 S.E.2d 368 ; Hargrove v. State , 289 Ga. App. 363, 657 S.E.2d 282 (2008) ("The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.") (citation and punctuation omitted).

So viewed, the evidence shows that on July 17, 2014, employees monitoring security cameras at a Bartow County Walmart called the police after observing Gonzalez's conduct with respect to C. W., a 15-year-old girl who was shopping in the exercise equipment area of the store. Video taken by the cameras, which was published to the jury, appeared to show Gonzalez within a few yards of C. W., staring at her as he manipulated his genital area through his clothing while visibly aroused. The responding officer confronted Gonzalez after watching the video. When the officer stated that he was investigating an act of public indecency, Gonzalez replied that "he was just adjusting himself."

C. W. testified that she was at Walmart with her grandmother when she noticed a man near them in the exercise equipment department. She did not know the man and tried to avoid him by leaving that area of the store, but she continued to see him in other areas. C. W. testified that she did not want to make eye contact with the man or draw her grandmother's attention to him because she "didn't want to scare her [grandmother]."

One year later, on July 18, 2015, a group of girls swimming at a city park pool in Bartow County saw Gonzalez near them in the deep end. Fourteen-year-old J. P. told the group that Gonzalez made her very uncomfortable, and she testified that he touched her on her buttocks. J. P. also saw Gonzalez reach toward the "front area" of H. P., her 11-year-old sister. J. P. identified the "front area" on an anatomical drawing as H. P.’s genital and upper thigh regions. J. P. reported the incident to her older sister, who had noticed Gonzalez near their group in the pool, and her mother, who informed pool management. Park attendants called the police as Gonzalez hurried to his car in the parking lot. He was stopped by responding officers shortly after he exited the area at a high rate of speed.

The jury found Gonzalez guilty of committing child molestation by touching J. P.’s buttocks (Count 1), criminal attempt to commit child molestation by reaching toward H. P.’s genital area (Count 2), criminal attempt to commit child molestation by reaching toward H. P.’s thigh area (Count 3), and child molestation by fondling his genitals in the presence of C. W. (Count 4). The trial court merged Count 3 into Count 2 and sentenced him on Counts 1, 2, and 4. This appeal followed the denial of his motion for new trial.

(a) Gonzalez first challenges the evidence supporting his conviction for child molestation under Count 1 of the indictment, which alleged that he committed an "immoral and indecent act to [J. P.], a child under the age of 16 years, with the intent to arouse [his] sexual desires ..., by touching [J. P.] on her buttocks." Specifically, he complains that J. P. provided the only evidence regarding a touching that, in his view, was at most a sexual battery. But the testimony of a child molestation victim alone is sufficient to sustain a conviction. See Smith v. State , 320 Ga. App. 408, 410 (1) (a), 740 S.E.2d 174 (2013) ("The testimony of one witness is generally sufficient to establish a fact.") (citation and punctuation omitted).

And although Gonzalez's conduct could constitute sexual battery,¹ the jury was authorized to find that it rose to the level of child molestation.

A person commits 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) (1). The evidence shows that Gonzalez was the only adult male in the deep end of the pool, where 14-year-old J. P. and the other girls were swimming. He moved close to the girls, making J. P. feel uncomfortable, and touched her on the buttocks. The jury also received evidence that one year earlier, Gonzalez was observed masturbating while staring at a 15-year-old girl in Walmart.

Given these circumstances, the jury was authorized to conclude that Gonzalez not only touched J. P.’s buttocks, but that the conduct was an immoral or indecent act performed with the intent to arouse his sexual desires. See Klausen v. State , 294 Ga. App. 463, 465 (1), 669 S.E.2d 460 (2008) (whether the defendant's intention was innocent "or to arouse his own sexual desires ... was peculiarly a question of fact for determination by the jury") (citation and punctuation omitted); Slack v. State , 265 Ga. App. 306, 307 (1), 593 S.E.2d 664 (2004) ("[W]hether a particular act is ‘immoral or indecent’ is a jury question that may be determined in conjunction with the intent that drives the act."); Cornelius v. State , 213 Ga. App. 766, 768 (1), 445 S.E.2d 800 (1994) (in child molestation cases, the jury must determine whether an act was immoral or indecent and if it was committed with the requisite criminal intent). Accordingly, because the evidence was sufficient to support Gonzalez's conviction on Count 1, the trial court properly denied his motion for directed verdict on this charge. See Klausen , supra, 294 Ga. App. at 465 (1), 669 S.E.2d 460.

(b) Gonzalez also argues that he was entitled to a directed verdict on Count 2, which alleged that he attempted to commit child molestation by "reaching toward the genital area of [H. P.] ... with the intent to arouse [his] sexual desires."² Again, we disagree.

"A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. "To constitute a substantial step, an act must be one that is done in pursuit of the intent, and more or less directly tending to the commission of the crime." Johnson v. State , 284 Ga. App. 147, 148 (1) (b), 643 S.E.2d 556 (2007) (citation and punctuation omitted). Generally, such act "must be inexplicable as a lawful act, and must be more than mere preparation." Id. (citation and punctuation omitted). Whether an act qualifies as a "substantial step" toward commission of a crime is "a question of degree, and depends upon the circumstances of each case." Dennard v. State , 243 Ga. App. 868, 872 (1) (a), 534 S.E.2d 182 (2000) (citation and punctuation omitted).

J. P. testified that she saw Gonzalez reach for the genital area of her 11-year-old sister, H. P. Given that testimony, as well as evidence that Gonzalez was the only adult male close to the group of girls in the pool, that his presence made J. P. uncomfortable, that he touched J. P. on her buttocks, and that he had been masturbating while watching C. W. in Walmart the previous year, the jury was authorized to conclude that Gonzalez would have touched H. P.’s genitalia had he been able to reach her. Such circumstances support a finding that Gonzalez took a substantial step toward committing the crime of child molestation against H. P., as alleged in the indictment. See Johnson , supra, 284 Ga. App. at 148-149 (1) (b), 643 S.E.2d 556.

(c) Count 4 of the indictment alleged that Gonzalez committed child molestation by staring at C. W. while fondling his genital area in her presence, with the intent to satisfy his sexual desires. Challenging his conviction on this count, Gonzalez claims that C. W. never saw his genitals, which were covered by clothing, and that the evidence presented by the State was entirely circumstantial. He further argues that such evidence was insufficient to support his conviction because it did not exclude the possibility that he was merely "manipulating" an object such as a cell phone in the front of his pants, scratching himself, or "addressing some other physical process which had nothing to do with sexual conduct." See OCGA § 24-14-6 ("To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.").

The State's evidence, however, was not entirely circumstantial. See Hill v. State , 297 Ga. 675, 678 (2) (b), 777 S.E.2d 460 (2015) ( OCGA § 24-14-6 only applies when the State's case against the defendant is "wholly circumstantial.") (citation and punctuation omitted). The Walmart surveillance video constituted direct evidence that Gonzalez touched the clothing around his genital area in a manner consistent with masturbation while in close proximity to and watching C. W. See McCray v. State , 301 Ga. 241, 244 (1), 799 S.E.2d 206...