Hewett v. State

901 S.E.2d 208

HEWETT

v.The STATE.

A24A0157

Court of Appeals of Georgia.

April 26, 2024

Frances C. Kuo, Lawrenceville, for Appellant.

Jonathan Lang Adams, Dorothy Vinson Hull, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Justin Hewett on one count of child molestation and one count of sexual battery as a lesser-included offense of aggravated sexual battery. On appeal, Hewett challenges the sufficiency of the evidence supporting his convictions, and he further contends the trial court erred in failing to rule that the convictions were mutually exclusive, failing to find that his trial counsel rendered ineffective assistance, and failing to instruct the jury, sua sponte, on simple battery as a lesser-included offense of child molestation. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict,¹ the record shows that in 2019, Hewett—who was 17 years old at the time—lived with his grandparents.² And during this time period, two of Hewett’s younger cousins—four-year-old L. C. and her twin brother—frequently came over to the grandparents’ home to visit and occasionally spend the night on the weekends.

On March 6, 2019, L. C, was at the grandparents’ home to spend the night (without her brother). And at some point that afternoon, L. C. came out of Hewett’s room—where he was playing video games—and told her grandmother that Hewett had just touched her "no-no," which was the term she used to refer to her vagina. The grandmother immediately went into Hewett’s room to confront him about L. C.’s allegation, but Hewett claimed that he may have accidentally touched her privates while helping pull up her pants. And in light of Hewett’s response, the grandmother took no further action at that time, and L. C. spent the night as planned.

The next morning, L. C.’s mother went to the grandparents’ home to pick up her daughter. And shortly after she entered the home, L. C., unprompted, repeated her allegation that Hewett touched her "no-no" the previous day. The grandmother quickly admitted L. C. told her about the incident right after it happened, and that when she confronted Hewett, he claimed he accidentally touched L. C. while they were engaging in horseplay. The mother then went into Hew- ett’s room to confront him, at which point Hewett repeated his explanation that he accidentally touched L. C. during horseplay, after which he brusquely left his room.

Subsequently, L. C.’s mother took her daughter home, but she noticed that L. C. seemed unusually quiet and clingy. And later that evening, after L. C. took a shower, she provided more details about the incident, claiming that Hewett pulled down her pants and placed his finger in her "no-no." Based on this additional information, L. C.’s father contacted law enforcement; and the next day, L. C.’s mother took her to a local child-advocacy center for a forensic interview. But during that interview, L. C. did not repeat her outcry; and that same day, she underwent a physical examination, which neither confirmed nor excluded the possibility of sexual abuse. At the conclusion of the examination, however, as the nurse examiner reminded L. C. that no one should touch her privates, she spontaneously replied that Hewett had done so.

Approximately one week later, after being advised of his rights, Hewett agreed to an interview with law enforcement. In the interview, Hewett relayed to the investigator what he initially told his grandmother and L. C.’s mother—that he may have accidentally touched L. C.’s private area while engaging in horseplay. But then he admitted this was not truthful and told the investigator that L. C. came out of his bathroom with her pants tangled up, and in trying to help her pull them up, he accidentally poked her privates, causing her to say "ow." The investigator then asked why he changed his story, and Hewett replied that he was scared. Following the interview, the investigator placed Hewett under arrest.

The State charged Hewett, via indictment, with one count of child molestation and one count of aggravated sexual battery. The case then proceeded to trial, during which the State presented the foregoing evidence, including a video recording of Hewett’s interview with law enforcement. At the conclusion of the trial, the jury found Hewett guilty of both charged offenses.

Hewett then filed a motion for new trial, arguing, inter alia, that his counsel rendered ineffective assistance. The trial court held a hearing on the matter, during which Hewett’s former counsel and his grandmother testified. When the hearing concluded, the trial court took the issue under advisement, but it ultimately denied Hewett’s motion for new trial. This appeal follows.

[1] 1. Hewett first contends the evidence was insufficient to support his convictions. We disagree.

[2–4] When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.³ Significantly, in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."⁴ The jury’s verdict will be upheld, then, so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case."⁵ Bearing these guiding principles in mind, we turn to Hewett’s specific challenge to the sufficiency of the evidence supporting his convictions.

The version of OCGA § 16-6-4 (a) (1) applicable at the time of the subject incidents provided that "[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 …."⁶ And the applicable version of OCGA § 16-6-22.1 (b) provided that "[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person."⁷

[5] In this matter, Count 1 of the indictment charged Hewett with child molestation by alleging that on March 6, 2019, he "then and there did commit an immoral and indecent act to [L. C.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself by touching said child’s vagina with his finger …." Count 2 charged Hewett with aggravated sexual battery by alleging that on March 6, 2019, he "then and there did intentionally penetrate the sexual organ of [L. C.] with his finger, a foreign object, without the consent of said person …." Here, the State presented evidence that Hewett touched L. C.’s vagina with his finger; and when confronted, provided conflicting accounts of how the incident occurred. Of course, the victim’s testimony alone is "sufficient to sustain a conviction."⁸ As a result, given L. C. and the outcry - witnesses’ testimony, the evidence was sufficient to support Hewett’s convictions on charges of child molestation and sexual battery.⁹

[6, 7] Nevertheless, Hewett argues that the evidence was insufficient to support his convictions because the State failed to disprove that the touching was accidental or to prove it was done to satisfy his sexual desires. Put another way, he claims the State failed to prove he possessed the requisite intent. But intent, which is a mental attitude, is "commonly detectable only inferentially, and the law accommodates this."¹⁰ And while a person is not presumed to "act with criminal intention, intent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted,"¹¹

[8] In this case, the jury heard Hewett’s assertion that his touching of L. C.’s privates was accidental, and the trial court instructed the jury on the law regarding intent and accident, explaining that a person cannot be found guilty of any crime committed by accident. As a result, whether Hewett’s intentions were innocent as he claimed, or were instead to

arouse his own sexual desires as found by the jury, was peculiarly a question of fact for determination by the jury[,] and evenwhen a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak the verdict will not be set aside on that ground.¹²

Given these circumstances, the jury could certainly infer that Hewett possessed the requisite intent, and therefore, the evidence sufficiently supported his convictions.¹³

[9] 2. Hewett also claims the trial court erred in failing to rule that the child-molestation and sexual-battery convictions were mutually exclusive and, thus, invalid. Again, we disagree.

[10–14] The term "mutually exclusive" generally applies to two guilty verdicts that "cannot legally exist simultaneously";¹⁴ and in such cases, when "it is both legally and logically impossible to convict on both counts, a new trial should be ordered."¹⁵ So, when verdicts are mutually exclusive, a guilty verdict on "one count logically excludes a finding of guilt on the other."¹⁶ Indeed, when convictions are mutually exclusive, it is insufficient to merely set aside the lesser verdict, because to do so is to "speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court."¹⁷ Judgments entered upon such verdicts, then, are void.¹⁸

[15–18] Turning to the particular offenses at issue, we begin by looking to the statutory language for each. And in doing so, we necessarily begin our analysis with "familiar and binding canons of construction."¹⁹ Suffice it to say, in considering the meaning of a statute, our charge is to "presume that the General...