Pavlov v. State

362 Ga.App. 831

870 S.E.2d 449

PAVLOV

v.The STATE.

A21A1246

Court of Appeals of Georgia.

March 2, 2022

John R. Monroe, for Appellant.

Fani T. Willis, Kevin Christopher, for Appellee.

Pinson, Judge.

After a jury trial, Narcis Pavlov was convicted of three counts of aggravated child molestation, three counts of child molestation, and one count of false imprisonment. He now appeals, challenging the sufficiency of the evidence as to one child molestation count and as to venue for incidents that took place at a gas station; the trial court's failure to merge the three child molestation convictions and the three aggravated child molestation convictions into single units for sentencing; and the trial court's amendment of its written sentencing order.

We affirm the convictions and sentence. With respect to his sufficiency arguments, a rational trier of fact could conclude beyond a reasonable doubt that Pavlov's initial act of kissing M. M.’s neck while sleeping in her bed was "immoral or indecent" and intended intent to arouse his sexual desire, and that Pavlov stopped at a gas station in Fulton County when driving M. M. from her home located in Fulton County from a movie theater located in Fulton County. As for the merger arguments, the three child molestation counts were properly treated as separate units of prosecution because the acts in question occurred on different days within a period of more than a year, not in a "single uninterrupted course of conduct." And the three aggravated child molestation counts were properly kept separate because each was a distinct act of sodomy. Finally, the court properly amended its original written sentencing order to conform to its oral ruling as well as statutory guidelines regarding split sentences.

Background

When M. M. was between 9 and 10 years old, she lived in a house on Pony Tail Road with her mother, step-father, and other extended family, including Pavlov, her step-father's father. M. M. testified that while Pavlov lived in their home, he occasionally slept in her room on a mattress on the floor when she was "scared."

M. M. described that Pavlov then began sleeping in her bed and, over the course of several nights, he sexually abused her. Pavlov slept in her bed the first night and kissed her on the neck while M. M. remained still because she was scared. The next night, he fondled her breasts and penetrated her vagina with his fingers. M. M. testified that she then went to the bathroom and when she came back to bed, Pavlov pinned her down with his hands and performed oral sex on her. M. M. testified that on a third night, Pavlov again penetrated her vagina with his fingers, made her perform oral sex on him, and placed his penis on her vagina and bottom.

M. M. described another occasion where Pavlov took her to a movie theater near her house. M. M. fell asleep on the ride home, and awoke to find them parked at a gas station parking lot where Pavlov kissed her and felt her breasts under her shirt while she pretended to remain asleep.

M. M. then disclosed the abuse to her mother and step-father. A forensic interview was conducted with M. M., which was introduced to the jury. A therapist testified that M. M. disclosed that she had been sexually abused by Pavlov in her bedroom and once in a car coming back from a movie.

The jury convicted Pavlov on all but two charges: three counts of aggravated child molestation (Counts 1-3), one count of aggravated sexual battery (Count 4), three counts of child molestation (Counts 6, 8, and 9) and one count of false imprisonment (Count 10).¹ . Pavlov moved for a new trial, and the trial court vacated his conviction on the count of aggravated sexual battery but otherwise denied the motion. Pavlov now appeals.²

Discussion

1. Pavlov contends that the evidence was insufficient for a conviction in two respects. We review the sufficiency of the evidence by determining whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not "reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." Harper v. State , 298 Ga. 158, 158, 780 S.E.2d 308 (2015) (citation and punctuation omitted).

(a) Pavlov first contends that the evidence was insufficient to support his conviction for child molestation as alleged in Count 6. Count 6 alleged that Pavlov committed child molestation by placing his mouth on M. M.’s neck with the intent to arouse and satisfy his own sexual desires. Pavlov does not claim that the evidence was insufficient to show that the act occurred, but rather that the evidence was insufficient to show that the act was immoral or indecent or intended to arouse his sexual desires, as required by the child molestation statute, OCGA § 16-6-4 (a). We disagree.

The child molestation statute prohibits any "immoral or indecent" act done to or in the presence of a child under the age of 16 with the intent to "arouse or satisfy the sexual desires or either the child or the person." OCGA § 16-6-4 (a) (1). The determination whether a particular act is "immoral or indecent" is a jury question that "may be determined in conjunction with the intent that drives the act." Slack v. State , 265 Ga. App. 306, 307 (1), 593 S.E.2d 664 (2004) (footnote omitted). Accord 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). Further, "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8.

Here, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that acts alleged in Count 6 were "immoral or indecent" and intended to arouse Pavlov's sexual desires. M. M. testified that Pavlov kissed her neck while sleeping in her bed, and it made her uncomfortable and scared. It also began a pattern of behavior in which, on later nights, Pavlov engaged in further acts of child molestation, including fondling her breasts and vagina and performing oral sex on her. This evidence was enough to allow a rational trier of fact to conclude that Pavlov's initial act of kissing M. M.’s neck while sleeping in her bed was "immoral or indecent" and intended intent to arouse his sexual desires. See Jackson , 443 U. S. at 319 (III) (B), 99 S.Ct. 2781. Accord Gonzalez v. State , 359 Ga. App. 147, 149 (1) (a), 857 S.E.2d 88 (2021) (evidence was sufficient to support jury's finding that defendant's touching of victim's buttocks in a swimming pool was an immoral or indecent act performed with the intent to arouse his sexual desires); Thomas v. State , 324 Ga. App. 26, 28, 748 S.E.2d 509 (2013) (evidence sufficient to establish that defendant committed an immoral or indecent act by kissing an eleven-year-old victim on the lips, thus supporting conviction for child molestation).

(b) Pavlov also contends that there was insufficient evidence to establish venue for the crimes alleged to have occurred at the gas station. We disagree.

A criminal case must be tried "in the county where the crime was committed." Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. "Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt." In the Interest of D. D. , 287 Ga. App. 512, 513 (2), 651 S.E.2d 817 (2007) (citation and punctuation omitted). As with any other fact, "[t]he State may meet its burden at trial using either direct or circumstantial evidence, and the determination of whether venue has been established is an issue soundly within the province of the jury." Worthen v. State , 304 Ga. 862, 865 (3) (a), 823 S.E.2d 291 (2019) (citation and punctuation omitted). The standard of appellate review to determine whether venue was sufficiently proven is the same as for any other sufficiency review: whether, in the light most favorable to the prosecution, any rational trier of fact could have found venue beyond a reasonable doubt. Boyd v. State , 351 Ga. App. 469, 472 (2) (b), 829 S.E.2d 163 (2019).

Here, the indictment does not specify the location where the crimes took place, and stated only that they occurred in Fulton County. An officer testified that M. M.’s home was in Fulton County. The officer also testified that he believed that the movie theater was also in Fulton County because M. M. described it as being a Regal Cinemas close to her house and the only Regal Cinemas located outside Fulton County would have been a long drive from her house. M. M. testified that she fell asleep on the drive home from the movie theater, and that she awoke to find Pavlov molesting her in a gas station parking lot.

It is clear that M. M. did not know precisely the location of the gas station because she was asleep during the drive from the movie theater. However, OCGA § 17-2-2 (e) provides that "[i]f a crime is committed upon any ... vehicle ... traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which" it could have been committed through which the vehicle has traveled. Further, OCGA § 17-2-2 (h) provides that "[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt it might have been committed." See Hendrix v. State , 242 Ga. App. 678, 680 (1), 530 S.E.2d 804 (2000) (sufficient evidence of venue when there was testimony that the defendant was driving in a car "headed back into town"...