Moon v. State

335 Ga.App. 642

782 S.E.2d 699

MOON

v.The STATE.

No. A15A1636.

Court of Appeals of Georgia.

Feb. 10, 2016.

Noah Howard Pines, Atlanta, for Appellant.

Peter J. Skandalakis, for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Sol Jason Moon was convicted on one count of aggravated child molestation (OCGA § 16–6–4(c) ), two counts of aggravated sexual battery (OCGA § 16–6–22.2(b) ),¹ three counts of child molestation (OCGA § 16–6–4(a)(1) ), and one count of sexual exploitation of children (OCGA § 16–12–100(b)(8) ). Moon filed a motion for new trial, which the trial court denied. On appeal, Moon contends that the evidence was insufficient to sustain his convictions as to certain counts; that a fatal variance existed between the indictment and the evidence presented at trial as to the offense of sexual exploitation of children; that his trial counsel rendered ineffective assistance; and that the trial court erred in failing to impose a split sentence on his child molestation and sexual exploitation of children convictions. We reject Moon's arguments that the evidence was insufficient or that he is otherwise entitled to a new trial based on a fatal variance or ineffective assistance of counsel, but nonetheless agree that the trial court erred in failing to impose a split sentence as mandated by Georgia law.

Upon review of a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the appellant guilty of each of the charged offenses beyond a reasonable doubt. See Howard v. State, 319 Ga.App. 621, 621, 737 S.E.2d 722 (2013).

So construed, the evidence adduced at trial shows that Moon's wife, " Mama Moon," ran a daycare center in their family home in which she watched approximately 12 to 15 children daily. Moon, who the children referred to as "Papa Moon," was generally home and had regular contact and interaction with them. While at the Moon residence, the female children ordinarily played in the "girls' room" upstairs or the "playroom" in the garage.

N.M. attended daycare at Moon's residence for approximately five years, beginning when she was four or five years old. In May 2011, N.M.'s friend learned during a sleepover that Moon had been inappropriately touching N.M. in the playroom. The friend encouraged then 10–year–old N.M. to tell an adult and when N.M. refused, the friend disclosed the abuse to her mother. Ultimately, a school counselor contacted N.M.'s mother.

When questioned by her mother, N.M. immediately became emotional and disclosed the abuse she had suffered for years. N.M. further revealed that a second child, M.O., was often present during and subject to the same abuse by Moon.

M.O. was also ten years old and a long-time attendee of the daycare at the Moon residence. After learning about N.M.'s outcry, M.O.'s mother approached her and inquired as to whether she had been subjected to improper touching. M.O. confirmed that she had and named Moon as the perpetrator.

N.M. and M.O. were then interviewed separately by a criminal investigator specially trained in conducting forensic interviews of children. N.M. reported that the abuse began when she was approximately four or five years old and continued until she was seven. Moon would take her into the playroom or the upstairs girls' room, where he would instruct her to pull down her pants and he would touch outside and inside her vagina. She recounted several instances during which Moon made her touch his penis, and that sometimes "pus" came out. M.O. was often present, and N.M. observed Moon abuse M.O. in the same manner.

M.O. gave a similar account, stating that the abuse began when she was approximately five years old, Moon would touch the outside and inside of her vagina, and sometimes it hurt. She further stated that Moon made her hold his penis numerous times and that "pee" occasionally came out.

Both girls stated that Moon threatened if they told anyone about the abuse, he would go to jail and Mama Moon would be poor and homeless. They each testified to the above events at trial.

During the course of her investigation, the criminal investigator learned of two additional children who had been sexually abused by Moon. R.S. and A.M., who were both seven years old at the time of Moon's arrest, had been attending daycare at Moon's residence for several years. R.S. reported that Moon had repeatedly touched the outside and inside of her vagina in the playroom and he made her touch his penis. Moon also told R.S. that if she told anyone of the abuse, he would go to jail and Mama Moon would be forced to live on the streets. A.M. likewise reported that Moon placed his hand inside her panties and touched her vagina on more than one occasion while she attended daycare at his home. Both R.S. and A.M. also testified at trial.

A search of Moon's residence resulted in the seizure of his personal laptop computer and the discovery of an 8–millimeter cassette tape containing video footage that Moon had recorded on a hidden camera. The video cassette depicted two girls dressing and undressing while playing dress-up in the playroom, and Moon's voice can be heard as he set up the camera to record them. The girls, who were eighteen and twenty-two years old at the time of trial but were six and ten years old, respectively, in the video, testified that they had previously attended daycare at the Moon residence and were not aware that they were being recorded. The cassette tape was introduced at trial as similar transaction evidence.

A forensic search of Moon's laptop revealed images of child pornography that Moon had attempted to delete, as well as numerous visits to pornographic websites purporting to depict young women and girls, accessed with the user name "Papa Moon." An FBI agent testified that one of the children depicted in the recovered images was known to be 11 years old at the time the image was taken. In addition to offering the testimony of the child victims, the State admitted copies of the pornographic images depicting children that had been retrieved from Moon's laptop computer.

1. Moon contends that the evidence was insufficient to support his conviction on several counts of the indictment.² We will address each in turn.

(a) Moon contends that the State failed to prove that he penetrated the vagina of N.M. and that such penetration lacked consent so as to establish the crime of aggravated sexual battery. We disagree.

The crime of aggravated sexual battery requires proof that an accused "intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16–6–22.2(b). A person's finger constitutes a "foreign object" for the purposes of the statute. See Reinhard v. State, 331 Ga.App. 235, 237(1)(a), 770 S.E.2d 314 (2015).

N.M. told the investigator and also testified at trial that Moon stuck his fingers inside her vagina and that it felt uncomfortable. This testimony alone was sufficient to establish the element of penetration. See OCGA § 24–14–8 ("The testimony of a single witness is generally sufficient to establish a fact."); Aaron v. State, 275 Ga.App. 269(1), 620 S.E.2d 499 (2005) (victim's testimony that appellant "played around" inside her vagina provided sufficient evidence of aggravated sexual battery).

Moon further argues that the State failed to prove lack of consent by N.M. to the sexual contact. The Supreme Court of Georgia has recently held that the victim's age, alone, is insufficient to show a lack of consent to the crime of sexual battery because such a construction of the statute could potentially criminalize a wide range of apparently innocent conduct. See Watson v. State, 297 Ga. 718, 721(2), 777 S.E.2d 677 (2015) ; see also OCGA § 16–6–22.1(b).

Pretermitting whether the holding in Watson also extends to the crime of aggravated sexual battery, the State in this case presented other evidence, aside from N.M.'s age, to establish that she did not consent to Moon touching her vagina. Specifically, in addition to testifying to the countless times over a period of years that Moon touched her vagina, there was evidence that she was forced to touch Moon's penis and that Moon threatened her by saying that Mama Moon would be poor and homeless if N.M. disclosed the abuse. Regardless of her age, the evidence was sufficient for any rational trier of fact to conclude that Moon's penetration of N.M.'s vagina was done without consent and for no lawful purpose, and constituted criminal conduct beyond a reasonable doubt. See OCGA § 16–6–22.2(b) ; Madison v. State, 329 Ga.App. 856, 863(1)(b), 766 S.E.2d 206 (2014) (affirming appellant's sexual battery convictions and holding that evidence that victim feared appellant was sufficient to authorize the jury to conclude that she did not consent to his improper touching).³

(b) Moon asserts that the evidence was insufficient to prove that he caused injury to M.O.'s vagina such as to prove the element of aggravated child molestation.⁴ Again, 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). The crime advances to one of aggravated child molestation when the victim is physically injured. See OCGA § 16–6–4(c). Significantly, a child's testimony that the molestation was painful is sufficient to prove the element of physical injury. See Mangham v. State, 291 Ga.App. 696, 697, 662 S.E.2d 789 (2008).

Here, M.O. testified that Moon inserted his finger into her vagina "[a] couple times a week" over a period of years and that "[i]t hurt." This...